dissent">LENT, J.,

dissenting.

I am unable to join in the lead opinion in finding that there was evidence sufficient to allow the jury to consider whether the defendant was “under the influence of an extreme emotional disturbance.” The evidence summarized in the lead opinion shows that there was taking place an exciting and dangerous event involving the use of firearms by the police officer and the defendant. There was evidence that members of defendant’s family and his girl friend were very frightened by the officer’s conduct, and I am willing to concede that the jury could infer that defendant was aware of the fright of those other persons.

The lead opinion rejects the state’s contention that defendant’s testimony that he was scared, amazed and taken aback referred to the time the shots were being fired. My reading of the transcript indicates to me that the testimony is ambiguous and could be construed to mean that defendant was scared, amazed and taken aback by the officer’s conduct at the time the shooting was transpiring. I shall assume for the sake of this opinion that defendant was “scared, amazed and taken aback” during that time.

Defendant’s brother testified that the officer threatened to kill defendant if he did not return the .38 to *471the officer. The brother was asked what defendant did at that time and answered:

“He stood up, just looked at him like he thought the dude was a lunatic. He was stunned because — everybody was stunned.”

This evidence will permit a finding that defendant was stunned just before the shooting started, and I am willing to assume that condition carried on into the time of the shooting.

At the time after the shooting had ceased the officer had restrained defendant’s girl friend at or near the motel office. She testified that at that time defendant looked “rather shocked.” I shall assume that he looked rather shocked while the shooting was going on.

Defendant testified that after the officer had fired two shots from the .45, defendant fired the shotgun into the air “to let him know I had a gun and that it was loaded, you know, that he should leave.” He testified that the officer then fired another shot, that defendant did not know where it went, but that it “startled” defendant. There is no evidence as to how long defendant remained startled, but that very word carries a connotation of brevity.

In summary, I am willing to accept that there is evidence that during the time the shooting incident was proceeding, defendant was startled, shocked, stunned, scared, amazed, taken aback and was aware that those dear to him were very frightened by the officer’s conduct. All of that, however, does not present sufficient evidence to justify a rational factfinder to find beyond a reasonable doubt that defendant was under the influence of extreme emotional disturbance. See Jackson v. Virginia, 443 US 307, 99 S Ct 2781, 61 LEd 2d 560 (1979). I come to this conclusion for two reasons: (1) Assuming that evidence to be sufficient to support a finding of emotional disturbance, it falls far short of satisfying the statutory requirement that the emotional disturbance be “extreme.” (2) There is no evidence sufficient to justify a rational factfinder to find beyond a reasonable doubt that defendant acted “under the influence” of his emotions. There is no evidence to justify a finding beyond a reasonable doubt that his reason was overborne or that loss of self-control resulted in his firing the shotgun.

*472The lead opinion discusses the history of the statute to show that the term “extreme emotional disturbance” was intended to mean something broader than the old “heat of passion” concept attendant upon earlier versions of the crime of manslaughter. Except for a quotation from People v. Ford, 423 NYS 2d 402, 404, 102 Misc 2d 160 (1979), a New York trial court decision, however, the lead opinion pays no heed to the presence of the adjective “extreme.” That quotation does attempt a description of the required emotional state by reference to “intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions.” I shall assume that the defendant’s emotional state here rises to the level of anger or distress, yet every feeling of anger or distress does not rise to the level of extreme emotional disturbance.

The lead opinion makes no effort of its own to enlarge upon the meaning and significance of the adjective “extreme” even though this court has not yet spoken to that point. The Court of Appeals had done so in State v. Akridge, 23 Or App 633, 635-636, 543 P2d 1073 (1975). The court there approved a trial court instruction which had informed the jury that

“in determining what the term ‘extreme’ means with reference to extreme emotional disturbance, I instruct you that the term means the outermost or furthest; most remote in any direction; final; or last.”

23 Or App at 635. In the case at bar, the trial court quite obviously followed the lead of Akridge, for on this point the court instructed as follows;

“There are varying degrees of emotional disturbance. Not every disturbance is an extreme emotional disturbance under the law. In determining what the term ‘extreme’ means with reference to extreme emotional disturbance, I instruct you that the term [means] the outermost or furthest, most remote in any direction, final or last.”

I believe the lead opinion should inform the litigants in this case and the bench and bar generally that this court endorses that or a similar characterization of the meaning of “extreme.” The lead opinion says there is no need for that on the record in this case. If “extreme” should be given the dictionary meaning used in Akridgeand by the trial judge in the case at bar, it becomes very clear that the evidence here falls short of that meaning.

