Legal Definitions - lesser included offense

A lesser included offense is a crime that is inherently part of a more serious crime. This means that if someone commits the more serious crime, they must, by definition, also have committed the lesser crime. The elements, or necessary components, of the lesser offense are entirely contained within the elements of the greater offense. Therefore, to prove the greater crime, a prosecutor must first prove all the elements of the lesser crime.

Here are some examples to illustrate this concept:

• Robbery and Theft:

  • The greater crime is robbery, which typically involves taking property directly from another person through the use of force or intimidation.
  • The lesser included offense is theft, which is simply the unlawful taking of someone else's property without their consent.
  • How it illustrates the term: To commit robbery, a person must first commit theft. The act of unlawfully taking property is an essential component of robbery. The additional elements that elevate theft to robbery are the use of force or the threat of force against the victim. If a jury believes the defendant took the property but is not convinced that force or intimidation was used, they might still convict the defendant of the lesser included offense of theft.

• Aggravated Assault and Simple Assault:

  • The greater crime is aggravated assault, which often involves an assault committed with a deadly weapon, with the intent to commit another serious crime, or resulting in serious bodily injury.
  • The lesser included offense is simple assault, which typically involves an unlawful attempt to cause bodily injury to another or placing another in reasonable apprehension of receiving an immediate battery.
  • How it illustrates the term: Any act that constitutes aggravated assault necessarily includes the elements of simple assault. For instance, if someone points a gun at another person (aggravated assault), they have also placed that person in fear of immediate harm (simple assault). The "aggravated" aspect adds elements like the use of a weapon or the severity of the intended harm, but the core act of assault is always present.

• Felony Murder and Arson:

  • The greater crime is felony murder, which occurs when a death results during the commission of a dangerous felony, even if the death was not intended.
  • The lesser included offense could be the underlying felony, such as arson (maliciously setting fire to property).
  • How it illustrates the term: If a person is charged with felony murder because a death occurred while they were committing arson, the crime of arson is a lesser included offense. The prosecution must prove that the arson occurred to establish the felony murder charge. If the jury finds that the defendant committed arson but is not convinced that a death occurred during it, or that the death was not causally linked to the arson, they could still convict the defendant of the lesser included offense of arson.