State v. Ferguson

I concur in the result. I concur in the general statement as announced in some of the texts and cases that, when there is no evidence to support a conviction of a lesser offense, a court is not required to submit it to a jury, and concur in the statement in the prevailing opinion that instructions as to lower grades of a charged offense, when embraced and included therein, should be given when warranted by evidence. The difficulty arising in such particular is when may it be said there is evidence to justify a conviction of the lesser offense or upon what state or condition of the record, and…