Henson v. State
In Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988) the defendant was convicted of aggravated robbery and theft. The issue on appeal was whether the trial court erred in refusing to give an instruction on the lesser-included offense of robbery.
The evidence showed that Henson put his hand in his pocket after he was surprised in the act of emptying a safe. The victim retreated, thinking Henson was reaching for a gun.
The supreme court held that the instruction on the lesser-included offense should have been given:
"When the facts are susceptible of more than one interpretation, a lesser included instruction should be given. Generally a robbery instruction is required when the charge is aggravated robbery. A similar example is that a possession instruction is generally required when the charge is possession with intent to deliver. However, the facts of a particular case may develop so clearly that there would be no rational basis for giving a lesser included offense instruction. Since the facts in this case are susceptible to more than one interpretation, robbery or aggravated robbery, the instruction should have been given. The evidence was not so conclusive as to demonstrate that only aggravated robbery could have been committed by the appellant. This is not a case of all or nothing." (Henson, 296 Ark. at 474-475, 757 S.W.2d at 561.)
In Henson, the victim saw no weapon, and there was a question whether the actions of the accused were such as to put the victim in fear of being shot when the accused put his hand in his pocket in the course of the robbery.