¶1Bradley Black (Black) was convicted of the first-degree murder of Robert Hymore (Hymore).
¶3On December 6, 1990, Black and Hymore met in a bar in Sioux Falls, South Dakota. Hymore had been drinking prior to the chance meeting with Black. After several hours of drinking and gambling together, the two decided to do some target shooting. Witnesses at the bar testified that before leaving, Black stated that he would “shoot anything that moved, even if it was alive.” One witness testified she understood this statement to be a joke, and told Hymore “I wouldn’t go, he might shoot you.” The two left the bar, first going to an area near Brandon, South Dakota, and then to a farm in Lincoln County, South Dakota.
¶4Black testified to the following sequence of events. During the drive between Brandon and the farm, Hymore’s behavior was disoriented. Upon arrival at the farm, Black searched for something to use for target practice. He left the gun, a semiautomatic pistol, between the front seats. While Black was searching in the trunk, Hymore approached him with his pants down, holding his erect penis. After a brief struggle, Black broke free and headed for the driver’s side door in order to get to the gun before Hymore could reach it. Hymore beat Black to the gun, but Black was able to knock the gun out of his hand. Black then grabbed the gun with his right hand. Hymore began to pull Black through the car toward the passenger door. Although Black claims no memory of pulling the trigger, Hymore was shot four times in the back of the head. Black claims Hymore “freaked out” on him and he had to defend himself.
¶5Following the shooting, Black began a complicated attempt to cover up what had taken place, including an aborted attempt to dump Hymore’s large body off the Platte-Winner bridge into the Missouri River. Black and a friend he enlisted to help him dispose of the body were stopped early the next morning in Chamberlain, South Dakota. The State claims Black concocted the “accidental shooting” theory only after realizing his friend agreed to talk to the Police. The friend testified that Black told him that someone had “freaked out” on him and he had to kill him, and that Black had “grabbed the victim by the back of the head and stuck his head out the window and he shot him in the back of the head.”
¶6The autopsy of Hymore’s body revealed that his death was caused by four gunshot wounds to the back of his head. The wounds were “tightly spaced” in approximately one square inch. Three bullets followed essentially the same trajectory with at least two of the four shots being fired at point blank range. The autopsy also revealed semen stains in Hymore’s underwear. Defendant claims these semen stains corroborate his defense. State argues that they are inconclusive because there was testimony that Hymore did not change his underwear daily and the time when the stains were deposited was undetermined.
¶7PROCEDURE
¶8Black was charged with first-degree murder, which is a premeditated killing. Black claims he was entitled to lesser included offense instructions on first-degree manslaughter, which includes a killing without premeditation and an unnecessary killing while resisting a sexual assault. The trial court instructed the jury on justifiable homicide
¶9LESSER-INCLUDED INSTRUCTIONS
¶10Black, as well as the State
¶11In State v. Waff, 373 N.W.2d 18 (S.D.1985), this court formally abandoned the previous line of decisions which held that first and second-degree manslaughter are automatically lesser included offenses within murder.
The legal test is met if (1) all of the elements of the included offense are lesser in number than the elements of the greater offense; (2) the penalty for the included lesser offense must be less than that of the greater offense; and (3) both offenses must contain common elements so that the greater offense cannot be committed without also committing the lesser offense. In order to meet the factual test, evidence must be presented which would support a conviction of a lesser charge.
¶12Wall, 481 N.W.2d at 264 (citations omitted).
¶13If the lesser offense passes both the legal and factual test, then the lesser-included instructions must be given.
¶14The WaffCourt also concluded that such a test is not inconsistent with SDCL 23A-26-7, which provides:
Whenever a crime is distinguished by degrees, a jury, if it convicts an accused, shall find the degree of the crime of which he is guilty and include that finding in its verdict. When there is a reasonable ground of doubt as to which of two or more degrees an accused is guilty, he can be convicted of only the lowest degree.
¶15Waff, 373 N.W.2d at 22-23. The WaffCourt interpreted SDCL 23A-26-7 to mean “that if an instruction is given on first-degree manslaughter the jury must also be given an instruction on second-degree manslaughter!;.]” Id. at 23. SDCL 23A-26-7 only requires an instruction upon the lesser degrees of crimes divided by degrees. It does not require nor prohibit a lesser-in-*380eluded instruction in cases NOT distinguished by degrees.
