OPINION ON STATE’S MOTION FOR REHEARING
ODOM, Judge.On original submission appellant’s conviction was reversed for failure of the trial court to submit a charge on the lesser included offense of criminal trespass. We held that the evidence raised the issue and that under Art. 37.09(1), Y.A.C.C.P., and the facts of this case, criminal trespass was a lesser included offense to the burglary charged.
I.
On motion for rehearing the State contends that the evidence does not raise the issue. On this point we remain convinced of the soundness of our opinion on original submission. We perceive the thrust of the State’s argument to be that appellant’s testimony at best raised the issue of Public Duty (Y.T.C.A. Penal Code Sec. 9.21) or Necessity (V.T.C.A. Penal Code Seci 9.22). While it may be true that appellant, upon request, also would have been entitled to a charge on the defensive theories stated, that would not alter the fact, as found on original submission, that the lesser included offense of criminal trespass was also raised by the evidence.
II.
The State also contends in its motion for rehearing that the requested charge was properly denied because the indictment would not support a conviction for criminal trespass.
The State cites numerous authorities for the proposition that an indictment will not support conviction for what otherwise would be a lesser included offense unless the indictment, pleads all of the necessary allegations to charge such other offense. We first observe that the authorities relied upon were decided prior to the amendments of Arts. 37.08 and 37.09, V.A.C.C.P., that were conforming amendments contained in the Penal Code Act (Acts 1973, 63rd Leg., ch. 399, Sec. 2).
We are aware of no statutory provision prior to the 1973 amendments to the Code of Criminal Procedure governing lesser included offenses as that term is now defined in Art. 37.09, supra. Articles 37.08 and 37.09, supra, prior to amendment provided for offenses with different degrees. The scheme envisioned in those two articles dates from the earliest days of codified criminal procedure in this State.
From research1 it appears to us that upon the issue now raised by the State, the common law governed at the time Texas was annexed to the United States. In 1851 the Supreme Court of Texas appears to *311have been of the same opinion when it decided Givens v. State, 6 Tex. 344, in which the defendant urged, “The court erred in rendering a judgment on the verdict against the appellant for a common assault, when he was indicted for an assault with an intent to murder.” In disposing of that contention the Court wrote:
“The second ground has never before been presented to this court. It seems, however, to be the common practice in most of the States on a verdict finding a common assault or assault and battery, upon a count for an assault with intent to murder; to hold such finding good and valid. (Shart.Am.Crim.Law, 97; 5 Ohio R. 242; 7 Port.R., 495) It seems to be a well-settled rule that when an accusation of an offense includes an inferior one the jury may acquit the accused of the more atrocious and convict him of the inferior offense. (State v. Cowell, 4 Ire.R., 231.) And in the State v. Gafney (4 Rice R., 431) the Court of Appeals of South Carolina held that the indictment under the statute for the murder of a slave would sustain a verdict for the inferior offense of ‘killing in sudden heat and passion.’ This doctrine appears to be well founded on the principle that the greater offense includes the less and the less is merged in the greater. . . .”
Subsequent to the 1851 decision in Givens v. State, supra, the Legislature took what *312appears to be the first step to codify a rule governing prosecutions for offenses consisting of degrees.2
Article 630 of the 1856 Code of Criminal Procedure (hereinafter O.C.) was the origin of Art. 37.08, V.A.C.C.P. (1965) and provided:
“Where a prosecution is for an offense consisting of different degrees, the Jury may find the defendant not guilty of the higher degree, (naming it,) but guilty of any degree inferior to that charged in the indictment.”
Article 631 (O.C.) was the origin of Article 37.09, V.A.C.C.P. (1965), and provided:
“The following offences include different degrees:
1. Murder, which includes all the lesser degrees of culpable homicide.
2. Maiming, which includes disfiguring, wounding, aggravated assaults and batteries, and simple assaults and batteries.
3. Arson, which includes every malicious burning made penal by law.
4. Burglary, which includes every species of house-breaking, and of theft from a house.
5. Theft, which includes all unlawful acquisitions of personal property, punishable by the penal code.
6. Every offence against the person, includes within it, assaults with intent to commit said offence, when such assault is a violation of the penal law.
7. Every offence includes within it an attempt to commit the offence, when such attempt is made penal by law.”
Except for changes in the enumerated offenses of Art. 631 (O.C.) and minor changes in Art. 630 (O.C.), these two articles preserved the same statutory scheme from their original enactment in the 1850’s up to the time of the fundamental changes enacted in 1973. Through that history of those articles there have arisen many occasions for the successive high courts of this State to apply and interpret those two articles. Regardless of what rules would have governed had the statutes on degrees of offenses never been enacted, two principles have emerged from the jurisprudential history of the two statutes.
