People v. Jones , 217 Ill. App. 3d 175 ( 1991 )

JUSTICE HOWERTON

delivered the opinion of the court:

Defendant, Henry Jones, was charged by information with armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2). Following a bench trial, defendant was found guilty of theft and sentenced to a term of 2V2 years in the Department of Corrections. We reverse.

The issue raised to us is whether an accused can be convicted of theft from a person if the sole charge presented in the information is armed robbery. Defendant asserts that his theft conviction was improper and void because it was neither charged in the information nor is it a lesser-included offense of armed robbery.

The offense of armed robbery is listed in Illinois Revised Statutes in article 18 of the Criminal Code of 1961, title III, part C: “Offenses Directed Against Property.” (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2.) The caption supplied by the compiler or publisher of the Illinois Revised Statutes forms no part of the official title or contents of the Act (People v. Flaherty (1947), 396 Ill. 304, 313-14, 71 N.E.2d 779, 784), and the heading of a statute cannot limit the plain meaning of the substantive portion (People v. Trigg (1968), 97 Ill. App. 2d 261, 269-70, 240 N.E.2d 130, 134).

Although Part C is entitled “Offenses Directed Against Property,” a reading of sections 18 — 1 and 18 — 2 (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 1, 18 — 2) establishes that robbery involves the use of force or the imminent use of force against a person, and armed robbery involves the use of a dangerous weapon to take property from a person or the presence of another. Robbery is included as an offense under the definition of forcible felony in section 2 — 8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 8) precisely because it involves the use or threat of physical force or violence against a person. Armed robbery, while captioned in Illinois Revised Statutes as a crime against property, is a forcible felony carried out against a person or in the presence of a person. Indeed, such is its history from colonial times to the present.

Theft, on the other hand (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)), is a crime against property.

In farther distinction, theft requires proof that a defendant knowingly obtained or exerted unauthorized control over property with the intention to deprive the owner permanently of the use or benefit of that property. In order to convict for robbery, however, no specific intent must be proved, general intent plus proof of force being sufficient.

The various divisions of the appellate court of this State have diverged in their opinions as to whether or not theft is a lesser-included offense of robbery. Some divisions have held that a robbery conviction can be reduced to theft even in the absence of a theft charge, basing their opinion upon the rationale that the element of specific intent is logically presumed in the taking of another’s property by force. (People v. Romo (1st Dist. 5th Div. 1980), 85 Ill. App. 3d 886, 407 N.E.2d 661; People v. Beck (1st Dist. 4th Div. 1976), 42 Ill. App. 3d 923, 356 N.E.2d 848; People v. Rivers (1st Dist. 6th Div. 1990), 194 Ill. App. 3d 193, 550 N.E.2d 1179; People v. Tolentino (1st Dist. 3d Div. 1966), 68 Ill. App. 2d 480, 216 N.E.2d 191.) Other divisions, in contrast, have held that the element of specific intent to deprive an owner permanently of the use or benefit of property is what distinguishes theft from robbery, making it a separate and distinct crime. People v. Kimble (1st Dist. 3d Div. 1980), 90 Ill. App. 3d 999, 414 N.E.2d 135; People v. Gray (5th Dist. 1980), 80 Ill. App. 3d 817, 400 N.E.2d 473; People v. Pack (5th Dist. 1976), 34 Ill. App. 3d 894, 341 N.E.2d 4.

This court’s decisions in Gray and Pack reflect our adherence to the definition of “lesser-included offense” as set forth in section 2 — 9(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 9(a)):

“ ‘Included offense’ means an offense which

*** [i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged ***.”

“A lesser[-]included offense is[, therefore,] an offense which contains some but not all of the elements of the greater offense and *** contains no element not included in the greater.” People v. Pumphrey (1983), 115 Ill. App. 3d 1031, 1033, 451 N.E.2d 961, 963.

Since theft requires proof of a specific intent to deprive the owner permanently of the use or benefit of property, while robbery requires only proof of general intent, theft is not a lesser-included offense of robbery. Therefore, defendant in the case at bar should not have been found guilty of theft as a lesser but uncharged offense.

Therefore, the defendant’s conviction of theft is reversed, and the defendant’s arguments concerning the number of days to be credited against the defendant’s sentence need not be addressed.

Reversed.

GOLDENHERSH, J., concurs.