State v. Warner

• Decision Date: 20 February 1985
• Citation: 696 P.2d 1052,298 Or. 640
• Parties: STATE of Oregon, Respondent on Review, v. Forest Dwaine WARNER, Petitioner on Review. TC 10-28-02595; CA A25336; SC S30596. *
• Court: Oregon Supreme Court

Page 1052

696 P.2d 1052

298 Or. 640

STATE of Oregon, Respondent on Review, v. Forest Dwaine WARNER, Petitioner on Review.

TC 10-28-02595; CA A25336; SC S30596.

Supreme Court of Oregon In Banc ^*.

Argued and Submitted July 10, 1984.

Decided Feb. 20, 1985.

Robert N. Peters, Staff Atty., Public Defender Services of Lane County, Eugene, argued the cause and filed the brief for petitioner on review.

Roy Pulvers, Salem, argued the cause for respondent on review. On the brief was Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Sally Leisure, Sp. Asst. Atty. Gen., Salem.

ROBERTS, Justice.

The question is whether a metal signpost is a burglar's tool so as to render defendant vulnerable to the charge of burglary in the first degree.

Defendant was convicted of burglary in the first degree and he appeals. He broke into a locked barn by prying a hasp and padlock from the barn door with a Northwest Natural Gas Company signpost. The signpost was a seven and one-half foot long steel I-beam with a yellow warning sign to mark underground cable still attached at the top. The Court of Appeals affirmed. 67 Or.App. 251, 677 P.2d 733 (1984). We reverse.

Burglary in a building other than a dwelling is second degree burglary, classified as a Class C felony. ORS 164.215. The maximum period of incarceration is five years. ORS 161.605(3). The crime is elevated to burglary in the first degree if the defendant "in effecting entry or while in a building or in immediate flight therefrom * * * is armed with a burglar's tool as defined in ORS 164.235 * * *." First degree burglary is a Class A felony, carrying a maximum sentence of 20 years. ORS 161.605(1). The legislature obviously considered possession of a burglar's tool a serious enhancement factor.

Burglar's tools are defined at ORS 164.235 as follows:

" 'Burglar tool' means an acetylene torch, electric arc, burning bar, thermal lance, oxygen lance or other similar device capable of burning through steel, concrete or other solid material, or nitroglycerine, dynamite, gunpowder or any other explosive, tool, instrument or other article adapted, designed or commonly used for committing or facilitating a forcible entry into premises or theft by a physical taking."

Defendant concedes his guilt with regard to second degree burglary. He argues, however, that a signpost is not a burglar's tool as that term was envisioned by the legislature to elevate the offense. He argues that this signpost was neither "adapted, designed [n]or commonly used for committing or facilitating a forcible entry into premises * * *."

Background of the Statute

Oregon enacted its statute proscribing possession of burglar's tools in 1971. Before that time, possession of burglar's tools was not a crime in Oregon. State v. Rater, 253 Or. 109, 453 P.2d 680 (1969). For many states, however, statutes proscribing possession of tools and implements of housebreaking are not a recent phenomenon. A British statute "for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds" declared that

"every Person having in his or her Custody or Possession any Picklock, Key, Crow, Jack, Bit or other Implement, with Intent feloniously to break into any Dwelling House, Warehouse, Coach House, Stable or Outbuilding * * * shall be deemed a Rogue and a Vagabond, within the true Intent and Meaning of this Act; and it shall be lawful for any Justice of the Peace to commit such offender (being thereof convicted before him by the Confessions of such offender, or by the Evidence on Oath of One or more credible Witness or Witnesses) to the House of Correction, there to be kept to hard Labour for any Time not exceeding Three Calendar Months * * *." 5 Geo IV, quoted in 3 Chitty, Practical Treatise on the Criminal Law 1116 (1841).

By the turn of the century many American states had similar statutes ¹ and, today, only a few states lack such a proscription. ²

Before Oregon's 1971 revision of the criminal code, burglary was committed either by breaking and entering a dwelling, the most severely punished form of the crime, or by breaking and entering any structure other than a dwelling, a less serious crime. One statute punished the use of explosives to commit a crime in a building entered during the night. ORS 164.260. Use or attempted use of "nitroglycerine, dynamite, gunpowder or other high explosive" in the commission of a crime in a building after unlawful entry made one vulnerable to a 40-year sentence. ³

As drafted by the Criminal Law Revision Commission in 1970, the less serious crime involving non-dwellings could be enhanced to a first degree offense if the actor were "armed with explosives or a deadly weapon." The inclusion of explosives was an apparent attempt to continue the old law with regard to burglary with explosives. Commentary to Proposed Oregon Criminal Code 145 (1970).

