Turley v. State

An issue not argued, but which arose in our conference, concerns the proper disposition of a case where a conviction is reversed because the trial court erroneously failed to instruct the jury on a lesser-included offense. The sufficiency of the evidence to support the greater offense of which the appellant was convicted was not challenged on appeal. The only relief requested by the appellant was a new trial. This is the relief granted in the majority opinion.

The dissent maintains that we can and should modify the judgment appealed from in this case and fix punishment in conformity with the…