dissenting.
I dissent.
After reviewing the Information filed against Wayne Stevens as well as the remainder of the record, I believe the majority’s modification of Stevens’ conviction of battery as a class C felony is erroneous. I *1303would affirm this conviction because Stevens failed to properly preserve the question of whether the jury had been improperly instructed on the crime of battery by means of a deadly weapon and because even if the merits of this issue had been preserved, unlike the majority, I would find this Information was drawn so as to permit battery by means of a deadly weapon to be a lesser offense within the charged crime.
I would further add that I also disagree with the majority’s modification of Stevens’ conviction. If it was erroneous to permit Stevens to be convicted of battery by means of a deadly weapon, under the facts of this case, the appropriate remedy should be reversal, not modification of this conviction.
I. Waiver of Issue
The Information expressly charged Stevens with robbery resulting in bodily injury, a class A felony, as proscribed by Ind.Code 35-42-5-1. The jury was instructed it could find Stevens guilty of robbery (class C felony), robbery while armed with a deadly weapon (class B felony), robbery resulting in bodily injury (class A felony), or the “includible” offense of battery (class B misdemeanor), battery resulting in bodily injury (class A misdemeanor), or battery by means of a deadly weapon (class C felony). Stevens never objected at trial to the giving of these instructions. Instead, appellant effectually acquiesced in the court’s determination that battery by means of a deadly weapon was an includible offense. Stevens also never questioned the propriety of giving these instructions in his motion to correct errors. Now on appeal, for the first time, he claims the jury should not have been permitted to convict him of battery by means of a deadly weapon because this was not a lesser offense of the crime charged. In my opinion, this issue has been waived and is, therefore, not properly before us for review. Buttram v. State, (1978) Ind., 382 N.E.2d 166; Loza v. State, (1975) Ind., 325 N.E.2d 173; Indiana Rules of Procedure, Criminal Rule 8(B).
In Buttram v. State, (1978) Ind., 382 N.E.2d 166, the appellant was charged by indictment with assault and battery with intent to gratify sexual desires; the jury found Buttram guilty of assault. On appeal, Buttram argued the trial court erred in instructing the jury on the crime of assault because this was not a lesser included offense of the crime charged. The Court of Appeals agreed with this argument, but in addressing this argument on petition to transfer, Chief Justice Givan stated:
“We further hold that the Court of Appeals erred in finding that the trial court had improperly instructed the jury on the crime of assault. First, the appellant failed to object at trial to the giving of that instruction. He has therefore waived the issue on appeal. Indiana Rules of Criminal Procedure 8(B); Thomas v. State, (1976) 264 Ind. 581, 348 N.E.2d 4. Second, the instruction acted only to the advantage of the appellant since it informed the jury that a lesser verdict could be returned.”
Buttram v. State, supra at 168-169.
Since Stevens acquiesced in instructing the jury that battery by means of a deadly weapon was an includible offense herein upon which they could convict him, I would hold he has waived this issue.
II. Includible Offense
Assuming Stevens had not waived the question of whether the jury could return a verdict finding him guilty of battery by means of a deadly weapon, I would, nevertheless, still affirm his conviction since I believe the battery which Stevens was convicted of was embodied in the charging Information.
It is axiomatic that a conviction upon a charge not made or upon a charge not tried would be sheer denial of due process. Thompson v. City of Louisville, (1960) 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654; Addis v. State, (1980) Ind.App., 404 N.E.2d 59. “This concept reflects the basic constitutional premise that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend.” McGairk v. State, (1980) Ind.App., 399 N.E.2d 408, 411. However, the law *1304does not require the Information to charge every element of the offense in the exact words of the statute. Carter v. State, (1972) Ind.App., 291 N.E.2d 109. Instead, the crime may be stated in words which convey a meaning similar to the express language of the statute. When we review the Information, we will construe the language used therein in light of its common understanding. Heflin v. State, (1977) Ind., 370 N.E.2d 895. I would also note that each and every element of a lesser crime need not be spelled out as though it were the sole offense charged. Carter v. State, supra.
The Information charging Stevens provided in pertinent part:
“WAYNE STEVENS late of said Grant County and State of Indiana, ... did then and there, in violation of Burns Indiana Code I.C. 35-42-5-1, did knowingly and intentionally and by using and threatening the use of force on David Hughes, to-wit: striking David Hughes with an axe handle causing bodily injury, take property, to-wit: billfold from the person of David Hughes.1 (emphasis added)
The majority concludes that, “Giving the words of the information their usual acceptation, the allegation of use of a deadly weapon is not sufficiently made.” I disagree.