An entirely new section penalizing possession of burglar's tools appeared in this proposed draft. One who possesses any burglar's tool with intent to use it, or knowing that someone intends to use it, to facilitate a forcible entry into premises or theft could be guilty of a Class A misdemeanor.

The Commission's proposed definition of a burglar's tool was as follows:

"(2) 'Burglar tool' means explosive, tool, instrument or other article adapted, designed or commonly used for committing or facilitating a forcible entry into premises or theft by a physical taking."

Proposed Oregon Criminal Code § 138 (1970). The definition of burglar's tools and the crime of possession derive from a combination of the New York Revised Penal Law and the Proposed Michigan Revised Criminal Code. ⁴

The Senate Criminal Law and Procedure Committee amended the Criminal Law Revision Commission's proposed first degree burglary statute to elaborate on the term "explosive." The amendment added the following list of burning and exploding devices to the first degree burglary enhancement language: "acetylene torch, or electric arc, burning bar, thermal lance, oxygen lance, or any other similar device capable of burning through steel, concrete, or any other solid substance, or nitroglycerine, dynamite, gunpowder, or any other explosive."

Witnesses before the committee testified that such an amendment was needed in order to broaden the definition to include the "safe-cracking professional * * * who uses the acetylene torch or that type of device, not to gain entry but to penetrate a secure area inside the place burglarized." ⁵

This same language was suggested as an amendment to the definition of burglar's tools in the possession statute in order to maintain consistency. The possession statute was accordingly amended. ⁶

The result, at this point, was that the first degree burglary statute included a detailed list of burning and exploding devices and the possession statute contained this list in addition to a proscription against tools, instruments or other articles adapted, designed or commonly used for forcible entry or theft.

Both parties tell us that the printed amendment to the first degree burglary statute does not correspond to the amendment passed by the Senate Committee. Instead of including only the list of burning and exploding devices in the first degree burglary statute, the amendment incorporated by cross-reference the entire definition of burglar's tools from the possession statute. This amendment, though different from that drafted by the Senate Committee, was passed by the full Senate, the House Judiciary Committee and the full House of Representatives.

At oral argument, defendant took the position that though the two statutes by cross-reference contain an identical definition of burglar's tools, we should interpret the first degree burglary statute narrowly on the theory that the legislature, or at least the Senate Criminal Law and Procedure Committee, never intended to expand the first degree burglary statute beyond burning and exploding devices. It is not unusual that the same statutory language may be interpreted in different ways where warranted by legislative intent. However, defendant's position disregards the fact that the amendment was approved by both houses after it left the Senate Committee. This is ample indication that burglar's tools should be defined consistently in the two statutes.

Analysis of Statutory Terms

The Commentary to the possession statute provides that "[m]any different tools and articles would be included within the definition of 'burglar tool'--items such as wire cutters, crow-bars, picklocks, dynamite and other explosives--which could be used for a legitimate purpose." Commentary to Proposed Oregon Criminal Code 146 (1970). This makes it clear that an alternative legitimate use does not eliminate an object from the category of potential burglar's tools. However, the Commentary contains no discussion of the meaning of "adapted, designed or commonly used" for forcible entries or theft. We turn to the meaning of these terms.

No one asserts that this signpost was "designed" for committing or facilitating forcible entries. The class of objects designed for this purpose is not large. Presumably, professional locksmith tools would fall into this category.

The state refers to the signpost both as a "commonly used" burglar's tool and as an instrument that can be "adapted" to facilitate a forcible entry. In support of its first position, the state relies on testimony to the effect that a "pry bar" is a commonly used burglar's tool. A pry bar was defined as "[a]nything that you can pry against something else with * * *." The witness, a Lane County Deputy Sheriff, testified that it "[c]ould be anything from a tire jack handle to, as in this particular situation, a fence post." There was no testimony, however, that signposts themselves are commonly used for forcible entries. The state seeks to expand the scope of articles "commonly used" for these purposes to include articles similar to those commonly...