Champlin v. State

• Citation: 84 Wis.2d 621,267 N.W.2d 295
• Decision Date: 30 June 1978
• Docket Number: No. 76-149-CR,76-149-CR
• Parties: Larry C. CHAMPLIN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: United States State Supreme Court of Wisconsin

Page 295

267 N.W.2d 295

84 Wis.2d 621

Larry C. CHAMPLIN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-149-CR.

Supreme Court of Wisconsin.

Submitted on Briefs May 3, 1978.

Decided June 30, 1978.

Howard B. Eisenberg, State Public Defender, and Melvin F. Greenberg, Asst. State Public Defender, on brief, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and Nadim Sahar, Asst. Atty. Gen., on brief, for defendant in error.

DAY, Justice.

The plaintiff in error, Larry Champlin was convicted of the burglary of the Elroy Hotel, in violation of sec. 943.10(1)(a), Stats. (1975). On this appeal, Mr. Champlin contends that under the Wisconsin statute there was insufficient evidence to support his conviction for burglary because he entered a building that was open to the public, with intent to steal. We agree.

Larry Champlin and Donald Sorenson discussed doing "this job . . . to make a little money" on Thursday, December 10, 1974. The "job" involved an undisclosed location and the Elroy Hotel. The two again discussed the matter on Friday, December 20, 1974. At about 3:00 a. m., on Saturday, December 21, 1974, Champlin came to visit Sorenson and asked "Are you ready?" Sometime thereafter, in the early morning hours of December 21, Champlin and Sorenson entered the lobby of the Elroy Hotel, Elroy, Wisconsin and removed a cash register and a television set from the lobby.

Prior to December 21, 1974, Champlin resided with Mr. and Mrs. Clarence Sorenson in Elroy. No testimony was presented at trial tending to establish that the defendant's entry into the Elroy Hotel on December 21, 1974 was for any purpose other than to steal.

The lobby of the Elroy Hotel is open to the public twenty-four hours a day, and was open to the public during the early morning hours of December 21, 1974. There is no bell outside the hotel, but there is a bell on the counter in the lobby.

On April 30, 1975, following a jury trial in the circuit court for Juneau County, Champlin was found guilty of burglary contrary to sec. 943.10(1)(a), Stats. (1975). Post-conviction motions to vacate the conviction were denied by orders issued on December 15, 1975 and June 8, 1976. The defendant appeals from the judgment of conviction and from the orders denying his post-conviction motions.

Sec. 943.10, Stats. (1975) codifies the common law crime of burglary or breaking and entering and provides in pertinent part:

"Burglary. (1) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony therein may be imprisoned not more than 10 years;

"(a) Any building or dwelling . . .

"(3) For the purpose of this section, entry into a place during the time when it is open to the general public is with consent." (emphasis supplied).

If the statute were the only law before us, we would have to conclude that, " . . . entry into a place during the time when it is open to the public is with consent." Sec. 943.10(3). But the state contends that consent to enter a place while open to the general public is,

" . . . impliedly conditioned by time, place and purpose. It is the extent and scope of the consent of the one in possession which determines the legality of the entry and presence of the public within the structure." Levesque v. State, 63 Wis.2d 412, 415, 416, 217 N.W.2d 317, 319 (1974).

The state's position is that a person who enters a building with an intent to steal has entered without consent and has committed burglary, regardless of whether the building is open to the public.

Given the language in Levesque, supra, it is arguably unclear whether the plain language of sec. 943.10(3), Stats. is controlling.

"When a statute has been construed by the highest court having jurisdiction to pass on it, such construction is as much a part of a statute as if plainly written into it originally." State ex rel. Klingler & Schilling v. Baird, 56 Wis.2d 460, 468, 202 N.W.2d 31, 35 (1972).

Because of Levesque there is some ambiguity in construing sec. 943.10 and the legislative history of the statute may be considered. Milwaukee Firefighters Asso. v. Milwaukee, 50 Wis.2d 9, 13, 14, 183 N.W.2d 18 (1971); State ex rel. Klingler & Schilling v. Baird, 56 Wis. at 465, 202 N.W.2d 31. The legislative history evinces an unmistakable intent to exclude from the scope of the burglary statute entries into a place open to the general public, during a time when it is so open. The history and intent buttress the plain meaning of sec. 943.10(3), Stats.

