dissenting.
I disagree with the opinion of the majority that involuntary manslaughter as defined in I.C. § 18-4006(2) is a lesser included offense of voluntary manslaughter as defined in I.C. § 18 — 4006(1). Short weeks ago, in State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980), this Court reviewed the problems attendant to determining lesser included offenses in Idaho and reaffirmed the test set forth in State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963):
*722“An ‘included offense’ is one which is necessarily committed in the commission of another offense; or one, the essential elements of which are charged in the information as the manner or means by which the offense was committed.” 86 Idaho at 69, 383 P.2d at 605-06 (emphasis added) (citing State v. Anderson, 82 Idaho 293, 301, 352 P.2d 972, 977 (1960)).
As noted in Thompson, there are really two approaches to determining lesser included offenses set forth in this test, one of which is broader than, and encompasses, the other. The first approach is the “statutory” rule. This rule is embodied in that portion of the Hall test which states that “[a]n ‘included offense’ is one which is necessarily committed in the commission of another offense; . . . . ” 86 Idaho at 69, 383 P.2d at 605-06. Under this rule, an offense, to be a lesser included offense, must be such that it is impossible to commit the greater offense without also committing the lesser.1 The second, broader approach, is the “indictment” or “pleading” rule. Under this rule, which Idaho follows, or at least has followed until today’s decision, if acts constituting a separate but lesser offense or offenses are alleged in the indictment or information as the manner or means by which the greater offense-the offense charged-was committed, a defendant may be convicted of the lesser offense so long as the evidence at trial proves that the defendant is guilty of that offense, and so long as the punishment for the offense is not greater than the punishment for the crime actually charged. State v. Thompson, supra. This approach is embodied in the second prong of the Hall test, which states that a lesser included offense is “one, the essential elements of which are charged in the information as the manner or means by which the offense was committed.” 86 Idaho at 69, 383 P.2d at 605-06. Involuntary manslaughter, however, does not qualify as a lesser included offense of voluntary manslaughter under either prong of the Hall test.
I.
It is relatively easy to determine that involuntary manslaughter does not qualify as a lesser included offense of voluntary manslaughter under the statutory approach to determining lesser included offenses. Little v. State, 303 A.2d 456 (Me.1973), capsulizes the statutory rule well when it states that “to be necessarily included in the greater offense ‘the lesser offense must be such that it is impossible to commit the greater without having committed the lesser.’ ” 303 A.2d at 548 (quoting State v. Leeman, 291 A.2d 709, 711 (Me.1972)).
Idaho’s manslaughter statute, l.C. § 18-4006,2 categorizes two kinds 3 of manslaugh*723ter: voluntary and involuntary. The statute does not refer to involuntary manslaughter as a degree of voluntary manslaughter, but rather as a separate kind of manslaughter. Intent to kill (qualified by the lack of malice and the presence of a sudden quarrel or the heat of passion) is an essential element of voluntary manslaughter; 4 involuntary manslaughter is not concerned with intent at all.5 One of two types of acts must be shown to prove involuntary manslaughter; an unlawful killing either “in the perpetration of any unlawful act [other than certain enumerated crimes] or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; ...” Neither of these acts require an intent to kill. Nor are these two types of acts elements of the statutory definition of voluntary manslaughter.
It is very possible under Idaho’s manslaughter statute for a person to be guilty of voluntary manslaughter without being guilty of involuntary manslaughter. See State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980) (Bistline, J., dissenting). See also Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980). If a person intends to kill another, the killer does not act involuntarily. The vast majority of jurisdictions follow the rule that when intent to kill is proven, a person cannot be convicted of involuntary manslaughter. See State v. Tuzon, 118 Ariz. 205, 575 P.2d 1231 (1978); People v. Williams, 114 Cal.Rptr. 522 (Cal. Ct.App.1974); Shanks v. Commonwealth, 390 S.W.2d 888 (Ky.1965); Commonwealth v. White, supra (Pa.); State v. Lopez, 79 N.M. 282, 442 P.2d 594 (1968); State v. Woods, 278 N.C. 210, 179 S.E.2d 358 (1971). Thus, involuntary manslaughter is not a lesser included offense of voluntary manslaughter under the statutory rule, i. e., it is not true that every time voluntary manslaughter is found it necessarily follows that involuntary manslaughter will also have occurred.