*473On my first reason for disagreement, therefore, I believe it is clear that the word “extreme” has to be given some significance; that it should be given the dictionary meaning in light of the absence of any other definition by the statutes; and that the evidence falls far short of showing this defendant’s emotional disturbance to be extreme as so defined. As the Court of Appeals said, emotional disturbance described as “scared,” “amazed,” “taken aback,” etc., does not rise to the level of “extreme.” The lead opinion says that from “the circumstances” it may be inferred that defendant was extremely emotionally disturbed. That opinion does not tell what manifestation of such disturbance, other than pulling a trigger, might be inferred.

My second reason is that even assuming that defendant’s emotional disturbance was extreme it did not have that effect which is necessary to make an attempted homicide an attempt to commit manslaughter rather than murder. I rely upon the same authority as does the lead opinion, but I certainly interpret it differently.

The lead opinion has quoted from People v. Ford, supra,where that trial judge quoted from an earlier opinion of another trial judge. I repeat the pertinent part of the quotation for ease of reference:

“[E]xtreme emotional disturbance is the emotional state of an individual who: * * * is exposed to an extremely unusual and overwhelming stress; and * * * has an extreme emotional reaction to it, as a result of which there is a loss of self-control and reason is overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions.” (Emphasis added.)

423 NYS 2d at 404. The parts of the quotation to which I have given added emphasis demonstrate that the author was aware that the disturbance must be such as to overbear reason and to cause a loss of self-control on the part of the defendant, i.e., to influence him.

The lead opinion draws attention to the Criminal Law Revision Commission’s Commentary to the Proposed Criminal Code considered by the 1971 legislature. In that Commentary at page 89, the Commission makes it clear that the term “influence of extreme emotional disturbance” *474is derived from the Model Penal Code. The comment in Tentative Draft No. 9, page 48, of the compilers of the Model Penal Code contains a discussion of the fact that the term was deliberately chosen to avoid the application of the old rules of law which had grown up around the concept of provocation and heat of passion with respect to manslaughter. In summing up what the critical difference between murder and manslaughter would be the comment states:

“The question in the end will be whether the actor’s loss of self-control can be understood in terms that arouse sympathy enough to call for mitigation in the sentence.” (Emphasis added.)

That comment was quoted at page 89 by Oregon’s Criminal Law Revision Commission. At a later date, in the final version of the Model Penal Code and Commentaries, the American Law Institute at page 63 has reworded the sentence:

“In the end, the question is whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen.” (Emphasis added.)

The critical issue has been, and remains, evidence of “loss of self-control.”

The lead opinion nowhere points to any evidence that the defendant’s reason was overborne or that he acted out of a loss of self-control. Indeed, the evidence discussed in the lead opinion does not permit a finding beyond a reasonable doubt of anything other than that the defendant kept his head when all about him were losing theirs and did not lose his self-control.

I can find no evidence in my own search of the record to justify a rational factfinder to find beyond a reasonable doubt that defendant was under the influence of extreme emotional disturbance. I fear that the lead opinion’s proposed holding in this case would serve as the authority to require giving a defendant’s requested instruction on manslaughter in any murder prosecution if the evidence shows that the defendant is involved in an affray and that he is scared, amazed, taken aback, startled, shocked and/or stunned and is aware that his dear ones are very frightened, regardless of whether these emotions caused his reason to be overborne or caused a loss of his self-control.

*475II.

Having concluded that the trial court erred in submitting the charge of attempted manslaughter to the jury, I must turn to the state’s contention that if such error is found, it is harmless.1 The state’s argument is as follows:

“Even if the court erred in instructing the jury on attempted manslaughter, such error worked in defendant’s favor rather than to his prejudice. Attempted murder is a Class A felony. * * * Both attempted intentional manslaughter and attempted assault in the first degree are Class B felonies. * * * The sole distinction between attempted murder and attempted intentional manslaughter is that the latter is committed while the defendant is under the influence of an extreme emotional disturbance. Both offenses require a finding that the defendant intended to cause the death of the victim. In contrast, the difference between attempted murder and attempted assault in the first degree is that the former requires a finding of an intent to kill while the latter requires a finding of intent to cause serious bodily harm. In returning its attempted manslaughter verdict, the jury necessarily concluded that the defendant acted with intent to kill. Thus the jury could not have found defendant guilty of attempted assault in the first degree. If, as defendant now contends, he was not under the influence of an extreme emotional disturbance at the time that he acted, then he is guilty of attempted murder rather than attempted intentional manslaughter. Accordingly, the giving of the manslaughter instruction, even if error, inured to the benefit of the defendant.”

