dissenting. The majority opinion is nothing less than judicial legislation. The crimes of burglary and breaking or entering have previously been clearly established by the General Assembly and may be found at Ark. Code Ann. §§ 5-39-201 (a) and 5-39-202(a) (1987). These two laws, as written, are perfectly compatible and fairly easy to understand, or were until today.
Burglary is defined as occurring when “a person enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” On the other hand, “a person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe. . . Obviously a “structure” as mentioned in the burglary statute includes a mobile home if it is occupiable. At the same time it is obvious that the breaking or entering statute applies to a mobile home if it is not occupiable. The distinction between breaking and entering and burglary is determined by the facts of each case.
At common law and under our earlier statutory law, the offense of burglary was designed to prohibit the invasion of premises under circumstances likely to inspire terror or constitute a physical threat to the safety of other persons. Historically the offense of burglary consisted of breaking into or entering, at nighttime, the dwelling of another, with the intent to commit a felony. The earlier statutory laws defining burglary required a breaking or entering of a dwelling. Burglary laws are designed primarily to protect people and secondarily to protect property. Breaking or entering laws have always been directed at crimes against property.
This court considered what acts were necessary to constitute burglary under the present law in Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977). At that time burglary was defined in Ark. Stat. Ann. § 41-2002 (Repl. 1977). There has been no change in the law since Barksdale was decided. The opinion stated:
Under the statutory definition of ‘occupiable structure,’ whether anyone is physically occupying the structure is irrelevant. The determinative factor is the nature of the premise [s], that is, not whether it was occupied at the time of the crime, but rather whether it was occupiable. The fact the building was used for social activities, religious sessions, and classroom meetings clearly demonstrated that the building was an “occupiable structure.” Thus there was no issue on this point to go to the jury. [Emphasis in original.]
The foregoing quotation is a common and ordinary interpretation of the phrase “occupiable structure.” Certainly a mobile home used as a residence and having a room for storage would be an occupiable structure. Even a storage unit with a portion of it occupiable would still meet the definition of occupiable structure. However, a building used exclusively for storage is clearly not an occupiable structure within the meaning of this provision of the code. The facts related in the majority opinion clearly establish that this structure was not an occupiable one.
According to the express words of the present code an “occupiable structure” means a vehicle, building, or other structure where any person lives or carries on a business or where people assemble for some purpose or which is customarily used for the overnight accommodation of persons. The acts ascribed to the appellant in the present case simply did not occur in an occupiable structure. It would be painful indeed to see this court caught up in the hysteria of anti-crime paranoia by dividing every criminal act into as many offenses as possible and to mete out the utmost punishment under each element of the offense. I would much prefer that this body stand back and evaluate the law and the facts as each case comes before it.
We ought not to blindly accept the assertion by the state that this is an occupiable structure simply because the state said it was in the information. Sometimes the state argues merely to fulfill its “presumed” obligation. Just because the state says something is so does not make it so. It should be the goal of the state to imprison the guilty and free the innocent. No one pretends that only the guilty are charged. Sometimes the innocent suffer as a result of our criminal justice system. One of our goals should be to • eliminate such instances of injustice. However, in doing so we should be careful not to create more. I cannot condemn the appellant for not offering some authority on his behalf. Obviously, the reason no authority was cited is that we have not heretofore reached the outer fringes of statutory and common law construction. Under these circumstances there is no precedent to quote. Now, alas, there will be.
Since both statutes make it an offense to break into a structure it is obvious that only one statute is needed if we are going to allow the word “structure” to be used as the state sees fit. Fair minded men can only conclude that the statute as it exists today requires that for a person to commit the offense of burglary, there must be an entry into an “occupiable structure” with the purpose of committing a crime punishable by imprisonment. This phrase by its own terms clearly means a place where people sometimes assemble or where people reside. By no stretch of the imagination can it be said that the structure in this case was an occupiable one, if we give the word its plain meaning. There is no evidence that anyone other than the owner ever visited this property, except for the thieves. The majority opinion in effect gives the prosecuting attorney his choice of charging a person with burglary or breaking or entering. I do not believe it was the intent of the legislature to confer such power upon the state’s agent. If, however, it can be said that this was the intent of the legislature, then I am of the opinion that such unbridled discretion is violative of the United States Constitution.