Committee Comments

The above instruction is meant for use with regard to the crimes, except possession of burglary instruments, listed in Chapter 58 of Title 21, entitled Burglary and House Breaking. The time, place, date, and description of the premises, plus ownership, possession, or occupancy, must be proved by the State to sustain the conviction. Ross v. State, 78 Okl. Cr. 293, 147 P.2d 797 (1944); Simpson v. State, 5 Okl. Cr. 57, 113 P. 549 (1911). When the crime is burglary in the second degree of a vending or coin operated machine, description of the premises should be interpreted to mean the type of machine with its serial number. Failure to prove the serial number is reversible error, Bly v. State, 1971 OK CR 213, 485 P.2d 479, unless there is otherwise sufficient evidence to prove property identification. Matthews v. State, 1975 OK CR 4, 530 P.2d 1044; Neal v. State, 1974 OK CR 221, ¶ 12, 529 P.2d 526, 530, overruled on other grounds, State v. Neal, 1979 OK CR 148, ¶ 3, 604 P.2d 145, 146-47.

Title 21 O.S. 1991, § 1438, is headed "Entering buildings or structures with intent to commit felony, larceny or malicious mischief--Braking [sic] and entering dwelling without permission." The Commission decided that this heading was too cumbersome to use in the instruction. Thus the Commission has adopted a term which better describes the crime and which is more appropriate for use in the instruction: "illegal entry." The name given the crime is unimportant so long as the name is an accurate description of the crime. "Illegal entry" seems more accurate than "house breaking."

The language "owned by," "in the possession of," and "occupied by" is placed in parentheses because the common law crime of burglary is most accurately described as a crime against habitation. Hence, an owner of a dwelling can be convicted of the burglary of that dwelling if the dwelling has been rented or leased to another person who has taken possession and has slept in the dwelling. For burglary in the first degree, the language "occupied by" seems most appropriate. For the other three crimes, the language "owned by" or "in the possession of" seems more appropriate. The alternate language on ownership, possession, and occupancy permits the judge to choose the language he feels is most suitable to the case being tried.