dissenting.
To the best of my knowledge, this is the first appeal to this court wherein Rule 10(g), NDRAppP, has been used. I commend counsel for it. There may be instanc*190es in which counsel should not employ the rule but its non-use should not be the result of inadvertence.
When two civilized, grown men admittedly take an axe and bust up two doors to a public building for the purpose of stealing gasoline which belongs to all taxpayers, they ought to go to jail — right? No question about it. The trouble is that, under our constitutions, both United States and North Dakota, and pursuant to the rules developed in the courts of England and America, our criminal justice system guarantees that no one will be convicted of committing a crime for which he has not been charged.
Legal scholars, over the centuries, have analyzed the elements of common-law burglary, as well as the more recent offense of statutory burglary, such as we have in North Dakota. Some writers have pointed out the difficulty resulting from a failure to properly distinguish burglary and other crimes as, for example, “criminal attempt.”
Certainly, Arne and Reinke couldn’t steal gasoline while they were inside the building, but they could and did take “a substantial step toward” stealing gasoline by turning on the master switch to the pump outside. Under the provisions of § 12.1-06-01, NDCC, Arne and Reinke could have been charged with “criminal attempt.” Unless it can be said that Arne and Reinke intended to fail, criminal attempt could never be the crime that they intended to commit inside the building. It is possible that “criminal conspiracy” could have been the charge under § 12.1-06-04, NDCC. If Arne had broken and entered to turn on the switch while Reinke had waited outside at the pump, Ame could have been charged under § 12.-1-06-02, NDCC, with “criminal facilitation.” If they succeeded in stealing the gas, the two could have been charged with theft under Chapter 12.1-23, NDCC.
I do not agree with Justice Vande Walle and the majority of this court that the rationale of the Michigan Court of Appeals is persuasive. The Michigan case, People v. Adams, 75 Mich.App. 736, 255 N.W.2d 752 (1977), dismissed the argument because it is “rather novel.” The argument is not novel, except maybe in Michigan, as is clearly illustrated by the cases cited by- Justice Vande Walle.
The persuasive cases that were decided before the North Dakota Legislative Assembly added the “therein” to the definition of statutory burglary, uniformly interpreted the word “therein” to mean that the actor must have entered the building with the intent to commit a crime inside the building. The documented legislative history supports the conclusion that an entry with intent to commit a crime inside is the type of behavior that is to be punished as burglarious. The National Commission on Reform of Federal Criminal Laws in Vol. II, Working Papers, at 892, discloses the same objective. Decisions such as State v. Thibeault, 402 A.2d 445 (Me.1979), and Commonwealth v. Crowson, 267 Pa.Super. 46, 405 A.2d 1295 (1979), construing generally “therein” requirements, presume that the offender must have the intent to commit a crime within the entered structure. See, generally, Annot: Burglary — “Building” or “House,” 78 A.L.R.2d 779, and Burglary — Out-building, 43 A.L.R.2d 831. See also Low and Jeffries, The Crime of Burglary Under the Model Penal Code, 26 Prac. Law. 33 (1980); Note, Reformation of Burglary, 11 Wm. & Mary L.Rev. 211 (1969); Note, A Rationale of the Law of Burglary, 51 Colum.L.Rev. 1009, 1020 (1951); Note, Burglary, 56 Dick.L.Rev. 244, 246 (1952).
The judgment of conviction should be reversed.