State v. Kafka

Inasmuch as State v. O’Connor, 1972, 86 S.D. 294, 194 N.W.2d 246 concluded that SDCL 22-32-16 (misdemeanor breaking and entering) could not be a “necessarily included offense” of SDCL 22-32-9 (third degree burglary) as a matter of law, I feel that the proper determination of a “necessarily included offense” should be discussed.*

There are two tests for determining whether an offense is “necessarily included” in a greater offense: (1) legal and (2) factual. Both tests must be satisfied before a “necessarily included offense” instruction should be given.

The legal test of a “necessarily included…