First, there are two types of cases in which conviction may be had for an offense other than the primary offense charged in the indictment. This was recognized in the opinion by Judge Woodley writing for the Court in Tomlin v. State, 155 Tex.Cr.R. 207, 233 S.W.2d 303, wherein it is stated:
“Art. 694, C.C.P. [Art. 630, O.C.; Art. 37.09, V.A.C.C.P. (1965)], authorizes conviction of a lower offense where the prosecution is for an offense which includes it.
“Art. 695, C.C.P. [Art. 631, O.C.; Art. 37.09, V.A.C.C.P. (1965)], sets out certain offenses and classes of offenses which are declared to include different degrees. Robbery is not one of the offenses enumerated.
“The rule appears to be that where the offense charged is not within the provisions of said article 695, C.C.P., in order to warrant a conviction for a lesser offense than that charged in an indictment, it is necessary that every constituent element of the lesser offense be alleged in the indictment, and that there be no re-pugnancy between the constituent elements of the lesser offense and those of the offense charged.”
The rule was again stated in Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479, wherein Judge Morrison, writing for the Court, stated:
*313“Article 694, C.C.P., provides:
“ ‘In a prosecution for an offense including lower offenses, the jury may find the defendant not guilty of the higher offense, but guilty of any lower offense included.’
“Article 695, C.C.P., enumerates offenses which include different degrees.
“We have held Article 695 not to be exclusive if every constituent element of the lesser offense be alleged in the indictment and if there is no repugnancy between the constituent elements of the lesser offense and those of the offense charged. Tomlin v. State, Tex.Cr.App., 155 Tex.Cr.R. 207, 233 S.W.2d 303.”
It may also be found stated in Van Arsdale v. State, 149 Tex.Cr.App. 639, 198 S.W.2d 270.
This principle recognizes that if the “lesser offense” considered is not by statute a degree of the primary offense charged, no conviction may be had for that lesser offense unless it is itself sufficiently pleaded in the indictment.3 The principle also recognizes, however, that if the “lesser offense” considered is a degree of the primary offense charged, the indictment is not required to allege all elements of the lower degree. Although Tomlin and Daywood, supra, do not state the rule for offenses with degrees (it not being there applicable4), such rule has been recognized and applied in those cases coming within it. Cases standing for the proposition that an indictment charging an offense with degrees includes lesser degrees even where the elements of the lesser degrees are not alleged include Brown v. State, 376 S.W.2d 577; Meaux v. State, 160 Tex.Cr.R. 121, 267 S.W.2d 833; Wallace v. State, 145 Tex.Cr.R. 625, 170 S.W.2d 762, 766; Short v. State, 119 Tex.Cr.R. 34, 45 S.W.2d 587; Guerra v. State, 105 Tex.Cr.R. 410, 288 S.W. 1084; Hand v. State, 88 Tex.Cr.R. 422, 227 S.W. 194; Cirul v. State, 83 Tex.Cr.R. 8, 200 S.W. 1088, and Bell v. State, 70 Tex.Cr.R. 466, 156 S.W. 1194. Numerous other cases to the same effect are cited in the cases listed.
The second principle that has found expression in the court opinions considering the statutes under discussion is reflected in the recognition by the judiciary that the mere fact that the Legislature by statute provides that one offense is but another degree of the offense charged does not make it true. To dispense with the need for pleading all the constituent elements of the lesser offense, which applies in other cases (e. g., Tomlin, Daywood, both supra), the relationship between the offense charged and the other offense not only must be within the terms of the statute specifying offenses with degrees, but also that relationship between the two offenses must be such that the other offense is in fact not repugnant to the offense charged. To state that the Legislature by statute may authorize conviction for any offense so designated upon trial for some other offense regardless of the relationship between the two is to state an obvious absurdity violative of basic principles of due process.5
The application of this principle is demonstrated in comparing two early cases decided by the Texas Court of Appeals. Huntsman v. State, 12 Tex.App. 619 (Austin Term, 1882); Peterson v. State, 12 Tex.App. 650 (Austin Term, 1882). These two cases, decided at the same term of court, considered- then Article 714 of the Code of Criminal Procedure (predecessor to Art. 37.-*31409, V.A.C.C.P. (1965)). Huntsman held unconstitutional that portion of the article purporting to designate embezzlement as an offense included in theft, the offense charged, and reversed the embezzlement conviction. Peterson, on the other hand, rejected, upon the basis of that article, the defendant’s contention that conviction for assault to murder could not stand upon an indictment charging murder. The opinion in Peterson observed that defendant’s argument “is in effect a denial of the axiom that the greater includes the lesser. In murder there is always an assault to commit murder. When an indictment charges murder, it necessarily embraces an assault to commit murder.” While most of the lengthy opinion in Huntsman is addressed to the constitutional rights of the accused and to the function of the indictment, a necessary premise of the court in addressing the issue of whether the indictment charged embezzlement was that theft, properly pleaded in the indictment, and embezzlement, for which the defendant was convicted, did not possess that relationship found in Peterson to exist between murder and assault to murder.