Ind.Code 35-41-1-2 which defines a deadly weapon provides:
“ ‘Deadly weapon’ means:
(1) a loaded or unloaded firearm; or
(2) a weapon, device, equipment, chemical substance or other material that in the manner it is used, or could ordinarily be used, or is intended to be used, is readily capable of causing serious bodily injury.” (emphasis added)
In my opinion, when the State charged Stevens with knowingly and intentionally using force on David Hughes by striking him with an axe handle causing bodily injury, this was sufficient to permit Stevens to be found guilty of battery by means of a deadly weapon. To hold otherwise, I believe, conflicts with an earlier opinion by this court, Rodriguez v. State, (1979) Ind.App., 385 N.E.2d 1208, wherein Judge Miller intimated that although it would have been preferable to have charged the appellants with committing the robbery “ ‘while armed with a deadly weapon, to-wit: a knife,’ ” the charge of armed robbery was sufficiently set forth in an Information which alleged the defendants:
“... did knowingly and by using and threatening the use of force on KEITH ANTHONY SCHIMMEL, to-wit: putting a knife to him and threatening to kill him, take property, . ... ”
It was reasonable to infer in Rodríguez that the language in the Information, when construed in light of its common understanding, set forth the charge of robbery while armed with a deadly weapon. It is similarly reasonable to find the Information herein set forth the offense of battery by means of a deadly weapon since striking a human being with an axe handle clearly permits an axe handle to come within the purview of the definition of deadly weapon set forth in IC 35-41-1-2.
I acknowledge it would have been preferable for the State in the case at bar to have charged that Stevens struck David Hughes with “a deadly weapon, to-wit: an axe handle” but unlike the majority, I cannot conclude the omission of the term “deadly weapon” precludes convicting Stevens of battery by means of a deadly weapon. While conceptually it is certainly possible to charge robbery resulting in bodily injury without also charging battery by means of a deadly weapon since battery by means of a deadly weapon is not necessarily or inherently a lesser included offense of robbery resulting in bodily injury, the test is whether in this case, the allegations of fact contained in the charging instrument alleged the commission of all the essential elements of the lesser offense as part and parcel of the charged crime. Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098; see Hash v. State, (1972) Ind., 284 N.E.2d 770. We no *1305longer rely on a simple, mechanical analysis of the statutory provisions when determining whether an offense is an includible offense within the charge; instead the allegations of fact in the charging Information will be examined to determine whether, because of the manner and means allegedly employed in the commission of the charged crime, a “possibly” lesser included offense has been embraced within the charge. Roddy, supra. In the case at bar, I find the offense of battery by means of a deadly weapon as set forth in IC 35-42-2-1(3) was embraced within the charge, and since the evidence adduced at trial was sufficient to support a conviction of battery by means of a deadly weapon, I would affirm.
III. Modification of Conviction
If it was erroneous to permit Stevens to be convicted of battery by means of a deadly weapon, his conviction should be reversed rather than modified to a conviction for simple battery, a class B misdemeanor. Stevens has never argued for such a modification, and such a remedy is improper in the case at bar.
The cases relied upon by the majority wherein an appellant’s conviction has been modified on appeal rather than reversed do not support the use of modification in this case. In both Ritchie v. State, (1963) Ind., 189 N.E.2d 575 and Lane v. State, (1978) Ind.App., 372 N.E.2d 1223, the appellate court found the evidence was insufficient to support the appellants’ convictions and, therefore, modified the convictions to a lesser included offense which the evidence did support. This is not what occurred herein. The majority did not modify Stevens’ conviction because the evidence was insufficient to support this conviction, but rather, because the majority determined battery by means of a deadly weapon was not a. lesser included offense. Ritchie and Lane do not support such a modification since they only sanction modifying the judgment to conform to the evidence.
In McFarland v. State, (1979) Ind.App., 384 N.E.2d 1104, which the majority also relies upon, the court found that although McFarland had only been charged with attempting to commit a felony (to-wit: robbery), he had been convicted of consummated armed robbery. Clearly, his conviction for armed robbery could not be affirmed since this offense was never charged. In ordering McFarland’s conviction to be modified to attempted armed robbery, the appellate court merely corrected the verdict to conform with the charge brought against McFarland. Again, this is not what the majority has done herein. The charge against Stevens, as the majority admits, included the offense of battery resulting in bodily injury, a class A misdemeanor, and there was sufficient evidence to support a .conviction for this offense since the record shows that as a result of being hit over the head with a metal bar, David Hughes lost consciousness, was taken by ambulance to the hospital, and received twenty-five stitches on his head. In my opinion, when the jury returned a verdict finding Stevens guilty of battery by means of a deadly weapon, they were finding him guilty of the most severe battery upon which they had been instructed, and they were not finding him not guilty of battery resulting in bodily injury. Since battery resulting in bodily injury was embodied within the charge and the evidence would support a conviction for this offense, if it was erroneous to permit Stevens to be convicted of battery by means of a deadly weapon, his conviction should be reversed and a properly instructed jury should be permitted to determine what degree of battery Stevens may have committed.
. As the majority opinion points out, this Information was later amended to conform to the evidence indicating a metal bar was used instead of an axe handle.