(concurring). The jury returned a verdict of guilty. I agree with the majority that the judgment of conviction and the decision of the court of appeals should be reversed. I do not, however, join the majority opinion.
I shall first discuss the jury instructions, which I conclude were erroneous. Then I shall consider the majority’s untoward revision of the burglary statute. Finally I shall consider the majority’s failure to set forth the facts developed at trial and the majority’s concomitant misinterpretation of the defendant’s alleged conduct.
I.
The majority fails to consider the defective jury instructions. I recognize that the defendant failed to object to the instructions at trial and that the state has some basis for stating that the instructions, although not “smooth,” were adequate. Nevertheless, I conclude that the instructions were prejudicial error and that the conviction should be reversed.
The circuit court instructed the jury correctly on the first two elements of the crime of burglary: an intentional entry of a dwelling, without the consent of the *309person in lawful possession. The circuit court’s instructions as to the third element — intent to commit a felony in such place — were incomplete and confusing.
First, the circuit court failed to inform the jury fully of the nature of the alleged intended misconduct in office. The circuit court should have instructed the jury that, as a matter of law, if the defendant searched this dwelling under the circumstances of this case without the consent of a person in lawful possession, the search he performed was in excess of his lawful authority (or was forbidden by law in his official capacity). Secs. 968.10, 946.12(2), Stats. 1981-82. Wis. J.I. — Cr. No. 1731, note 2. Second, although the circuit court apparently concluded that the jury had to determine whether the person in lawful possession had consented to the search, the circuit court failed to instruct the jury on this issue. Wis. J.I. — Cr. No. 1731, note 2.1 Third, the circuit court should have informed the jury that if it concluded that there was no consent to search, the state had the burden to prove beyond a reasonable doubt that the defendant searched the dwelling knowing or believing that he did not have consent to search it and that the defendant knew or believed that the search was in excess of his lawful authority (or that he was forbidden by law to do such acts in his official capacity). Secs. 939.23(2), 946.12(2), 1981-82. Although the jury during deliberations asked for further instruction relating to the issue of consent to search, the circuit court *310merely reread its instruction on consent which related only to the second element of the crime of burglary, not to the third element relating to the felony of misconduct in office.2
*311After studying the instructions, I find them prejudicially deficient and would reverse the conviction.
As I explain later, I believe that misconduct in office, under appropriate factual circumstances, is a felony *312included within the range of felonies encompassed in the third element of the crime of burglary. I am uneasy, however, about misconduct in office being used in this particular case as the underlying felony in the burglary charge. Maybe my uneasiness comes from the fact that we have never before seen a burglary charge based on the intended felony of misconduct in public office. My uneasiness is compounded because the entry as well as the search could be the misconduct in office and thus unauthorized entry would play a role in two elements of the burglary charge — in the initial entry and in the underlying felony, the alleged misconduct.
If the intended misconduct in office in this case is the illegal entry, the misconduct might be viewed as a trespassory offense that violates the same interests that are violated by the unprivileged entry that a burglar makes. Sec. 943.10, the burglary statute, penalizes whoever intentionally enters “with intent to . . . commit a felony in such place.” (emphasis added) The phrase “in such place” means that the intent formed when entering the structure must be to commit a felony after the unauthorized entry is completed. In this case, if the particular misconduct in office was the illegal entry, the intended misconduct in office would be completed on entry; on entry there would have been no intent to commit a subsequent felony “in such place” as required under sec. 943.10. Furthermore, as the comments to the Model Penal Code explain, all crimes are included within the purpose requirement of burglary except trespassory offenses designed solely to protect the interests that are invaded by the unprivileged entry that a burglar makes. See A.L.I., 2 Model Penal Code sec. 221.1, Comment, pp. 76-77 (1980). Consequently, I believe a plausible argument may be made that misconduct in office cannot be used to satisfy the third element of a burglary charge in this case.
*313On the other hand, even if a prosecution for burglary is permissible because the intended misconduct was to commit an illegal search, or if the misconduct in office in this case is not designed solely to protect the interests violated by unprivileged entry of a burglar, a charge of burglary appears to be an unfair means by which the prosecutor can raise the misconduct charge to a more serious felony.3 In this case the circuit court dismissed the misconduct count, but sent the burglary count to the jury. The circuit court did not adequately explain its ruling. According to this record, the crime of misconduct in public office appears to have been completed. If the circuit court was going to strike a count, why did it not strike the burglary count? Conviction of both burglary and the underlying felony of misconduct, although possible, appears harsh, but so does conviction on the burglary charge in lieu of a conviction on the misconduct charge.
