*1 Jerry appellant. Baker, Nebraska, 2d 864 W. Filed October ,& appellant.
Baskins, Schneider, Baskins for Meyer, Attorney Clarence A. H. General, and Chaun- cey C. Sheldon, for J., C. White,, Carter, before Spencer, Boslaugh,
Heard JJ. Smith, McCown, Newton, Boslaugh, J. Jerry The defendant, Baker, was convicted felonious His .store. motion for new trial was appealed. overruled and he
The record shows that the defendant’s father had an agreement Jack & Jill Platte, Store in North Nebraska, furnish custodial service to the store. doing had been this work the store April
about
p.m.,
18 months. On
29, 1966, at about 7:15
person
the defendant,
wife,
and another
entered
they
store. The store was closed at that time and
used
purpose
a
furnished for that
to unlock the door they
they
enter the store. After
entered the
had
store
proceeded
placing
to clean it. The defendant was seen
groceries
tank-type
merchandise
a
vacuum cleaner
paper
p.m.,
and in a
sack. At about 8:45
building carrying paper
left the
a
sack
parked
panel
a
building
outside the store.
He reentered
mop
He
and carried
bucket out to
truck.
again
brought
out the vacuum
reentered the
paper
this time
about
sack. At
and another
ap-
one of the owners
Edwards,
Richard
.and the
peared
look in the vacuum
asked to
*2
in the
police
look
also asked to
arrived and
sacks. The
con-
The defendant
and the sacks.
vacuum
and the sacks
and removed the vacuum
sented
police
examined
then
The
and Edwards
from the truck.
arrest
under
The defendant was
contents.
their
police station.
to the
and taken
under section
part
provides
“Who-
as follows:
1943,
which
daytime
maliciously,
willfully
either in the
ever
* * *
* * *
attempts
any
night
season, enters
* * *
* * *
upon
thereof
conviction
shall
steal,
rob or
to
* * *”
imprisonment. The offense under
be sentenced to
con-
variation
section is a
this
building
entry
and the
sists of the unlawful
attempt
mitting
enumerated.
to commit one of the acts
McElhaney
612;
212 W.
Fenton,
299,
115 Neb.
N.
v.
The State contends requirement and satisfies is an unlawful steal Although malicious. there that the be willful contrary, appears authority to be the this to the is better rule where breaking requirement McCreary 212 1, Ariz. v. 25 See, been eliminated. Rptr. People 330, 737, 62 2d 44 Cal. 336; Sears, Cal. App. People 50, 69 Ill. 2d 938; Schneller, 401 P. 2d Skillings, 2d 203, N. H. 510; N. E. 2d App. 2d Ohio 17 Ohio O. 202; Schaffer, State v. 534; Annotation, 177 N. E. 93 A. R. 2d 531. jury There evidence in case from this could find the defendant intended to steal the time at he entered the store. The evidence was sufficient sustain the conviction. suppress
Before trial the moved as evi- dence the items taken at apprehended outside motion store. This ruling assigned was overruled and the as error.
The evidence shows defendant consented that the police The fact search. officers were the time of search and not ad- concerning rights vised legal. not make il- did the search Forney,
State v. 181 Neb. 150 N. W. suppress W. 2d 403. motion to properly overruled. unnecessary assignments It is to consider the other of error. judgment of the trial court is affirmed.
Affirmed. McCown, J., dissenting. obviously guilty larceny. of How- aggravated
ever, of and convicted an statutory burglary. of form The evidence undis- puted permission that he had to enter the place per- the time and to do custodial and that he formed such work. separate 28-533,
Section
R. R.
S.
has two
ele-
First,
ments:
mitting
unlawful
second,
attempting
commit one of
the acts enu-
entry.
merated after
Fredericksen
Dickson,
See
lawful privileged defendant is licensed or the performs situations where permission the acts enter and also given. here, permit shop- holding petty majority would aggra- caught in to be convicted of an act, lifter, apparent burglary. form of It seems vated suggest simple intended to that a the statute not that entry requisite presumed if the is to be unlawful expressly present. “The character or kind of qualified; is, tres- itself, it must be unlawful regard passory, to the second element and without crime, the intent to steal.” Smith 1961). (Alaska R. 2d 525 ought Aggravated burglary im- sanctions not to be building lawfully by right posed upon one enters a who penal provisions Modern as to consent. except premises specifically where are at situations public open or the actor is licensed or the time privileged Institute, American Model to enter. See Law Burglary. § Code, 221.1, Penal language only 28-533, of section R. R. S. typical of the archaic and confused state of our example, code. For section criminal imprisonment “dungeon still authorizes long jail.” Revision is overdue. ex Morris, rel. Loren of Nebraska Impleaded Marsh, appellant, with Frank Clarence H.A. Meyer, N. W. *4 Filed October