No, 1330L INTHE SUPREME COURT OF THE STATE OF' MONTANA 1976

THE STATE OF MONTANA, Plaintiff and Respondent,
-vs

# - JOHN C, SHANNON, Defendant and Appellant.
Appeal from: District Court of the Fourth JudicialDistrict, Honorable Jack Green, Judge presiding. Counsel of Record: For Appellant: Hirst and Dostal, Missoula, Montana John Dostal argued, Missoula, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana John F. North argued, AssistantAttorney General,

Helena, Montana Robert L. Deschamps, 111, County Attorney, Missoula,

Montana Edward McLean argued, Deputy County Attorney, Missoula,

Montana For Amicus Curiae: John Connor, Missoula, Montana

Submitted: September 1, 1976 Decided: 

## BEP2

### 0 1976Mr. JusticeWesley Castles delivered the Opinion of the Court. John C. Shannon appeals his conviction in the district court, Missoula County, on the criminal charge of burglary, a felony as specified in section 94-6-204(1), R.C.M. 1947. Defendant was found guilty of knowingly entering the trailer portion of a tractortrailer owned by Arden Olsen Trucking of Kalispell, Montana, for the purpose of removing approximately 28 cases of beer. At trial, defendant admitted that he and two friends entered the trailer and removed thebeer. Defendant argues these facts are insufficient to constitute the crime of burglary because a trailer attached to a semi-truck isnot an "occupied structure" within themeaning of section 94-6-204(1), R.C.M. 1947, even though,
as here, the tractor portion has a sleeper-cab inwhich the operator may sleep. He further contends these acts complained of, and admitted incourt, are sufficient to sustain only a charge of criminal trespass to

### vehicles under section 94-6-202, R.C.M. 1947 ormisdemeanor theft under section 94-6-302(4), R.C.M. 1947. The district court found the tractor-trailer was 

### an
Itoccupied structure" and a vehicle within the definitions of section 94-2-lOl(35) and (65), R.C.M. 1947, and that any entry thereto with intent to commit theft of the beer was burglary. Section 94-2-101(35), R.C.M. 1947, defines "occupied structure"



### "*

# ** any building, vehicle, or other place suited forhuman occupancy ornight lodging of persons or for carrying on business, whether ornot a person is actually present. 9~

# * *I1 (Emphasis supplied.) The annotation to this definition, Montana Criminal Code, 1973, Annotated, Montana Criminal Law Commission, Prof. William F. Crowley, p. 55, states:

### "*

# *

# * It is important tonote that the structure need not be occupied tobe the subject of arson or burglary--under this definition the building need onlybe suited forhuman habitation." The tractor-trailer entered by defendant was a vehicle as defined in section 94-2-101(65), R.C.M. 1947, which states: "'Vehicle' means any device for transportationby land, water or air, ormobile equipment with provision for transport of an operator." The Montana Criminal Code, 1973, Annotated, p. 86, notes: 

### "*

# ** Included within this definition are allthose transportation devices defined by theMotor Vehicle Code (R.C.M. 1947, 532-2101) as vehicles, including automobiles, motorcycles, motor driven cycles, emergency vehicles, buses, bicycles, farm and construction equipment, plus numerous vehicles not included within theMotor Vehicle Code

# ** *.I1 The Motor Vehicle Code, section 32-2102(a), R.C.M. 1947, defines
"Every device, in, upon, orby which any person or property isormay be transported or drawn upon a highway

# ** *.I1 This definition definitely includes the tra.ilerportion of the tractor-trailer enteredby defendant and his associates. The primary gravamen of burglary atcommon law, and under the Montana Criminal Code of 1973, R.C.M. 1947, Title 94, 

### is "the threat toperson resulting from thewrongful intru~ion

# ** *If. Montana Criminal Code, 1973, Annotated, p. 236. However, the drafters of the 1973criminal code also included language expressly intended toprotect the structure or vehicle utilized for "carrying


### on business". Section 94-2-101(35), R.C.M. 1947. This burglary statutewas draftedwith both intentions inmind. Defendant argues that to sohold willresult inhis conviction of a felony rather than the lesser offense of criminal trespass to vehicles, which under section 94-6-202, R.C.M. 1947, isa 

### misdemeanor offense or of misdemeanor theft under section 94-6-302(4), R.C.M. 1947. -3-* This Court in Statev. Richter, 152Mont. 449, 451, 451 P. 2d 833, stated: "It cannot be argued that the legislature does not have the power to denominate this type of offense as a burglary in order toprevent the apparent evil of breaking into a car. Manifestly, making the offense a felony would tend to minimize the frequency of such unlawful acts. In construing legislative intent, thecourts of this stateconstrue criminal statutes according to the fair import of their terms with 

### a view to effect their object and promote justice. Statev. Aldahl, 106Mont. 390, 78 P.2d 935." It is clear the drafters of theMontana Criminal Code of 1973, intended to include such an offense as committed by defendant, and admitted by him in court, within the scope of section 94-6-204, R.C.M. 1947, Burglary.
The conviction inthe district court is affirmed.

We Concur: /



## \,J Justices.