dissenting.
I respectfully dissent from the majority analysis and conclusion in this appeal. At least since Judge Staton's opinion in Roddy v. State (1979), 182 Ind.App. 156, 394 N.E.2d 1098, Indiana cases have expressly recognized that lesser included offenses come in essentially two flavors. Inherently included offenses are those which are necessarily included in the greater charge. That is to say, the greater offense cannot be committed without necessarily committing all the elements of the lesser. On the other hand, "factually" or "possibly" included offenses are those which, depending upon the factual circumstances of the particular case, may also be included in the charge of a greater offense. For example, battery may be a lesser included offense to an attempted murder charge where the information alleges the necessary infliction of a wound. See, Leon v. State (1988), Ind., 525 N.E.2d 331.
In Jones v. State (1982), Ind., 438 N.E.2d 972, 975 our supreme court recognized that concerning possibly included offenses, the state could exercise affirmative control of their availability as included lesser offenses through the manner in which it chose to draft the information by either including or omitting the factual allegations necessary to the lesser offense. The control feature works because, as Judge Staton points out in the majority opinion, it is considered a denial of due process to convict an accused of a crime that he was not put on notice of by the charging information.
That, however, was not the problem presented in Sills v. State (1984), Ind., 463 N.E.2d 228 and the cases that have followed it. In Sills the court applied the Jones dictum to hold that in a murder case the court *420properly refused an instruction on an inherently included offense. It appears that the court misspoke itself in doing so. If a lesser offense is inherently included, then by definition any information sufficient to charge the greater offense necessarily charges the lesser. Only two justices signed the lead opinion in Sills. Justice Prentice dissented and Justices Givan and Pivarnik filed a separate opinion concurring in result. While that opinion urges no disagreement with applying the Jones dictum to inherently included offenses, I believe that Sills and its progeny should be strictly limited to their facts.
This brings us then to the question of fundamental error on which the majority premises its determination to reverse. In a footnote the majority cites Mueller v. State (1988), Ind., 517 N.E.2d 788 and Heald v. State (1986), Ind., 492 N.E.2d 671 for the proposition that when the evidence indicates a direct attack by the defendant reckless homicide cannot be an included offense to murder. In Mueller the court relied upon Sills for the proposition that there was no error, and in Heald the court was not concerned with the charging language but with the fact that the evidence at trial failed to support the notion of a reckless act. More recently, in Mitchell v. State (1989) Ind., 541 N.E.2d 265, 270 the court held a reckless homicide instruction properly refused on the evidence but stated,
Reckless homicide is a criminal offense involving the killing of a human being and is distinguished from murder and manslaughter by its lesser culpability. It is therefore, in general, an offense included in both murder and manslaughter. The murder count alleged the appellant knowingly killed Lowe by shooting him. This pleading is not cast in such a manner as to exclude reckless homicide as a possible lesser and included offense. [citations omitted.] 5
Of course, if reckless homicide is considered an inherently included offense to the charge of murder, then Wright's due process rights were not violated when the jury was permitted to convict him of that offense. But it seems to me that there is an even more compelling reason for our determination that Wright was not denied due process of law in his conviction.
The right to due process belongs to him. He may, therefore, waive it. I would find that he did so. At the conclusion of the trial he requested final instructions to the jury on both criminal recklessness and involuntary manslaughter. (Criminal recklessness was properly refused since the wound he inflicted caused the victim's death. Swafford v. State, supra, fn 1; McClain v. State (1979), 182 Ind.App. 43, 393 N.E.2d 261.) Furthermore, when the jury sent its query to the judge about lesser offenses, specifically reckless homicide, Wright's counsel did not object to advising them concerning either reckless homicide or involuntary manslaughter. I would conclude both that reckless homicide was a lesser included offense and that Wright waived any due process right concerning a conviction for reckless homicide.
Finally, the gravamen of the appeal is Wright's assertion that the court erred when in response to the jury's inquiry and after conferring with counsel it elected to further instruct the jury by reading to it the statutes defining the various homicide offenses. While I believe the court erred in doing so the error was both waived and harmless. Considering the conviction, it was waived because counsel made only a general objection and apparently agreed that instructing on involuntary manslaughter or reckless homicide was all right. It was harmless error for the same reason in view of the verdict actually returned.
I would affirm the conviction.
. In the earlier case of Barker v. State (1957) 238 Ind. 271, 150 N.E.2d 680 the court traced the history of homicide offenses and concluded that a murder charge comprehended every grade of felonious homicide. In O'Conner v. State (1980) 272 Ind. 460, 399 N.E.2d 364 the court noted that involuntary manslaughter and reckless homicide both derive from manslaughter so the historical status of manslaughter as an included offense applies to both. When death ensues, however, the court need not consider non-homicide lesser offenses. See, e.g. Swafford v. State (1981) Ind., 421 N.E.2d 596.