Conley Byrd, Justice.
After finding appellant Robert Grays guilty of burglary, the jury again retired and, after finding that he was a habitual criminal, set his punishment at 20 years in the Department of Correction. The only point raised on this appeal is appellant’s contention that the lower court erred in failing to instruct on the lesser degrees of Breaking and Entering, Ark. Stat. Ann. § 41-2003 (Repl. 1977) and Criminal Trespass, Ark. Stat. Ann. § 41-2004 (Repl. 1977).
The record shows that appellant was an employee of Moss Seed Company. On Sunday, July 31, 1977, when the seed company was not open for regular business but while a construction crew of a private contractor was working on the premises, appellant went into the building to get a coke. While drinking the coke appellant had a conversation with one Taylor, a supervisor or foreman with the construction crew. When Robert Crick, the assistant manager of the seed company went by to check on the construction being done, he, after talking with Taylor, made a thorough check of the seed company’s premises. He found that a pin on the inside of a door had been removed so that entrance could be obtained from the outside. After a conference with the Little Rock Police, burglary investigator Horace L. Walters and Detective David Rowan set up a surveillance inside the seed company. Sometime around 11:30 p.m. appellant opened the door and entered the premises. The officers shined a light on appellant informing him at the same time that they were police officers and that he should freeze. Instead of obeying the officers, appellant ran, eluding not only the officers but the shots fired from a shot gun and Detective Rowan’s pistol. Since the officers recognized appellant they later went to his home within less than a half a mile of the seed company and arrested him. Appellant’s signed confession corroborates all of the testimony of the State except the shooting.
Chapter 20 of the Arkansas Criminal Code, Ark. Stat. Ann. § 41-2001, et seq. (Repl. 1977) provides:
“§ 41-2002. BURGLARY. — (1) A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.
(2) Burglary is a Class B felony.
§ 41-2003. BREAKING or ENTERING. — (1) A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box or other similar container, apparatus, or equipment.
(2) Breaking or entering is a Class D felony.
§ 41-2004. CRIMINAL TRESPASS. — (1) A person commits criminal trespass if he purposely enters or remains unlawfully in or upon a vehicle or the premises of another.
(2) Criminal trespass is a class B misdemeanor if the vehicle or premises involved is an occupiable structure. Otherwise, it is a class C misdemeanor.
§ 41-2001 provides:
As used in this Chapter unless the context plainly requires otherwise:
(1) ‘Occupiable structure’ means a vehicle, building or other structure:
(a) where any person lives or carries on a business or other calling, or . . .
(2) ‘Premises’ means occupiable structures and any real property.”
The commentary to § 41-2002, supra, and § 41-2003, supra, points out that the distinction between the two sections has to do with the fact that the Commission felt that the invasion of occupiable structure — i.e., the invasion of premises under circumstances likely to terrorize or pose a threat to the safety of persons — required a stiffer penalty than the mere breaking or entering set out in § 41-2003, supra, that was designed to protect property rather than people. The commentary to § 41-2003 specifically states:
“. . . all burglaries as defined by § 41-2002 will by definition constitute breaking or entering. Consequently, the availability of the lesser offense may prove to be a useful plea bargaining tool in some cases. . . .”
The commentary to § 41-2004, CRIMINAL TRESPASS states:
“An offense is committed under this section when the actor without license or privilege enters the premises or vehicle of another. Entry completes the crime; no purpose to engage in further unlawful conduct is necessary. This section applies to a wide range of circumstances. An example of conduct constituting an offense is a transient entering premises or a vehicle in order to have a comfortable place to drink, sleep, or otherwise engage in activities not in themselves criminal. . . .”
Thus we see that the offenses of Breaking or Entering and of Criminal Trespass are both lesser included offenses in the crime of Burglary. However, the Arkansas Criminal Code, Ark. Stat. Ann. § 41-105(3) (Repl. 1977), with respect to lesser included offenses, provides:
“The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.”
In Barksdale v. State, 262 Ark. 271, 555 S.W. 2d 948 (1977), we had before us the question of whether a person prosecuted for burglary under § 41-2002, supra, was entitled to an instruction on the lesser included offense of Breaking or Entering, § 41-2003, supra. We there looked to the nature of the premises and after determining that the building involved was an “occupiable structure,” we held that the trial court did not err in refusing to instruct on the lesser included offense of Breaking or Entering. In so doing we pointed out that there was no issue to go to the jury on the nature of the building. Likewise here the Moss Seed Company qualified as an “occupiable structure” within the meaning of the Burglary offense § 41-2002, supra, and there would be no rational basis for the jury to find otherwise.
Probably the closest issue in this case is whether appellant was entitled to have the jury instructed on the lesser included offense of Criminal Trespass, § 41-2002, supra, i.e., was there a rational basis for a verdict acquitting him of the Burglary offense and convicting him of Criminal Trespass. The facts here show that appellant entered the premises on Sunday, July 31, 1977, around 1:30 p.m. when he got a cold drink and lifted the pin from the door. He again entered the premises stealthily in the night around 11:30 p.m. when if he had waited eight hours he could have lawfully entered for the purpose of going to work. Neither can it be said that he was entering for the purpose of finding a comfortable place to drink or sleep for he lived within five minutes’ walking distance of the Moss Seed Company.
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Conley Byrd, Justice.
After finding appellant Robert Grays guilty of burglary, the jury again retired and, after finding that he was a habitual criminal, set his punishment at 20 years in the Department of Correction. The only point raised on this appeal is appellant’s contention that the lower court erred in failing to instruct on the lesser degrees of Breaking and Entering, Ark. Stat. Ann. § 41-2003 (Repl. 1977) and Criminal Trespass, Ark. Stat. Ann. § 41-2004 (Repl. 1977).