Later, in Brown v. State, 15 Tex.App. 581 (1884), the Court considered whether an indictment for theft would authorize conviction for receiving stolen property. The Court overruled prior decisions to the contrary,6 and upon application of the principles relied upon in Huntsman v. State, supra, held that an indictment for theft would not support such a conviction despite the statutory language purporting to make it a degree of the offense of theft. Even the dissent in Brown acknowledged: “As to . theft and embezzlement, the distinctions made by our statutes are so marked that the offenses cannot be reconciled or harmoniously assimilated.” 15 Tex.App. at 585.
Eventually the same principle led to the overruling of numerous decisions on appeals from convictions for driving livestock from its accustomed range. In Long v. State, 39 Tex.Cr.R. 537, 46 S.W. 821 (1898), it was held that a conviction for that offense could not be had upon an indictment charging theft. Cf. Campbell v. State, 22 Tex.App. 262, 2 S.W. 825; Foster v. State, 21 Tex.App. 80, 17 S.W. 548; Smith v. State, 17 S.W. 560; Smith v. State, supra, at 561 (dissenting opinion by Judge Hurt).
In dictum in a case involving other issues, encyclopedic authority was quoted with approval to the following effect:
“Where a particular offense, such as homicide, is divided into degrees which are defined by statute, the indictment may follow the general form without specifying the elements which fix the particular degree, and still fulfill the requirement of informing defendant of the nature and cause of the accusation. But the Legislature cannot provide that if, on the trial of an indictment for a specific offense, it is found that the offense has not been committed, but that another has, a conviction may be had for the offense proved, or that a person indicted for an offense consisting of one state of facts may be tried and convicted under that indictment of an offense consisting of a different state of facts.” Slack v. State, 61 Tex.Cr.R. 372, 136 S.W. 1073, 1075.
The principles and rules applied in the cases cited and discussed above now may be summarized. Prior to the enactment of a new statutory scheme of lesser included offenses in 1973, there were two types of “lesser offenses” subject to different rules regarding the power of the court to enter a judgment of conviction for the lesser offense upon the indictment charging the greater offense. If the greater offense by statute consisted of degrees, the elements of the lesser degree did not have to be alleged in the indictment. If the lesser offense was not made a degree of the greater by statute, the elements of the lesser had to be alleged in the indictment be*315fore a conviction for that lesser could be had thereon. Furthermore, even if by statute the lesser was made a degree of the greater alleged, the validity of that statutory designation was subject to constitutional attack and, upon such attack, to judicial examination of the relationship between the two offenses.
On original submission we held that on the facts of this case criminal trespass was a lesser included offense to the burglary charged under the terms of Art. 37.09(1), Y.A.C.C.P. With respect to the State’s challenge raised against the power of the court to enter judgment for criminal trespass upon the indictment in this case,7 we hold that the new statutory scheme of lesser included offenses, as contrasted with the old statutory scheme of offenses with degrees, did not create such a restriction upon the jurisdiction of the trial court once properly invoked to try the offense charged, to proceed to judgment upon the lesser included offense, and in this respect the new scheme is not at variance with the old one.
There remains to be considered, before we have thoroughly disposed of the State’s challenge to the power of the court to convict appellant for criminal trespass upon the indictment for burglary, whether Arts. 37.08 and 37.09(1), supra, are constitutional insofar as by their terms they authorize such a conviction. Article 37.08 now provides:
“In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.”
Article 37.09 now provides:
“An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”
The careful reader will observe that each definition in Art. 37.09 is stated with reference to “the offense charged,” and moreover, each such definition specifically states the manner in which the lesser included offense differs from the offense charged. The enumerated variations in the statute do not enlarge upon the offense charged, but instead vary in a manner that either is restrictive or reduces culpability as compared to the offense charged. In view of those restrictions, we hold Arts. 37.08 and 37.09, supra, are constitutional insofar as they authorize, as did the prior scheme of degrees of offenses, conviction upon an indictment charging one offense for a lesser included offense of the offense charged. We must add, however, that whether one offense bears such a relationship to the offense charged is an issue which must *316await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the ease.
