(concurring):
I concur- — although I attach no weight to the failure of defense counsel to object at the time aggravated assault was mentioned by the law officer as an offense included within the crime of assault with intent to commit murder.
Certainly it is not always proper to regard the former offense as included within the latter. However we made clear in United States v. Davis, 2 USCMA 505, 10 CMR 3, that whether a lesser crime “is necessarily included within that charged, depends almost exclusively on the facts stated and proved in support of the offense alleged.”
Measured by this yardstick, I am sure that we are correct in responding to the certified question in the affirmative.