Since both voluntary and involuntary manslaughter have elements unique to themselves (voluntary manslaughter requires an intent to kill and involuntary manslaughter requires that the killing occur during the commission of an unlawful act or a lawful act negligently performed), it is impossible to say that involuntary manslaughter is a lesser included offense of voluntary manslaughter under the statutory approach to determining lesser included offenses.
II.
The second prong of the Hall test requires a more detailed analysis of the information by which the defendant was charged. This “indictment” rule dictates that an offense is a lesser included offense if “the essential elements [of the lesser offense] . . . are charged in the information as the manner or means by which the offense was committed.” 86 Idaho at 69, 383 P.2d at 605-06.
*724A.
The essential elements of involuntary manslaughter as defined by I.C. § 18-4006(2) are: (1) an unlawful killing, (2) in the perpetration of an unlawful act (other than certain enumerated crimes) or a lawful act performed without due caution and circumspection. The information charging defendant here charges him with “the crime of VOLUNTARY MANSLAUGHTER, I.C. § 18-4006(1)” and then sets forth the alleged acts giving rise to the charge, i. e
“That the said Defendant, ISIDORO PADILLA, on or about and between the period of February 9, 1977, and February 18,1977, in the County of Bingham, State of Idaho, did, unlawfully and in a sudden quarrel or heat of passion, but without malice aforethought and premeditation, kill MARISOL PADILLA, a human being, by striking said child causing the child to fall striking her head against objects within the home, thereby mortally wounding the said MARISOL PADILLA, from which she sickened and died in the County of Bingham, State of Idaho, on the 18th day of February, 1977.”
Unless these acts as alleged include the essential elements of involuntary manslaughter, then defendant cannot be convicted of involuntary manslaughter as a lesser included offense of voluntary manslaughter under the indictment or pleading theory set forth in the second prong of the Hall test.
The information here does not allege any unlawful acts other than the killing itself. Therefore, the first set of circumstances in which an involuntary manslaughter might be found are not available for consideration under the indictment or pleading theory of lesser included offenses. The information also fails to allege that the killing occurred during the course of a lawful act performed “without due caution-and circumspection”6 and therefore the second set of circumstances under which involuntary manslaughter might be found are not available for consideration as a lesser included offense under the indictment theory. In short, the information does not allege that acts constituting involuntary manslaughter were performed as a “manner or means” of committing the offense charged, and the defendant should not be found guilty of acts not set forth in the information. State v. Cariaga, 95 Idaho 900, 523 P.2d 32 (1974); State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937).
B.
At one time in the evolution of this Court’s jurisprudence, it was believed that specifying in the indictment or information the acts constituting the offense charged was not necessary. In State v. Lundhigh, 30 Idaho 365, 370, 164 P. 690, 691 (1917), this Court overruled State v. Smith, 25 Idaho 541, 138 P. 1107 (1914), and held that an indictment or information was sufficient so long as it set forth the statutory elements of the crime charged.7 The Lundhigh decision survived for twenty years before it was overruled in State v. McMahan, 57 Idaho *725240, 250, 65 P.2d 156, 160 (1937). The McMahan Court found that both the precursor to I.C. § 19-1409(2) and the due process clause of the Idaho Constitution, Art. I, § 13, required that the specific acts constituting the offense be alleged in the information or indictment. The McMahan Court stated:
“To put a man on trial without giving him, in the information, ‘a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended,’ and to let him know these facts, for the first time when his trial is in progress, is to deprive him of the protection the statute was designed to give him and deny him due process of law in violation of article 1, section 13 of the Constitution.” 57 Idaho at 250, 65 P.2d at 159-60 (emphasis in original).
In McMahan, the defendant doctor was charged in the information with manslaughter in that he did “willfully, unlawfully and feloniously kill ... a human being .. .. ” 57 Idaho at 243, 65 P.2d at 157-60. At the preliminary hearing the State indicated that it would proceed on the theory that the defendant had performed a criminal abortion on the deceased, as a result of which she suffered an attack of general peritonitis and died. The evidence at trial, however, showed simply that the defendant had treated the deceased for general peritonitis. On rebuttal the State put on evidence that the treatment for peritonitis was negligently performed. The defendant was convicted of involuntary manslaughter. In reversing the conviction, the Court stated, in language directly applicable to today’s case, that:
“It was not until during the trial that appellant or his counsel were in any manner informed that he was brought before the bar of justice to answer for homicide committed through negligence and carelessness. He was entitled to know, before being required to plead to the information, the nature of the charge against him, and it would have told him that had it been drawn in conformity to the plain mandates of the statute. Had it so informed him, he would have been in position to prepare his defense. Without knowledge as to the nature of the charge upon which he was to be tried, he could not do so.” 57 Idaho at 249, 65 P.2d at 159.