II.
In overturning the conviction, the majority rewrites the law of burglary. The majority says that the word “felony” in the burglary statute does not mean felony; it means offenses against persons and property. “The majority’s conclusion defies the expressed will of the legislature and a common sense understanding of the English language.” City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 241, 332 N.W.2d 782 (1983) (Heffernan, J. dissenting).
*314As a result of this revision of the burglary statute, the state obviously cannot recharge this defendant with burglary. Furthermore, it is possible that the state may not be able to recharge this defendant with misconduct in public office because of double jeopardy considerations. Cf. United States v. Scott, 437 U.S. 82, reh’g denied, 439 U.S. 883 (1978).
Reading the burglary statute, the statutory definition of felony and the misconduct in public office statute together, I conclude that “felony” as used in the burglary statute means felony, that misconduct in public office is defined by the legislature as a felony, and. that misconduct in public office is a felony within the burglary statute.
Sec. 943.10(1) (a), Stats. 1981-82, defines burglary as entering any dwelling without the consent of the person in lawful possession and with intent to steal or to commit a felony in such place.4 Secs. 939.22(12)5 and 939.60,6 1981-82, define the word felony for purposes of the burglary statute (indeed for chapters 939-948 of the criminal code), as a crime punishable by imprisonment in the state prison. Since misconduct in *315public office is a crime punishable by imprisonment, it is a felony. If there are any doubts about misconduct in public office being a felony, the legislature has expressly declared this crime to be a Class E felony punishable by a fine not to exceed $10,000 or imprisonment not to exceed two years, or both. Secs. 939.50(3) (e), 946.12, 1981-82.
Nevertheless, the majority — totally disregarding the statutory language — now concludes that “the legislature intended to include only offenses against persons and property within the felonies which could form the basis of a burglary charge when sec. 943.10(1) (a), Stats., was enacted” and that misconduct in public office, not being “a crime against persons or property,” is “not the type of felony contemplated by sec. 943.10 (1), Stats.” Pp. 306-308, supra.
The majority does not merely state that the charge of misconduct in this case or that the facts of this case do not constitute the kind of felony envisaged by the legislature as falling within the burglary statute. The majority goes further. The majority sets forth a general rule limiting the types of felonies included in the burglary statute, a rule that may well create problems of interpretation that the legislature avoided by the adoption of sec. 943.10 in 1955.
The majority’s statement that “courts in other states with similar statutes have found that the felonies contemplated by the burglary statutes are crimes against persons or property” is not supported by the authorities cited by the majority at note 6. Neither Eby v. State, 154 Ind. App. 509, 290 N.E.2d 89 (1972), nor the Burdick treatise, which the majority cites, supports this statement. In the Eby case, the Indiana statute in issue defined burglary as breaking and entering with intent “to commit any felony therein or to do any act of violence or injury to any human being.” The ma*316jority takes language out of context from the Eby case and the Burdick treatise. The language focusing on the act of violence or injury was used in connection with an issue of whether the defendant, prior to entry, formed the specific intent. Neither Eby nor Burdick was concerned with a definition of the word “felony” in the burglary statute. Compare 3 Burdick, Law of Crime, sec. 710, p. 53 (1946).
The majority does not claim that the Wisconsin burglary statute is ambiguous. The majority does not claim that reading the Wisconsin burglary statute to include all felonies thwarts the manifest purpose of the burglary statute, or leads to an absurd, unreasonable result. Nevertheless, the majority violates the rules of statutory interpretation this court follows and undertakes to interpret the plain language of the word “felony” as used in the burglary statute by searching for legislative intent outside the statute.
The majority finds legislative intent in the Indiana Eby case discussed above and in the Lee case, a 1936 Wisconsin Supreme Court decision. The Lee case involved the 1935 burglary statute, not the burglary statute involved in this case which has been in effect since 1955. The 1935 burglary statute penalized any person who shall break and enter any dwelling with intent to commit the crime of murder, rape, robbery, larceny or other felony. The defendant in Lee asserted that the underlying felonies were limited to felonies committed by force. The interpretation of the phrase “or other felony,” which followed an enumeration of specific felonies, gave the courts difficulty. It is this ejusdem generis problem that the Lee court faced. In Lee, the court did not limit the felonies to crimes of force. If the Lee case is relevant in interpreting the present burglary statute, and I think it is not, it does not support the majority opinion. The Lee court character*317ized the old statutory phrase “or other felony” as “broad and general.” See State ex rel. Wagner v. Lee, 220 Wis. 150, 156, 264 N.W. 484 (1936).
