dissenting:
I agree with the appellate court that the circuit court did not err when it refused to give defendant’s instruction on theft. Such an instruction would have been proper only if theft were a lesser included offense of residential burglary. Under the charging instrument approach followed in Illinois (People v. Novak, 163 Ill. 2d 93, 112-13 (1994)), theft cannot be considered a lesser included offense of residential burglary as that crime was charged here.
To be considered a lesser included offense under the charging instrument approach, an offense must be described by the charging instrument. At a minimum, the instrument charging the greater offense must set out the main outline of the lesser offense. People v. Jones, 175 Ill. 2d 126, 135 (1997). Contrary to my colleagues, I do not believe that requirement was met in this case.
For there to be theft by unauthorized control, a person must knowingly obtain or exert unauthorized control over property of the owner. 720 ILCS 5/16 — 1(a) (West Supp. 1995). This requirement goes to the very heart of the crime. As such, it is an indispensable part of any outline of the offense. In the case before us, however, nothing in the charging instrument alleged that defendant actually took anything that did not belong to him. The instrument alleged simply that defendant entered the Williamses’ home knowingly and without authority with the intent to commit a theft.
The majority argues that a completed theft is implicit in and necessarily follows from the charge that defendant intended to commit a theft. That contention is valid if and only if intending to do something is the same as actually doing it. Common sense and everyday experience are ample proof that such is not the case.
My colleagues try to find support for their position in People v. Dace, 104 Ill. 2d 96 (1984), but Dace is not dispositive of this appeal. Contrary to the majority’s assertion, Dace did not apply or purport to apply the charging instruments approach which our court has now adopted. Indeed, that case failed to articulate any governing principle for its conclusion that the circuit court should have given an instruction on theft where the informations charged only residential burglary. Dace, 104 Ill. 2d at 104 (Simon, J., dissenting). Moreover, four years after Dace our court specifically held that where the defendant was charged with residential burglary based on unauthorized entry with intent to commit theft, as defendant was here, he could not be convicted of theft because theft is not a lesser included offense of burglary. People v. Schmidt, 126 Ill. 2d 179 (1988).
Following this court’s discussion of the charging instrument approach in Novak, the appellate court held, as it did in this case, that where an indictment charges burglary based on entry of premises with the intent to commit a theft, theft is not a lesser included offense, and a defendant’s tendered instruction on theft was therefore properly rejected by the circuit court. People v. Hage, 288 Ill. App. 3d 1014, 1020 (1997). I believe this view is the correct one and am unpersuaded by the majority’s claims to the contrary. Accordingly, I dissent.