State v. Bergeron
| Decision Date | 16 March 1967 |
| Citation | 105 Wn.2d 1,711 P.2d 1000 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Richard Lee BERGERON, b.d |
Jonathan S. Cole, Washington Appellate Defender Ass'n, Seattle, for petitioner.
Norman K. Maleng, King County Prosecutor, Cindy K. Smith, Deputy, Seattle, for respondent.
This case is before us on discretionary review. The defendant, Richard L. Bergeron, appealed his juvenile court conviction of the crime of attempted burglary in the second degree. The Court of Appeals affirmed. 1 We also affirm.
The findings and conclusions entered by the juvenile court summarize the facts and that court's resolution of the case:
FINDINGS OF FACT
On or about April 17, 1983 Officer Shaw of the King County Department of Public Safety contacted [the victim] at [her residence in] Seattle. The contact was in regards to a report of a prowler. [The victim] heard a tremendous crash in their [sic] basement at 3:15 a.m. and when Officer Shaw arrived at [the victim's] home he discovered a broken window in the basement that had been opened. No basement windows were broken in [the victim's] home prior to 3:15 a.m. on April 17, 1983, and [the victim] gave no one permission to enter her house or break her window.
Officer Wardstrom arrived with a police dog to track the person who broke [the victim's] window. The dog ultimately found the respondent [Bergeron]. Officer Wardstrom is trained in dog tracking and is qualified to determine when a dog is on someone's track, and Sarge, Officer Wardstrom's police dog has been successfully trained in tracking. Sarge is the dog that tracked the respondent.
Officer Shaw advised the respondent of his constitutional rights per Miranda. The respondent understood his constitutional rights and he waived his constitutional rights. The respondent gave a written statement indicating he was cutting through the back yards of homes in the vicinity of Evergreen High School, and while traveling north from 10th S.W. and S.W. 114th he stopped at a two-story house in the middle of the block. He went to the north side of the two-story house and threw a rock through the basement window and slid it open. He was going to go into the house but he took off, and was later caught by a police dog.
All of the above-stated facts occurred in King County, Washington; from the foregoing findings of fact, the court now makes the following:
CONCLUSIONS OF LAW
The above-entitled court has jurisdiction over the subject matter and of the respondent Richard Lee Bergeron, in the above-entitled cause.
The respondent Richard Lee Bergeron, on or about April 17, 1983, did attempt to enter and remain unlawfully in a building other than a vehicle.
The respondent did so with intent to commit a crime therein.
These acts occurred in King County, Washington.
The respondent is guilty of attempted burglary in the second degree.
(Italics ours.)
Two principal issues are presented.
ISSUE ONE. Is the intent to commit a specific crime inside the burglarized premises an "element" of the crime of burglary?
ISSUE TWO. Where the specific crime intended to be committed inside burglarized premises is for some reason material to the theory of the case of a defendant charged with the burglary, may the State be required to specify what specific crime was intended therein?
ISSUE ONE.
CONCLUSION. The intent to commit a specific named crime inside the burglarized premises is not an "element" of the crime of burglary in the State of Washington. It is true that burglary has common law antecedents to the contrary, but modernly in this state burglary is a statutory offense. The intent required by our burglary statutes is simply the intent to commit any crime against a person or property inside the burglarized premises. To the extent that State v. Johnson, 100 Wash.2d 607, 674 P.2d 145 (1983) holds to the contrary, it is hereby overruled.
The juvenile (hereafter designated "defendant") was charged with an anticipatory offense, namely, an "attempt", not with having actually committed burglary. However, in attempt cases "a defendant must be charged with an attempt to commit a specifically designated crime, and it is to that crime one must look in identifying the kind of intent required." 2
"At common law, the crime of burglary consisted of a (1) breaking and (2) entering of (3) a dwelling house (4) of another (5) in the nighttime (6) with the intent to commit a felony therein." 3 As Professors LaFave and Scott further point out in their criminal law hornbook, however, "[a]cross the intervening centuries these elements have been expanded or discarded to such an extent that the modern-day offense commonly known as burglary bears little relation to its common-law ancestor." 4
The result is that modernly the crime of burglary is a statutory offense which has scant in common with its common law antecedents. 5 Furthermore, each state has its own statutory version of the offense so the elements of the crime of burglary vary substantially from state to state. 6
Even within a given state, legislatures over the years have from time to time changed the elements of the offense of burglary. In this state, for example, there have been a number of such changes, 7 the most notable of which were the major changes made in 1975 when the Legislature adopted a new criminal code. 8 Now, a person commits the crime of burglary in the second degree when he or she enters or remains unlawfully in a building with intent to commit a crime against a person or property therein. 9 Change this to the building being a dwelling, and the burglar being armed or committing an assault in the dwelling, and the crime becomes burglary in the first degree. 10 Now, the crime of burglary in the State of Washington is almost entirely different from what it was at common law 11 and is substantially different from what it was under our early burglary statutes. 12
As set out in the findings and conclusions, the juvenile court found and concluded that the defendant attempted to unlawfully enter a building and did so "with intent to commit a crime therein". This tracks the language of the burglary in the second degree statute and of the information charging the offense.
