This is an appeal from a conviction of the crime of assault and battery with intent to gratify sexual desires. The original charge filed against the appellant was the crime of assault and battery with intent to commit rape. Following a trial by jury a judgment was rendered on December 11, 1963. The errors assigned in this case are based upon two instructions given by the Court over the objection of the appellant, namely, Court’s Instruction No. 11 and No. 16. Instruction No. 11 reads as follows:
“I instruct you that at the time of the alleged commission of the offense in question, there were *83in full force and effect a statute in the State of •Indiana which insofar as it applies to this case provides as follows: — ‘Whoever, in a rude, insolent or angry manner, unlawfully touches another, is guilty of an assault and batter, (sic) and on conviction, shall be fined not more than one thousand dollars ($1,000) to which may be added imprisonment in the county jail not exceeding six (6) months: Provided, That whenever in the commission of the offense any person removes, tears, unbuttons, unfastens, or attempts to remove, tear, unbutton or unfasten any clothing of any child who has attained his or her twelfth (12) birthday but has not attained his or her seventeenth (17) birthday, or fondles or caresses the body or any part thereof of such child with the intent to gratify the sexual desires or appetites of the offending person or, under circumstances which frighten, excite, or tend to frighten or excite such child, the punishment shall be imprisonment in the Indiana State Prison for a period of time of not less than one (1) year nor more than five (5) years.” (Our italics)
Instruction No. 16 purports to set forth the forms of verdict which the jury may render under the original charge of assault and battery with intent to rape. Among such forms of verdict is that of “a lesser included offense as charged in the affidavit”, which is stated to be assault and battery with intent to gratify sexual desires.
It is the contention of the appellant that assault, and battery with intent to gratify sexual desires is not a lesser included offense in that of assault and battery with intent to commit rape. It is urged that the lesser offense in this case is not “necessarily included in the offense charged”, and cited in support thereof is Poison v. The State (1893), 137 Ind. 519, 35 N. E. 907 and Sweet v. State (1941), 218 Ind. 182, 31 N. E. 2d 993. Poison v. The State, supra, involved the charge of assault and battery with intent to commit rape and stated assault and battery with intent to commit rape was an *84included offense. The latter of these cases involved kidnapping. Beck v. State (1958), 238 Ind. 210, 149 N. E. 2d 695, also urged upon us, involved a charge of uttering a forged instrument and whether or not the offense of false pretense was necessarily included therein. We believe all of these cases may be distinguished from the present situation before us.
The touching of a female child with intent to gratify sexual desires, in our opinion, is an element that is also involved necessarily in assault and battery with intent to commit rape.
The legal question in issue here, we believe, has been fairly well settled in this state previously by the case of Ritchie v. State (1963), 243 Ind. 614, 189 N. E. 2d 575, wherein this Court held that rape included the lesser offense of assault and battery with intent to gratify sexual desires. See also: Caudill v. State (1946), 224 Ind. 531, 69 N. E. 2d 549. We find no error in the instructions of the trial court.
The judgment of the trial court is affirmed.
Myers, Landis and Achor, JJ., concur.
Jackson, J., dissents with opinion.