specially concurring, joined by ROONEY, Chief Justice.
I agree with the result reached by the majority, but believe it has adopted a test that is unnecessarily rigid. The majority at page 1329 says:
“In summary, we hold that a crime described by statute may not be necessarily included within another statutory offense unless all of the elements within the claimed lesser offense are to be found in the greater, and, unless the greater offense cannot be committed without also committing the putative lesser offense.”1
In Evanson v. State, Wyo., 546 P.2d 412, 417 (1976), we evidenced more flexibility, “the descending succession of offenses can be measured by more than one standard.” In United States v. Whitaker, 447 F.2d 314, 144 A.D.C. 344 (D.C.Cir.1971), the court held that the offense, “unlawful entry,” was a lesser included offense of burglary even though “unlawful entry” required the elements of entry without lawful authority and against the will of the lawful occupant, while in certain circumstances burglary could be committed even though the entry was authorized. According to Whitaker, in certain circumstances all the elements within the lesser offense need not be found in the greater offense, and the greater offense could be committed without committing the lesser.
“* * * A more natural, realistic and sound interpretation of the scope of ‘lesser included offense,’ in line with our own views on the subject, is that defendant is entitled to invoke Rule 31(c) when a lesser offense is established by the evidence adduced at trial in proof of the greater offense, with the caveat that there must also be an ‘inherent’ relationship between the greater and lesser offenses, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense. * * * ” (Emphasis added.) United States v. Whitaker, supra, at 319.
In United States v. Pino, 606 F.2d 908 (10th Cir.1979), the court held that the defendant was entitled to an instruction on the offense of “careless driving” as a lesser included offense to the involuntary manslaughter by automobile charged in the indictment. The court stated:
“ * * * [T]he Government contends that * * * the lesser offense does not qualify here because ‘the lesser offense must be such that it is impossible to commit the greater without having first committed the lesser.’ [Citations.] * * * Involuntary manslaughter, it is said, can be committed in a number of ways other than by operating a vehicle and hence, from the statutory provisions alone, arguably the greater offense could be committed with*1330out committing an act connected with the lesser.
“We are not convinced that so strict an application of the rule is proper. It is true that common law cases earlier dictated a strict adherence to the statutory elements alone and analysis of them as the basis for determining the availability of a lesser offense charge. [Citation.] We are persuaded, however, not to apply the artificial analysis suggested by the Government and that instead the availability of the lesser-included-offense instruction should be decided in practical terms of the evidence developed in this case on the offense charged. [Citation.]” United States v. Pino, supra, at 915-916.
The test approved in Whitaker and Pino is known as the “inherent relationship” test. Subsections (a) and (b) of § 31-5-1117, W.S.1977, both relate to the protection of the same interests. They are aimed at increasing road safety and protecting human life, and designed to deter careless driving. Under the test it would appear that subsection (b) is a lesser included offense of subsection (a). However, in Whitaker, the court also held that due process notice requirements must be satisfied, that is, where the information charges a defendant with a violation of the greater offense, he must have notice that he may be found guilty of the lesser. It is here that I have problems in this case because the lesser offense may involve misconduct divorced from driving while intoxicated.
Violation of any traffic safety law may be used to convict an individual under subsection (b). The notice, by charging a violation of subsection (a), alone, did not apprise appellant that he may be called to defend himself under subsection (b).
In the future, if the facts so justify, prosecutors may want to allege violation of both statutes in the information. If the defendant seeks to strike, contending that subsection (b) is a lesser included offense and therefore surplusage in the information, he can hardly object to the instructions later. He will have received notice.
The majority has determined that the crime described in § 35-5-1117(b), supra, cannot be a lesser included offense of the crime decribed in § 35-5-1117(a), supra. In other words, the majority says that they are distinct and separate crimes and therefore, a person could be charged, convicted and sentenced for violations of both subsections (a) and (b), if there was another traffic violation in addition to the drinking. A person driving under the influence of intoxicating liquor almost always violates some other traffic regulation such as speeding, driving on the wrong side of the road, illegal passing, etc.
Under the majority’s approach prosecutors could and likely will charge in one count homicide by vehicle under subsection (a), a felony, and in another count homicide by vehicle under subsection (b), a misdemeanor. In the latter count the prosecutors could allege an underlying traffic violation such as speeding, illegal passing or some other traffic offense. If two convictions result, will the majority uphold them where there was but a single act causing “the death of another person”? I believe at that time the majority here will have to do more than “trip the light fantastic” to dance around a multiplicitous charge and conviction.2
The test set out by the majority to determine offenses that are necessarily included or lesser included seems to preclude the inherent relationship test. I do not desire to be committed to such an inflexible standard.
. There is a difference between an offense “necessarily included” and a “lesser included” offense, but the terms are used interchangeably by the courts. An offense “necessarily included” denotes a relationship which always exists between two offense categories, regardless of the facts of a particular case. A “lesser included” offense depends upon particular facts. Olais-Castro v. United States, 416 F.2d 1155 (9th Cir.1969).
. A multiplicitous information or indictment is one charging the same offense in more than one count. Gerberding v. United States, 471 F.2d 55 (8th Cir.1973).