State v. Liston

521 P.2d 1028, 95 Idaho 849, 1974 Ida. LEXIS 522

• Court: Idaho Supreme Court
• Decided: April 26, 1974
• Docket: 11027
• Status: Published

Opinions

McFADDEN, Justice.

Appellant, James Robert Liston was charged with and convicted of the felony of burglary in the first degree by entering The Bazaar with intent to commit larceny.

On the night of February 19, 1971, around 10:30 p. m., the Boise City Police responded to a call from a bonded policeman concerning a possible burglary of The Bazaar, a Boise department store. After arriving at the store, the police systematically searched the interior and found a swinging gate leading to the manager’s office propped open and a door forced open on the second floor. The store manager who joined the police during their search testified that the gate was always closed and that the door was in good repair that evening when he left the store.

After searching each of the store’s floors the police extended their search to the roof. The Hotel Manitou, which is adjacent to the Bazaar, shares a common roof with the Bazaar; of the two buildings, only the hotel’s fire escape in the alley reaches the roof. While an officer climbed the hotel’s fire escape, Officer Marcum accompanied by the store manager proceeded from the store’s top floor by way of a ladder through the store’s elevator shaft to a door which opens onto the roof. This is the only route from the Bazaar’s interior to the roof.

Officer Marcum, before opening the rooftop door, noticed that two spring bolt locks in the top and bottom center of the door were not functioning. He also discovered that a hook and eyelet lock similar to those used on screen doors, only much larger, had been ripped loose. Officer Marcum searched the Bazaar’s roof, and then, aided by another officer, searched the adjoining roof of the Hotel Manitou where he found the defendant crouched behind an air conditioner. The defendant was arrested and charged with burglary in the first degree. No burglar tools were found, and nothing was found missing from the store.

While the officers were searching the store’s interior, two other police officers who were parked in their car in a parking lot behind the Bazaar observed a person exit the elevator shaft door. They testified that this person wore a brown or tan jacket. The arresting officers described the defendant as wearing a “goldishbrown” jacket, a dark blue stocking cap, black trousers, and a gold sweater with horizontal red or orange stripes.

After a jury found the defendant guilty as charged, the district court entered a judgment of conviction and sentenced the defendant to the state penitentiary for a term not to exceed three years. The defendant then appealed from that judgment.

This appeal raises two related issues: whether there is proof of entry into the Bazaar and whether the defendant had the requisite intent to commit either grand or petit larceny. Burglary is defined as:

“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, closed vehicle, closed trailer, airplane or railroad car, with intent to commit grand or petit larceny or any felony, is guilty of burglary.” I.C. § 18-1401.

See, State v. Bullis, 93 Idaho 749, 472 P.2d 315 (1970).

We have reviewed the record and found sufficient evidence from which the jury could have concluded that defendant entered the Bazaar with the requisite intent to commit either grand or petit larceny.

The judgment of conviction is affirmed.

DONALDSON, McQUADE and BAKES, JJ., concur.