People v. Gibbons , 206 Cal. 112 ( 1928 )

I dissent. I find myself unable to agree with the conclusions reached by a majority of the court to the effect that the offense proved was not burglary. The information charged the defendant with unlawfully entering "the outhouse and building" with the intent to commit larceny therein. The proof showed conclusively to my mind that the portion of the structure which was entered was an integral part of a building having four sides and a roof and satisfied the definition of numerous structures named in section 459 of the Penal Code. That section provides: "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, mine, or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary." The fact that the portion of the building entered was for convenience left open on the one side facing the private service yard would not, in my opinion, remove the structure from the definition of a "building" as contemplated by the code section. The structure described in the evidence is no more open than was the stairway leading to the store involved in People v. Franco, 79 Cal.App. 682 [250 P. 698]. In that case the roof of the building covered the showcases from which the shoes were taken. Access to the showcases was by means of the open stairway. It was held, not that a showcase was a "house" as stated by the majority opinion, but that the said showcases were, in legal effect, part of the store proper. So, here, the storeroom for the metals beneath the main building was part and parcel of the building itself. Our present statutory crime of burglary is much more comprehensive than the offense of that name at common law. Breaking is not now an essential element of the crime. Entry only is required to be alleged and proved. The main opinion has, I think, placed a too narrow construction on those words as used in the statute and has unduly limited the effect of the law relating to the crime of burglary.