State v. Kills Small

Decided September 6, 1978

South Dakota Supreme Court · decided 1978-09-06

Key passage — most relied on by later courts

“A defendant is entitled to an instruction on his theory of defense if there is evidence to support it and a proper request is made. Conversely, he is not entitled to an instruction if there is no evidence to support his theory.”

quoted by 1 later decision, including State v. Blue Thunder

Good law ✅— No negative treatment on recordhow we know

Decided 1978-09-06

How this case has been cited

Cited by 14 later decisions — most recently April 2000

14 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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JONES, Circuit Judge

¶1(dissenting).

¶2I must respectfully dissent.

¶3I agree that a defendant is entitled to an instruction on his theory of defense if there is evidence to support it. I do not believe there was evidence in this case upon which any jury could reasonably find that Mr. Kills Small was intoxicated to the point where he lacked the specific intent to commit larceny. Accordingly, I do not believe the trial court committed reversible error in refusing to give South Dakota Pattern Jury Instruction # 2-14-6 as requested by the defendant.

¶4I am authorized to state that Justice Wollman joins in this dissent.