dissenting. I cannot agree with the majority in this case. I feel that counsel for appellant made a specific enough objection in citing Ark. Stat. Ann. § 41-105 (Repl. 1977) and all its subsections to the trial court for the argument that the offenses charged contained the lesser included elements embodied in the provisions of this statute. In Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983) we interpreted Ark. Stat. Ann. § 41-105 to “prohibit multiple sentences when the same conduct results in more than one offense.” Ark. Stat. Ann. § 41-105 reads in pertinent part:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2). . .
(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 of less than all the elements required to establish the commission of the offense charged; or
(b) . . .
In the present case the jury was instructed that it would have to find appellant guilty of aggravated robbery in order to find him guilty of first degree battery. The plain language of the statute and our cases interpreting it show that we should set aside the lesser penalty. See Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982). In light of the foregoing, I would set aside the 12 year sentence for first degree battery leaving the appellant to serve a 25 year sentence for armed robbery.