State v. Washington

The broad issue in this case concerns the method whereby trial courts should determine whether they can instruct a jury on the elements of a crime other than that charged in an indictment. The narrow issue is whether, as defendant claims, the trial court could and should have instructed on the elements of theft at the conclusion of his burglary trial.

Defendant was charged with first degree burglary. OES 164.225. There was evidence that during the afternoon of February 14, 1974 defendant stole house keys from Bobert Bedfern; that an hour or so later Bedfern’s daughter, Judith DeVine, returned…