If the majority believes it should look outside the words of the statute to legislative intent to determine the meaning of the word “felony” as used in the burglary statute, it should turn to the usual sources of legislative intent, e.g., the legislative history. The legislative history is clear. It demonstrates that the legislature intended to include all felonies in the burglary statute and to avoid the problem presented in the Lee case. See V Wis. Legis. Council Judiciary Committee Report on the Criminal Code (1953), Comment to sec. 343.10 (stating that felony in the burglary statute is defined by sec. 339.60, now sec. 939.60, which defines felony as a crime punishable by imprisonment in the Wisconsin state prisons) ;7 Platz, The Criminal Code, 1956 Wis. L. Rev. 350, 374 (stating that “Code section 943.10 is broader than the old burglary sections. . . .”)
I conclude that under secs. 943.10(1) (a), 939.22(12), and 939.60, Stats. 1981-82, misconduct in public office is a felony as that word is used in the statute defining burglary. As I explained previously, however, the facts *318of this case raise a question of whether there was, in this case, “an intent to commit a felony in such place.”
In any event, even if the majority’s limited definition of felony is used, the misconduct charged in this case would be a felony for purposes of the burglary statute. The misconduct in here was a crime against persons and property; it was a crime against the occupants of the dwelling whose possessions were allegedly searched without consent.
In sum, it is easy to understand the majority’s discomfort with the charge and verdict in the present case, but the majority ought not to rewrite the burglary statute to avoid addressing the basic underlying concerns that cause its uneasiness.
III.
Finally, the majority fails to provide a complete statement of the facts developed at trial. The majority states only the defendant’s version of events and relegates to footnote 3 a single sentence that intimates there was evidence the defendant knew he did not have consent to enter or to search. In so doing, the majority creates the impression that there was virtually no question that the defendant believed he had consent to enter and search. This impression, however, is not the one a reader gets from the record.
The majority’s statement of the defendant’s version of what happened — contrary to the rules of appellate practice and procedure which require us to view the evidence in a manner favorable to the jury’s guilty verdict — along with the majority’s concomitant mistaken view that this case apparently involves an officer’s negligent or good faith violation of the authority of his office ■has serious consequences. It leads the majority to set forth an erroneous view of the penalties that might be *319imposed on law enforcement officers who in good faith unintentionally exceed their authority in conducting a search. Pp. 306, 307, supra. It leads Justice Ceci in his concurring opinion — without analysis of the record and without giving the prosecuting attorney, or the state, an opportunity to respond — to castigate the prosecuting attorney for abuse of discretion for prosecuting the defendant when, according to Justice Ceci, “the district attorney had no evidence . . . that O’Neill knew he was acting in excess of his lawful authority.” P. 329.
The majority characterizes the defendant’s conduct as “overzealous,” p. 306, supra, a term which is not a word of art in the law. The term “overzealous” implies that the defendant performed his official duties of searching the premises ardently and in good faith but unfortunately acted beyond his authority. The term does not depict — as does the charge of misconduct in office — that an officer intentionally and knowingly took the law into his own hands and acted beyond the scope of legal authority. The majority opinion suggests that the appropriate remedies to be used against the defendant or other police officers who are “overzealous,” that is, those who act in good faith but beyond their authority, are: criminal prosecution for misconduct in office, exclusion of the evidence seized, civil actions and suits under 42 U.S.C. sec. 1983 (1982) for damages, and disciplinary action.
If the defendant here was in fact acting in good faith, as the majority implies, I do not think the remedies suggested by the majority to deter the defendant would, or necessarily should, be available.
A brief recapitulation of the evidence demonstrates that the evidence was sufficient to support a charge of misconduct in office and to support the jury’s conclusion, which is inherent in the guilty verdict, that the defendant knew that he did not have consent to enter *320the dwelling. Several witnesses testified, including the defendant. The defendant claimed he had the consent of Allen Sanders to enter the dwelling and search it even if no one was present. After the defendant entered the unoccupied home, he and the students searched dressers, closets, and nooks and crannies.
The testimony of the other witnesses casts great doubt on the veracity of the defendant. Since the jury brought in a verdict of guilty after having received proper instructions on the first two elements of burglary, it is apparent that the jury did not believe the defendant’s assertion that he entered the dwelling believing he had consent to enter. The evidence adduced, believed, and rationally considered by the jury was sufficient to prove the defendant intentionally entered the home knowing that no occupant consented to his entry.
Allen Sanders, an occupant, testified that he told the defendant that he would let the defendant in, if he were home. He did not testify that he gave the defendant permission to enter or search the house if it was unoccupied. The jury could have interpreted Sanders’s testimony as supportive of, or as contrary to, the defendant’s testimony regarding consent.
