(dissenting) — Because the majority concludes that "the State would be hard pressed to prove entry with intent to commit a crime if it were required to specify exactly which of several crimes available to the defendant he intended to commit", it expediently holds that the "intent" required by the burglary statute3 is only "criminal intent rather than intent to commit a particular crime." Applying this ipse dixit rule to the case before us, the majority further holds that the jury need not be instructed as to the elements of any underlying intended crimes. I disagree with these holdings and respectfully dissent.4
Sufficiency of Information
Contrary to prior Washington practice, most other jurisdictions require a charge of burglary to specify the underlying intended crime:
The rule is well established . . . that even though in burglary . . . the intent, as defined by the law, is simply to commit a felony, it is not sufficient for the indictment to use these general words; the particular felony intended must be specified. The allegation of the ulterior felony intended need not, however, be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, *923rape, or arson. . . . The averment that the accused has broken and entered a dwelling house for the purpose of committing a felony fails wholly to apprise him of the specific offense which it is claimed he intended to commit. The defendant is not to be oppressed by the introduction of evidence which he cannot be prepared to meet.
13 Am. Jur. 2d Burglary § 36 (1964). See also Adkins v. State, 389 P.2d 915 (Alaska 1964), and cases cited therein; People v. Failla, 64 Cal. 2d 560, 414 P.2d 39, 51 Cal. Rptr. 103 (1966); Martinez v. People, 163 Colo. 503, 431 P.2d 765 (1967); State v. Minnick, 53 Del. 261, 168 A.2d 93 (1960); Kane v. State, 392 So. 2d 1012 (Fla. Dist. Ct. App. 1981); Ealey v. State, 136 Ga. App. 292, 221 S.E.2d 50 (1975); State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973); People v. Burd, 13 Mich. App. 307, 164 N.W.2d 392 (1968); Newburn v. State, 205 So. 2d 260 (Miss. 1967); State v. Cooper, 288 N.C. 496, 219 S.E.2d 45 (1975); State v. Sanders, 280 Or. 685, 572 P.2d 1307 (1977); State v. Wilson, 297 N.W.2d 477 (S.D. 1980) (where trial court instructed on theft, it was harmless error for the information not to specify the intended crime); Champlain v. State, 53 Wis. 2d 751, 193 N.W.2d 868 (1972); but see, e.g., Commonwealth v. Thompson, 274 Pa. Super. 44, 417 A.2d 1243 (1979) (prosecutor not required to specify underlying crime, but if crime is specified, prosecutor must prove intent to commit that particular crime).
Prior Washington cases have uniformly held it sufficient to charge burglary in the language of the statute. State v. Marker, 4 Wn. App. 681, 483 P.2d 853 (1971); see also Linbeck v. State, 1 Wash. 336, 25 P. 452 (1890); State v. Wilson, 9 Wash. 218, 37 P. 424 (1894); State v. Lewis, 42 Wash. 672, 85 P. 668 (1906). The Washington rule followed from the former presumption of intent statute, RCW 9.19.030:
Every person who shall . . . unlawfully enter any building or structure . . . shall be deemed to have . . . entered the same with intent to commit a crime therein, unless such . . . unlawful entry shall be explained by testimony satisfactory to the jury to have been made *924without criminal intent.
This statute was first enacted in 1873, in substantially the same language. See Code of 1881, § 828. Relying on the presumption of intent, the Supreme Court first held in 1890 that the specific intended crime did not have to be charged in the information:
[That it is generally necessary to set out the underlying crime in the information] is borne out by numerous authorities which the diligence of counsel has gathered for the information of this court; and we believe it to be the law in most of the states, and that it would clearly be the law here were it not for § 828 of our code. . . . [B]y virtue of its provisions the prosecution is no longer compelled to prove with what intent the defendant enters, but on the contrary, the unlawful entering having been proved, the intent to commit a crime or misdemeanor is presumed; and this being so, we are unable to see how the accuracy required before such section was enacted can now aid the defendant. The burden of showing the intent with which he entered is, by said section, cast upon him, and he can show such an intent to have been an innocent one as well without the details as to his specific intent as with it. Aided by [§ 828] the information was sufficient.
(Italics mine.) Linbeck, at 337-38. The court in Linbeck makes it clear that were it not for the presumption of intent statute, the underlying crime would have to be set out to give the defendant adequate notice of the charge against him. See also Linbeck, at 339 (Anders, C.J., concurring).
Because the State was not required, under the presumption of intent statute, to prove the specific intent with which an accused entered a building, no useful purpose would have been servedxby requiring the information to specify the underlying crime. Linbeck; State v. Lewis, supra. The burden was on the defendant in those cases to justify his unlawful entry. The mandatory rebuttable presumption of intent, however, is no longer the law in Washington. The Legislature repealed RCW 9.19.030 in 1975, replacing the presumption of intent with a permissive *925inference. Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.52.040, p. 840.