¶16The United States Supreme Court adopted a similar test for necessarily included offense instructions in Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 1451, 103 L.Ed.2d 734, 746 (1989). The Court stated:
[O]ne offense is not “necessarily included” in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c).8
¶17The Court in Schmuckreviewed the history of this doctrine and in doing so, cited with approval Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896), as reflecting the “practically universal” practice of engaging “in a careful comparison of the statutory elements of murder and manslaughter to determine if the latter was a lesser included offense of the former.” Schmuck, 489 U.S. at 720, 109 S.Ct. at 1452 (citation omitted).
¶18In South Dakota, murder and manslaughter are each separated into degrees, the elements of which are statutorily set. First-degree murder contains only two elements.
¶19Black was tried on a charge of first-degree murder only. The trial court ruled that first-degree manslaughter did not meet the legal test for a lesser-included offense of first-degree murder. The trial court did not reach the factual test and neither do we.
¶20Although it would not be error to give the requested instructions, we hold that the trial court did not err in refusing defendant’s lesser-included offense instructions under SDCL 23A-26-8 and the elements test of Schmuck, Wall and Waff.
¶21We affirm defendant’s conviction under these circumstances. To do otherwise would overrule at least 12 years of clear precedent in this court and “wreak havoc” in the trial courts. This would include the legal test as set forth above in State v. Wall as written by Justice Henderson. Similar holdings and statements of the legal test, which would be directly or indirectly overruled, would include:
CASE AUTHOR
State v. Kafka, 264 N.W.2d 702, 705 (S.D.1978) — Zastrow, J., concurring specially.
State v. O’Connor, 265 N.W.2d 709, 716 (S.D.1978) — Zastrow, J., concurring specially.
State v. Poss, 298 N.W.2d 80, 82-83 (S.D.1980) — Henderson, J.
State v. Oien, 302 N.W.2d 807, 808-09 (S.D.1981) — Fosheim, J.
State v. Heumiller, 317 N.W.2d 126, 132 (S.D.1982) — Fosheim, J.
State v. Pickering, 317 N.W.2d 926, 926 (S.D.1982) — Fosheim, J.
State v. Cook, 319 N.W.2d 809, 813 (S.D.1982) — Dunn, J.
State v. Blakey, 332 N.W.2d 729, 730-31 (S.D.1983) — Fosheim, J.
State v. No Heart, 353 N.W.2d 43, 46 (S.D.1984) — Morgan, J.
State v. Jackson, 371 N.W.2d 341, 344 (S.D.1985) — Wuest, Acting J.
State v. Waff, 373 N.W.2d 18, 22 (S.D.1985) — Wollman, J.
State v. Woods, 374 N.W.2d 92, 95-97 (S.D.1985) — Henderson, J.
State v. Goodman, 384 N.W.2d 677, 681-82 (S.D.1986) — Miller, Cir. J.
State v. Reed, 387 N.W.2d 10, 14-15 (S.D.1986) — Wuest, J.
State v. Gregg, 405 N.W.2d 49, 50-52 (S.D.1987) — Sabers, J.
State v. Farmer, 407 N.W.2d 821, 824 (S.D.1987) — Wuest, C.J.
State v. Rich, 417 N.W.2d 868, 870-71 (S.D.1988) — Sabers, J.
State v. Disbrow, 417 N.W.2d 873, 874 (S.D.1988) — Wuest, C.J.
*382CASE AUTHOR
State v. Frey, 440 N.W.2d 721, 725 (S.D.1989) — Miller, J.
State v. Gillespie, 445 N.W.2d 661, 663-64 (S.D.1989) — Wuest, C.J.
State v. Red Fox, 446 N.W.2d 69, 70-71 (S.D.1989) — Per Curiam
State v. Goodroad, 455 N.W.2d 591, 593 (S.D.1990) — Henderson, J.
State v. Tapio, 459 N.W.2d 406, 408-09 (S.D.1990) — Morgan, J.
State v. Wall, 481 N.W.2d 259, 263-64 (S.D.1992) — Henderson, J.
