¶1(dissenting).
¶2In my opinion, the trial court erred in not giving the lesser offense instruction. Therefore, I dissent.
¶3Viewed in the light most favorable to Lawrence Marshall, the evidence could, so far as the jury is concerned, form a basis for the jury to conclude that Lawrence Marshall was guilty of simple assault rather than aggravated assault.
¶4State has a flawed argument; it maintains that the factual test was not satisfied because Lawrence Marshall’s evidence does not explain how Elizabeth injured her nose.
¶5In front of the jury, Lawrence Marshall denied hitting Elizabeth with a pipe. He did admit that he pushed her and made her fall on her face. He testified that on a previous occasion Elizabeth was drunk and skinned her nose when she fell. On the day in question, Elizabeth admitted that she consumed a considerable amount of alcohol that morning.
¶6The factual test has been satisfied.
FACTUAL TEST
Where a request has been made to charge the jury on a lesser-included offense, the duty of the trial judge is determined by the evidence. If evidence had been present which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error_ There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was in fact committed.
¶7State v. Tapio, 459 N.W.2d 406, 408-09 (S.D.1990) (quoting State v. Scholten, 445 N.W.2d 30 (S.D.1989)). See also State v. Rich, 417 N.W.2d 868, 870 (S.D.1988) and State v. Feuillerat, 292 N.W.2d 326, 334 (S.D.1980). This Court has not established a fixed rule that it will look at the factual test first. We have addressed the legal test first in such cases as State v. Goodroad, 455 N.W.2d 591 (S.D.1990) and State v. Cook, 319 N.W.2d 809 (S.D.1982). This Court can, if it so desires, apply the “legal” test before the “fact” test. Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). In said case, the United States Supreme Court suggested *90that applying the “legal” test first promotes judicial economy “by permitting appellate courts to decide whether jury instructions were wrongly refused without reviewing the entire evidentiary record for nuances of inference.” 489 U.S. at 720-721, 109 S.Ct. at 1452-1453.
¶8LEGAL TEST
¶9This takes us to the legal test. For simple assault to apply, it must pass the third factor in the legal test. In other words, aggravated assault cannot be committed without also committing simple as- ■ sault. Cook, supra.Aggravated assault, according to SDCL 22-18-1.1, is committed by a person who:
attempts to cause, or knowingly causes, bodily injury to another with a dangerous weapon.
¶10Now, the Court must find the elements of simple assault within the above statute. Under SDCL 22-18-1, simple assault occurs when a person:
intentionally causes bodily injury to another that does not result in serious bodily injury.
¶11First, the majority attempts to separate “knowingly” from “intentionally.” Looking to Black’s Law Dictionary, “knowingly” is defined as:
With knowledge; consciously, intelligently; willfully; intentionally.
¶12(Emphasis added). Black’s Law Dictionary, (Abridged 5th ed. 1983). Lo and behold, there can be intent within knowing. Furthermore, by citing Eakes, the majority presents another definition of “knowingly.” However, when seen in its exact quote, “intentionally” is clearly a part of “knowingly.”
The word “knowingly” ordinarily means that the act or omission was intentional; it is not necessary that the actor intended to break the law, but it is enough that he intended the act.
¶13State v. Eakes, 87 S.D. 247, 206 N.W.2d 272 (1973), vacated on other grounds, 414 U.S. 1017, 94 S.Ct. 440, 38 L.Ed.2d 310 (1973). First hurdle cleared.
¶14Next, the injury element is addressed. If a person causes non-serious bodily injury to another, that person could be convicted of simple assault. Add a weapon, and the crime becomes aggravated assault. Thus, logic dictates that the injury element of simple assault is within aggravated assault.
¶15Thus, the elements of simple assault are within aggravated assault. Finding that both the factual and legal tests are satisfied, the court erred by refusing the lesser instruction of simple assault.
¶16Over the years, this Court has addressed several statutory definitions of simple assault and aggravated assault. See State v. Frey, 440 N.W.2d 721 (S.D.1989); State v. Pickering, 317 N.W.2d 926 (S.D.1982); State v. Heumiller, 317 N.W.2d 126 (S.D.1982); State v. Mier, 74 S.D. 515, 55 N.W.2d 74 (1952). In Heumiller, we held that a defendant may be charged and tried for assault with a deadly weapon and be found guilty of simple assault. As recently as 1989, this Court declared that simple assault is included within aggravated assault. Frey at 725. See also State v. Gillespie, 445 N.W.2d 661, 666 (S.D.1989) (Henderson, J., concurring) (Sabers, J., specially concurring). Quoting from said special concurrence, compare the present writing of the author of this opinion:
I write specially to make it clear that:
For the purpose of determining lesser-included instructions, the evidence, whether disputed or not, must be viewed in the light most favorable to the defendant. State v. Rich, 417 N.W.2d 868 (S.D.1988). This majority opinion views the evidence in a light more favorable to the verdict (State). However, even when viewed in a light most favorable to the defendant, the evidence in this case does not support the requested lesser-included instruction. Rich, supra.
¶17Most notably, in at least two cases where this Court faced the same lesser included offense dilemma, we addressed the factual test first and “assume[d] that the legal test has been met.” State v. Rich, 417 N.W.2d 868, 871 (S.D.1988); Heumiller, supra.Thus, to abruptly hold that simple assault is no longer a lesser included offense of aggravated assault is not only an incorrect *91application of the legal test, it appears to defy precedent.
¶18On December 14, 1992, as I was in the process of writing this dissent, our Supreme Court Library received a decision captioned United States of America v. Roy Bruno One Star, 979 F.2d 1319 (8th Cir. 1992). A federal trial court refused to instruct a jury on a lesser included offense (One Star requested same). Conviction was reversed. On page 1320 of 979 F.2d, the Eighth Circuit Court of Appeals held:
It is well settled that a defendant is entitled to an instruction on any lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and to aquit him of the greater offense. (Emphasis supplied).
¶19Finding that both the factual and legal tests have been met, the instruction on simple assault should have been given.
¶20I,therefore, respectfully dissent.