RCW 9A.52.040, applicable to the case before us, provides:
Inference of intent. In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.
This section, of necessity, changes the prior practice. Intent to commit a crime is now an element of burglary to be proven by the prosecution beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970).
In State v. Thomas, 73 Wn.2d 729, 440 P.2d 488 (1968), the defendant had been charged with assault in the second degree5 but the information failed to specify the felony which the assault allegedly enabled him to commit. Thomas moved at trial for dismissal on the grounds that the information was insufficient. Rather than dismiss the charge, the trial court permitted the State to amend the information to charge assault with intent to commit rape. The Supreme Court affirmed, holding that the information
was, at the most, not sufficiently definite to apprise the appellant of the precise nature of the accusation and enable him to prepare his defense. As such, it was subject to a motion to make more definite and certain, and the court properly treated the appellant's demurrer as such a motion and required the amendment.
Thomas, at 731. The court in Thomas recognized that even though the information by definition states a crime when couched in the language of the statute, failure to specify the underlying crime may render the information unconstitu*926tionally vague so as to require amendment to disclose the underlying crime.
Without specification of a particular underlying crime (or crimes) the information "does not define the crime with sufficient certainty to apprise the defendant of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense". Thomas, at 730; State v. Royse, 66 Wn.2d 552, 403 P.2d 838 (1965). While any prejudice to the defendant, in the absence of a sufficiently detailed information, could presumably be cured by amendment or through discovery, this does not obviate the necessity of advising the defendant, by whatever means, of the precise crime with which he is charged.
Sufficiency of Instructions
The majority holds that the trial court need not define the elements of various intended crimes for the jury because "So long as the jury unanimously finds that entry was effected with criminal intent,"6 it may convict. One of the elements of burglary in the second degree, however, is that the defendant did in fact intend to commit a crime. The jury must be convinced of this beyond a reasonable doubt in order to return a verdict of guilty, although it may infer the requisite intent from the unlawful entry, if it so chooses. Without an instruction setting forth the requisite elements of the intended crime, the jury cannot find beyond a reasonable doubt that a defendant has "intent to commit a crime against a person or property therein". RCW 9A.52.030.
No inference of intent can be valid if the jury does not understand what it is that is being inferred. In the case before us, the jury might well have convicted Stewart of burglary for an unlawful entry with intent to commit some act which our statutes do not recognize as a "crime against *927a person or property therein." As Chief Justice Anders stated in his opinion in Linbeck, at page 340, to merely use the word "intent" with respect to a defendant accused of burglary without putting it in the context of a specific crime, "does not state any fact whatever, as to his intent, but only a conclusion of law."
The majority states at page 919 that if the Legislature had "intended to include the underlying crime as one of the elements of burglary, it would surely have done so", thereby bypassing the basic problem with the trial court's instructions by mischaracterizing Stewart's arguments. Stewart does not argue, contrary to the majority's statement at page 918, that "if theft was the underlying crime in question, then it is an element of the crime" of burglary. Rather, he argues that in order to reasonably infer the requisite "intent to commit a crime," RCW 9A.52.030, the jury must be told the elements of the intended crime. While the majority correctly states that Stewart need not have actually committed the underlying crime to be guilty of burglary, the jury must still find that he intended to commit that crime. To do so, it must be instructed as to its elements.
We must not underplay the importance, to both the defendant and society, of a specific determination by the jury of the crime which the offender intended to commit upon unlawful entry. Under our system of criminal justice the precise offense committed is a factor which of necessity must be considered by the sentencing judge and the parole board, by law enforcement officers both inside and outside of penal institutions, and by prosecuting authorities in any subsequent dealings with the defendant.
For the foregoing reasons, I would reverse and remand for a new trial.
Reconsideration denied October 8, 1982.
Review granted by Supreme Court December 17, 1982.
RCW 9A.52.030 reads:
"Burglary in the second degree. (1) A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle.
"(2) Burglary in the second degree is a class B felony."
(Italics mine.)
I agree with the majority that Stewart waived his objection to the sufficiency of the information. I discuss the adequacy of the information only because the majority's analysis of the sufficiency of the instructions is rooted in its determination that ”[t]he State is not required to charge and prove intent to commit a particular crime, but only the presence of criminal intent at the time of illegal entry."
Then RCW 9.11.020 provided: "Every person who ... 6. Shall assault another with intent to commit a felony . . . Shall be guilty of assault in the second degree ..."
RCW 9A.08.010(l)(a) defines "intent" as "A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime." (Italics mine.)