The defendant’s attempts to get a search warrant could have been viewed by the jury as indicating the defendant knew that he did not have consent to enter the dwelling or, alternatively, that the defendant was trying to protect his informant.
The defendant called on the owner of the stereo and his student friends for assistance in retrieving the stolen stereo. One of the students testified that the front door was closed when the defendant got off his motorcycle, but was open a few minutes later when the students went up to the porch. The jury could conclude that the defendant intentionally entered the dwelling.
*321A student testified that he heard the defendant say-something to the effect of “if justice doesn’t work, we’ll make it work.”
A parttime university police officer, who accompanied the students to the house, testified that he refused to go into the house with the defendant and the students and asked the defendant if the search constituted burglary. The defendant replied “no” because there was no intent to steal.
An Eau Claire police officer who investigated the incident testified that when he asked the defendant whether anyone had questioned the legality of what was happening, the defendant replied that he vaguely remembered someone doing so. The police officer recalled that the defendant may have replied that “these sons of bitches don’t care about your property or didn’t care about your property, we shouldn’t have too much concern about theirs.”
Another campus police officer testified that the defendant said that criminals have to expect to “be broken into on” or “walked in on.”
The jury could certainly have concluded that had the defendant believed he had consent to enter the dwelling, he would not have made these comments.
Testimony about events following the entry into the dwelling also supports the jury’s conclusion that the defendant knew he did not have consent to enter. A third university police officer testified on cross-examination that the defendant had instructed him to visit the students and to tell them to get their stories straight. He testified that he understood the instruction to be to caution the students to make sure they remembered the facts because they might have to testify. Two of the students testified, however, that the defendant had told them to get their stories straight, with one saying that the story they were to tell was that “the door *322was open, the wind blew the door open, you saw your coat and you went in and found the rest of your clothes.”
In light of the correct instructions given on the first two elements of burglary and the jury’s verdict of guilty, the only possible conclusion is that the jury did not accept the defendant’s version and was persuaded beyond a reasonable doubt that the defendant intentionally entered the dwelling, knowing that he did not have consent to enter.
The majority concluded that burglary could not be charged, but proceeds to explain the remedies available against an “overzealous” (a word which the majority does not define) law enforcement officer. I conclude that charges of burglary and misconduct in public office would not lie if the officer acted in good faith believing he had authority to act. These crimes require proof that the defendant knew that he was acting without consent to enter and in excess of his lawful authority. If law enforcement officers acted in good faith, they have a defense in an action under 42 U.S.C. 1983. See Pierson v. Ray, 386 U.S. 547, 557 (1967) (“the defense of good faith and probable cause . . . available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under sec. 1983”); Reimer v. Short, 578 F.2d 621 (5th Cir. 1978), cert. denied 440 U.S. 947 (1979) (police officers could avail themselves of an affirmative defense of good faith in a sec. 1983 action alleging unlawful search and seizure if subjective and objective criteria of good faith are met).
Finally, the United States Supreme Court has recognized a limited good faith exception to the exclusionary rule. See, e.g., United States v. Leon,-U.S.-, 104 S. Ct. 3405 (1984) (objective good faith exception to *323exclusionary rule where police rely on search warrant later found to be invalid).
I do not think an officer should necessarily be subject to departmental discipline if in an apparently authorized and good faith fulfillment of a duty she or he erred in respect to the scope of a search.
The majority does a disservice to law enforcement officers in suggesting that they be subject to criminal prosecution for misconduct in office, civil liability, or discipline when they are “overzealous,” that is, when they ardently perform their job in good faith. I cannot join this dicta.
For the reasons set forth, I concur in the mandate but do not join the opinion.
“In the usual ease the court will he able to determine as a matter of law that the acts claimed to have been committed by the defendant violated his lawful duty or were in excess of his lawful authority, leaving it to the jury to determine whether the defendant in fact engaged in such conduct. If the question whether the conduct does violate the statute raises fact issues, this instruction may need modification accordingly. And, statutes defining the particular officer’s duties should be considered.” Comment No. 2, Wis. J.I. — Cr. No. 1731 (1966).
The circuit court instructed the jury on the third element of the burglary charge as follows:
“The third element of this offense requires that the defendant entered 720 Chippewa Street with intent to commit misconduct in public office by conducting an unlawful search which he knew to be in excess of his lawful authority. That is, that at the time the defendant entered to commit misconduct in public office, at the time he entered 720 Chippewa Street.
