It thereby incorporated the "same evidence" test (see People v. Baylor (1975), 25 Ill. App.3d 1070, 1074), which is applied although the facts presented in the particular case may actually prove the lesser offense. See People v. Yanders (1975), 32 Ill. App.3d 599. The essence of the "same evidence" or "required evidence" test of Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L.Ed. 306, 309, 52 S.Ct. 180, 182, is "whether each provision requires proof of an additional fact which the other does not."
In People v. Kimble (1980), 90 Ill. App.3d 999, 414 N.E.2d 135, the court held that theft is not a lesser included offense of robbery because of the specific intent required for theft. See also People v. Thomas (1983), 119 Ill. App.3d 464, 456 N.E.2d 684; People v. Baker (1979), 72 Ill. App.3d 682, 391 N.E.2d 91; People v. Yanders (1975), 32 Ill. App.3d 599, 335 N.E.2d 801. In People v. Thomas, the court held that theft is not a lesser included offense of robbery.
People v. Tyler (1977), 45 Ill. App.3d 111, 359 N.E.2d 240. In People v. Yanders (1973), 32 Ill. App.3d 599, 335 N.E.2d 801, the reviewing court reversed the trial court's reduction of a robbery conviction to a theft conviction because the indictment, which was worded essentially the same as the information in this case, did not charge defendant with the specific intent to permanently deprive his victim of the property taken. Although the court there found sufficient evidence to convict defendant of theft, it stated:
In light of this fact and in accordance with our discussion of the previous issue, we find that theft is not a lesser-included offense of armed robbery. Additional support for this court's position can be found in People v. Yanders (1975), 32 Ill. App.3d 599, 335 N.E.2d 801, where the court expressly overruled People v. Howell (1973), 11 Ill. App.3d 391, 296 N.E.2d 760, one of the principle cases relied upon by defendants. In Yanders, court said:
Defendant challenges for the first time on appeal the sufficiency of the indictment charging her with robbery to support her conviction for theft. Principally relying on People v. Yanders, 32 Ill. App.3d 599, 335 N.E.2d 801, defendant argues that theft cannot be a lesser included offense of robbery because theft contains the element of intent to permanently deprive the victim of property, which element is not common to the statutory definition of robbery. The record, however, shows that it was in fact defendant who tendered the lesser included offense instructions and verdict forms on theft which were given to the jury by the trial court.
Other panels have determined that theft is not a lesser included offense of robbery. (See People v. Thomas (1983), 119 Ill. App.3d 464; People v. Gray (1980), 80 Ill. App.3d 817; People v. Kimble (1980), 90 Ill. App.3d 999; People v. Baker (1979), 72 Ill. App.3d 682; People v. Pack (1976), 34 Ill. App.3d 894; People v. Yanders (1975), 32 Ill. App.3d 599.) In general, those panels have concluded that theft is not a lesser included offense of robbery because the statutory definition of theft contains the additional element of intent (or other mental state as set forth in the theft statute) to permanently deprive the victim of the property, an element that is not found in the statutory definition of robbery.
" ( Melmuka, 173 Ill. App.3d at 736.) Other decisions involving the vacating of convictions for theft when the defendant was not charged with theft include People v. Kimble (1980), 90 Ill. App.3d 999, 1001, and People v. Yanders (1975), 32 Ill. App.3d 599, 602. In concluding that where an accused is charged with a single offense he cannot be found guilty of an offense not charged unless it is a lesser included offense, we are not unaware of People v. Dace (1984), 104 Ill.2d 96.
However, the continuing validity of Ferrara is questionable in light of subsequent developments in the law. Theft is not generally viewed as a lesser included offense of robbery in this State. (See People v. Kimble (1980), 90 Ill. App.3d 999 (stressing the fact that a person without the required mental state can be guilty of robbery but not of theft); People v. Baker (1979), 72 Ill. App.3d 682; People v. Yanders (1975), 32 Ill. App.3d 599; contra, People v. Romo (1980), 85 Ill. App.3d 886; People v. Beck (1976), 42 Ill. App.3d 923.) More importantly, People v. Banks (1979), 75 Ill.2d 383, decided by this court 10 years after Ferrara, culminated a period of uncertainty as to the mental state required for robbery. (See, e.g., People v. Berlin (1971), 132 Ill. App.2d 697 (specific intent not an element of robbery); People v. Marshall (1968), 96 Ill. App.2d 124 (same); People v. Bray (1964), 52 Ill. App.2d 384 (same); contra, People v. White (1977), 67 Ill.2d 107 (intent to deprive is an element of robbery); People v. Howell (1973), 11 Ill. App.3d 391, 393 (same); People v. Ware (1961), 23 Ill.2d 59 ("felonious" intent is required for robbery).
In deciding this question, we first note that there is a divergence of authority as to whether theft is an included offense of robbery. Cases which hold that theft is not an included offense of robbery include People v. Baker (1979), 72 Ill. App.3d 682, 391 N.E.2d 91, and People v. Yanders (1975), 32 Ill. App.3d 599, 335 N.E.2d 801. Cases which hold or suggest to the contrary include People v. Tolentino (1966), 68 Ill. App.2d 480, 216 N.E.2d 191, People v. Beck (1976), 42 Ill. App.3d 923, 356 N.E.2d 848, and People v. Romo (1980), 85 Ill. App.3d 886, 407 N.E.2d 661. An included offense is an offense which "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."
There are cases which hold that theft is a lesser-included offense ( People v. Williams (1976), 42 Ill. App.3d 134, 355 N.E.2d 597; People v. Tolentino (1966), 68 Ill. App.2d 480, 216 N.E.2d 191) and cases that hold to the contrary. ( People v. Yanders (1975), 32 Ill. App.3d 599, 335 N.E.2d 801.) This is a conflict we need not resolve because even if theft is a lesser-included offense of robbery we do not believe the trial court erred in refusing the instruction on theft.