(dissenting in part).
I agree that under the facts in this case there was no error prejudicial to the defendant. However, I feel impelled to note that I am unable to agree with the generality that wherever an accused has been convicted of the greater offense, he has no right to complain because there may have been error with respect to instructing on a lesser offense. To say categorically that if he has been convicted of the greater offense, he has no right to complain because there may have been error in instructing on a lesser offense is, in my judgment, an unrealistic ex post facto analysis which fails to take into consideration the situation during a trial when no one knows what view the jury may take of the evidence. It seems to me that this depends upon what the evidence is in the particular case and what findings reasonably might be made therefrom.
The invariably accepted rule is that both sides to a lawsuit are entitled to have instructions to the jury based on their respective theories of the case. There will be situations where the evidence is in conflict, and depending rtpon the view of the evidence the jury will adopt, the accused could be found guilty of a greater or of a lesser offense. Neither the court nor the prosecution should be able to force him into the position of giving the jury only the all or nothing choice; although he can make such a choice if he so desires. See State v. Mitchell, 3 Utah 2d 70, 278 P.2d 618. But if the evidence so justifies and he chooses otherwise, he should be entitled to an accurate instruction on the lesser offense to guide the jury in case they adopt a view of the evidence which would bring about that conviction, State v. Hyams, 64 Utah 285, 230 P. 349. In such an instance it is conceivable that the instruction given as to the lesser offense might be incomplete, inaccurate, or so confusing as to be incomprehensible, or it may even require proof of some element, or in some degree higher than the so-called greater offense. Thus the jury would not be given *18a correct understanding as to the lesser offense. In such a situation it could not be said with certainty that if the jury had been given a correct understanding of the lesser offense, and the alternative of rendering such a verdict, they would not have done so. For the foregoing reasons I do not think it can properly be said that in all cases the failure to correctly instruct on a lesser offense is rendered harmless because the defendant was found guilty of a greater offense.