State v. Davis

• Court: Washington Supreme Court
• Writing for the Court: OTT; FINLEY
• Citation: State v. Davis, 373 P.2d 128, 60 Wn.2d 233 (Wash. 1962)
• Decision Date: 12 July 1962
• Docket Number: No. 36161
• Parties: The STATE of Washington, Respondent, v. Robert DAVIS, Appellant. . Department 2

Page 233

60 Wn.2d 233

373 P.2d 128

The STATE of Washington, Respondent, v. Robert DAVIS, Appellant.

No. 36161.

Supreme Court of Washington. Department 2.

July 12, 1962.

Garland & Bishop, Bremerton, for appellant.

Gordon L. Walgren, Eugene G. Olson, Deputy Pros. Atty., Bremerton, for respondent.

OTT, Judge.

August 29, 1960, at approximately 5:30 a. m., Robert Davis was arrested by an officer of the Bremerton Police Department. Davis had four boxes of cigars and a box of candy bars in his possession, with marks identifying them as the property of Warren Martin, owner of the Olympic Recreation and Brolier. The arresting officer had observed Mr. Davis as he forced his entry through a canvas enclosure which surrounded the cigar and confectionery counter.

When the cigar and confectionery counter of the recreation center was not open for business, the canvas curtain which enclosed the area was suspended from the ceiling to within approximately two inches of the floor. That portion of the canvas curtain behind the passageway to the counter was in disrepair, in that it had a tear in it approximately 24 to 29 inches in length. Mr. Davis ripped the opening larger to gain his ingress and egress to the cigar stand.

Mr. Davis left the building with the merchandise, and the officer arrested him as he crossed the steet. He was charged with the crime of burglary in the second degree, and, from a judgment and sentence entered upon the verdict of guilty, he has appealed.

Appellant first contends that the cigar stand enclosure was not a 'room or other structure' as contemplated by the burglary statute.

RCW 9.19.020 provides in part:

'Every person who * * * shall * * * break and enter, or * * * shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree * * *.'

RCW 9.01.010 provides in part:

'In construing the provisions of this act, save when otherwise plainly declared or clearly apparent from the context, the following rules shall be observed: * * *

'(18) The word 'building' shall include every * * * tent or booth, whether completed or not, suitable for affording shelter for any human being, or as a place where any property is or shall be kept for use, sale or deposit. * * *

'(20) The word 'break,' when used in connection with the crime of burglary, shall include: * * *

'(b) Opening, for the purpose of entering therein, any outer door of a building or of any room * * * therein separately used and occupied, or any window, shutter, scuttle or other thing used for covering or closing any opening thereto or therein, or which gives passage from one part thereof to another; * * *.' (Italics ours.)

The enclosed cigar and confectionery counter was a place where property was kept for sale. A booth is defined by Webster's New International Dictionary (2d ed.) as 'A covered stall or temporary structure * * *' Giving the...