Opinion
79-404.
August 28, 1981. Rehearing Denied October 9, 1981.
Petition for writ of certiorari to the Court of Criminal Appeals, 407 So.2d 141.
George W. Cameron, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., Mary Jane LeCroy Brannon, Asst. Atty. Gen., for respondent.
ON APPLICATION FOR REHEARING
The original opinion in this case, issued June 13, 1980, is withdrawn and the following is substituted in its place.
Reversed and remanded to the Court of Criminal Appeals on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Beck v. State, 396 So.2d 645 (Ala. 1980); Ritter v. State, [1981], 403 So.2d 154 (Ala. 1981); and Reed v. State, 407 So.2d 162 (Ala. 1981).
REVERSED AND REMANDED.
All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.
On remand, Ala.Cr.App., 407 So.2d 152.
By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala. 1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.
Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required "on any lesser included offense supported by the evidence," Beck v. State, 396 So.2d 645, 657 (Ala. 1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 2386, 65 L.Ed.2d 392 (footnote 7) (1980).