State v. Derby
462 N.W.2d 512
S.D.
1990
Check Treatment

*1 gainful employment, able and not to Meyer, Gen., ele- Atty. Ann C. Roger Asst. vate his station in life.” Gen., Id. at 410. Tellinghuisen, A. Atty. brief, on Pierre, plaintiff appellee.

Therefore, respectfully dissent. Bartron, Thompson Michael B. Wiles I am authorized state that Justice Watertown, Rylance, & for defendant and joins MORGAN this dissent. appellant. WUEST, Justice. appeals

Duane (Derby) judg- third-degree ment conviction of burgla- ry. We affirm. disputed: facts The are not Sometime Dakota,

STATE of South Plaintiff between 2:00 a.m. and 8:00 August 24, 1989, Derby a.m. on and two companions removed a window of the Rau- Rauville, ville Bar and Cafe in South Dako- DERBY, Duane ta. entered the business Appellant. opening the window and unlocked one of companions. the Bar’s doors for his stole intruders several cases of beer and a regularly number of other items sold in the Argued Sept. Bar’s business. contends that he burgla- cannot convicted of

ry goods because he stole which are of- by for sale fered the Rauville Bar and Cafe; i.e., shoplift- his actions constituted unpersuaded. theft. We are Third-degree burglary is committed Any an unoccupied who enters structure, with any crime other than the act of retail theft as constituting 30A ... SDCL 22-32-8. The of shoplifting act (which court’s view are one and the same for of SDCL 22-32-8) is committed individual: possession takes displayed merchandise or of- for sale fered store other mer- cantile establishment consent of the owner or seller and with the inten- of converting goods his own without having paid use price ...

SDCL 22-30A-19.1. The trial court distin- guished shoplifting and retail theft from burglary on the basis of the involved. The trial court understood *2 513 1026, (1892) C.J., occur entry, as a result of lawful whereas 1027 (Beatty, dissenting; burglary required DeHaven, entry. J., unlawful It is concurring). reasoning entry Derby’s clear that into the Bar was accepted is consonant principle with the unauthorized, however, it is not clear that “burglary that must be committed entry dispositive the nature of the to a person who in right has no the build charge burglary. of ing or burglarized.” Matter of T.J.E., People 426 N.W.2d at 24. Blair, See v. (S.D. In 273 State v. N.W.2d 187 Gauze, 1979) 709, Cal.Rptr. 773, 15 (Zastrow, J., Cal.3d 125 dissenting), the defen 775, 1365, (1975). 542 P.2d 1367 See also accomplice twenty- dant and his entered Gardner, (S.D. v. four hour State laundromat broke into the 1988) (Henderson, J., concurring). We, washing pop machine coin boxes and a ma therefore, acknowledge unlawful or chine. Blair was of unau convicted affirmed, burglary, entry and this thorized into a structure as an ele holding court third-degree burglary. ment of consent to enter laundromat was Erdmann, irrelevant. v. See also State Derby’s entry into Rauville Bar (S.D.1980) (follows Blair). 292 N.W.2d 97 clearly and Cafe was unauthorized: access only Blair decision was revisited in gained business was after re T.J.E., In the Matter 426 N.W.2d 23 moving a window of the establishment af of (S.D.1988) J., (Henderson, specially concur acknowledge ter business hours. We T.J.E., ring). In eleven-year- Matter an Derby’s upon trial court’s reliance (T.J.E.) old child a retail store dur entry as foundation his conviction and for ing store, business while in the hours hold the of Derby’s unauthorized nature piece candy, ate a then left without entry in this case sufficient to affirm his paying for to have Seeking adju it. T.J.E. conviction. delinquent, peti dicated a the state filed a Judgment affirmed. alleging her acts constituted second-de gree burglary. time adjudi At the of her MILLER, C.J., and, MORGAN and cation, second-degree was com SABERS, JJ., concur.