The defendant argues that since this court's recent decision in Johnson, the particular crime which the defendant intended to commit inside the building or dwelling is an element of the crime of burglary, and that such crime must be specifically charged, instructed on (in a jury trial) and found as a fact (in a trial to the court). He argues that since this was not done here, the information did not charge a crime, and the findings and conclusions do not establish that a crime has been committed and the charge must be dismissed. We disagree.
By way of background to our discussion of Johnson, it is helpful to refer to the first burglary case decided by this court. That was in 1890, the first year of our State Supreme Court. Interestingly, although the burglary statutes were different then, the issue in that case was the same as the issue in this case. That early burglary case was Linbeck v. State, 1 Wash. 336, 337-38, 25 P. 452 (1890), and on this issue the court held:
The first ground of reversal relied upon is, that the information does not state facts constituting a public offense. The contention in this regard being, that it is not only necessary to charge that the entering was with an intent to commit a misdemeanor, but that the particular misdemeanor which he intended to commit must be set out. This contention is borne out by numerous authorities which the diligence of counsel has gathered for the information of this court; and we believe it to be the law in most of the states, and that it would clearly be the law here were it not for § 828 of our code. Said section is as follows: and by virtue of its provisions the prosecution is no longer compelled to prove with what intent the defendant enters, but on the contrary, the unlawful entering having been proved, the intent to commit a crime or misdemeanor is presumed; and this being so, we are unable to see how the accuracy required before such section was enacted can now aid the defendant. The burden of showing the intent with which he entered is, by said section, cast upon him, and he can show such an intent to have been an innocent one as well without the details as to his specific intent as with it. Aided by the section above quoted the information was sufficient.
Aided by the then presumption of criminal intent in burglary cases statute, the court in that early case thus held that it was not necessary to charge the specific crime intended to be committed in the burglarized premises. Thereafter, for over nine decades the law of this state was settled--in burglary cases neither the information, jury instructions nor findings and conclusions were required to designate the specific crime intended. 13
Then recently in Johnson, a divided court held that in a burglary case the specific crime intended to be committed in the premises must be both alleged in the information and included in the instructions as an element of the offense. Depending on how the majority opinion is read, it either strongly indicated or else held outright that such intent is an element of the offense. As we now read that opinion, the majority's holding in this regard is primarily premised on: (1) ...
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State v. Moreno
...statutes is simply the intent to commit any crime against a person or property inside the burglarized premises." State v. Bergeron, 105 Wash.2d 1, 4, 711 P.2d 1000 (1985). Combining that description of the mens rea in the statute with the analysis in Kilponen , the Court of Appeals in this ......
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...bounds. See State v. Johnson, 100 Wash.2d 607, 629, 674 P.2d 145 (1983), overruled in part on other grounds, State v. Bergeron, 105 Wash.2d 1, 711 P.2d 1000 (1985). Any delay in these resentencing proceedings would constitute a violation of the right to speedy sentencing only if such delay ......
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State v. Scott
...607, 623, 674 P.2d 145 (1983) (citing Davis as case involving error of "nondirection"), overruled on other grounds, State v. Bergeron, 105 Wash.2d 1, 711 P.2d 1000 (1985); Davis, 27 Wash.App. at 506, 618 P.2d 1034 (challenge raised on appeal was to "an error of The technical term rule attem......
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.... That holding, issued in December 1983, was the controlling law in the State of Washington until it was overruled by State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985), issued in December 1985. Here, then, the trial court failed to properly instruct the jury under the controlling case la......
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Chapter 32
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Chapter § 11.7 Particular Applications of the General Rule and Its Exceptions
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