State v. North , 238 Or. 90 ( 1964 )

O’CONNELL, J.,

specially concurring.

I concur in the result. I do not regard the instruction requested by defendant Hibbard as faulty. However, I am of the opinion that ORS 164.220 can be construed as being applicable to ORS 164.260 as well as to ORS 164.230 and ORS 164.240. I would treat ORS 164.220 as a declaration by the legislature that the common law concept of breaking was abolished and that any unlawful entry is a breaking where the crime of burglary is charged. The two burglary statutes (OES 164.230 and OES 164.240) were specifically mentioned in OES 164.220 not for the purpose of limiting the operation of the latter statute but simply because those were the only burglary statutes then in force.

The statute so construed is made applicable to OES 164.260 in spite of the fact that it was subsequently enacted. Obviously, OES 164.260 was enacted to impose a more severe penalty where burglary was accompanied by the use of explosives. There is no reason to think that the legislature intended one kind of breaking under OES 164.260 and another kind of breaking under the other burglary statutes previously enacted.