¶1concurring.
¶2I fully concur in the majority opinion of Judge Grimm. I write this opinion to address the issue raised by the dissenting opinion.
¶3The dissent concludes that the language of § 556.046 RSMo 1994, mandates reversal because misdemeanor stealing is a lesser included offense of robbery first degree and there was a basis for acquitting defendant of the robbery charge and convicting him of the misdemeanor stealing. That conclusion is premised upon the portion of the statute which reads:
A defendant may be convicted of an offense included in an offense charged in the indictment or information, (emphasis supplied)
¶4§ 556.046.1 RSMo 1994.
¶5A defendant may not be convicted of an offense not charged in the indictment or information. In contemplation of law a charge of one crime covers all lesser crimes necessarily included within it. State v. Stone, 571 S.W.2d 486 (Mo.App.1978) [1-4]. The definition of a lesser included offense was stated in State v. Amsden, 299 S.W.2d 498 (Mo.1957) [11,12]:
“ ‘If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater’.”
¶6It is apparent from that definition that allegations of the facts necessary to charge the greater offense by necessity also allege all of the facts necessary to charge the lesser included offense. Such offenses may not be identified in the charging document as the greater offense is, but each such offense is in fact charged. The sufficiency of an indictment or information is determined by whether it contains the essential elements of the offense as set out in the statute and clearly apprises the defendant of the facts constituting the offense. Parker v. State, 836 S.W.2d 469 (Mo.App.1992) [3]. As stated in State v. McNaughton, 924 S.W.2d 517 (Mo.App.1996) [34-36]:
*926To sustain conviction of a lesser included offense, the greater crime for which the defendant is specifically charged must include in the charging document a description of the manner in which the greater crime was committed and allegations essential to constitute a charge of a lesser included offense. (Cite omitted)
¶7Section 556.046 does not limit its language to the offense charged in the charging document, but applies rather to an offense charged. As indicated above lesser included offenses are by definition charged in the indictment or information.
¶8Paragraph 2 of § 556.046 is quoted in the majority opinion and need not be restated here. It essentially provides that no instruction on a lesser included offense need be given unless there is a basis for acquitting the defendant of the higher offense and convicting him of the lesser. Where there are a series of lesser included offenses, as here, application of that section requires that each lesser included offense be considered as a charged offense for purposes of determining whether a still lesser offense shall be instructed on. Second degree robbery is a lesser included offense of first degree robbery; stealing from the person is a lesser included offense of second degree robbery; misdemeanor stealing is a lesser included offense of stealing from the person. Each of these offenses is charged in the indictment and information and the court must determine in serial fashion whether there is a basis for acquitting the defendant of the higher offense and convicting him of the lower. As the majority opinion establishes there was a basis for submitting robbery second degree as a lesser included offense of robbery first degree, and a basis for submitting stealing from the person as a lesser included offense of robbery second degree. There was no basis, however, for submitting misdemeanor stealing as a lesser included offense of stealing from the person.
¶9dissenting.
¶10The basic finding in the principal opinion and Judge Crandall’s is there is no basis to support submission of the crime of misdemeanor stealing. That finding is inaccurate. Traditionally, submissibility depends on whether there is evidence to support a finding on the elements of a crime. Defendant testified he took seven dollars from the prosecuting witness. The taking with an acknowledged intent to keep, constitutes sufficient evidence to support misdemeanor stealing. Nothing more was required to support submission of misdemeanor stealing.
¶11In State v. Hopson, 891 S.W.2d 851, 852 (Mo.App. E.D.1995), we said, “a defendant is entitled to an instruction on any theory which the evidence tends to establish.” This court has previously held, “[A] trial court is obligated to submit a lesser included offense instruction if the evidence arguably shows lack of an essential element of the higher offense which would not only authorize acquittal but sustain a conviction of the lesser,. ...” State v. Hamlett, 756 S.W.2d 197, 199 (Mo.App.1988); accord, State v. Green, 778 S.W.2d 326, 327 (Mo.App.1989). “As a general proposition, a trial court should resolve all doubts upon the evidence in favor of instructing on the lower degree of the crime, leaving to the jury to decide which of two or more grades of an offense, if any, the defendant is guilty.” State v. Ellis, 639 S.W.2d 420, 422-423 (Mo.App.1982). (Our empha*927sis). Defendant’s evidence was all that was required to support submission of the misdemeanor instruction which he requested.
