dissenting.
Ordinarily burglary is thought of as a surreptitious crime, a crime committed by stealth. Thus in my view, the definition of the term “inhabited building” adopted by the majority opinion is too restrictive and not in accord with legislative intent. The practical result of the majority opinion is to repeal the second degree burglary statute. While I have no statistics on the subject, I have the opinion that it would be a rare case indeed for a business building to be burglarized during business hours or while persons are present on the business premises.
“Habitat” is included in the definition of “inhabited” and as defined by Webster means “a place where anything is commonly found.” Thus “inhabited building” can reasonably be defined as a building other than a dwelling where people are usually found during regular periods of time. I would give effect to the statute on second degree burglary by adopting the definition of “inhabited building” as set out in the trial court’s instructions. This is the only construction that gives effect to the legislative intent to have an effective second degree burglary statute.
AKER, J., joins in this dissent.