Sec. 943.10, Stats. was created as part of the comprehensive revision of the Wisconsin Criminal Code, which was completed with the enactment of chapter 696, Laws of 1955. One of the stated objectives of the revision of the Wisconsin Criminal Code was that of

"(S)implifying the criminal law by removing obsolete material and stating each section in clear, concise and definite language so that the scope of the section will be plain." ¹

The comprehensive revision was formulated in successive drafts by the Judiciary Committee of the Legislative Council and later by the Advisory Committee on the Criminal Code. The written comments of a legislatively created advisory committees are relevant in construing statutes and ascertaining the legislative intent of statutes recommended by such committees. Green Bay Packaging, Inc. v. ILHR Dept., 72 Wis.2d 26, 34, 240 N.W.2d 422 (1976); State v. Genova, 77 Wis.2d 141, 151, 252 N.W.2d 380 (1977).

The original draft of what finally emerged as sec. 943.10, Stats. provided in pertinent part:

"343.10. Burglary. Whoever enters any structure without the consent of the owner and with intent to steal or commit a felony therein may be imprisoned not more than 10 years." S.B. 784 (1951).

The comments to the proposed section stated in part:

"As far as the basic elements of burglary are concerned . . . There must be (1) an entry of a structure, (2) the entry must be without consent of the owner, and (3) the entry must be made with intent to steal or commit a felony in the structure.

" . . . Both 'without consent' and 'owner' are defined in chapter 339. Owner refers to the possessor of property, not necessarily to the holder of legal title. As entry is without consent when there has been no consent in fact, either express or implied, or the consent has been obtained by the use or threat of force, or by fraud. When consent was obtained by fraud, the common law held there was a constructive breaking. Failure to take note of the fiction of constructive breaking has led some courts to hold that under statutes which have eliminated the requirement of breaking, it is burglary to steal from a building where the general public is invited, e. g., a store or tavern. (L.R.A. 1915D 1015; 23 A.L.R. 288). This is not the law under this section. A thief who walks into a store as a member of the general public can in no sense be said to have used fraud in gaining his entry. ²

The second draft of the revised burglary statute, enacted as Chapter 623, Laws of 1953, ³ made several changes in the first draft, including the following addition to proposed section 343.10.

" . . . (2) Entry into a business place or other structure open to the general public is not burglary if the entry takes place during the time when the general public is invited, even though the person in lawful possession of the structure would have objected to the entry had he known the actor's purpose in entering."

The Legislative Council explained the addition as follows:

" . . . (2) That the entry was made without the consent of the person in lawful possession of the structure. 'Without consent' is defined in section 339.22. Consent to enter which is obtained by the use or threat of force or by pretense of legal authority is in legal effect entry 'without consent.' The same ordinarily is true of consent obtained because the person giving the consent is mistaken as to the nature of the thing to which he consents, but subsection (2) of this section makes clear that this does not apply under circumstances where the general public is invited to enter. Because the law of burglary has been unsettled on this point (see L.R.A. 1915D 1015; 23 A.L.R. 228 (1923)), a clarification of the law is desirable. Who is the 'person in lawful possession' is a question of fact and law in each case, but the phrase makes clear that lawful possession rather than legal title is the important consideration in the law of burglary. (emphasis supplied). ⁴

The final form of sec. 943.10(3) resulted from the efforts of the Advisory Committee on the Criminal Code. The deletion of "even though the person in lawful possession would have objected had he known the actor's purpose in entering" is the crucial difference between ch. 623, Laws of 1953 and the final form of the burglary state. Although the deletion, standing alone, might appear ambiguous, the minutes of the Advisory Committee disclose that no change in meaning from the 1953 version to the present language of sec. 943.10(3) was contemplated. ⁵

The enactment of the current Wisconsin Criminal Code by Chapter 696, Laws of 1955 repealed sec. 343.13, Stats. (1953) which provided as follows: "Unlawful Entry. Any unlawful entry of a dwelling house . . . or other building with intent to commit a felony shall be deemed a breaking and entering of such dwelling house, bank, trust company or other building within the meaning of sections 343.09 to 343.122."

The other burglary provisions in the old Criminal Code required a breaking and entering, but this section, effectively removed the need for any actual "breaking" to prove burglary. The repeal of this section and the creation of sec. 943.10(3), unequivocably removes common-law constructive breaking from the scope of burglary in Wisconsin, at least when the person in lawful possession holds the premises open to the general public.

The state relies on Nicholls v. State, ...