# Legal question - "lesser included charge" **URL:** \ **Category:** Factual Questions\ **Created:** [January 23, 2001, 3:10pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401 "2001-01-23T15:10:56Z")\ **Posts on this page:** 11\ **Page:** 1
**Author:** ![KneadToKnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kneadtoknow/32/3999_2.png) [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)\ **Post date:** [January 23, 2001, 3:10pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/1 "2001-01-23T15:10:56Z")
In my admittedly limited experience as a juror (in jury pools twice, empanelled twice, once reached a verdict, once was notified of a plea bargain before deliberations began), even I have run across the concept of the “lesser included charge,” that is, if the jury does not find the accused guilty of, say, burglary they may still find him guilty of illegal entry or theft or some component of burglary. My question is, can anyone explain for me why the jury evidently did not have this option in the Rae Carruth case? Is there some distinction in the way the accused is charged with a crime that opens or closes the door on this possibility, or does it vary by jurisdiciton or something like that? My thinking is that the jury must not have had the option of finding Carruth guilty on a lesser included charge (my guess here would be manslaughter or 2nd degree murder), because given the compromise nature of the verdict, it seems that they certainly would have if they could have. ---
**Author:** ![KneadToKnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kneadtoknow/32/3999_2.png) [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)\ **Post date:** [January 23, 2001, 3:16pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/2 "2001-01-23T15:16:06Z")
I finally got bitten by that quotation mark bug. The title of this thread was supposed to be: Legal question - “Lesser included charge” Would one of the mods be so kind as to fix it for me? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [January 23, 2001, 3:32pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/3 "2001-01-23T15:32:43Z")
I don’t know NC criminal law, but my guess is that conspiracy to commit murder _is_ a lesser included offense. Here’s my best explanation of a lesser included offense. Say it takes five elements to fit the definition of First Degree Being a Butthead. For Second Degree Being a Butthead, it may take only four of those elements, or maybe the fifth element can be satisfied by a lower standard of culpability. Hence, Buttheadedness 2 is a lesser included offense of Buttheadedness 1. The same can be true of Conspiracy to Be a Butthead, depending upon what the elements are of that crime. If conspiracy requires an entirely different element, then it is not a LIO. Having said all that, I don’t have the slightest idea what the sticking point was with the jury that they were willing to nail him for conspiracy to commit murder, but not murder itself. It reeks of compromise, but there had to be something for the conscientious jurors to hang their hats on. ---
**Author:** ![KneadToKnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kneadtoknow/32/3999_2.png) [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)\ **Post date:** [January 23, 2001, 3:45pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/4 "2001-01-23T15:45:18Z")
I know that in this instance, the conspiracy charge was a separate indictment, so **minty green** ’s logic would not apply here. Thanks for that point, though! ---
**Author:** ![KneadToKnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kneadtoknow/32/3999_2.png) [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)\ **Post date:** [January 23, 2001, 3:46pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/5 "2001-01-23T15:46:41Z")
Crap, now I can’t get my vB code tags right. Sorry. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [January 23, 2001, 3:57pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/6 "2001-01-23T15:57:01Z")
> [@](#): > > \*Originally posted by KneadToKnow \* > My question is, can anyone explain for me why the jury evidently did not have this option in the Rae Carruth case? Is there some distinction in the way the accused is charged with a crime that opens or closes the door on this possibility, or does it vary by jurisdiciton or something like that? > > My thinking is that the jury must not have had the option of finding Carruth guilty on a lesser included charge (my guess here would be manslaughter or 2nd degree murder), because given the compromise nature of the verdict, it seems that they certainly would have if they could have. Again, no knowledge of NC criminal law, but a few thoughts: 1. Since they found him guilty of conspiracy to commit murder, they by definition found premeditation. Hence, lesser charges that don’t include premeditation wouldn’t be possible. 2. The ability to consider lesser included charges does vary by jurisdiction. In some jurisdictions, for example, the parties must consent before lesser charges can be considered. 3. From my quick reading of a legal analysis of the case, the reason this is being considered a compromise verdict is that the crimes Carruth was found guilty of **are** the elements of the crime (1st degree murder) he was found innocent of. That is the criticism of the verdict I’ve heard - it is internally inconsistent. In this, the NC statute sounds similar to (or is) a felony murder statute - wherein if you commit one of certain felonies, and someone dies in the process, you have committed murder, even if you didn’t actually do the killing. So, if you are found guilty of the felony, and someone actually died, you must in logic be found guilty of felony murder. Sua ---
**Author:** ![KneadToKnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kneadtoknow/32/3999_2.png) [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)\ **Post date:** [January 23, 2001, 4:16pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/7 "2001-01-23T16:16:13Z")
Thanks, **sua** , that first point does make good sense to me. Everyone I’ve talked to (I am actually _in_ Charlotte, so there is a lot of talking going on here) seems to feel that the problem with the verdict is the inconsistency you mention. I can’t believe the judge didn’t throw out the verdict and declare a mistrial, frankly. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [January 23, 2001, 5:07pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/8 "2001-01-23T17:07:40Z")
> [@](#): > > \*Originally posted by KneadToKnow \* > I can’t believe the judge didn’t throw out the verdict and declare a mistrial, frankly. This would have been a mistake: 1. The guilty verdicts on the stuff he was found guilty of are probably defensible, given the evidence (I haven’t seen the evidence, so this is all assumption.); 2. Given our presumption of innocence, etc., the judge would be very hard pressed to justify throwing out a verdict because a defendant _wasn’t_ found guilty of something he should have been. Sua ---
**Author:** ![KneadToKnow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kneadtoknow/32/3999_2.png) [@KneadToKnow](https://boards.straightdope.com/u/KneadToKnow)\ **Post date:** [January 24, 2001, 7:37pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/9 "2001-01-24T19:37:12Z")
I’m sorry, my statement probably came across wrong. What I meant to say was that based entirely upon the logical inconsistencies of the verdicts taken as a whole, it seems to me to have been within the judge’s authority to declare a mistrial. As it stands, based on everything I’ve heard, Carruth’s lawyers will wind up taking this to appeals court where the inconsistencies of the verdicts stand a good chance of getting his guilty verdicts overturned. And thanks, **Sua** , for keeping me on my toes, there. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 25, 2001, 12:11pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/10 "2001-01-25T12:11:58Z")
> [@](#): > > I don’t know NC criminal law, but my guess is that conspiracy to commit murder is a lesser included offense. I’d be very surprised if it were, because the crucial element of conspiracy is that you agree with someone else that a crime will be committed. Murder does not include any requirement that the accused agreed to do it with someone else. Murder can be a solo crime, or a group crime, but even when it’s done by two or more people, there is no need to prove they agreed to do it. (As a matter of proof, showing a common intention may make it easier to convince the jury that they were both involved and should both be convicted of the same charge, but that’s not the same as requiring the Crown to prove they agreed to do it together.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 25, 2001, 3:28pm UTC](https://boards.straightdope.com/t/legal-question-lesser-included-charge/51401/11 "2001-01-25T15:28:32Z")
Conspiracy to commit murder is not a lesser-included offense of murder, as a matter of general principle. A jury’s inconsistent verdicts may stand. The rule is that the inconsistent verdicts should not necessarily be interpreted as a windfall to the government at the defendant’s expense, nor to the defendant at the government’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the convicted offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. This is called the “Dunn Rule,” based on _Dunn v. United States_, 284 U.S. 390 (1932). Despite being some seventy years old, the Dunn Rule is good law. - Rick