specially concurring:
I agree with my colleagues that the issue of improper argument by the prosecutor was waived. I also agree that the defendant should be sentenced only on the attempt (residential burglary) conviction. However, I arrive at that conclusion by a totally different route.
The significant thing to me is that we have two inchoate offenses, both of which came to fruition by the same physical act, i.e., the prying of the glass door and of the knob on that door. There is no indication in the record that the principal offense, residential burglary, was ever accomplished. If it had, obviously the inchoate offenses would become merged, and under section 8 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 5) the defendant could not be convicted of both. Thus, I cannot agree that we do not have two offenses “carved” from the same physical act. We do have two such offenses. The conspiracy and the attempt both were perfected by the prying.
King makes a sharp distinction between offenses carved from the same physical act and offenses carved from multiple acts where such offenses are by definition included offenses. In the instant case, neither conspiracy nor attempt had been committed until the act of prying had taken place. Thus the first prong of the King test applies: “Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act.” People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844.
This being the case, the long-standing rule of People v. Prim (1972), 53 Ill. 2d 62, 78, 289 N.E.2d 601, 611, cert, denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731, applies:
“[A]s to the two crimes *** attempted armed robbery and murder, these both arose from the same conduct and therefore but a single sentence should have been imposed; that being for the more serious offense, murder.”
I do not believe that King attempted to alter the rule of Prim. King was primarily concerned with a series of closely related acts in the context of included offenses.
It therefore follows that the effort of the majority to cast the instant case into one of included offenses is unwarranted and forces them into the untenable position of reading into King something which is not there: that in the case of included offenses sentence may be imposed on the included offense when that sentence is more severe than that which might be imposed on the inclusive. It is difficult to imagine that this is consonant with King’s statement regarding prejudice to the defendant.
The problem of the included offense has been a vexing one to the bench and bar. I find it significant that courts generally refer to a “lesser” included offense, although our statute does not use the word. (Ill. Rev. Stat. 1983, ch. 38, par. 2 — 9.) “Lesser” in my opinion re-fleets the Prim doctrine of “more serious.” It would pose an impossible burden to determine “lesser” as a subjective apprehension by either the victim or the defendant. For example, let us take rape and theft (admittedly not included offenses). The town’s premier virgin would doubtless be willing to part with all of her property rather than submit to sexual advances; the town’s premier prostitute would be of exactly the opposite view. The “lesser” offense must necessarily be considered in the context of punishment.
The included offense doctrine has two functions: (1) it permits the prosecution to salvage something out of a close case, and (2) it permits the jury to exercise its traditional prerogative of lenity towards the defendant. The case was summarized by the United States Supreme Court in Keeble v. United States (1973), 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847, 93 S. Ct. 1993,1995, as follows:
“Although the lesser included offense doctrine developed at common law to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged, it is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.”
The analysis in terms of punishment probably does not square with the supreme court’s three tests of definition of included offenses set forth in People v. Mays (1982), 91 Ill. 2d 251, 255, 437 N.E.2d 633, 635, but it cannot be denied that for practical purposes punishment exists as a kind of penumbra surrounding the entire concept.
In summary, I would reject the included offense analysis of the majority and affirm the conviction and sentence for attempt (residential burglary) as the more serious offense arising out of a single act under Prim.