dissenting.
The -majority,- by using a tort concept to define “unlawful” entry, makes virtually every crime committed indoors a burglary if the intent to commit the crime was formed before the offender entered the building.
I would limit “unlawful” as used in OBS 164.220 to wrongful means employed in gaining entry. Thus, if one were to gain entry to the building by fraud, or by putting a doorkeeper in fear, or by “stowing away” or by some similarly wrongful means, then the entry would be “unlawful” as I understand the intent of OBS 164.220. An abuse of an invitation, or an intent to use a public building for an illegal purpose, should not of itself make the offender a burglar, whatever else he might be.
I think the defect in the majority’s construction of the statute is that it broadens the statute until it is virtually meaningless. We are making OBS 164.220 a catch-all to permit district attorneys at their election to prosecute, as burglars, all sorts of miscreants who commit their planned crimes indoors. Under the majority’s reading of this statute, a person who enters a courthouse under subpoena, intending to commit perjury therein, would be a burglar. Other statutes adequately deal with such behavior, and with check-writers, shoplifters, embezzlers, etc.
I dissent.
McAllister, C. J., and Sloan, J., concur in this dissent.