State v. Barclay

Wilkie, J.

(concurring). The question of when an intent to steal or otherwise to commit a felony can be inferred from a breaking and entering has troubled this court for a number of years. While I wrote the opinion for the court in Reynolds,1 I am now persuaded that the rule expressed in that case was too broad and should be overruled. I would thus clearly overrule Reynolds and Kennedy.2 This court, because of the conflicting opinions on this question, is forced to distinguish every case on this point. I would adopt the rule that when there is a breaking and entering the jury is entitled to infer from the circumstances of that act that there was an intent to steal or otherwise to commit a felony. The review of that determination would be by the same burden as our review of any jury question.

A review of the evidence in this case convinces me that a reasonable jury could infer from the circumstances of the breaking and entering that defendant had the intent *657to steal. While the majority reaches this same result, I am afraid that too much reliance will be placed on the various factors enumerated. I believe the question of intent to be for the jury; a clear enunciation of that rule and the outright overruling of Reynolds and Kennedy would significantly clarify this area of the law.

I have been authorized to state that Mr. Justice Connor T. Hansen joins in this opinion.

State v. Reynolds (1965), 28 Wis. 2d 350, 137 N. W. 2d 14.

State v. Kennedy (1962), 15 Wis. 2d 600, 113 N. W. 2d 372. See also: Strait v. State (1969), 41 Wis. 2d 552, 564, 164 N. W. 2d 505 (Heffernan and Wilkie, JJ., concurring).