The state relies upon two decision's of this court and two decisions of the Court of Appeals: State v. Gray, 46 Or 24, 31-32, 79 P 53 (1905); State v. Hood, 225 Or 40, 48, 356 P2d 1100 (I960); State v. Smith, 1 Or App 153, 161-164, 458 P2d 687 (1969); and State v. Miller, 6 Or App 366, 371-372, 487 Pd 1387 (1971).

In State v. Gray, supra,the defendant had been indicted originally for murder and was found guilty of manslaughter. On appeal this court reversed and remanded for a new trial. State v. Gray, 43 Or 466, 74 P 927 (1904). Upon the second trial the case was tried and defended as a prosecution for manslaughter, and defendant was convicted of that crime. On second appeal he contended that *476the trial court erred in instructing on excusable homicide on the ground that excusable homicide “is outside the testimony.” This court held that the instruction was favorable to the defendant because from the giving of the instruction an inference could be drawn that there was some evidence tending to show the killing was excusable. The court reasoned that defendant could not have been harmed by this instruction which suggested to the jury that the killing might have been excusable.

Gray does not present the same question as that presented here. It is true that in Gray the court instruction concerned a matter which would have absolved the defendant from guilt completely. The defendant was found guilty of the crime charged and the jury must have rejected the unwarranted opportunity to absolve him.

In State v. Hood, supra,the defendant was charged with, tried and convicted of the crime of assault with a dangerous weapon. The trial judge apparently instructed upon “lesser crimes” of Assault and Battery While Unarmed by Means of Force Likely to Produce Great Bodily Harm and Assault and Battery Not Being Armed with a Dangerous Weapon. This court disposed of his claim of error as follows:

“The jury found the defendant guilty of neither of the crimes which the judge said were included in the charge stated in the indictment but of the crime which was actually charged. Thus, if we may assume that the quoted instruction erred, it afforded the defendant additional opportunities for the improvement of his condition and could have done him no harm.”

225 Or at 48. Hoodis not in point because even if the other crimes on which the trial court instructed were not lesser included offenses, he was found guilty of the greater offense. I shall turn to the language concerning “improvement” of the defendant’s condition later.

In State v. Smith, supra,the indictment charged that defendant did “purposely and of deliberate and premeditated malice, kill one Christ Anton by shooting the said Christ Anton with a pistol.” Although defendant denied that he was the killer, the evidence was overwhelming that he was the person who shot the victim while *477robbing him. The trial court instructed the jury that if it found the state had failed to prove first degree murder beyond a reasonable doubt, it could find defendant guilty of second degree murder if it found that he purposely and maliciously shot the victim. In instructing on second degree murder, the trial court gave an inapplicable instruction on the meaning of malice. The defendant did not except to submitting second degree murder to the jury. He excepted only that the definition given by the court was inapplicable as applied to the kind of malice with which Oregon’s murder statutes were then concerned. Defendant was convicted of second degree murder. The Court of Appeals stated that only first degree murder should have been submitted to the jury. The court, relying upon State v. Hood, supra,held that the alleged error in definition of malice did not harm defendant because only first degree murder should have been submitted.2 The court reasoned that the jury necessarily found that defendant had shot and killed the victim while engaged in the commission of a robbery and therefore was guilty of first degree robbery under the state’s felony-murder theory. From that the court concluded that the error in misinstructing on “malice” did not harm defendant.

There are several puzzling things about the decision in Smith. I cannot tell from either the decision or the briefs, Oregon Briefs, vol. 1874, whether the jury was instructed on first degree murder as charged in the indictment or only on felony murder insofar as the crime of first degree murder was concerned. The transcript is no longer available to us. Second degree murder differed from “ordinary” first degree murder in that the absence of premeditation and deliberation in a homicide that would otherwise be first degree murder made a killer guilty of second degree murder only. The briefs show that the trial judge drew that to the jury’s attention in telling the jury of the elements required to establish second degree murder. If the decision means that defendant should be convicted of a crime, an *478element of which was misdefined to the jury, I do not agree with the decision, and I fail to see how this court’s decision in Hoodsupports the decision in Smith.

