Cited by

The second part of the analysis requires us to examine whether the evidence furnished a rational basis for a finding of guilt on the lesser-included offenses.

On appeal, the juvenile first argues that in New Hampshire consideration of a lesser-included offense is “entirely dependent on the request of either the prosecution or the defense.” He points out that in State v. O’Brien, 114 N.H. 233, 235 (1974), we said, “An instruction on a lesser-included offense should be freely given *617 where counsel requests it and it is compatible with the evidence of the trial.” A close reading of O’Brien and later cases, however, reveals that these cases do no more

In relation to a charged crime, a lesser-included offense is one which “must neces *449 sarily be included” in the greater offense.

When it is the defendant who requests the lesser-included offense instruction, that rational basis will not exist if the defendant has *576 indicated that he does not contest the uncommon element that distinguishes.the greater from the lesser offense.

ts economic value, or of the use and benefit thereof, would be lost; or (b) To restore the property only upon payment of a reward or other compensation; or (c) To dispose of the property under circumstances that make it unlikely that the owner will recover it.” Cf. R. Perkins, Criminal Law 266 (2d ed. 1969) (at common law, intent to steal required intent to deprive permanently); State v. O’Brien, 114 N.H. 233, 235, 317 A.2d 783, 784 (1974) (grand larceny but not “joy riding” requires intent to d

State v. Boone, 119 N.H. 594, 406 A.2d 113 (1979); State v. O’Brien, 114 N.H. 238, 235, 317 A.2d 783, 784 (1974).

RSA 491:17; State v. O’Brien, 114 N.H. 233, 236, 317 A.2d 783, 785 (1974); see Roy v. Perrin, 122 N.H. 88, 100, 441 A.2d 1151, 1159 (1982).

[1] the lesser offense must necessarily be included in the greater and [ 2] the evidence must justify a finding of guilt of the lesser offense.” State v. O’Brien, 114 N.H. 233, 235-36, 317 A.2d 783, 784 (1974); a,coord, Sansone v. United States, 380 U.S. 343 (1965).

We have firmly and consistently required that objections and exceptions be taken at trial to preserve issues for our consideration, especially with regard to jury instructions.

generally State v. O’Brien, 114 N.H; 233, 317 A.2d 783 (1974); Sansone v. United States, 380 U.S. 343, 347-49 (1965).

An instruction as to a lesser-included offense is proper only when a conviction as to the lesser offense would be compatible with the evidence at trial.

State v. Breest, 115 N.H. 504, 345 A.2d 391 (1975); State v. O’Brien, 114 N.H. 233, 317 A.2d 783 (1974).

Nichols v. Vitek, 114 N.H. 453, 321 A.2d 570 (1974); State v. O’Brien, 114 N.H. 233, 317 A.2d 783 (1974).

State v. Blake, 113 N.H. 115, 305 A.2d 300 (1973); State v. O’Brien, 114 N.H. 233, 317 A.2d 783 (1974).

State v. O’Brien, 114 N.H. 233, 317 A.2d 783 (1974); State v. Bacon, 114 N.H. 306, 319 A.2d 636 (1974).

“[W]hile a judge cannot prevent a jury from rejecting the prosecution’s entire case, he is not obligated, under these circumstances, to assist a jury in coming to an irrational conclusion of partial acceptance and partial rejection of the prosecutor’s case by giving a lesser included instruction.” Driscoll v. United States, 356 F.2d 324, 327 (1st Cir. 1966); State v. O’Brien, 114 N.H. 233, 317 A.2d 783 (1974).

State v. O’Brien, 114 N.H. 233, 235-36, 317 A.2d 783, 784-85 (1974); State v. Bacon, 114 N.H. 306, 310, 319 A.2d 636, 639 (1974); 5 F. Wharton, Criminal Procedure § 2099, at 268 (R. Anderson ed. *74 1957) (Supp. 1974, at 161); see Remington and Joseph, Charging, Convicting and Sentencing The Multiple Criminal Defendant, 1961 Wis.

State v. O’Brien, 114 N.H. 233, 317 A.2d 783 (1974); Keeble v. United States, 412 U.S. 205 (1973).