People v. Jacques

Taylor, J.

(dissenting). I would affirm the judgment of the Court of Appeals because a fence of the sort here in question (seven feet high, effecting a full enclosure) constitutes a “structure” under the entry without breaking statute. MCL 750.111; MSA 28.306.

The majority opinion is premised on the ejusdem generis doctrine. As stated in In re Mosby, 360 Mich 186, 192; 103 NW2d 462 (1960):

The rule of ejusdem generis is not to be invoked in every case where general words follow (or possibly precede) specific words. For example, it applies only where the specific words relate to subjects of a single kind, class, character, or nature, as noted above. In all events, the rule is useful only for purposes of aiding the judicial search for the sometimes elusive scrivener’s intent. Where the language used, considered in its entirety, discloses no purpose of limiting the general words used, the rule of ejusdem generis may not be invoked to defeat or limit the purpose of the enactment.

Also relevant is the following language from Black’s Law Dictionary, which this Court cited with approval in In re Forfeiture of $5,264, 432 Mich 242, 252-253, n 7; 439 NW2d 246 (1989), a case in which this Court refused to apply the doctrine of ejusdem generis to a statute:

“The rule, however, does not necessarily require that the general provision be limited in its scope to the identical things specifically named. Nor does it apply when the context manifests a contrary intention.”

After full consideration of the statute in question, I am satisfied that the doctrine should not be applied to limit the items that can be considered to be a *361structure under the entry without breaking statute. MCL 750.111; MSA 28.306. The majority’s resort to the rule of ejusdem generis is unwarranted because the statutory language does not disclose the purpose of limiting the meaning of the word “structure” in the statute. Indeed, careful review of the statute manifests a contrary intention. Accord Utica State Savings Bank v Oak Park, 279 Mich 568, 573; 273 NW 271 (1937).

The crime of entry without breaking is defined as:

Any person who, without breaking, shall enter any dwelling, house, tent, hotel, office, store, shop, warehouse, bam, granary, factory or other building, boat, ship, railroad car or structure used or kept for public or private use, or any private apartment therein, with intent to commit a felony or any larceny therein, shall be guilty of a felony punishable by imprisonment in the state prison not more than 5 years, or fined not more than $2,500.00. [MCL 750.111; MSA 28.306.]

The first part of the statute consists of a list starting with “any dwelling, house, tent,” etc., and ends with the phrase “factory or other building.” The second part of the list continues “boat, ship, railroad car or structure.” I find it significant that the Legislature chose to modify “building” in the first listing with the word “other,” but did not so modify the word “structure” in the second. While the majority apparently dismisses this as a distinction without a difference, all would acknowledge that it is at least curious that there was such an omission. It is our duty to grapple with this and give meaning, if such is possible, to the *362drafting anomaly.1 I believe English usage dictates that “other” is limiting.2 This, of course, means that application of the doctrine of ejusdem generis to the clause culminating in “other building” is appropriate.3 However, when “other” is not a qualifier to the culminating norm in the list, such as in the second list where “structure” is unmodified, it follows that ejusdem generis cannot be used to help us understand the scope of “structure.”4

Further, because “other” restricts the noun “building,” its lack before “structure” means that structure should be read as an effort by the Legislature to use the word expansively as a catchall term. Reinforcement for this analysis comes from Pennsylvania Steel Co v J E Potts Salt & Lumber Co, 63 F 11, 15 (CA 6, 1894), in which the United States Court of Appeals for the Sixth Circuit considered the Michigan mechanic’s lien statute. The Sixth Circuit said that the words “other structure” had to be understood in relation to the words immediately preceding, to wit, “house, building, machinery, wharf.” Implicitly, the failure to qualify “structure” with the word “other” logically leads to the view that the Legislature did not *363want the word “structure” to be limited by the words immediately preceding; rather, it wanted a broad meaning so as to encompass things broader than the actual listing. Accord In re Forfeiture of $5,264, supra at 255 (we believe the phrase connotes an illustrative listing, one purposefully capable of enlargement).

Further support for my conclusion that the rule of ejusdem generis should not be applied to the word structure comes from C K Eddy & Sons v Tierney, 276 Mich 333, 340-341; 267 NW 852 (1936). In that case, the Court considered an ordinance forbidding the alteration of a “building, structure, or premises” except for specified purposes. This Court refused to apply the doctrine of ejusdem generis because each of the series of terms, “buildings, structures, or premises” was used disjunctively, standing independent of any other, the whole encompassing the broad field that the ordinance manifestly intended to reach. Thereafter this Court cited a definition of the word “structure” that was broad enough to include a seven-foot high fence.5 The entry without breaking statute here at issue similarly uses the word “structure” disjunctively. Therefore “structure” should be understood broadly, as a “catchall” and not limited pursuant to ejusdem generis by the earlier terms in the list.

The majority asserts, for reasons unclear to me, that one cannot be inside a fence. I disagree. An area which people enter is commonly described as being in a fenced-in area. In this sense, then, one can be inside a fence. It is only because the majority has not *364completed the vernacular phrase that it seems unfamiliar. In any event, however, no matter how unfamiliar the phrase may seem, it does not establish the impossibility that the majority seems to be suggesting. Moreover, this argument misses the issue, as stated by the majority itself, which is whether entry into “an enclosure” by crawling under a fence constitutes the crime of entry without breaking.

Accordingly, by utilization of the syntactical rules that control our language, I conclude, along with the Court of Appeals, that the Legislature contemplated a fence6 that is used to enclose and protect property as being an integral part of a closed compound when it included the term “structure” in the entry without breaking statute. 215 Mich App 699, 709; 547 NW2d 349 (1996).

I would affirm defendant’s conviction.

Boyle and Weaver, JJ., concurred with Taylor, J.

MCL 8.3a; MSA 2.212(1) (“All words and phrases shall be construed and understood according to the common and approved usage of the language”).

Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992) (In construing a statute, a court should presume that every word has some meaning and no word should be treated as surplusage or rendered nugatory if at all possible).

It is in fact this type of analysis, as the majority notes, that led the Court in People v Smith, 393 Mich 432, 435; 225 NW2d 165 (1975), to conclude that “other” triggered the ejusdem generis analysis.

The majority asserts that the commonality shared by all the terms in the statute is that each may be entered into. However, this is not entirely correct. For example, a barge is a boat or ship and one would not normally state that one entered into a barge.

Black’s Law Dictionary (6th ed), p 618, defines a “fence” as a “hedge, structure or partition.”

I would leave for a later day the interesting question of a burglary in a bread box.