¶12The fundamental legal flaw in the principal opinion is a failure to honor and follow the plain meaning doctrine in applying § 556.046.1 and .2 RSMo 1994. Not one word, phrase, sentence or paragraph of that statute is ambiguous. We are obligated to follow the Missouri Supreme Court’s consistent decisions to apply the doctrine. Article V, § 2 Missouri Constitution. The doctrine is well founded on the fundamental requirement of separation of legislative and judicial powers. The doctrine provides:
The primary rule is to ascertain the intent of the lawmakers from the language used, to give effect to that intent if possible, and to consider words in their plain and ordinary meaning. Where the language of a statute is plain and admits of but one meaning, there is no room for construction. L & R Distributing Company, Inc. v. Missouri Department of Revenue, 648 S.W.2d 91, 95 (Mo.1983).
¶13More recently the Supreme Court affirmed the doctrine in Morton v. Brenner, 842 S.W.2d 538, 541 (Mo. banc 1992). The application and wisdom of the doctrine has never been questioned by this court.
¶14The operative words in § 556.046.1 are “an offense charged” “in the indictment or information.” In this case the relevant charged crime was robbery first degree. No included offense appears in the indictment or information.
¶15The operative words in § 556.046.2 are “not be obligated,” “unless” and “basis for a verdict” [1] “acquitting ... offense charged”; and, “convicting ... included offense.” The statute distinguishes “offense charged” from “included offense.” The statute excuses a requirement to submit an included offense “unless” two conditions are met. Giving the word “unless” its plain and ordinary meaning the trial court is obligated to submit a requested lesser included offense instruction if both conditions are met. The present case does not implicate any former requirements for mandatory instruction, past or present. In the present case, defendant requested the included offense instructions, some of which the court gave and one of which the court refused.
¶16The offense charged was robbery first degree. Defendant was arraigned only on the charge of robbery first degree. That is the crime defendant faced before the trial began. There was a basis to find, and the jury did find, defendant not guilty of the offense charged. The basis for that verdict was a finding there was no force or threat of force involved in the event. Defendant’s testimony that he stole seven dollars from the prosecuting witness provided all the evidence required to support submission of the requested misdemeanor instruction. Applying the plain meaning of the statute the trial court erred in not submitting the instruction at defendant’s request.
¶17The principal and concurring opinions would insert additional language in the statute by relieving the trial court of the statutory obligation if there is no basis to find defendant not guilty of some other included offense, one not charged in the indictment or information, in this case stealing from a person. That approach may be entirely reasonable but it is absolutely not authorized by the legislature in an unambiguous statute. It is completely beyond the authority of the trial court and this court.
¶18The two cases relied on by Judge Grimm, State v. Olson, 636 S.W.2d 318 (Mo. banc 1982) and State v. Pruett, 805 S.W.2d 724 (Mo.App. E.D.1991) are inapplicable. Both cases differ from this case because both were decided on an issue not present here, the absence of a basis to find defendant not guilty of the charged crime and guilty of a lesser included offense. There is no contest that in this case there is a basis to find the defendant not guilty of the offense charged. The not guilty verdict on the robbery charge was supported by evidence of a stealing without force. There is an evidentiary basis to support a verdict of guilty on misdemeanor stealing.
¶19Not one authority is cited for the proposition a trial court is not obligated by the statute to submit all requested lesser included offense instructions where there is evidence to find a defendant not guilty of the *928offense charged and evidence to support each requested instruction. No court has ever considered and no court, including this court, has ever held § 556.046.1 and .2 does not direct submission of the requested instruction. In State v. Stone, 571 S.W.2d 486 (Mo.App.1978) we held trespassing is not a lesser included offense of burglary. We did not hold a charged crime necessarily includes any other crimes “in contemplation of law.” The only available analysis to support a finding the trial court did not err would be a frank acknowledgment the court is affirming by means of statutory interpretation of an unambiguous statute. That we may not do without ignoring Missouri Supreme Court precedent on a fundamental rule of statutory interpretation.
¶20The trial court erred in failing to submit an included offense supported by the evidence. In the absence of a finding that defendant was not prejudiced we are obligated to reverse and remand.