Ellis v. State

Ellis was charged and convicted by jury of second degree burglary. The court refused to instruct the jury on the necessarily lesser included offense of entering to commit a felony. Such refusal constitutes reversible error. *132Lee v. State (1972), 259 Ind. 301, 286 N.E.2d 840; Watford v. State (1957), 237 Ind. 10, 143 N.E.2d 405. We reverse.

Our determination in this regard is unaffected by the State’s counter-argument that such error was waived by Ellis’ failure to tender a written instruction upon the lesser offense. Cf., Barker v. State (1957), 238 Ind. 271, 150 N.E.2d 680; Moses v. State…