“Under the Criminal Code the phrase ‘with intent to’ means that the defendant either has a purpose to do the thing or cause the result specified, or believes that his act if successful will result, will cause that result. The intent to commit misconduct in public office by conducting an unlawful search which he knew to be in excess of his lawful authority is no more or less, correction, which is an essential element of burglary, is then no more or less than the mental purpose to commit misconduct in public office or a belief that the act if successful will cause that result.
“This intent must be formed before entry is made. The intent to commit misconduct in public office by conducting an unlawful search in excess of authority which is again an essential element of burglary is no more or less than the mental purpose to commit that particular felony formed on the instant preceding the entry or sometime theretofore which continues to exist at the time of entry.
“You cannot look into a person’s mind to find out his intent. While this intent to commit misconduct in public office by conducting an unlawful search which he knew to be in excess of his lawful authority must he found as a fact before you can find the defendant guilty of burglary, it must he found, if found at all, from all his acts, and his words and his statements, if any, bearing upon his intent.
“I shall now define for you the misconduct in public office.
“Misconduct in public office as defined in sec. 946.12(2) of the Criminal Code of Wisconsin is committed by one who is a public officer and who in his capacity as such officer does an act which he knows is in excess of his lawful authority or which he knows he is forbidden by law to do in his official capacity.
*311“The state must prove by evidence which satisfies you beyond a reasonable doubt there were present the following two elements of this offense:
“First, that the defendant at the time of the offense was a public officer, and there is no dispute about that in this case.
“Second, that the defendant in his capacity as a public officer did an act which he knew was in excess of his lawful authority or which he knew he was forbidden by law to do in his official capacity.
“Before the defendant may be found guilty of misconduct under this section, the state must prove by evidence which satisfies you beyond a reasonable doubt that the defendant knew or believed that his conduct was in excess of his lawful authority or that he was forbidden by law to engage in such conduct in his official capacity.
“If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant was a public officer, that in his capacity as such officer the defendant did conduct an unlawful search which he knew to be in excess of his lawful authority and which the defendant knew or believed that it was in excess of his lawful authority, and, or that he was forbidden by law to do such act in his official capacity, then you should find the defendant guilty of misconduct in public office as charged.
“If, however, you are not so satisfied, then you must find the defendant not guilty as it applies to the burglary charge.”
This instruction did not give the jury direction that the absence of consent was the conduct which constituted “an unlawful search in excess of authority.”
In the course of their deliberations, the jury informed the court, through the bailiff, that they wanted to know “if you have consent, implied consent and you entered the building, do you have permission to search. . . .”
In response to this request, the court reinstructed the jury on consent as the second element of burglary and repeated the instruction defining consent given as to the second element of burglary.
Misconduct in public office is a Class E felony, sec. 946.12 Stats., 1981-82, which carries a maximum penalty of $10,000 or 2 years imprisonment or both. Sec. 939.50(3) (e), Stats. 1981-82. Burglary is a Class C felony, sec. 943.10 .Stats., 1981-82, which carries a maximum penalty of $10,000 or 10 years imprisonment or both. Sec. 939.50(3) (c), Stats. 1981-82.
Sec. 943.10(1) (a) provides:
“943.10 Burglary. (1) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class C felony:
“(a) Any building or dwelling; . . .”
The reason “stealing” is separately stated is that some charges of stealing may be misdemeanors. For a discussion of the modern statutes and judicial decisions expanding the definition of burglary, see Feeney, Burglary, in 1 ENCY. OF CRIME AND JUSTICE 129 (1983); A.L.I. 2 Model Penal Code sec. 221.1, Comment, pp. 60-68, 75-78 (1980).
Sec. 939.22(12), Stats. 1981-82, provides: “‘Felony’ has the meaning designated in s. 939.60.”
Sec. 939.60, Stats. 1981-82, provides: “A crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.”
“That the actor, at the time he entered the structure, had an intent to steal or to commit a felony in the structure. ‘Intent to steal or commit a felony’ is a short-hand way of saying that the actor desires to do a certain thing or cause a certain result which in fact constitutes stealing or a felony. It is not necessary to prove that he knew the thing or result intended constituted a crime. A mistake of criminal law is not a defense (see section 339.43). ‘Stealing’ is defined in section 343.20. ‘Felony’ is defined in section 339.60. The actor must have the intent when he enters the structure, but such intent generally will have to be proved circumstantially, by what the actor did after he entered the structure. Most burglaries involve an intent to steal, but some involve an intent to commit some felony such as rape or adultery.” Comment, note 3, sec. 343.10, Bill No. 100, A. See note 6, supra.