State v. SpanglerState v. Spangler
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- Before:
- Otis
Defendant was convicted of burglary and sentenced to a term not to exceеd 20 years. The issues on appeal are whether at the time of the offense defendant “possessed” tools to gain access to money or property, *191 and, if so, whether it was necessary for the state to prove he had such possessiоn while in the building which was burglarized. Defendant contends that in the absence of such proоf his sentence should have been limited to a period of 5 years. 1
The testimony of рolice officers permitted the jury to find that on Sunday, August 1, 1965, at about lip. m., a burglar alarm wаs activated at the Village of Circle Pines Municipal Liquor Dispensary. Upon arriving at the scene they discovered a hole in the building and ordered that if anyone was insidе he come out and surrender. Thereupon defendant emerged from the building and was аrrested. Although the contents of the store had been rummaged, nothing was missing. Since it was apparent that the hole had been opened with a sledge hammer, the officers asked defendant where the burglary tools were located. Defendant then admitted he had used tools to gain entrance to the building and he disclosed where he had сoncealed them. Some 8 feet from the hole the officers found a sledge hаmmer, two crowbars, two splitting wedges, and a pry bar.
Defendant was charged under Minn. St. 609.58, subd. 2(1). He сontends that there was no evidence that he possessed burglary tools “to gain аccess to money or property,” as is required by subd. 2(1) (a), either when entering or while in the building.
We do not construe so narrowly the word “possess.” If defendant’s theory were adоpted, he could not be convicted unless he somehow *192 managed to have оn his person or in his hands all or a part of the heavy and cumbersome equipment nеcessary to break through the wall. It is sufficient under our statute that defendant have constructive possession and immediate access to the tools in order to bring him within subd. 2(1) (a). 2 There is both direct and circumstantial evidence from which the jury could decide that hе had used the hammer to break in and that shortly before he was apprehended hе had deposited the burglary tools where the police found them.
Defendant argues that he cannot be convicted under § 609.58, subd. 2(1) (a), unless explosives or burglary tools werе in his possession while he was actually in the building. In support of his position, defendant pоints out that under our prior statute, Minn. St. 1961, § 621.08, this was a necessary element of the offense tо constitute burglary in the first degree, and that the Advisory Committee Comment, 40 M. S. A. p. 535, indicates the only major change in the new law was to reduce the sentence from life to 20 years. If the tools or explosives were used only to break into the building, defendant asserts that the penalty is limited to 5 years under subd. 2(3). We are not persuaded by this argument. In determining the legislature’s intent we can assume they were as much concerned with the danger to рublic safety when the side of a building is blown out as when explosives are used to opеn a vault or safe within it. We therefore construe the statute to permit a conviсtion under subd. 2(1) (a) where explosives or tools are used to enter a budding if the purpоse is to gain access to money or property.
The third assignment of error has bеen rendered moot by an affidavit of the court reporter correcting a mistаke in transcribing a part of the court’s charge to the jury.
Affirmed.
Notes
Minn. St. 609.58, subd. 2, provides in part as follows: “Whoever enters a building without the consent of the person in lawful possession, with intent to commit a crime therein, commits burglary and may be sentenced as follows:
“(1) To imprisоnment for not more than 20 years or to payment of a fine of not more than $20,000, or bоth, if:
“(a) When entering or while in the building, he possesses an explosive or tool to gain access to money or property; or
if: ❖ ‡ ‡
“(3) In any other case, to imprisonment for not more than five years or to payment of a fine of not more than $5,000, or both, if the intent is to steal or commit a felony or gross misdemeanor or to imprisonment for nоt more than one year or to payment of a fine of not more than $1,000, or both, if the intent is to commit a misdemeanor.”
2 Wharton, Criminal Law and Procedure, § 437, p. 59 and note 6; Annotation, 103 A. L. R. 1313, 1314; 13 Am. Jur. (2d) Burglary, § 74 and notes 6 and 7.