(dissenting).
The facts of this case do not justify a charge of second-degree burglary and a sentence of one year in the South Dakota State Penitentiary. Thus, in the interest of justice, I would reverse appellant’s burglary conviction, vacate the sentence therefor, and remand for a petty theft prosecution.
Essentially, we are confronted with this issue: Are all shoplifting cases in South Dakota prosecutable by a second-degree burglary charge? If, indeed, the prosecutors of this state have such discretion under our broad second-degree burglary statute, it is conceivable that an additional penitentiary will have to be constructed. Our present penitentiary has been filled to the maximum and is under federal constitutional attack in the federal courts. I take judicial notice of the proceedings in Cody v. Hillard, 599 F.Supp. 1025 (D.S.D.1984). In said litigation, the Honorable Donald J. Porter ordered the modification of numerous conditions and practices of confinement in South Dakota prisons.
Historically, at common law, burglary was defined as “the breaking and entering of the dwelling house of another, at night, with the intent to commit a felony therein.” 3 C. Torcía, Wharton’s Criminal Law § 326, at 186 (14th ed. 1980). See also, 12A C.J.S. Burglary § 5 (1980). Modern burglary statutes, however, define the offense as either the entering or remaining in a building with the intent to commit a felony or some degree of larceny, see, e.g., Cal. Penal Code §§ 459-60 (West Supp. 1985), and N.M.StatAnn. § 30-16-3 (1978); or the unlawful entry or remaining in a building with the intent to commit any crime, see, e.g., Neb.Rev.Stat. § 28-507 (1979), and Colo.Rev.Stat. § 18-4-203 (1978). ' South Dakota’s second-degree burglary statute, however, is a hybrid, dreamed up by a code revision committee— not from the minds of legislators, for SDCL 22-32-3 proscribes the entry or remaining in an occupied structure with the intent to commit any crime therein. There was a vast amending of existing laws via ch. 158, S.D.Sess.Laws of 1976, repealing and reenacting of the laws, consolidating like criminal provisions and rewriting of the criminal code of this state. Out of this vastness, the present statute was birthed. The elements of second-degree burglary therefore do not include an unlawful or unauthorized entry, or the intent to commit a felony or some degree of larceny.* Thus, under SDCL 22-32-3, a person could be charged with second-degree burglary if he enters a tavern with the intent to write an insufficient funds check, State v. Blair, 273 N.W.2d 187, 188 (S.D.1979) (Zastrow, J., dissenting), or if he enters a friend’s house with the intent to smoke marijuana. Note, “Steal the Chicken at the Henhouse Door:” The South Dakota Burglary Statute, 25 S.D.L.Rev. 158, 160 (1980), which law review article is a general indictment of this state’s amorphous burglary statute. The second-degree burglary statute’s application is extremely broad and expansive and encompasses numerous circumstances *358not within the traditional common law crime of burglary. The maximum penalty for second-degree burglary is fifteen years imprisonment in the State Penitentiary and/or a fine of fifteen thousand dollars. SDCL 22-6-1(5). I believe, however, that the legislature did not intend such a harsh punishment to be imposed under the circumstances recited above or contained in the case now at bar. Rather, I believe that the legislature was sold a bill of goods by some dreamers on a code revision committee and the legislators did not realize what they were doing. This second-degree burglary statute has a sweep whereby any and all crimes in occupied structures are amalgamated together by the same punishment depending upon the whim of the prosecutor. Prosecutors must have some channels of discretion and restraint. A legislature should not abdicate its constitutional duty to prescribe punishments. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). In a different vernacular, a legislature, under the power given to it as elected representatives of the people, should prescribe proportionate punishments. If a legislature does not so prescribe, it is, in effect, delegating its power to the executive branch. In Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, 613 (1974), it was held: “Statutory language of such a stan-dardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law.”
How can any shoplifter avoid remaining with intent to commit theft? Once, you see, the shoplifter has committed a theft, he remains in the store long enough to get out the front door. He must, of necessity, “remain” long enough to have the merchandise on him. Therefore, every South Dakota shoplifter is, by the decision of this Court today, a burglar. Millions of dollars of merchandise are lost to shoplifters, and I do not condone, for one minute, their activities. However, I fail to see how they can be called burglars.
In the present case, the State contends that appellant entered the supermarket with the intent to steal a frozen pizza. The State relies on a statement against interest to that effect. His entry was lawful or authorized in that he was a business invitee and the doors of commerce were open unto him, but unlawful or unauthorized entry is not a requisite under our burglary statutes. Blair, 273 N.W.2d at 188. In other words, there was no breaking or stealth in appellant’s entrance to the store. The crime appellant intended to commit, and which he ultimately accomplished, to wit, petty theft in violation of SDCL 22-30A-17, is punishable by thirty days imprisonment in the county jail and/or a one hundred dollar fine. SDCL 22-6-2(2). Appellant was arrested for shoplifting, but he was later charged with second-degree burglary and after being convicted thereof, he was sentenced to one year in the penitentiary. This state and its legislature must make some serious decisions: Should shoplifters be subject to a second-degree burglary charge which could theoretically imprison any shoplifter for a period of fifteen years? Should shoplifters be branded “felons” with its concomitant debilitation? A conviction for a felony stays with a person for a lifetime and can prevent a citizen from holding office, securing employment, or holding a license. It is a deadly serious stigma.
Because I do not believe the legislature intended the harsh second-degree burglary punishment to be applicable to appellant’s circumstances, and because I believe appellant’s circumstances do not warrant its application, I would reverse his conviction and vacate his sentence with instructions to prosecute for petty theft. Appellant could be jailed for thirty days for such a conviction. Is a one-pizza theft properly a theoretical fifteen-year sentence or a thirty-day sentence?
If under some circumstances the statutory penalty is unduly harsh, it is the duty of the prosecutor, the court, and the correctional authorities to modify the charge, the sentence, or the period of confinement so that it will be commensu*359rate with the gravity of the crime and the harm or potential harm which is inflicted by the defendant.
State v. Morris, 281 Minn. 119, 124, 160 N.W.2d 715, 718 (1968). See also, State v. McEwan, 265 N.W.2d 818, 821 (Minn.1978). Justice cries out that the law would not lay an unequal hand on those who have committed intrinsically the same quality of offense. In South Dakota, may a prosecutor, in his unfettered discretion, charge party A with petty theft or shoplifting but party B with a felony, namely, second-degree burglary? For dissertation on why this is wrong, see the United States Supreme Court decision in Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).
The South Dakota second-degree burglary stat-. ute is not designed, apparently, to protect the sanctity of a structure since permission to be there is irrelevant.