(dissenting):
I dissent from the majority’s affirmation of the trial court’s second degree rape instruction when defendant had been charged solely with first degree rape. The general rule in Arizona is that an accused may be convicted of an offense other than that with which he was charged only if it is an “included” offense. In re Appeal in Maricopa County, Juvenile Action No. J—75755, 111 Ariz. 103, 523 P.2d 1304 (1974); State v. Parsons, 70 Ariz. 399, 222 P.2d 637 (1950); Peterson v. Jacobson, 2 Ariz.App. 593, 411 P.2d 31 (1966). An “included” offense is defined as: (1) an offense that, by its very nature, is always a constituent part of the major offense charged; or (2) a lesser offense described by the terms of the charging document even though the lesser offense would not always form a constituent part of the offense charged. In re Appeal in Maricopa County, Juvenile Action No. J — 75755, supra.
The facts of the instant case do not fall within either of these categories. The first category is merely another way of stating the definition of a lesser included offense. See, generally, e. g., State v. Westbrook, 79 Ariz. 116, 285 P.2d 161 (1954); State v. Sanders, 115 Ariz. 289, 564 P.2d 1256 (App. 1977). This Court has stated that second degree rape is not a lesser included offense of first degree rape. State v. Carrico, 116 Ariz. 547, 570 P.2d 489 (1977).
As to the second category, second degree rape was not described by the terms of the charging document in this case. Defendant was charged by information with first degree rape, without mention of the minority of the victim. Thus, defendant was convicted of an offense other than that with which he was charged, and this offense does *450not meet the definitional standards of an “included” offense.
This Court has carved out one exception to the above rule, and it is upon this exception that it today bases its decision. When a defendant is charged with first degree rape, a second degree rape instruction is allowed even though the victim’s minority is not mentioned in the charging document if the defendant has in some way received notice of such a possibility in time to defend. See State v. Carrico, supra; State v. Klem, 108 Ariz. 349, 498 P.2d 216 (1972). The Court founds this exception on its conception of the two crimes as adjuncts of one another: “merely different circumstances in which the crime of rape may be committed,” in the words of the majority opinion.
Viewing the crimes as two distinct offenses, I see no justification for the exception. Forcible rape is a crime of violence, while statutory rape is non-violent. Moreover, different defenses are involved, and a defendant may virtually convict himself of statutory rape if he is surprised by a statutory rape instruction after presenting a consent defense to a forcible rape charge.1
The United States Supreme Court has stated:
“No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. * * * It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644, 647 (1948).
See also, Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972); Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). In order to protect this important due process right, the general rule discussed above was formulated. By its terms, the charging document itself makes readily ascertainable the various offenses against which a defendant must be prepared to defend at trial. To allow notice of a potential offense from sources other than the charging document is not a sufficiently stringent safeguard of due process.
For these reasons, I would reverse on this issue.
. The new Criminal Code, effective as of October 1, 1978, numerically differentiates the two offenses and adds a new defense to the crime analogous to statutory rape. This separate treatment furnishes further evidence of the separate character of the two crimes. See A.R.S. §§ 13-1405, 1406, 1407(B).