(dissenting):
I dissent.
The prevailing opinion reverses the conviction of' the defendant because the trial court instructed the jury that their verdict should either be guilty of indecent assault or not guilty. The defendant made no request for an instruction that the jury be told they could find him guilty of a simple assault. He merely excepted to the instruction as given by the court, and that only after the verdict of guilty had been found by the jury.
The identical matter was before this court in the case of State v. McCarthy.1 This court in that case, speaking through Mr. Justice Crockett, said:
Defendant’s sole contention on appeal is that the trial court improperly refused to submit to the jury the lesser and included offense of attempted petty larceny. There is a procedural difficulty with the defendant’s position. The record does not show that any request was made for such an instruction. The only reference to the matter is that after the instructions had been given, an exception was stated to the failure to so instruct. The defendant having failed to request such instruction, is in no position to complain of the court’s failure to give it.
Where the evidence would warrant a finding by the jury of an included offense, an appellate court, in order to prevent a miscarriage of justice, might notice an error in the failure of the trial court to give an instruction thereon, even though defense counsel overlooked the matter and failed to except thereto. However, the present case is not one which requires an instruction on any included offense.
The law seems to be that the failure to instruct on a lesser and included offense would be error only if the defendant can show that the jury upon the evidence be-' fore it might rationally acquit him of the greater charge and convict him of the lesser.2
The defendant in this case was either guilty of the offense with which he was charged or he was not guilty of anything. If he did not put his hand on the private parts of the girl, then he committed no battery, for what he did was with her consent and was entirely proper. He was merely tossing a group of children into the pool in play.
I do not see how there could be error in failing to instruct on an included offense *149■which under the evidence given could not exist.
The cases cited in footnote 2 of the prevailing opinion do not impress me as holding that an instruction on simple assault should have been given in this case.
In State v. Smith,3 the trial court did give an instruction on simple assault but defined it as an unlawful attempt coupled with a present ability to commit a violent injury upon the person of another. The jury requested clarification of the term “violent injury.” The explanation given by the court was excepted to by the defendant, and that was what this court had before it. The question of whether it was or was not proper to instruct on the included offense was not before the court.
The case of State v. Waid4 was one where there was an actual assault made upon the victim. The testimony showed that she tried to get away from the defendant but he held her and pulled her around the building. If the jury did not believe he took indecent liberties with the girl, it could properly find that he did assault her.
In State v. Smith5 the defendant was charged with rape, and the court there properly held that in a rape charge an instruction that assault was an included offense would not be error because the evidence there would support a finding of unlawful attempt coupled with present ability to commit violent injury on the person of another. In that case there was carnal knowledge of a girl under the age of 13 years. Since by statute she was incapable of consenting to the act, there must of necessity be a battery, and therefore an attempt to have the relation would be an assault, since an assault is included in every battery.
Counsel for the defendant was wise enough not to request an instruction on an included offense, hoping to have a verdict of not guilty, and crafty enough to except to the instruction given by the court after the verdict was received, in the further hope that this court might seize upon the point and grant his client a new trial.
It is the exclusive province of the jury to find the facts of this case. It has found that the defendant did take indecent liberties with the victim. The trial court permitted the verdict to stand, and I think this court should affirm the conviction.
CALLISTER, C. J., concurs in the dissenting opinion of ELLETT, J.. 25 Utah2d 425, 426, 488 P.2cl 890 (1971)
. United States v. Lumpkins, 141 U.S.App. D.C. 387, 439 F.2d 494 (1970); People v. Lovely, 16 Cal.App.3d 196, 93 Cal.Rptr. 805 (1971).
. 16 Utah 2d 374, 401 P.2d 445 (1965).
. 92 Utah 297, 67 P.2d 647 (1937).
. State v. Smith, 90 Utah 482, 62 P.2d 1110 (1936).