McMahan has been expressly followed in a number of subsequent cases8 and is unquestionably the law today.
The limits of the indictment or pleading theory of lesser included offenses dictate that an offense with elements which differ from those of the charged offense cannot be considered a lesser included offense unless all of the elements of the lesser offense are alleged in the information or indictment as the “manner or means” of commission of the greater offense. State v. Thompson, supra. I.C. § 19-1409(2) requires that an indictment contain: “[a] statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” I.C. § 19-1303 makes this requirement applicable to informations as well as indictments. It was this provision which prompted the McMahan Court to state, in overruling Lundhigh, that “[i]t is for the legislature, not the courts, to say what an indictment or information shall contain (Idaho Const., art. 2, sec. 1).” 57 Idaho at 248, 65 P.2d at 159. To allow a defendant to be convicted of acts which are not set forth in the indictment or information goes beyond the pleading theory of lesser included offenses, violates specific provisions of the Idaho Code and denies the defendant due process of the law. Yet that is exactly the procedure approved by today’s majority.
III.
State v. Boyenger, 95 Idaho 396, 509 P.2d 1317 (1973) states that “courts cannot look *726merely to the crime as charged in the information to make the determination of whether another offense is ‘necessarily included’ within that charge, but must also look at the evidence adduced at trial.” Id. at 400, 509 P.2d at 1321. This is what the majority here has in fact done. It must be made clear, however, that jury instructions on lesser included offenses are commonly requested by a defendant, and the rule to which this statement refers is that a defendant is not entitled to an instruction on a lesser included offense unless the evidence produced at trial supports such an instruction, State v. Elsen, 68 Idaho 50, 187 P.2d 976 (1947), but is entitled to an instruction on the lesser offense when the defendant requests the instruction and the evidence would support a conviction on the lesser offense.
This does not, however, mean that a defendant may be convicted of any crime which the evidence adduced at trial tends to support, regardless of whether the defendant requests an instruction on the crime. Such a rule would violate I.C. §§ 19-1409(2), 19-1303, Art. 1, § 13 of the Idaho Constitution, the due process clause of the United States Constitution and would be contrary to an impressive list of precedents stretching back to the decision in McMahan, supra. It would stand the rule for determining lesser included offenses on its head by saying that any offense is a lesser included offense so long as the evidence shows that the offense occurred and the punishment is less than the punishment for commission of the offense charged in the information.
A defendant simply may not be convicted of a crime for which the defendant is not given notice that he may be convicted. “Conviction upon a charge not made would be a sheer denial of due process.” DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937). When a person is convicted of a crime not set forth in the information and which consists of elements different than those of the crime charged, then- “the variance between the complaint and conviction denied [a defendant] due process of law . . . . ” State v. Cariaga, 95 Idaho 900, 904, 523 P.2d 32, 36 (1974).
Where the defendant requests such an instruction, it may be assumed that the defendant either had sufficient notice of the crime charged or prefers to waive the right to notice. While paying lip service to the distinction between a defendant’s requested jury instruction and a state requested jury instruction, the majority has apparently concluded that the instruction given here was justified simply because the evidence supported it. The dangers of such a rule seem too evident to require elucidation. See People v. Babb, 103 Cal. App.2d 326, 229 P.2d 843 (1951) (defendant charged with sodomy and convicted of vagrancy); Comment, Jury Instructions on Lesser Included Offenses, 57 Northwestern L.Rev. 62, 63 (1962) (“[The defendant’s] preparation is necessarily spread over the entire range of offenses of which he may possibly be convicted.”).
In State v. Lopez, 100 Idaho 99, 102, 593 P.2d 1003, 1006 (1979), we stated that under I.C. § 19-2132(b), a “duty to instruct as to lesser included offenses exists even when as a matter of trial tactics a defendant fails to request the instruction.” This admonition, however, should not be taken to mean that trial courts are required to instruct on any offense supported by the evidence, regardless of the crime or acts charged in the information or indictment, despite the fact that this is the apparent holding of today’s majority.
