APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant Freddie Yanders was charged by indictment in the Circuit Court of Macon County with the offense of robbery. He waived trial by jury and was tried by the court. During closing argument, counsel for defendant stated that although defendant might be guilty of the offense of theft of property not exceeding $150 in value, he was not guilty of robbery. The day after the closing arguments, defendant's counsel asked that the court find the defendant guilty of theft. The court then found the defendant guilty of theft of property not exceeding $150 in value and sentenced him to imprisonment for 1 year. Defendant appeals.
The indictment was in a single count and stated that on November 15, 1973, defendant:
"* * * committed the offense of ROBBERY, in violation of Chapter 38, Section 18-1, Ill. Rev. Stat., 1971, in that he knowingly, without authority, took property, to wit: an indeterminate amount of United States currency from the person or presence of Robert Hord by the use of force or by threatening the imminent use of force."
Defendant's sole contention on appeal is that the indictment was insufficient to charge him with the offense of theft because theft is not an included offense of robbery. The defendant recognizes that this court, in People v. Howell, 11 Ill. App.3d 391, 296 N.E.2d 760, held that theft is an included offense to a charge of robbery but asks that we overrule that decision.
In addition to asking that we stand by our decision in Howell, the State contends that the defendant cannot claim error in the conviction because the court's ruling was invited by the suggestion of his counsel that the court find defendant guilty of theft. The insufficiency of the indictment to charge the defendant with the offense of which he is convicted may be raised on appeal, however, even from a plea of guilty. (People v. Temple, 2 Ill.2d 266, 118 N.E.2d 271.) Since there is no question of the sufficiency of the indictment to charge robbery, the appeal squarely raises the question as to whether theft is an included offense of a charge of robbery.
An included offense is defined as an offense which:
"(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or
(b) Consists of an attempt to commit the offense charged or an offense included therein." (Ill. Rev. Stat. 1973, ch. 38, par. 2-9.)
"A person commits theft when he knowingly," in ways set forth to be improper, obtains control over property of the owner if he:
"(1) Intends to deprive the owner permanently of the use or benefit of the property; or
(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit." (Ill. Rev. Stat. 1973, ch. 38, par. 16-1.)
This court ruled in People v. Smith, 7 Ill. App.3d 350, 287 N.E.2d 509, that a charge which does not alleged intent to permanently deprive the person from whom it is taken of the property is insufficient to charge theft. Similar holdings have been made in People v. Haynes, 132 Ill. App.2d 1031, 270 N.E.2d 63, and People v. Matthews, 122 Ill. App.2d 264, 258 N.E.2d 378. Because of the specific intent ...