The record shows that appellant was an employee of Moss Seed Company. On Sunday, July 31, 1977, when the seed company was not open for regular business but while a construction crew of a private contractor was working on the premises, appellant went into the building to get a coke. While drinking the coke appellant had a conversation with one Taylor, a supervisor or foreman with the construction crew. When Robert Crick, the assistant manager of the seed company went by to check on the construction being done, he, after talking with Taylor, made a thorough check of the seed company’s premises. He found that a pin on the inside of a door had been removed so that entrance could be obtained from the outside. After a conference with the Little Rock Police, burglary investigator Horace L. Walters and Detective David Rowan set up a surveillance inside the seed company. Sometime around 11:30 p.m. appellant opened the door and entered the premises. The officers shined a light on appellant informing him at the same time that they were police officers and that he should freeze. Instead of obeying the officers, appellant ran, eluding not only the officers but the shots fired from a shot gun and Detective Rowan’s pistol. Since the officers recognized appellant they later went to his home within less than a half a mile of the seed company and arrested him. Appellant’s signed confession corroborates all of the testimony of the State except the shooting.
Chapter 20 of the Arkansas Criminal Code, Ark. Stat. Ann. § 41-2001, et seq. (Repl. 1977) provides:
“§ 41-2002. BURGLARY. — (1) A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.
(2) Burglary is a Class B felony.
§ 41-2003. BREAKING or ENTERING. — (1) A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box or other similar container, apparatus, or equipment.
(2) Breaking or entering is a Class D felony.
§ 41-2004. CRIMINAL TRESPASS. — (1) A person commits criminal trespass if he purposely enters or remains unlawfully in or upon a vehicle or the premises of another.
(2) Criminal trespass is a class B misdemeanor if the vehicle or premises involved is an occupiable structure. Otherwise, it is a class C misdemeanor.
§ 41-2001 provides:
As used in this Chapter unless the context plainly requires otherwise:
(1) ‘Occupiable structure’ means a vehicle, building or other structure:
(a) where any person lives or carries on a business or other calling, or . . .
(2) ‘Premises’ means occupiable structures and any real property.”
The commentary to § 41-2002, supra, and § 41-2003, supra, points out that the distinction between the two sections has to do with the fact that the Commission felt that the invasion of occupiable structure — i.e., the invasion of premises under circumstances likely to terrorize or pose a threat to the safety of persons — required a stiffer penalty than the mere breaking or entering set out in § 41-2003, supra, that was designed to protect property rather than people. The commentary to § 41-2003 specifically states:
“. . . all burglaries as defined by § 41-2002 will by definition constitute breaking or entering. Consequently, the availability of the lesser offense may prove to be a useful plea bargaining tool in some cases. . . .”
The commentary to § 41-2004, CRIMINAL TRESPASS states:
“An offense is committed under this section when the actor without license or privilege enters the premises or vehicle of another. Entry completes the crime; no purpose to engage in further unlawful conduct is necessary. This section applies to a wide range of circumstances. An example of conduct constituting an offense is a transient entering premises or a vehicle in order to have a comfortable place to drink, sleep, or otherwise engage in activities not in themselves criminal. . . .”
Thus we see that the offenses of Breaking or Entering and of Criminal Trespass are both lesser included offenses in the crime of Burglary. However, the Arkansas Criminal Code, Ark. Stat. Ann. § 41-105(3) (Repl. 1977), with respect to lesser included offenses, provides:
“The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.”
In Barksdale v. State, 262 Ark. 271, 555 S.W. 2d 948 (1977), we had before us the question of whether a person prosecuted for burglary under § 41-2002, supra, was entitled to an instruction on the lesser included offense of Breaking or Entering, § 41-2003, supra. We there looked to the nature of the premises and after determining that the building involved was an “occupiable structure,” we held that the trial court did not err in refusing to instruct on the lesser included offense of Breaking or Entering. In so doing we pointed out that there was no issue to go to the jury on the nature of the building. Likewise here the Moss Seed Company qualified as an “occupiable structure” within the meaning of the Burglary offense § 41-2002, supra, and there would be no rational basis for the jury to find otherwise.
Probably the closest issue in this case is whether appellant was entitled to have the jury instructed on the lesser included offense of Criminal Trespass, § 41-2002, supra, i.e., was there a rational basis for a verdict acquitting him of the Burglary offense and convicting him of Criminal Trespass. The facts here show that appellant entered the premises on Sunday, July 31, 1977, around 1:30 p.m. when he got a cold drink and lifted the pin from the door. He again entered the premises stealthily in the night around 11:30 p.m. when if he had waited eight hours he could have lawfully entered for the purpose of going to work. Neither can it be said that he was entering for the purpose of finding a comfortable place to drink or sleep for he lived within five minutes’ walking distance of the Moss Seed Company. Even when we consider the facts in the light most favorable to appellant, we can find no rational basis for a verdict acquitting appellant of the offense of Burglary and convicting him of the Criminal Trespass offense. As stated in Ex parte Seyfried, 74 Idaho 467, 264 P. 2d 685 (1953), and 13 Am. Jur. 2d Burglary § 52, the fundamental theory, in absence of evidence of other intent or explanation for breaking or entering an occupiable structure at night, is that the usual object or purpose of burglarizing an occupiable structure at night is theft. Consequently, we must conclude that the trial court did not err in refusing appellant’s requested instruction on the lesser included offense of Criminal Trespass.
However, we again reiterate our caution in Barksdale v. State, supra, that the trial court would not have erred had it given the instructions requested. As pointed out in 23A C.J.S. Criminal Law § 1288(c), it is always a delicate matter for a court to determine the state of evidence as a matter of law and to withhold from the jury the right to find the defendant guilty of a lesser included offense.
Affirmed.
Fogleman, Hickman and Howard, JJ., dissent.