State v. Baker

McCown, J.,

dissenting.

The defendant was obviously guilty of larceny. However, he was charged and convicted of an aggravated statutory form of burglary. The evidence was undisputed that he had permission to enter the building at the time and place to do custodial work, and that he performed such work.

Section 28-533, R. R. S. 1943, has two separate elements: First, the unlawful entry and second, the committing or attempting to commit one of the acts enumerated after entry. See Fredericksen v. Dickson, 148 Neb. 739, 29 N. W. 2d 334.

The rule is supportable that an unlawful or malicious intent at the time of entry may be inferred from the commission of a crime after entry, and make the entry unlawful. However, most of the cases supporting such a rule do not involve factually established privilege of entry, and have evidence only of the commission of unlawful acts after entry. They do not ordinarily involve situations where the defendant is licensed or privileged to enter and also performs the acts for which permission was given.

The majority holding here, would permit a petty shoplifter, caught in the act, to be convicted of an aggravated statutory form of burglary. It seems apparent that the statute was not intended to suggest that a simple entry is presumed to be unlawful if the requisite intent is present. “The character or kind of entry is expressly qualified; it must be unlawful in itself, that is, trespassory, and without regard to the second element of the crime, the intent to steal.” Smith v. State, 362 P. 2d 1071, 93 A. L. R. 2d 525 (Alaska 1961).

Aggravated burglary sanctions ought not to be imposed upon one who enters a building lawfully by right or consent. Modern penal provisions as to burglary specifically except situations where the premises are at the time open to the public or the actor is licensed or privileged to enter. See American Law Institute, Model Penal Code, § 221.1, Burglary.

The language of section 28-533, R. R. S. 1943, is only typical of the archaic and confused state of our present criminal code. For example, section 28-535, R. R. S. 1943, still authorizes imprisonment in the “dungeon of the jail.” Revision is long overdue.