¶1dissenting. The circumstances of this case cause me to believe that the trial court erred in refusing to give an instruction on public sexual indecency as a lesser included offense of rape by engaging in forcible deviate sexual activity. Arkansas Stat. Ann. § 41-181 1(1)(b) (Repl. 1977) provides that a person commits the offense of public sexual indecency if the person engages in an act of deviate sexual activity in public. Arkansas Stat. Ann. § 41-1803(1)(a) provides that the crime of rape is committed by engaging in deviate sexual activities by forcible compulsion. The only difference in these two described crimes is that one is required to be in public and the other by force. The proof in this case tended to show that the appellant forcibly engaged in deviate sexual activity in public. His defense was that the act was voluntary or without force. Both offenses are codified in Chapter 18 (sexual offenses; Ark. Stat. Ann. § 41-1801 — 41-1825).
¶2Turning now to the lesser included offense statute, Ark. Stat. Ann. § 41-105, we find the following language:
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged . . .
¶3It seems clear to me that proof of public sexual indecency must necessarily be proven in this case to prove deviate sexual activity by forcible compulsion. Indeed I think it is not possible to prove the offense charged in this case was committed without also proving all the elements of public sexual indecency. Obviously the offenses are of the same generic class. The jury may have believed the appellant committed the lesser offense but they were not given the opportunity to decide whether he did or not.
¶4I would reverse and remand for a new trial at which the instruction on the lesser included offense would be given.