¶22Despite this affirmance, we encourage trial courts to give lesser-included instructions, even though not “necessarily” or technically included, where a common sense review of the facts indicates that it would be difficult to commit the greater offense without committing the lesser offense. This suggestion is intended to promote fair trials
¶23. Black was also originally charged with kidnapping, robbery, commission of a felony while armed and felony murder but these charges were dropped prior to trial.
¶24. The justifiable homicide instruction (Instr. No. 25) provided:
¶25The taking of the life of another is justifiable when there is a reasonable ground to apprehend a design to commit a felony, and imminent danger of such design being accomplished. In order to constitute this defense, it is not necessary that the danger actually exists, but only that there shall be reasonable grounds to apprehend the existence of such danger.
¶26. See State v. Cook, 319 N.W.2d 809 (S.D.1982), where the trial court instructed the jury that simple assault is a lesser included offense of aggravated assault. On appeal, this court stated:
*379Appellant’s objection to the giving of the instruction on lesser included offenses is not controlling. It is the duty of the trial court to instruct the jury as to the law applicable to the case. The defense does not have the option of precluding the court from carrying out this duty in hopes of forcing an "all of nothing" verdict. Thus, the trial judge may instruct sua sponte on a lesser included offense if the evidence adduced at trial would warrant conviction of the lesser charge and if the defendant has been afforded fair notice of those lesser included offenses.
¶27Id. at 813 (citations omitted) (emphasis in original).
¶28.SDCL 23A-26-8 (Fed.R.Crim.P. 31(c)) states:
¶29A defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if such attempt is an offense.
¶30. In Waff, this court stated that:
¶31It is true that State v. Hubbard [20 S.D. 148, 104 N.W. 1120] (1905) makes the statement that manslaughter is included in the charge of murder, but in view of our holding today that statement is no longer invariably true. Accordingly, if in a given case, such as the one before us, the evidence does not admit of an instruction of first-degree manslaughter, the dictates of Hubbardand of SDCL 23A-26-7 are inapplicable. Waff, 373 N.W.2d at 23 (emphasis added).
¶32. “Refusal by the trial court to give such an instruction would be reversible error.” Wall, 481 N.W.2d at 264.
¶33. Although the heading of SDCL 22-16-1 provides: "Homicide defined — Degrees of homicide," homicide is not divided by degrees. Likewise, homicide is not necessarily a crime because, along with murder and manslaughter, it includes excusable and justifiable homicide. Since murder and manslaughter are separate crimes, each divided by degrees, SDCL 23A-26-7 does not apply and it was not necessary, under the terms of this statute, to instruct on manslaughter.
¶34. The Supreme Court gave three reasons for adopting this “elements” or “subset” test.
¶35First, the Court found that the wording of Rule 31(c), "although not conclusive,” necessitates a comparison between the statutorily defined "offenses.” Id. at 716-17, 109 S.Ct. at 1450-51. The Court also found that the wording of Rule 31(c), by not distinguishing requests for jury instructions from the State or the defendant, provides a mutuality of effect upon both sides by preventing either side from infringing on the defendant's right to notice of the charge(s) against him because the elements of any possible lesser included offense would already be contained in the indictment. Id. at 717-18, 109 S.Ct. at 1450-51.
¶36Second, the Court found that the history of Rule 31(c) allowed the jury to be instructed on only necessarily lesser included offenses. Id. at 718, 109 S.Ct. at 1451 (citation omitted). The Court also found that Rule 31(c) was intended to be a “restatement of ‘pre-existing law’" which traditionally applied an elements test. Id. at 720, 109 S.Ct. at 1452, (citation omitted).-
¶37Third, the Court found that this “subset" or “elements" test would be “far more certain and predictable" than an “inherent relationship” or "rational basis” test. Id.
Because the elements approach involves a textual comparison of criminal statutes and does not depend on inferences that may be drawn from evidence introduced at trial, the elements approach permits both sides to know in advance what jury instructions will be available and to plan their trial strategies accordingly. The objective elements approach, moreover, promotes judicial economy by providing a clearer rule of decision and by permitting appellate courts to decide whether jury instructions were wrongly refused without reviewing the entire evidentiary record for nuances of inference.
¶38Id. at 720-21, 109 S.Ct. at 1452-53.
