Burglary does not require a taking and theft does not require an entry." People v. Johnson, 103 Ill. App. 3d 564, 567, 431 N.E.2d 1381, 1383 (1982). "Multiple convictions and concurrent sentences should be permitted *** where a defendant has committed several acts, despite the inter-relationship of those acts.
Unlike the crime of burglary, a valid conviction for theft requires proof that defendant knowingly obtained or exerted control over the property of another with the intent to permanently deprive that person of its use and benefit. (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(a)(1); People v. Shoemaker (1975), 31 Ill. App.3d 724, 344 N.E.2d 347.) By definition, burglary does not require a taking, and theft does not require an entry. ( People v. Johnson (1982), 103 Ill. App.3d 564, 431 N.E.2d 1381.) Thus, it is apparent that the offenses are distinct ( People v. Shoemaker (1975), 31 Ill. App.3d 724, 344 N.E.2d 347), and that theft is not a lesser included offense of burglary.
Looking to the elements of the offenses at issue, the appellate court then noted that "`[b]urglary does not require a taking and theft does not require an entry.'" Poe, 385 Ill. 3d at 766, quoting People v. Johnson, 103 Ill. App. 3d 564, 567 (1982). For that reason, the court concluded that theft was not a lesser-included offense of burglary and affirmed the defendant's convictions.
The court in Poe reasoned that "theft and burglary are simply not one act" and then continued to observe that burglary convictions can and do occur where there is no theft, stating that "'[b]urglary does not require a taking and theft does not require an entry.'" Poe, 385 Ill. App. 3d at 766, quoting People v. Johnson, 103 Ill. App. 3d 564, 567 (1982). The Poe rationale/analysis misses the point of the charging instrument approach, which, according to Poe, creates "logical problems," but which our supreme court has adopted over the more rigid "abstract elements" approach or the "'factual' or 'evidence'" approach, which was determined to be too broad.
Burglary does not require a taking and theft does not require an entry.' People v. Johnson, 103 Ill. App. 3d 564, 567, 431 N.E.2d 1381, 1383 (1982). `Multiple convictions and concurrent sentences should be permitted * * * where a defendant has committed several acts, despite the inter-relationship of those acts.'
Moreover, defendant misconstrues Housby when he contends that the mere fact of his explanation makes Housby inapplicable to this case as the courts have applied the Housby standards despite the existence of a contrary construction of the facts by a defendant. People v. Jones (1985), 105 Ill.2d 342, 475 N.E.2d 832; People v. Akins (1984), 128 Ill. App.3d 1009, 471 N.E.2d 1003; People v. Johnson (1982), 103 Ill. App.3d 564, 431 N.E.2d 1381, appeal denied (1982), 91 Ill.2d 563. The final prong of the Housby test is satisfied in this instance not only by the above detailed evidence, but by the mere fact that the jury evidently discredited the defendant's explanation.
( 104 Ill.2d 96, 102, 470 N.E.2d 993.) Although our supreme court has previously held that, in a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifies it, is entitled to an instruction which would permit a finding of guilt of the lesser offense ( People v. Cramer (1981), 85 Ill.2d 92, 97-98, 421 N.E.2d 189); theft is not a lesser included offense of burglary. People v. McCreary (1984), 123 Ill. App.3d 880, 884, 463 N.E.2d 455; People v. Johnson (1982), 103 Ill. App.3d 564, 567, 431 N.E.2d 1381; People v. Heard (1980), 80 Ill. App.3d 701, 707-08, 400 N.E.2d 65; see People v. Dace (1984), 104 Ill.2d 96, 103-04, 470 N.E.2d 993 (Simon, J., dissenting). However, the court in Dace determined that where the charging instrument charged a residential burglary with the specific intent to commit theft and the offense of theft was proved by the evidence, refusal to give a defendant's tendered instruction on theft was error.
The same evidence will apparently satisfy all three prongs of the test. See People v. Johnson (1982), 103 Ill. App.3d 564, 431 N.E.2d 1381. • 2 There is no doubt that those three prongs were satisfied in this case.
( People v. Mays (1982), 91 Ill.2d 251.) See also People v. Johnson (1982), 103 Ill. App.3d 564, 431 N.E.2d 1381 (after noting the traditional test, court declined to consider an inherent relationship test where defendant requested instruction on theft but did not actually tender an instruction). Although the State dismisses the Federal cases by noting that they are not controlling in Illinois, the reasoning of those cases is nonetheless persuasive.
Our conclusion is consistent with that reached in other cases, holding that similar offenses akin to disposing of stolen property are not included in the crime of burglary. See, e.g., State v. Bolton, 144 Ga. App. 797, 242 S.E.2d 378 (1978) (theft by receiving); D.P. v. State, 129 Ga. App. 680, 200 S.E.2d 499 (1973) (receiving stolen property); People v. Johnson, 103 Ill. App.3d 564, 59 Ill.Dec. 624, 431 N.E.2d 1381 (1982) (theft); People v. Matuja, 77 Mich. App. 291, 258 N.W.2d 79 (1977) (receiving and concealing stolen goods); Morigeau v. State, 149 Mont. 85, 423 P.2d 60 (1967) (larceny).