(concurring specialty)-
Although I concur in the affirmance of the defendant’s conviction, I feel compelled to comment upon several of the issues wherein the majority opinion reaches the correct results but which I feel deserve further comment.
The majority opinion dismisses the defendant’s contentions of overzealous prosecution as not constituting prejudicial error. In my opinion, the conduct of the state’s attorney, in several instances, could have constituted prejudicial error had it been allowed over proper objections. The questions and closing argument of the state’s attorney regarding Mr. Walton’s failure to “tell his story” to the police at the scene were clearly improper comment on the defendant’s privilege against self-incrimination. Just as improper were the inquiries of what the defendant had told his attorney, cléarly an attempt to invade the attorney-client privilege.
Many questions asked by the state’s attorney wére a cynical and sarcastic attack on the defendant’s inability to remain employed, the quality of employment, his lack of intelligence, defendant’s lack of skill as a burglar, and gambling activities being defendant’s prime source of income. The line of questioning was not proper impeachment but clearly an attempt to depict the defendant as a person of “bad character” by showing degrading conduct. 3 Wigmore, Evidence § 781 (Chadbourn rev. 1970). The *716defendant had previously admitted to five prior felony convictions, and the state elicited the date, type of crime, jurisdiction and length of sentence for each conviction for impeachment.
On those occasions when defense counsel interposed an objection, the trial judge sustained it. There is no reason to believe that had proper objections been made, they would not have likewise been sustained. The conduct, although error, does not appear to have resulted in such a deprivation of due process as would require this court to reverse the conviction in the absence of proper objections, see State v. Bullis, 1977, S.D., 255 N.W.2d 290.
The majority opinion follows the ruling of State v. O’Connor, 1972, 86 S.D. 294, 194 N.W.2d 246, that SDCL 22-32-16 is not a “necessarily included offense” of SDCL 22-32-9, and that a defendant may not be convicted nor is he entitled to an instruction on the misdemeanor under SDCL 23-45-23 as a matter of law. This position was reiterated in State v. Goodale, 1972, 86 S.D. 458, 198 N.W.2d 44, without comment.
In my special concurrence in State v. Kafka, 1978, S.D., 264 N.W.2d 702 (handed down April 6,1978), I set forth in detail the legal and factual tests which must be satisfied before a “necessarily included offense” instruction should be given. Under the complaint in this case, SDCL 22-32-16 meets the “legal test” of a necessarily included offense of SDCL 22-32-9, i. e., (1) the elements of the included offense must be fewer in number than the elements of the greater charged offense; (2) the penalty for the included offense must be less than the greater charged offense in terms of the maximum punishment attached to each offense; and (3) the two offenses must contain common elements so that the included offense must be such that the greater offense cannot be committed without also committing the lesser. See Annot., 11 A.L.R.Fed. 173; 23A C.J.S. Criminal Law § 1288.
However, as was true in State v. Kafka, supra, the evidence does not satisfy the “factual test” of a “necessarily included offense.” As pointed out in my special concurrence in Kafka, the factual test requires that the evidence, when read in the light most favorable to the defendant, would justify a conclusion that the greater offense was not committed and that the lesser offense was in fact committed. In other words, there must be conflicting evidence in regard to the element of the greater offense that is not an element of the lesser.
Here, reading the evidence in the light most favorable to the defendant, his entry made could have been without a “breaking” under our third degree burglary statute. However, entry alone with the requisite intent will constitute third degree burglary and a breaking is unnecessary. The other additional element of third degree burglary, i. e., the building being one in which property is kept, was not in dispute. The building was the repository of some 250,000 to 300,-000 blank checks, filing cabinets and office equipment used by one of the tenants in its business. There is no “conflicting evidence” relating to any elements of the greater offense that are not elements of the lesser offense.
The only element in dispute was the “intent” of the defendant at the time he entered the building. The intent required by both SDCL 22-32-9 and SDCL 22-32-16, in these circumstances, is the same. If defendant had the intent to commit larceny or a felony, he was guilty, as the jury found, of third degree burglary; without the “intent,” he was guilty of neither third degree burglary nor misdemeanor entry.
It is only by using the “legal test” and “factual test” that the trial court can determine what offenses are or are not “necessarily included” within the charged offense. Because the “factual test” was not satisfied by the evidence at this trial, the court correctly refused the requested instruction.
Finally, I feel compelled to reiterate my position regarding the state’s attorney’s duties under the habitual criminal act. SDCL 22-7-3 states that the state’s attorney is under a mandatory duty “to file an information accusing the said person of *717such previous convictions.” There is no discretion allowed on the part of the state’s attorney for filing such a charge once he has knowledge of a prior felony conviction of a defendant. Likewise, there is no authority for the state’s attorney to dismiss the allegation unless, of course, the allegation is untrue or cannot be proven.*
The proper performance of the state’s attorney’s duties under the habitual criminal statute would obviate any attacks upon the possible discriminatory use of the statute. However, the failure of the state’s attorney to perform his statutory duty in other cases can hardly be grounds to reverse the defendant’s conviction because he did perform that duty in this case. Although there are sanctions which may lie against the state’s attorney who wilfully fails to perform his statutory duty, one of them is not the reversal of a defendant’s conviction.
I would affirm the conviction for these reasons and with these above qualifications.
I am authorized to state that Justice MORGAN joins in this special concurrence.
Dismissal of a habitual criminal charge as part of a plea bargain can occur only with the concurrence of the trial judge. See State v. Doherty, 1978, S.D., 261 N.W.2d 677; State v. Kafka, 1978, S.D., 264 N.W.2d 702, special concurrence.