¶1dissenting. The jury should have been instructed that it could find the appellant guilty of theft by receiving. He sat before them wearing the purportedly stolen earring. It makes no difference which side offers evidence; the jury should consider it all. Theft by receiving was no more inconsistent with appellant’s proof than was burglary. He contended he was guilty of neither. How can he be less “not guilty” of receiving than of burglary? Why then should an instruction on burglary have been given? It was just as inconsistent with appellant’s own proof as an instruction on theft by receiving.
¶2Have we abandoned the age old rule of law which upholds no right to be more seriously protected by this court than the right of an accused to have the jury instructed on lesser offenses included in the more serious offense charged? Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980). Caton & Headley v.State, 252 Ark. 420, 479 S.W.2d 537 (1972); Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965); Bailey v. State, 206 Ark. 121, 173 S.W.2d 1010 (1943); Smith v. State, 150 Ark. 193, 233 S.W. 1081 (1921); Allison v. State, 74 Ark. 444, 86 S.W. 409 (1905); and Davis v. State, 72 Ark. 569, 82 S.W. 167 (1904). When there is the slightest evidence to warrant it, a lesser included offense instruction should be given. Brewer v. State, supra; Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979); Walker v. State, supra; and King v. State, 117 Ark. 82, 173 S.W. 852 (1915).
¶3If there is a rational basis for the lesser included instruction, it should be given. Moore & Jones v. State, 280 Ark. 222, 656 S.W.2d 698 (1983); Brewer v. State, supra; Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981); Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981); and Ark. Stat. Ann. § 41-105(3) (Repl. 1977).
¶4There is no need for me to cite additional cases for the proposition that this instruction should have been given. If a stolen earring in the undisputed possession of an accused is not evidence of theft by receiving, it is only because the accused admits the theft. If he admitted the theft, no jury would be trying to determine his guilt or innocence. If it is admitted that appellant did not have possession of the stolen earring or that it was not stolen, then it was proper to refuse the instruction. Otherwise it should have been given.