State v. Fisher
| Decision Date | 19 February 1983 |
| Docket Number | Nos. 54312,54329,s. 54312 |
| Citation | 658 P.2d 1021,232 Kan. 760 |
| Parties | STATE of Kansas, Appellant, v. Gregory R. FISHER, John F. Geisler, Steven E. Kinder and James P. Ray, Jr., Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The hog pen in question is held not to be a "structure" within the purview of the burglary statute, K.S.A. 21-3715.
John C. Laman, Asst. County Atty., argued the cause, and C.L. Laman, County Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellant.
Robert A. Walsh, Concordia, argued the cause, and David D. Swenson, Thomas M. Tuggle and Larry S. Vernon, Concordia, were with him on the brief, for appellees.
The district court dismissed the burglary charges in these consolidated cases on the basis that a hog pen is not a "structure" within the purview of the burglary statute, K.S.A. 21-3715. The State appeals from said determination.
On January 1 and 2, 1982, hogs owned by Robert A. Collins and located in a rural area of Cloud County were shot by intruders and then removed from their pens. Various charges stemming from the two incidents, including burglary, were filed against the defendants herein, Gregory R. Fisher, John F. Geisler, Steven E. Kinder and James P. Ray, Jr. Shortly after the preliminary hearing and the filing of the informations, the question was raised whether the two hog pens which were entered were legally capable of being burglarized--that is, were they "structures" within the contemplation of the burglary statute, K.S.A. 21-3715? The trial court answered the question in the negative and this appeal by the State resulted. No trial has been had of the remaining charges as the same were dismissed by the State pending the outcome of this appeal.
K.S.A. 21-3715 provides:
"Burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein." (Emphasis supplied.)
The two hog pens may be described as follows. Each has a concrete floor, but no roof. The pens are constructed of 36"' by 120" by 16' and is enclosed on three sides by panels and on the fourth side by a barn. Hog pen # 2 is a rectangle measuring 36' by 30' and all four sides are panels except for a small shed in one corner. The barn and shed are not involved in the burglary charges. Therefore, the legal issue is the same as to both hog pens.
The crux of the issue before us is whether a broad or restrictive meaning should be ascribed to the term "or other structure" as found in K.S.A. 21-3715.
"Structure," used as a noun, is a word with several interrelated refinements of meaning. This is reflected in Webster's New Collegiate Dictionary 1154-55 (1977) which includes the following definitions and illustrations thereof:
"structure 2 a: something (as a building) that is constructed b: something arranged in a definite pattern of organization [a rigid totalitarian structure] ... 4 a: the arrangement of particles or parts in a substance or body [soil structure] [molecular structure] b: arrangement or interrelation of parts as dominated by the general character of the whole [economic structure]...."
Black's Law Dictionary 1276 (5th ed. 1979) defines "structure" as follows:
In the broad sense urged by the State, virtually anything capable of being constructed is a structure and hence legally capable of being burglarized. We do not agree.
The hog pens in question are essentially small areas enclosed by three-foot-high fences. Obviously, the only persons to whom such low sides would constitute actual physical barriers are young children. The applicable rules of statutory construction do not support the inclusion of fenced areas such as these hog pens within the term "structure" as used in K.S.A. 21-3715.
It is a fundamental rule penal statutes must be strictly construed in favor of the persons sought to be subjected to their operation. The rule of strict construction simply means ordinary words are to be given their ordinary meanings. Such a statute should not be read so as to add to, or to subtract from that which is readily found therein. State v. Conner, 4 Kan.App.2d 207, 209, 603 P.2d 1038 (1979), rev. denied, 227 Kan. 927 (1980); State v. Floyd, 218 Kan. 764, 766, 544 P.2d 1380 (1976); and Esters v. State, 1 Kan.App.2d 503, Syl. p 3, 571 P.2d 32 (1977).
Further, open-air, free-standing, low-fenced hog pens are not ejusdem generis with buildings, mobile homes, or tents as provided in K.S.A. 21-3715. In State v. Prather, 79 Kan. 513, 100 P. 57 (1909), the court discussed ejusdem generis as follows:
Whereas fences are not mentioned in the burglary statute, K.S.A. 21-3715, fences and structures are both referred to in the criminal trespass statute, K.S.A. 21-3721. The relationship of the two terms as utilized therein is, we believe, significant and the statute is reproduced in relevant part as follows:
"K.S.A. 21-3721. Criminal trespass is entering or remaining upon or in any land, structure, vehicle, aircraft or watercraft by a person who knows he or she is not authorized or privileged to do so, and:
"(b) such premises or property are posted in a manner reasonably likely to come to the attention of intruders, or are locked or fenced or otherwise enclosed, or shut or secured against passage or entry." (Emphasis supplied.)
In State v. Williams, 220 Kan. 610, 556 P.2d 184 (1976), the notice...
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