dissenting.
I dissent from the majority’s affirmance of Wise’s conviction of aggravated assault and battery.
Count I of the information charged Wise with assault with intent to kill based upon a factual statement involving his discharge of a firearm. The majority affirms his conviction of aggravated assault and battery under this count reviewing, for sufficiency of evidence purposes, evidence of a bite on the police officer’s thumb — a far cry from the offense charged and the factual allegations constituting the offense charged.
The situation here is much more than an “apparent variance” as stated by the majority. Without question, Count I of the information did not charge nor include the offense of which Wise was convicted.
Encompassed by constitutional guarantee is the concept that a defendant in a criminal prosecution shall be advised of the nature of the charge against him in order that he might prepare an adequate defense as well as be protected against being twice put in jeopardy. This concept is severely violated by condoning a conviction of a crime not charged. Hence, conviction of an offense neither charged nor included within the criminal conduct alleged constitutes a denial of due process and is contrary to law. McFarland v. State, (1978) Ind.App., 384 N.E.2d 1104.
Had Wise objected to the trial court’s instruction describing aggravated assault and battery as a lesser offense of Count I, even the majority would reverse the conviction. However, as the majority properly observes, Wise not only failed to object to the instruction, he tendered a similar instruction which the trial court refused. The question, then, is whether the defendant, by either his silence (failing to object) or his overt act (requesting an instruction), can effect the amendment of the informa*72tion to state a new and different offense from that charged. If the amendment cannot be so effected, there is error, but is it fundamental error that we review sua spontel Contrary to the majority’s position, I believe it is.
By statute an information may not be amended “in any respect which changes the theory or theories of the prosecution as originally stated, or changes the identity of the offense charged . . . .” I.C. 35-3.-l-l-5(e) (Burns Code Ed. 1979 Repl.). The language of the statute is mandatory. A charge of assault with intent to kill but a conviction of aggravated assault and battery clearly involves a change in the identity of the offenses and is therefore statutorily prohibited.
In addition, the trial court must be charged with the responsibility of instructing the jury as to all matters of law necessary for the consideration of their verdict. This includes an instruction setting forth the offense with which the defendant is charged and its elements. If the trial court undertakes to extend the charge to include lesser included offenses which the evidence supports, it has, in my opinion, an absolute, non-delegable duty to do so correctly. To quote Judge Lybrook in another context:
“[A trial judge] should avoid being side-tracked by a loquacious defendant who professes to understand his rights perfectly without having been informed of them [who solicits offenses as lesser included when they are not].” Pursifull v. State (1973) 157 Ind.App. 560, 567, 301 N.E.2d 226, 230-31.
Thus, the trial court’s giving instructions advising the jury aggravated assault and battery was an included offense and giving its elements, as well as Wise’s conviction of aggravated assault and battery, is clearly erroneous and contrary to law. And just as clearly, conviction of a charge which is not a properly includable offense is fundamental error. This is true even when the defendant, as did Wise, fails to properly object to the instruction enumerating the lesser included offenses. Gutowski v. State (1976) Ind.App., 354 N.E.2d 293.
While I agree there is a distinction between tendering an instruction and failing to object, it is a distinction without substance in the present context. In either situation there is a violation of a statutory mandate and a trial court’s failure to fulfill its own sua sponte supervisory duty.
I further believe the error is harmful and requires a reversal of conviction of aggravated assault and battery. A discussion of prejudice to Wise is unnecessary, if not inappropriate. In a situation where a defendant is convicted of a crime not charged, there is per se prejudice. I am unwilling to distinguish this situation from one where a defendant is not fully advised by the trial court of his constitutionally and statutorily protected rights in a plea of guilty and, as a result, his plea is voidable. Does the defendant invite error by pleading guilty without being properly advised or at least objecting to the trial court’s failure to properly advise him at the time of his plea? In that instance we characterize the trial court’s error as prejudicial fundamental error.
The majority’s position has the effect of delegating control over his prosecution and trial to the defendant. Unhappy with a charge of assault with intent to kill, which carries an indeterminate penalty of not less than two years nor more than fourteen years upon conviction, Wise was able to muddy the water of jury deliberation by adding aggravated assault and battery to the otherwise clear-cut assault with intent to kill, assault, or not guilty. A defendant is most assuredly going to sit quietly or indeed vocally seek as many offenses as possible carrying penalties less than the penalty for the offense charged because the more alternatives available to a jury the less likely the most severe penalty will be imposed. But who controls the trial? I suggest it should be the trial judge. I fully realize this argument can be used against my position. The majority says by sitting quietly or vocally seeking an incorrect lesser offense the defendant invites the error and cannot now be heard to complain. Generally I accept the doctrine of invited error, but not when the effect is a total aberration of a trial on the charge made.