This Court sits primarily not to determine issues of guilt or innocence, but to make appellate reviews to determine whether criminal defendants have had the fair trial to which all are entitled. Defendant here was charged with voluntary manslaughter, and understandably defense counsel was obliged to place defendant on the stand to disprove the requisite element of intent. It can hardly be said that a fair trial resulted when the trial court at the close of the trial instructed the jury that defendant could be convicted of a crime, the commission of which was not charged against him in the information.
BAKES, J., concurs.. It strikes me as more than a little ironic that only months ago the State argued vehemently that this narrower, statutory rule should be applied to preclude a defendant’s requested instruction on lesser included offenses in State v. Pulliam, 101 Idaho 482, 616 P.2d 261 (1980), yet today argues just as vehemently that a much broader rule for determining lesser included offenses should be applied to uphold the conviction of a defendant for a crime which not only consists of different elements than the crime charged, but which was not mentioned in the information by which the defendant was charged.
. l.C. § 18-4006 provides in part:
“Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
“1. Voluntary-upon a sudden quarrel or heat of passion.
“2. Involuntary-in the perpetration of or attempt to perpetrate any unlawful act, other than arson, rape, robbery, kidnapping, burglary, or mayhem; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; or in the operation of any firearm or deadly weapon in a reckless, careless or negligent manner which produces death; or in the operation of a motor vehicle:
.Intentional criminal homicide is in actuality of three degrees: (1) first degree murder where necessary elements include premeditation and malice aforethought; (2) second degree murder where the premeditation is excluded; and (3) voluntary manslaughter, where both premeditation and malice are excluded.
Involuntary manslaughter is statutorily defined as one of two kinds of manslaughter. In that regard it must be accepted as of some significance that since before statehood not only has murder been categorized into first and *723second degree, but the same is true of larceny, burglary, arson, and kidnapping.
. “Where a homicide is neither justifiable nor malicious but is intentional, it is voluntary manslaughter. More specifically, ‘voluntary manslaughter’ as defined at common law and under statutes declaratory thereof, is substantially, the unlawful killing of another intentionally, but in a sudden heat of passion due to adequate provocation, and not with malice.” 40 C.J.S. Homicide § 40 (1944) (emphasis added). Thus, while intent is an element of first degree murder, second degree murder and voluntary manslaughter, the type of intent in voluntary manslaughter is “without malice” (I.C. § 18-4006) and arises through a sudden quarrel or heat of passion. See State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973) (where there was no evidence in second degree murder trial that accused acted upon a sudden quarrel or heat of passion, trial court properly refused to give instruction on voluntary manslaughter.); People v. Germany, 42 Cal.App.3d 414, 116 Cal.Rptr. 841 (1974) (“Voluntary manslaughter is a specific intent crime.”).
. See State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951) (instruction on criminal intent not necessary where defendant was charged with involuntary manslaughter); People v. Germany, supra (“involuntary manslaughter ‘is the unlawful killing of a human being without malice aforethought and without an intent to kill
. “Without due caution and circumspection” as that phrase appears in I.C. § 18-4006(2) must be construed in conjunction with I.C. § 18-114, which requires the joint union of act and intent or criminal negligence before a public offense may be found. State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937). Since the term criminal negligence does not mean simply the failure to exercise ordinary care, but rather requires gross negligence such as amounts to reckless disregard of consequences and the rights of others, see State v. Hintz, 61 Idaho 411, 418, 102 P.2d 639, 643 (1940), it may not be argued that the type of negligence required to be found guilty of involuntary manslaughter may in any way be “implied” from the single act set forth in the information charging the defendant here.
. It is noteworthy that in doing so, the Lundhigh Court stated: “It is possible that in cases of involuntary manslaughter, it might sometimes be necessary that the particular circumstances be alleged in order to constitute the complete offense.” 30 Idaho at 370, 164 P. at 691 (emphasis added). Thus even the Lundhigh Court, which required much less specificity in indictments and informations than does today’s majority, felt that the crime of involuntary manslaughter was sufficiently distinct from the crime of voluntary manslaughter to require that acts constituting involuntary manslaughter be alleged in the information.
. See State v. Lopez, 98 Idaho 581, 570 P.2d 259 (1977); State v. Polson, 92 Idaho 615, 448 P.2d 229 (1969); State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967); State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941).