In State v. Miller, supra,defendant was indicted and convicted of the murder of a storekeeper during an armed robbery. Defendant had testified that he had been a party to a plan to commit the robbery and had gone to the store for that purpose. He testified that after he had gone into the store and purchased some gum he came out and informed his accomplice that he didn’t want to go ahead with the robbery. He testified that the accomplice assented and then entered the store and shot the victim. Defendant requested instructions on second degree murder and manslaughter and on attempt to commit the “three grades of homicide.” The trial court instructed upon premeditated first degree murder and apparently on the other “grades of homicide” but not on attempt. The Court of Appeals held that the instructions on the “included grades of homicide” were unnecessary but harmless to defendant, citing State v. Smith, supra,as authority. As to the refusal to instruct on attempts, the court pointed out that defendant’s own theory was that if he was attempting to commit any crime, it was robbery and not homicide.

Millerdoes not seem to present anything pertinent to resolution of the case at bar, except perhaps its implied approval of Smith.

In summary, Gray is a case in which the defendant was convicted as charged and complained only of the giving of an instruction which was not warranted by the evidence but could only have served to exculpate him of guilt altogether. In Hoodthe defendant was found guilty of the greater offense even though the court instructed on some crimes which may or may not have been included in the greater offense. In Smith, defendant was convicted of a lesser degree of crime than that charged, when he was held not to be entitled to submission of the lesser degree. His only claim of error, however, did not go to the submission of the lesser included charge but to its definition, and I disagree with the decision. Milleris completely foreign to the issue here.

The state’s argument, as a matter of logic however, is at first blush appealing. As the state points out, the *479verdict of attempted manslaughter necessarily encompasses a finding by the jury that defendant intentionally attempted to cause the death of the officer by shooting at him with a shotgun. If this was shown to have occurred while the defendant was not under the influence of extreme emotional disturbance, the state had established the elements of attempted murder. Because, however, the jury was permitted to consider whether the defendant was under the influence of extreme emotional disturbance and did so find, the elements of the crime of attempted manslaughter were established. It is tempting to say that the error in submitting the charge of attempted manslaughter “improved” defendant’s condition because the effect of the error was to deprive the prosecution of a conviction of attempted murder, a Class A felony, and because of the error defendant has been convicted of only a Class B felony.

The problem inheres in the way in which the statute treats the existence or nonexistence of the influence of extreme emotional disturbance. The state took the position that the statutory framework required the state to prove beyond a reasonable doubt that the defendant was not under the influence of extreme emotional disturbance to obtain a guilty verdict of attempted murder. The jury was so informed. The state took the position at trial that to obtain a guilty verdict of attempted manslaughter, the state had to prove beyond a reasonable doubt that defendant was under the influence of extreme emotional disturbance. The jury was so informed.

The state further took the position at trial that attempted manslaughter was a lesser included offense of attempted murder. There may be types of manslaughter described in ORS 163.118 and 163.125, of which that would be true. For instance, a charge might be made that a defendant intentionally committed a criminal homicide while not under the influence of extreme emotional disturbance, but the evidence would support either a finding that he acted intentionally or a finding that he acted recklessly under circumstances manifesting extreme indifference to the value of human life. Since recklessly denotes a less culpable mental state than intentionally, it would seem both murder and manslaughter as defined in ORS 163.118(1) (a) should be submitted.

*480With respect to manslaughter as defined in ORS 163.118(1)(b), however, I have serious doubts that it can be considered as a lesser included offense at all. It is not lesser in the sense that criminal trespass may be a lesser included offense in a charge of burglary where the jury may find that the intent to commit a crime at the time of the unlawful entry has not been proved. It is not a lesser included offense in the sense that a lesser rather than a greater culpable mental state of the defendant existed. Rather, the difference in the two crimes lies in the state’s obligation to prove one or the other of two diametrically opposed facts. If the state proves all other elements of murder but fails to prove the absence of influence of extreme emotional disturbance, the result is not a conviction of manslaughter as we are here concerned with that crime. The result would presumably be the same as in any other case in which the state failed to prove an element of the crime; the defendant would be entitled to an acquittal.

To return to my thesis that the difficulty inheres in the statute, I would point out that this is a criminal case and that each element of a crime must be proven beyond a reasonable doubt. To convict this defendant of attempted murder the state would have to prove beyond a reasonable doubt that he was not under the influence of extreme emotional disturbance. To convict him of attempted manslaughter in the first degree the state would have to prove beyond a reasonable doubt that he was under the influence of extreme emotional disturbance. That the evidence was insufficient, as a matter of law, to prove beyond a reasonable doubt that defendant was under the influence of extreme emotional disturbance does not compel the conclusion that the evidence was sufficient to find beyond a reasonable doubt that he was not under the influence of extreme emotional disturbance. The evidence might be such that the factfinder could not find beyond a reasonable doubt that the necessary condition either existed or that it did not, yet one of those conditions had to be proven by the state to obtain a conviction. If the evidence had been in equipoise or merely preponderated one way or the other, the state was not entitled to a conviction on either charge.

