People v. Henson

Defendant was convicted, after jury trial, of 2 counts of burglary and 1 count of possession of burglary tools. Court’s refusal to instruct jury on lesser included offense of theft is reversible error. Evidence would permit the jury to rationally conclude that Defendant was guilty of theft but not of burglary; there was no direct evidence establishing Defendant’s entry into business’s property. Theft was included in the indictment such that the lesser offense of theft is “included”. (HUTCHINSON and SPENCE, concurring.)