Missouri Revised Statutes

Mo. Rev. Stat. § 556.046 (2026)

Conviction of included offenses

✓ current as of May 2026

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556.046. Conviction of included offenses — jury instructions. — 1. A person may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It is specifically denominated by statute as a lesser degree of the offense charged; or

(3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.

2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the person of the offense charged and convicting him or her of the included offense. An offense is charged for purposes of this section if:

(1) It is in an indictment or information; or

(2) It is an offense submitted to the jury because there is a rational basis for a verdict acquitting the person of the offense charged and convicting the person of the included offense.

3. The court shall be obligated to instruct the jury with respect to a particular included offense only if the instruction is requested and there is a rational basis in the evidence for acquitting the person of the immediately higher included offense and convicting the person of that particular included offense.

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(L. 1977 S.B. 60, A.L. 2001 S.B. 223, A.L. 2014 S.B. 491, A.L. 2022 S.B. 775, et al.)

(1981) Statute providing that defendant may be convicted of offense included in offense charged is legislative determination that offense can be a lesser offense of another offense so that charge of greater will support conviction of lesser although lesser is not necessarily included in greater; declining to follow State v. Handley, 585 S.W.2d 458, to extent of conflict. State v. Wilkerson (Mo.), 616 S.W.2d 829.

(1981) Statute must be construed as requiring an instruction on a lesser-included offense only where there is evidence of probative value which could form basis of an acquittal of greater offense and a conviction of lesser-included offense. State v. Hill (A.), 614 S.W.2d 744.

Notes of Decisions

Cited in 219 cases (26 in the last 5 years), 1979–2025 · leading case: State of Missouri v. Bruce Pierce, 433 S.W.3d 390 (Mo. 2014).

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State of Missouri v. Bruce Pierce, 433 S.W.3d 390 (Mo. 2014). · cites it 46× “SC93108), the Court holds: The question presented in this case is whether the trial court can refuse to give a lesser included offense instruction requested by the defendant under section 556.046 when the lesser offense consists of a subset of the elements of the charged offense…”

State of Missouri v. Robert Blake Blurton, 484 S.W.3d 758 (Mo. 2016). · cites it 29× “Section 556.046, RSMo 1986. See also Beck v.”

State of Missouri v. Denford Jackson, 433 S.W.3d 424 (Mo. 2014). · cites it 44× “Standard of review This Court reviews de novo a trial court’s decision whether to give a requested jury instruction under section 556.046, RSMo Supp. 2002, 3 and, if the statutory requirements for giving such an instruction are met, a failure to give a requested instruction is…”

State v. Hibler, 5 S.W.3d 147 (Mo. 1999). · cites it 26× “Lesser-included offense analysis is controlled by section 556.046, RSMo 1994, which states: 1.”

State v. Goddard, 649 S.W.2d 882 (Mo. 1983). · cites it 23× “Section 556.046, RSMo 1978, provides that a "defendant may be convicted of an offense included in an offense charged in the indictment or information.”

State v. Sanders, 522 S.W.3d 212 (Mo. 2017). · cites it 15× “2002, provides, “The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of.”

State v. Holland, 653 S.W.2d 670 (Mo. 1983). · cites it 18× “Our cases prior to Baker held that first degree murder was a lesser included offense of capital murder under § 556.046, RSMo 1978, the current lesser included offenses statute effective January 1, 1979.”

Peiffer v. State, 88 S.W.3d 439 (Mo. 2002). · cites it 10× “306 (1932), which is codified at section 556.046 and known as the same elements test.”

State v. Baker, 636 S.W.2d 902 (Mo. 1982). · cites it 10× “Is first degree murder a lesser included offense of capital murder under § 556.046, RSMo 1978? Section 556.046 provides in pertinent part as follows: "1.”

State v. Griffin, 756 S.W.2d 475 (Mo. 1988). · cites it 8× “Section 556.046, RSMo 1986. See also Beck v.”

State v. Wilkerson, 616 S.W.2d 829 (Mo. 1981). · cites it 10× “Of course, if this case had arisen after January 1, 1979, the effective date of § 556.046, RSMo 1978, a portion of that section would rule the case.”

State v. Jensen, 524 S.W.3d 33 (Mo. 2017). · cites it 6× “Section 556.046, RSMo Supp. 2002, defines the trial court’s obligation to instruct on lesser included offenses.”

Show all 219 citing cases →

— Mo. Rev. Stat. § 556.046(1) — 12 cases

State v. Clay, 909 S.W.2d 711 (Mo. Ct. App. 1995).

Jones v. State, 514 S.W.3d 72 (Mo. Ct. App. 2017).

State v. Johns, 679 S.W.2d 253 (Mo. 1984).

Ivy v. State, 81 S.W.3d 199 (Mo. Ct. App. 2002).

State v. Weems, 800 S.W.2d 54 (Mo. Ct. App. 1990).

— Mo. Rev. Stat. § 556.046(2) — 1 case

State v. Wiggins, 640 S.W.2d 161 (Mo. Ct. App. 1982).

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