The concurring opinion labels this result as absurd, and I agree, but the absurdity inheres in what the legislature has enacted. Undoubtedly, the legislature could have *481written the law as the concurring opinion interprets it, but that the legislature did not do, as the state realized when it successfully requested the trial court to instruct the jury that in order to prove attempted murder, the state had to prove absence of the influence of extreme emotional disturbance but, in order to prove attempted manslaughter, the state had to prove defendant was under the influence of extreme emotional disturbance.

Moreover, the supposition that the jury would have convicted defendant of attempted murder had this case been properly presented is not all that clear to me. This jury might be likened to the customer at the cafeteria. There were three3 main dishes offered: (1) Attempted Murder, (2) Attempted Manslaughter I, and (3) Attempted Assault I. The customer chose the second dish. That dish was placed among the choices by mistake. Had it not been there, who is able to say which of the other two dishes might have been selected by the customer? This court in the past has noted that we are unable to say what a verdict might have been had the case been properly presented. See State v. Naylor, 291 Or 191, 629 P2d 1308, 1311 (1981), and State v. Davis, 70 Or 93, 140 P 448 (1914).

To accept the state’s argument that the error is harmless, I should have to say to this defendant,

“Although there is no evidence to support an essential element of the crime of attempted manslaughter, namely, that you acted while under the influence of extreme emotional disturbance, nevertheless, I find that you have been duly convicted of that crime because you were lucky and the trial court ‘improved’ your position by its error. I trust that will be of great comfort to you while doing your time.”

As a judge, I am not willing to say that.

III.

Defendant’s remaining claim of error which deserves attention is that concerned with the verdict forms and the court’s instructions there concerning. This trial was not one upon an indictment in two counts; rather, there *482were two separate cases. In one case the defendant was charged with the crime of being an ex-convict in possession of a concealable firearm. In the other case he was charged with the crime of attempted murder. Those two cases were joined for the purpose of trial, but each case, of course, retained its own title and clerk’s number.

The record upon this appeal does not have with it the verdict forms which were submitted with respect to the case involving the charge of being an ex-convict in possession of a concealable firearm, so we have no way of knowing what title and clerk’s number were on the forms of verdict submitted on that charge. The four forms of verdict submitted in the case concerning attempted murder are before us, however, and have upon each form the trial court clerk’s number 115,743. The record before us does indicate that the trial court clerk’s number for the other case was 116,441. I believe that one might safely assume that the two forms of verdict submitted on the other charge and case bore the correct trial court clerk’s number.

According to the transcript, the trial judge submitted two forms of verdict with respect to case number 116,441:

“We, the jury in the above-entitled criminal action find the Defendant guilty of Ex-convict in Possession of a Firearm.

“We the jury, in the above-entitled criminal action find the Defendant not guilty of Ex-convict in Possession of a Firearm.”

On the other case consolidated for trial, the trial judge submitted four forms of verdict as described in the lead opinion. In neither case, it is seen, did he submit a simple verdict form substantially as follows:

“We, the jury in the above entitled case, find the defendant not guilty.”

The statutes provide, however, that just such a form should be submitted. ORS 136.455 provides:

“A general verdict upon a plea of not guilty is either ‘guilty’ of an offense charged in the accusatory instrument, or ‘not guilty.’ ”

Submission of the simple form above suggested would have made it clear to the jury that, by voting for and signing that *483form, they would be finding the defendant “not guilty” of all of the three offenses submitted for their consideration.

Perhaps the trial judge did not wish to submit such a simple form because he feared the jury would become confused with respect to the two cases being tried. The trial court clerk’s numbers on the verdict forms should have prevented that possibility. Those numbers are certainly not so similar as to admit readily of confusion.

In any event, the defendant took timely exception to the instructions concerning the verdict and the forms submitted. I believe that the defendant properly raised the failure of the court to submit a form of general verdict finding the defendant “not guilty” in case number 115,743. The exception was as follows:

“I object also to the instruction about the verdict form which was given to the jury. I object to the instruction that says, ‘you are instructed if you do find from the evidence and beyond a reasonable doubt that the Defendant committed the crime of Attempted Murder or less degree of the crime of Manslaughter in the First Degree or Attempted Assault as I have defined those degrees for you then the Defendant is not guilty and you should return a verdict of not guilty on each of these charges’. However, the jury wasn’t given a not guilty form.

