(concurring specialty).
Inasmuch as State v. O’Connor, 1972, 86 S.D. 294, 194 N.W.2d 246 concluded that SDCL 22-32-16 (misdemeanor breaking and entering) could not be a “necessarily included offense” of SDCL 22-32-9 (third degree burglary) as a matter of law, I feel that the proper determination of a “necessarily included offense” should be discussed.*
There are two tests for determining whether an offense is “necessarily included” in a greater offense: (1) legal and (2) factual. Both tests must be satisfied before a “necessarily included offense” instruction should be given.
The legal test of a “necessarily included offense” is stated in State v. O’Connor, supra, as follows:
“ ‘ * * * [T]he test of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. * * * If, in the commission of acts made unlawful by one statute the offender must always violate another, the one offense is necessarily included in the other. * * * Before a lesser offense can be said to constitute a necessary part of a greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense. If an element necessary to establish the corpus delicti of the lesser offense is irrelevant to the proof of the greater offense, the lesser cannot be held to be a necessarily included offense.’ ” 86 S.D. at 298, 194 N.W.2d at 248-249.
From this correct statement, the court concluded that SDCL 22-32-16 is not necessarily included in SDCL 22-32-9 because SDCL 22-32-9 requires property to be kept in the enclosures, whereas SDCL 22-32-16 does not. The conclusion of State v. O’Connor, supra. State v. Goodale, 1972, 86 S.D. 458, 198 N.W.2d 44, and State v. Myott, 1976, S.D., 246 N.W.2d 786, is simply incorrect.
To meet the legal test of a “necessarily included offense,” first, the elements of the included offense must be fewer in number than the elements of the greater charged offense. Second, the penalty for th,e included offense must be less than the greater charged offense in terms of the maximum punishment attached to each offense. Third, as stated in State v. O’Connor, supra, the two offenses must contain common elements so that the lesser 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.
SDCL 22-32-16 obviously meets the first two requirements to be a necessarily included offense of SDCL 22-32-9. However, because SDCL 22-32-9 and SDCL 22-32-16 include several alternative acts, the determination of whether SDCL 22-32-16 contains common elements of SDCL 22-32-9 depends solely upon the particular charge in the information.
The applicable parts of SDCL 22-32-9 in regard to the offense charged in the information are:
“A person breaking or entering at any time any building * * * in which any property is kept, with intent to commit larceny or any felony, is guilty of burglary in the third degree.”
The applicable parts of SDCL 22-32-16 in regard to the offense charged in the information would be:
“Every person who under circumstances not amounting to any burglary enters any building * * * with intent to commit felony, (or) larceny * * * is guilty of a misdemeanor.”
Under the legal test in this case, SDCL 22-32-16 was a necessarily included offense of SDCL 22-32-9. SDCL 22-32-16(1) has fewer elements, i. e., there need not be a *706breaking and the building need not be one in which property is kept; (2) it has less punishment, i. e., one year compared to fifteen years; and (3) it has common elements, i. e., an entry of a building with the intent to commit a felony or larceny. The violation of SDCL 22-32-9 as charged cannot be committed without violating SDCL 22-32-16.
Having concluded that SDCL 22-32-16 can be a necessarily included offense under SDCL 22-32-9 as charged in the allegations of the information, it must be determined whether or not the evidence presented satisfied the “factual test” and would require the giving of the “necessarily included offense” instruction.
“Where a request has been made to charge the jury on a lesser-included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error. (citations omitted) There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed.” People v. Karasek, 1975, 63 Mich.App. 706, 234 N.W.2d 761.
“ ‘ * * * There is no evidence tending to support a lesser included offense unless a question of fact exists with regard to an element of the greater offense that is not an element of the included offense (citation omitted).
“ ‘When does a question of fact exist? If there is conflicting evidence relating to the element of the greater offense that is not an element of the lesser offense, there is a question of fact as to that element.’ ” People v. Gardner, 1972, 43 Mich.App. 574, 204 N.W.2d 272.
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 tools and equipment belonging to the Pioneer Lime Company and used 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.
The O’Connor decision emphasizes that because SDCL 22-32-16 is not a degree of burglary, it is not necessarily included. However, there is a difference between “degrees of an offense” and a “necessarily included offense.” SDCL 22-32-16 is not a “degree” of burglary and can be an entirely separate offense from SDCL 22-32-9; that does not mean that SDCL 22-32-16 cannot be “necessarily included” in SDCL 22-32-9. It is only by use of the “legal test” and “factual test” that a 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.
The defendant argues that if he had known of the habitual offender portion of the information and its consequences, he would have accepted the state’s attorney’s plea bargain and pleaded guilty to the burglary charge. SDCL 22-7-3 requires the state’s attorney to file a habitual offender information upon learning of prior felony convictions. The prior felony conviction is for the consideration of the trial judges in sentencing a convicted offender. The filing of a habitual offender charge is not a subject for plea negotiations, since it is manda*707tory that the state’s attorney file it upon receiving notice of the prior conviction. Once filed, it cannot be dismissed by the state’s attorney as part of a plea bargain without the agreement of the trial judge. There does not appear to be any reason to believe that such a plea bargain would have been accepted by the trial court. Furthermore, upon being informed by the judge of the habitual offender information and its consequences, the defendant made no attempt to change his plea. There is no reason to believe that such a plea agreement would not have been available had he desired to change his plea, subject, of course, to acceptance of such a plea agreement by the trial court. I can see no prejudicial error under the circumstances here.
Fully recognizing that both these statutes have been amended by the legislature, however, the new statutes retained the inherent difficulties of determining when SDCL 22-32-16 may be a “necessarily included offense” of SDCL 22-32-9 (now SDCL 22-32-8).