mitted

Any person who enters or remains in an HENDERSON, J., specially concurs. occupied structure with intent to commit HENDERSON, (specially any crime circumstances concur- therein under Justice first-degree amounting burglary, ring). Responding to our decision Matter of (1988). interpreted SDCL 22-32-3 We the T.J.E., (S.D. reported at N.W.2d 23 require statute to word “remains” in this 1988), Legislature reevaluated State presence in unlawful or unauthorized Likewise, Legis 22-32-8. SDCL T.J.E., structure. 426 N.W.2d at Matter of this first lature reviewed state’s inconsistency requir- apparent 25. The statute, and the SDCL for presence unauthorized second-de- statute, 22- SDCL second requiring gree burglary and not unautho- T.J.E., this Court 32-3. Matter of third-degree burglary, rized terming an 11- would not countenance Blair, initially recognized in was resolved impulsively year-old “burglar” child a by reasoning that: entering candy, a retail store took place a business Where a enters (no during her aunt business with with open general public the intent building). upon entering We therein, he to commit a crime enters reasoned that could have evinced she invitation and is not one of the entry, intent at her to com an the time of to enter the invited or entitled per 22- mit second SDCL structure. Taking egg Easter the chocolate 32-3. T.J.E., impulse. taking of a de It was a 426 N.W.2d at 25. Ac- Matter was— minimus character. People Barry, Cal. 29 P. cord prosecuting attorney, any prosecutions Legislature The 1989 revised SDCL matter. arising thereafter out of the 32-8 as follows: However, repealed by the this statute was Any person who enters Legislature replaced SDCL with intent *3 provides: 22-30A-19.1 which shoplifting crime other than the act of as de- emancipated An adult or minor or inclusive, fined in 25-5-17 to §§ constituting a or 22-30A parents legal guardian of an or the or unoccupied remains in an posses- unemancipated minor who takes forming intent to commit crime the or merchandise sion of shoplifting than as described other by any store displayed or offered for sale constituting a misde- chapter 22-30A converting the the intention of or with meanor, degree burgla- third guilty is paid having goods to his own use without degree Third is a Class ry. price is liable to the owner mine). felony, (emphasis added mer- the retail value of the or seller for Derby committed third chandise, mer- regardless of whether the above-quoted stat- the terms of the under in undam- has been recovered chandise intent, outside of He formulated an ute. by the merchant. In addi- aged condition personal property. to steal tion, penalty a the merchant is entitled to gain en- forcibly He removed a window to of the times the retail value of three dollars, merchandise, case of third try. fifty This is a classic whichever theft. greater. and not or retail is theft, the formula- have us believe that offending the intent is after the tion of us, facts, the latter statute. before fit into structure, per my statutory party in the First, Rau- Academically, it will not wash. construction. public ville Bar was closed possessions protect locked to the owners’ disposition to this case For (beer included) open to and the bar was not I appellate posterity, set forth SDCL Derby and sell beer—when —to existed, 22-30A-19, before as that statute exceedingly (apparently) his friends became 1989: they must thirsty and conceived intentionally conceals Any person who early in the quench their thirst owned, by and offered property or held Let us after the bar was closed. sale, by any store or displayed for Derby admittedly stole this remember that establishment, such whether mercantile is, advocacy essentially, I property. His person or be on his own concealment thief, shoplifter or a retail but am am a on or off the and whether otherwise burglar. a The bar was not store or mercantile es- premises of the totally illegal. Derby’s entry was tablishment, may detained in a reason- precise wording of SDCL Read the length and for a reasonable able manner opportunity Derby never had an 30A-19.1. mer- by the merchant or the of time purchase price of the beer he pay employee the arrival of until chant’s bar had the owners of the stole because shall have officer who night.

law enforcement operations for the closed all business fact of notified of the promptly Also, been go had to behind bar detention shall not in cooler. such detention. which was stored steal the beer em- Yes, merchant or merchant’s not render the beer offered for sale but this was criminally civilly liable for false can cer- ployee hours and after business arrest, customer of imprisonment tainly say false that he was a not customers, detention; exemption if indeed not provided, that this most the bar for all, through the front door and if the merchant or mer- enter a bar apply shall opening in the sign a for- a window employee refuses to chant’s admissions, By his own testify any legal morning hours. complaint and at mal requisite intent Derby possessed the requested to do so if proceedings, crime of third at the time he the Rauville Bar. we, Court,

When on this construe a stat- ute, we must consider its intent so,

doing we should review the entire stat- ute, relating as well as recent enactments

to that statute and other enactments on the subject. Wolff,

same N.W.2d (S.D.1989); Appeal In re AT & Systems, T Information *4 (S.D.1987). using

I talked about common sense in the law, application, and its in T.J.E. It would interpret

not make common sense to our Legislature’s that, by holding new law un- facts, Derby

der this set of was either a shoplifter Shoplifters or a retail thief. building retail thieves do not break into a building when the unoccupied, spirit away and 8 cases of beer, quart whiskey, packs and 5

cigarettes. This was a sizeable and was not merchandise stolen the middle day people normally when making purchases.

in attendance lawful SUPPLY, LTD., R & L a South Dakota Corporation, Plaintiff and EVANGELICAL LUTHERAN GOOD SOCIETY,

SAMARITAN Appellant, Plumbing Heating, Meester Inc., Defendant. Sept. Considered on Briefs