The State’s motion for rehearing is overruled.
. The Plan and Powers of the Provisional Government of Texas (See, e. g., Sayles, The Constitutions of the State of Texas, 4th Ed., 1893, pp. 139 et seq.; Hartley, Digest of the Laws of Texas, 1850, pp. 16 et seq.; Oldham & White’s Digest, Laws of Texas, 1859, pp. *311683 et seq.) adopted November 13, 1835, provided in Article VI thereof, in part, “Every Judge so nominated and commissioned [under Article V], shall have jurisdiction over all crimes and misdemeanors recognized and known to the common law of England. . . . ” Article VII thereof further provided in part:
“All trials shall be by jury, and in criminal cases the proceedings shall be regulated and conducted upon the principles of the common law of England; and the penalties prescribed by said law, in case of conviction, shall be inflicted. .
The Constitution of the Republic of Texas, adopted in 1836, provided in The Schedule thereof:
“Section 1. That no inconvenience may arise from the adoption of this constitution, it is declared by this convention that all laws now in force in Texas, and not inconsistent with this constitution, shall remain in full force until declared void, repealed, altered, or expire by their own limitation.”
Section 7 of the General Provisions of that Constitution of the Republic provided in part:
“So soon as convenience will permit, there shall be a penal code formed on principles of reformation, and not of vindictive justice; and the civil and criminal laws shall be revised, digested, and arranged under different heads, .
Article IV, Section 13, of the Constitution of the Republic provided:
“The congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision.”
Thereafter the Congress of the Republic provided by Act, approved December 21, 1836, for the punishment of certain crimes and misdemeanors, and in Section 54 thereof provided:
“All offenses known to the common law of England as now understood and practiced, which are not provided for in this act, shall be punished in the same manner as known to the said common law.” 1 Gammel, Laws of Texas 1247, 1255 (1898).
The Congress of the Republic, by an Act approved January 20, 1840, provided:
“Sec. 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, that the Common Law of England (so far as it is not inconsistent with the Constitution or the Acts of Congress now in force) shall, together with such acts be the rule of decision in this Republic, and shall continue in full force until altered or repealed by Congress.” 2 Gammel, Laws of Texas 177 (1898).
At the time of annexation of Texas to the United States, the first Constitution of this State was drafted at convention and adopted by the people. Article XIII, Section 3 of the Constitution of 1845 provided:
“All laws and parts of laws now in force in the Republic of Texas, which are not repugnant to the Constitution of the United States, the joint resolutions for annexing Texas to the United States, or to the provisions of this Constitution, shall continue and remain in force as the laws of this State until they expire by their own limitation, or shall be altered or repealed by the legislature thereof.”
. By Acts of August 26, 1856, taking effect February 1, 1857, the Legislature adopted a Penal Code and a Code of Criminal Procedure, which were published in Oldham and White’s Digest of the Laws of Texas, 1859, by authority of the Legislature under the Act of February 15, 1858. Oldham & White’s Digest also contains amendments to the Code of Criminal Procedure approved February 15, 1858, and taking effect July 1, 1858.
. This appears to be the rule relied upon by the State.
. Tomlin and Daywood do not state affirmatively the assertion just made because the facts in those cases did not involve offenses consisting of degrees, but instead disposed of the issues therein on the conclusion that the “lesser offense” was not encompassed within the principle of offenses with degrees, nor was it contained within the allegations of the indictment.
.A statute within such absurd principle might authorize upon the trial of A for the murder of B a conviction for the murder of C, or the rape of D, or the possession of contraband, or any other offense. The violations of due process that would occur are manifest.
. Parchman v. State, 2 Tex.App. 228, and McCampbell v. State, 9 Tex.App. 124.
. Apart from the function of the indictment as the instrument by which the jurisdiction of the trial court is attached or invoked in a particular case, the indictment is also designed to protect certain interests of the defendant. It has been held with respect to assertions that an indictment was insufficient to protect certain of those interests of the defendant, that failure to make timely objection upon such grounds waived any such defect. E. g., American Plant Food Corp. v. State, 508 S.W.2d 589, 604 (assertion of lack of notice of the offense charged); Melley v. State, 93 Tex.Cr.R. 522, 248 S.W. 367 (assertion of duplicity). We observe that if it be urged that the indictment was defective for failure to protect some such interest of appellant, any objection for such a defect was waived by appellant’s requested submission of a charge on criminal trespass.