¶39As the Court noted in Schmuck at 716, 109 S.Ct. at 1450, the wording of Rule 31(c) is not conclusive. While these reasons have some appeal, they are not so persuasive as to completely eliminate all of the trial court's discretion. See text accompanying footnote 12.
¶40. The elements of first-degree murder, SDCL 22-16-4, are:
(1) a killing
(2) with a premeditated design to effect the death of the person killed.
¶41. The elements of first-degree manslaughter, SDCL 22-16-15, are:
(1) (a) a killing
(b) without design to effect death
(c) while engaged in the commission of a misdemeanor
involving moral turpitude.
(or)
(2) (a) a killing
(b) without design to effect death
(c) in the heat of passion
(d) in a cruel and unusual manner
*381(or)
(3) (a) a killing
(b) without design to effect death
(c) by means of a dangerous weapon (or)
(4) (a) a killing
(b) unnecessarily
(c) (i) while resisting an attempt by person killed to commit a crime
(or)
(ii) after such attempt shall have failed
¶42. As noted above, SDCL 23A-26-7 does not apply because "[t]he statute by its own terms applies only to crimes that are divided into degrees.” Waff, 373 N.W.2d at 23.
¶43. We are unable to say that Black's trial was unfair for at least two reasons. First, the trial court's instruction to the jury on justifiable homicide {see footnote 2) included a homicide committed while resisting an attempt to commit a felony, or some great personal injury to the accused. SDCL 22-16-35. Secondly, the trial court’s instructions to the jury on first-degree murder required the element of intent. If even one of the jurors believed Black's version, that juror was required to follow the law as given in the instructions and find him not guilty because, either Black had reasonable grounds to apprehend the existence of danger, or the element of intent was not proven beyond a reasonable doubt.
¶44(concurring specially).
¶45I concur with the majority opinion, except for the dicta in the last paragraph which cites Cook for the proposition that trial courts have discretion to give lesser included instructions. State v. Cook, 319 N.W.2d 809, 813 (S.D.1982). The dissent of Justice Amundson takes this discretion a step further by claiming the two-step test deprives trial courts of their right to exercise discretion.
¶46I disagree with these arguments for two reasons. First, Cookdoes not hold that trial courts have such discretion — it directs trial judges to apply the legal and factual test to determine whether a lessor included offense should be submitted to the jury. Id.Second, “[discretion is the power exercised by courts to determine questions to which no strict rule of law is applicable[.]” State v. Biggs, 198 Or. 413, 255 P.2d 1055, 1059 (1953) (quoting State v. Lewis, 113 Or. 359, 230 P. 543, 544 (1924)).
¶47Chief Justice John Marshall defined judicial discretion over a hundred and fifty years ago:
Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it.
¶48Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 866, 6 L.Ed. 204, 234 (1824). The words of that distinguished jurist still hold true today — it is the duty of the court to follow the law.
¶49We are a nation governed by law, not the caprice or whim of judges. We have, as the majority opinion notes, adopted a two-part test — a legal test and a factual test— each of which must be satisfied before a trial judge may submit a lesser included offense instruction to the jury. If the proposed lesser included offense does not meet the two-part test, the trial judge has no discretion to give the included instruction.
The discretion of a judge is said by Lord Camden to be the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the *383worse, it is every vice, folly, and passion to which human nature is liable.
¶50Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942).
¶51To allow judges to give lesser included offense instructions that do not meet the two-part test submits the law to the mere whim of “human nature.” Both the State and the defendant are entitled to impartial treatment. “Justice carries a pair of scales that are evenly balanced.” Arthur L. Goodhart, “Lincoln and the Law,” 50 A.B.A.J. 433 (1964). If a judge can give instructions which do not meet the rule of law, then different defendants can — and will — receive different treatment because of different judges. To include instructions not mandated by application of the test of law would make us a government of men rather than a government of law.
¶52I am deeply concerned the dicta of the majority opinion and the dissent of Justice Amundson will lead our trial courts and the Bar into confusion and uncertainty. I advise trial judges continue to apply our established legal and factual test rather than enter the never, never land where each judge creates his own rules under the guise of judicial discretion. Substantive law cannot be left to the whim of a judge.