556.046. Conviction of included offenses--jury instructions.
Conviction of included offenses--jury instructions.
556.046. 1. A defendant may be convicted of an offense included inan offense charged in the indictment or information. An offense is soincluded when:
(1) It is established by proof of the same or less than all the factsrequired to establish the commission of the offense charged; or
(2) It is specifically denominated by statute as a lesser degree ofthe offense charged; or
(3) It consists of an attempt to commit the offense charged or tocommit an offense otherwise included therein.
2. The court shall not be obligated to charge the jury with respectto an included offense unless there is a basis for a verdict acquitting thedefendant of the offense charged and convicting him of the includedoffense. An offense is charged for purposes of this section if:
(1) It is in an indictment or information; or
(2) It is an offense submitted to the jury because there is a basisfor a verdict acquitting the defendant of the offense charged andconvicting the defendant of the included offense.
3. The court shall be obligated to instruct the jury with respect toa particular included offense only if there is a basis in the evidence foracquitting the defendant of the immediately higher included offense andthere is a basis in the evidence for convicting the defendant of thatparticular included offense.
(L. 1977 S.B. 60, A.L. 2001 S.B. 223)(1980) Although policy is to give the jury in a homicide case the right to commute punishment for an offense actually committed and to impose the punishment it finds proper, such right is not unrestricted since if an acquittal of the higher degree of crime necessarily requires a fact finding that is also necessary for a finding of guilt of a lesser crime, the acquittal serves to preclude conviction of either. State v. Martin (A.), 602 S.W.2d 772.
(1981) Statute providing that defendant may be convicted of offense included in offense charged is legislative determination that offense can be a lesser offense of another offense so that charge of greater will support conviction of lesser although lesser is not necessarily included in greater; declining to follow State v. Handley, 585 S.W.2d 458, to extent of conflict. State v. Wilkerson (Mo.), 616 S.W.2d 829.
(1981) Statute must be construed as requiring an instruction on a lesser-included offense only where there is evidence of probative value which could form basis of an acquittal of greater offense and a conviction of lesser-included offense. State v. Hill (A.), 614 S.W.2d 744.