specially concurring.
If I correctly understand the majority opinion, it holds that application of Rule 46 is no longer possible in Oregon in any criminal case in which a defendant has faded to request instructions concerning an included offense unless the crime charged is a capital offense. Together with State v. Miller, 2 Or App 353, 467 P2d 683, Sup Ct review denied (1970), it strongly suggests that since the death penalty has been repealed it logically follows that the rule of State v. Nodine, 198 Or 679, 259 P2d 1056 (1953), has died with it. I am unable to accept that conclusion in view of the fact that in Nodine the jury’s verdict “of murder in the-first degree with recommendation of life Imprisonment” under the then existing law required imposition of a life sentence. § 23-411, OCLA.
It-is not clear to me which of the following rules the majority is adopting:
1) Rule 46 will not henceforth be applied by this court in criminal cases to consider the question of a failure to instruct on lesser included offenáes when no such instructions were requested by the defendant and no- excéptión to such failure taken by him, '' ' '
2) Rule 46 will not henceforth be applied by this court in criminal cases to consider the question- of a failure to instruct on lesser included offenses whfeiuno such instructions were requested by the defendant.
3) Rule 46 will not henceforth be applied by''this court in criminal cases to consider the question of- á failure to instruct on lesser included offenses when no such instructions were requested by the defendant and no exception to such failure taken, with the exception only of capital eases.
I cannot accept the conclusion of the majority-that *603we erred in State v. Olson, 1 Or App 90, 459 P2d 445 (1969), in stating that the possible maximum sentences were identical in Nodine and Olson. In Nodine the verdict returned by the jury was “murder in the first degree with recommendation of life imprisonment.” 198 Or at 682. Under § 23-411, OCLA, the maximum sentence which could have been imposed then was life imprisonment, the identical maximum imposable in Olson.
For the same reason, I cannot accept the suggestion, both here and in State v. Miller, supra, that since the death penalty has been repealed in Oregon the rule of State v. Nodine, supra, is no longer “viable.”
If the majority intends by this opinion effectively to foreclose the possibility of review for failure to instruct on included offenses unless timely request is made therefor, it may simplify our work on direct appeals, but I apprehend the difficulties may well reappear in cases asserting a challenge to the adequacy of counsel.
Certainly I agree fully with the court that gamesmanship, in the hope of getting, if the need arise, “a second bite at the apple” has no proper place in the judicial process. But the objective of that process is, after all, a just result within the law. It is neither difficult nor improper for the trial court, when requested instructions on included offenses are not submitted, and the evidence warrants it, to inquire of the defendant what his position is concerning such matter. This is consistent with our statement in Olson:
“It is important to note in this connection that there was here no express waiver by defendant or the state of the right to have the included offenses submitted to the jury. Thus, we are not faced with *604the question of an intelligent waiver of a known right.”
When under such circumstances a defendant refuses- to take a position as to the inclusion thereof, this in my view would constitute an intelligent waiver.
For the jury effectively to exercise its power as “the judges of the effect * * * of evidence addressed to them” (ORS 17.250), the court is required to “state to them all matters of law which it thinks necessary for their information in giving their verdict.” (ORS 17.255(1), made applicable to criminal cases by ORS 136.330.)
Clearly then the court may on its own motion, where the evidence warrants it, give instructions on included offenses, whether or not requested.
It seems to me that the very purpose of Rule 46 is to leave the door open in any action at law for review of errors “apparent on the face of the record” and that this applies as much to the type of problem presented here as to any other.
The majority opinion hére does not hold that the circumstances in the ease at bar éither were or- wéré not exceptional.' It does not discuss them at all.
The court now; carves out of Rule 46 a small area relating to the giving of instructions upon included offenses. It treats the eases falling into this category, without clear definition of the category created, as a matter of law unentitled to the application of Rule 46, with the possible exception of capital cases.
In Olson, here reversed, we approached the question of whéíi cases of this type would be considered under Rulé 46 as determined in the final analysis by the facts. I believe this is not only consistent with the *605intent of Rule 46,. but it is more in keeping with the objective of a just trial.
In my view it is necessary to consider the record to determine whether in this case there was present an “error of law apparent on the face of the record” sufficient to warrant our exercising “the right to take notice” of it as provided in Rule 46.
The defendant here was going through the breakfast “chow” line in the dining room of the penitentiary.. He was carrying concealed on his person a homemade knife with an eight to tenunch blade sharpened on. both sides and pointed at one end. This was forbidden to inmates under penitentiary regulations. The defendant testified another inmate who passed him in the “chow” line made a derogatory remark to him. No other conversation took place between them, and the other inmate passed on down the “chow” line away. from him. He then testified that about 30 seconds later, “I ran after him. I wanted to kill him.” He drew his knife and stabbed the inmate in the throat from the side without uttering a word. His only claim is that the alleged derogatory remark . made him lose his “cool.”' - '
The record does not contain the arguments of counsel. Thus it is impossible to tell whether defendant presented any argument or analysis indicating either awareness of or reliance upon any lesser included offense, or if he expressly or by implication waived such consideration.
Unlike Olson, this record then does not in my view present such circumstances as .would warrant the application of Rule 46. I therefore concur in the. result of the majority opinion.