“THE COURT: I think you’ll find at that point I explained the verdict form was self-explanatory.4

“MR. MILLS: However, I believe the jury should have been given a verdict form that said not guilty for the crime of Attempted Manslaughter and a verdict form that said not guilty for the crime of Attempted Assault in the First Degree. Although his Honor did explain how it is, for them to return a verdict of not guilty on all charges I believe the fact they only have a guilty verdict form for two of the charges is prejudicial and they should have been given a not guilty form for each of those also.” (Emphasis added.)

The lead opinion holds that defendant’s contentions that these instructions and forms were misleading should not be considered because he didn’t bring the matter to the trial court’s attention at a time when it could still be corrected. I most strongly disagree. He specifically complained of the *484failure to submit a “not guilty form,” cf. ORS 136.455, and after the court defended the instructions and forms, defendant advised the court of his contention that not guilty verdicts should have been submitted for each of the three charges submitted to the jury in connection with the case involving attempted homicide. I find the exception to be timely and adequate.

The lead opinion takes the position that ORS 136.455, providing for the jury to have a form of verdict finding a defendant to be “not guilty,” is modified by the immediately following section of the code, i.e., ORS 136.460:

“Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.”

My first answer is that this section does not in any way deal with the forms of verdict. The statute deals rather with the power of the jury to find a defendant guilty of an attempt or lesser degree of a crime “consisting of different degrees * * *.”

The section is not applicable to a choice between (attempted) murder on the one hand and (attempted) manslaughter on the other hand. The crime of murder is not a “crime consisting of different degrees.” This is clear from State v. Wilson, 182 Or 681, 189 P2d 403 (1948), a case cited by the lead opinion for a different point. In that case this court was dealing with the criminal statutory scheme at a time when murder was a crime consisting of two degrees. That scheme also provided for a crime known as manslaughter. The court pointed to what is now ORS 136.455 as authority for submitting to the jury the two degrees of murder and pointed to what is now ORS 136.465 as authority for submitting other “grades” of homicide, namely, in that case, manslaughter. ORS 136.465 provides:

“In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the accusatory instrument or of an attempt to commit such crime.”

The court having thus correctly differentiated between the subjects of the two sections, namely, (1) crimes consisting *485of different degrees, and (2) lesser included offenses, inexplicably went on to discuss the submission of different “degrees” of homicide. There was no crime of homicide.

In the case at bar, if attempted manslaughter could be submitted at all when the defendant was accused of attempted murder, it could not be under ORS 136.460, but rather, under ORS 136.465, as a form of attempted criminal homicide included within that form defined as murder. As I discussed earlier, I have grave doubts that, as defined at the time with which this case deals, manslaughter was a lesser included offense under a charge of murder. The defendant did not raise that point, however, and I needn’t examine it further.

I think the defendant’s exceptions concerning the forms of verdict submitted are an adequate basis upon which he might argue that the court’s instructions were confusing and contradictory. They were confusing and contradictory to me, at least upon a first reading. The jury had no opportunity to re-read them, let alone read them. The jury only heard them. Whether I am confused is, of course, not the test, but I would challenge anyone to paraphrase correctly those instructions on a first hearing, or even a first reading.

Had the trial court in this case simply heeded the defendant’s complaint that it had failed to submit a plain, old “not guilty form,” defendant would have no cause for complaint upon this particular score.

I agree with the Court of Appeals that the trial court should be reversed and the case remanded for another trial.

The Court of Appeals found error in the same respect in which I do, but that court made no express determination as to whether that error was harmless.

This holding is at least questionable in light of this court’s decision in State v. Wilson, 182 Or 681, 189 P2d 403 (1948). In that case the defendant was indicted for felony murder, and this court reversed his conviction because the trial court failed to instruct on the lesser “grades” or “degrees” of homicide, namely, second degree murder and manslaughter.

I shall have something farther to say about the fourth offering, Not Guilty of Attempted Murder, later in this opinion. I would note at this point, however, that the jury was offered no form of verdict which, by its express terms, enabled the jury to return an out and out verdict of “Not Guilty.”

I disagree with the trial judge that the forms were self-explanatory. For instance, there were no instructions or explanations on the forms such as we commonly see in comparative fault cases.

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