(dissenting):
In my view, the main opinion does violence to the well-established Utah law concerning lesser included offenses. It induces confusion where harmony, consistency, and predictability could be maintained.
The defendant was convicted in a jury trial of carrying a concealed weapon in violation of 76-10-504, Utah Code Annotated, 1953, a third-degree felony under the following abstracted circumstances. We should reverse and remand for a new trial. All statutory references are to U.C.A., 1953.
A police officer heard four shots, saw defendant come out of a house and enter a truck. The officer followed and stopped him. Gandee was wearing a shirt not tucked into his trousers, and was asked where the gun was, after which he raised his shirt and produced a .22 caliber pistol that he said was on the car seat, the officer saying that although he was not sure where it came from, “it was concealed at the time or why would he have lifted his shirt to take it out, and that is when it became visible.” Gandee’s wife testified he was carrying the gun when he left the house.
In chambers, before the case was given to the jury, Gandee’s counsel requested an instruction as to 76-10-505 being an “included offense, — that of ‘carrying a gun in a vehicle, or on a public street, in a city,’ ” which is a misdemeanor. The request was *1068refused, the court taking the position the two statutes represented separate offenses, for both of which defendant could be convicted.
As to Gandee’s failure to except to a failure to instruct as to an included offense, the State, in its brief (not Gandee’s) stated the circumstances which should compel the application of our decision in State v. Bell, 563 P.2d 186 (Utah 1977),—a unanimous decision. They are:
After the defense and the state rested, proceedings were held in chambers to discuss the jury instructions (Tr. 120-127). It was the opinion of the trial judge that Utah Code Ann. § 76-10-505 (1973), as amended, carrying loaded firearm in vehicle or on street, was not a lesser included offense of Utah Code Ann. § 76-10-504 (1973), as amended, carrying concealed dangerous weapon (Tr. 120). Counsel for appellant requested that an instruction on the ground of Section 76-10-505 be given (Tr. 121). However, after the trial judge noted that in his opinion appellant could be found guilty under both Section 76-10-504 and Section 76-10-505 (Tr. 121), counsel for appellant stated that he would not submit his client to a double offense (Tr. 121). After several changes were made to the jury instructions, counsel for appellant stated, “No further exceptions” (Tr. 127). Moreover, when the court inquired of counsel whether there were further exceptions after the jury had retired to deliberate, counsel for appellant replied that there were none (Tr. 128).
The case of State v. Mitchell, cited by the majority opinion is not pertinent because there counsel for defendant did not ask for an included offense instruction, but simply took the gamble on a murder # 1 acquittal, and raised the failure to instruct for the first time on appeal, — which was invited error, not like this case.
The main opinion makes an egregious mis-statement of the facts and the law when it opines:
Finally, and what should be the controlling proposition here, is that the question as to giving of a written instruction on an included offense was not raised nor in any manner presented to the lower court for its action thereon after the discussion in chambers. The invariably accepted rule of appellate review is that no issue will be considered by the appellate court unless it was properly raised in the lower court .
First, the issue of the included offense was presented to the lower court, as described, supra.
Second, it is not the invariably accepted rule of appellate review “that no issue will be considered by the appellate court unless it was properly raised in the lower court . . . .” Our Rule 51 (U.R.C.P.) after requiring the proper methods for requesting, providing, and objecting to instructions, says:
Notwithstanding the foregoing requirement, the appellate court, . . . may review the giving or failure to give an instruction.
State v. Bell supports this view, as does Rule 51.
It is of interest to read the author of the main opinion writing for the court in State v. Close:1
This court in a number of decisions has affirmed the rule above stated requiring the submission of lesser included offenses when the evidence and circumstances so justify, and has gone further in indicating that even in the absence of an appropriate objection, if it is clear that the interests of justice so require, the court should instruct on included offenses. [State v. Cobo, 90 Utah 89, 60 P.2d 952; State v. Poe, 21 Utah 2d 113, 441 P.2d 512 (1968); see also Rule 51, U.R.C.P.] [Emphasis supplied.]
Turning now to the lesser included offense issue, let us examine the pertinent statutes. They are:
76-10-504. Carrying concealed dangerous weapon. — Any person, except *1069those persons described in section 76-10-503, carrying a concealed dangerous weapon as defined in this part is guilty of a class B misdemeanor, and if the dangerous weapon is a firearm, or sawed-off shotgun he shall be guilty of a felony of the third degree.
76-10 — 505. Carrying loaded firearm in vehicle or on street. — Every person who carries a loaded firearm in a vehicle or on any public street in an incorporated city or in a prohibited area of an unincorporated territory within this state is guilty of a class B misdemeanor.
