(concurring):
Unquestionably, if the evidence does not prove the offense charged, the accused can be convicted of a lesser offense only if that offense is necessarily included within that charged. However, whether an offense is necessarily included depends upon both the allegations of the specification and the proof. My brothers and I agree that the lesser offense of indecent assault is raised by the evidence. We disagree on whether it is necessarily included within the allegations of the specification. As I view the problem, it is simply one of pleading.
The Uniform Code has authorized the President to prescribe the procedure for cases before courts- martial. Article 36, Uniform Code of Military Justice, 10 USC § 836. Included within that authority is the right to establish a “short form” of alleging an offense by the use of words of art, or words which otherwise merely state a legal conclusion. United States v Rios, 4 USCMA 203, 15 CMR 203; United States v Bunch, 3 USCMA 186, 11 CMR 186; United States v Hemp, 1 USCMA 280, 3 CMR 14. The form of pleading authorized here is a statement that the accused “did ... attempt to” com*703mit rape. Manual for Courts-Martial, United States, 1951, Appendix 6c, Forms 2 and 88. This abbreviated form of pleading permits proof of any kind of act sufficient to establish an attempt. In a particular case, the pleading may actually describe an attempt predicated upon an assault. In that event, as far as the specification is concerned, the offense charged necessarily has included within it the lesser offense of an indecent assault. That is the kind of case we have here. In other words, the offense charged is, in fact, an attempt based upon an assault.
Was the accused aware of the nature of the offense from the form of pleading? Certainly the specification put him on notice that he could be called upon to defend against an assault type of act. If he desired further particulars, he could have asked for them. Not having done so, I must assume that he knew what act constituted the basis of the charge against him. Since that act consisted of an assault, it necessarily included the lesser offense of an indecent assault. Consequently, I concur with the holding of the principal opinion.