Generally in criminal statutes the more serious offense precedes an included offense, which follows in the next section, as is the case here. Also such lesser offense usually is an included offense, such as “Grand Larceny” followed by “Petit Larceny,” “Burglary” and “Second Degree Burglary,” and the like.
We must also bear in mind the provisions of 76-1-402. This provision is new to our practice in that it provides definition to the question of lesser included offenses. By examining it, I think it clear, the controlling item of proof as it relates to firearms is “concealment.”
(3) A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
SjC ⅜! ⅜! * ⅜ Sfc
Looking now to 504 and 505, both require (1) “carrying” and (2) “dangerous weapon” (loaded firearm is synonymous with “dangerous weapon”). In 505 “carrying” (3) in a “vehicle” or “on a street” in a “city” are the situs points for commission of the offense — all of which of necessity are included in “anywhere” as must be construed to be the situs in 504, where situs was not mentioned. It follows that the only element lacking in 505 that is in 504 is “concealment.” This very absence of “concealment” in 505 is the very reason 505 is an included offense, and which leaves (1), (2) and (3) above, as being obviously “necessarily” included in 504, being necessary to commit 504 except for “concealment.” It is just as obvious that this being so, the provisions of Sec. 77-33-6, quoted in the majority opinion are satisfied as to the offense (505) since the commission of 505 is necessarily included in 504.
The majority opinion’s only justification for rejecting 505 as an included offense is that “504 is to prohibit and punish the secretiveness” (?) in “carrying a concealed dangerous weapon,” while 505 deals with “just three specified places, to-wit in a vehicle or on any public street, in . . .a city.” It is obvious the majority opinion attributes the difference in situs as the basis for exclusion as an included offense, although at first blush it might appear that lack of “concealment” is the basis for the decision.
It doesn’t make any difference which basis is entertained because:
1. If it is the missing “concealment” element, its absence in 504 is the basis for treating 505 as an included offense because it has all the other elements found in 504.
2. If it is based on situs and the words “vehicle,” and “street” that have to be in an incorporated city under 505, all three are obviously within the situs in 504 which is “everywhere.” The analogy of the offense being in a building is no analogy at all and is in no way germane here. It would be germane if anyone attempted to convict one with carrying a cannon in a building, under section (505) that requires it to be in a “vehicle” or on a “street,” it is obvious no conviction could be had under 505 but it could be had under 504 which is “everywhere.”
It must be conceded this Court, in the interest of justice, may review the giving or failure to give an instruction where no exception was made.2 There was an injustice *1070encountered in the trial judge’s chambers, because of the inaccuracy of his advice, viz., that statute, which was the subject of the requested instruction, did not reflect an offense included in the one charged.
Again it is interesting to note the author of the main opinion had the following to say, in State v. Dougherty:3
. it is my view that in most all instances the court should give an instruction on any lesser included offenses when such a conviction would be warranted by any reasonable view of the evidence. .
I submit a reasonable view of the evidence mandates the giving of a lesser and included instruction.
This case seems to call for an instruction on included offense, as much or more so than: State v. Vance, 39 Utah 602, 119 P. 309 (murder by poison). State v. Winslow, 30 Utah 403, 85 P. 433 (attempt included). State v. Barkas, 91 Utah 574, 65 P.2d 1130 (assault to do bodily harm,—included simple assault). State v. Hunter, 20 Utah 2d 284, 437 P.2d 208 (simple assault included in assault with deadly weapon). State v. Lawrence, 120 Utah 323, 234 P.2d 600 (petty larceny included in grand larceny). State v. Hutchinson, 4 Utah 2d 404, 295 P.2d 345 (second degree perjury included in first degree). State v. Little, 19 Utah 2d 53, 426 P.2d 4 (petty in grand larceny). State v. Olsen, 76 Utah 181, 289 P. 92 (false imprisonment, a misdemeanor, in kidnapping, a felony). State v. Durfee, 77 Utah 1, 290 P. 962 (possession of liquor in “persistent” violation). State v. Smith, 90 Utah 482, 62 P.2d 1110 (assault with intent to rape included in rape). State v. Donovan, 77 Utah 343, 294 P. 1108 (grand larceny included in robbery).
WILKINS, J., concurs in the views expressed in the dissenting opinion of MAUGHAN, J.. 28 Utah 2d 144, 146, 499 P.2d 287, 288 (1972).
. State v. Bell, 563 P.2d 186 (Utah, 1977).
. Utah, 550 P.2d 175, 177 (1976).