BURGLARY BY THE USE OF EXPLOSIVES - ELEMENTS
No person may be convicted of burglary by the use of explosives unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
Third, a building/(railway car)/vehicle/structure;
Fourth, of another;
Fifth, (by opening)/(by attempting to open)/(with the intent to open) a receptacle in which property is kept;
Sixth, by the use of explosives;
Seventh, with the intent to steal/(commit any felony).
Statutory Authority: 21 O.S. 1991, § 1441.
In Ex parte Bailey, 55 Okl. Cr. 99, 25 P.2d 718 (1933), the petitioner filed a habeas corpus proceeding which alleged, inter alia, that section 1441 conflicted with section 1435. The court stated that section 1441 was a statute of classification and not of definition. Hence, section 1441 does not change the elements of burglary, as given in section 1435, but merely provides a greater punishment when the burglary involves explosives. A later case, Hobson v. State, 280 P.2d 735 (Okl. Cr. 1955), as a second ground for upholding the trial court's denial of a motion to quash, stated that burglary in the second degree was a lesser included offense of burglary with explosives. Cf. Ward v. State, 34 Okl. Cr. 386, 246 P. 664 (1926) (robbery with firearms or other dangerous weapon is a classification of a particular manner of committing robbery); Richards v. State, 22 Okl. Cr. 199, 210 P. 295 (1922) (conjoint robbery is not distinct offense but one method of committing robbery).
In light of the Bailey and Hobson cases, the instruction on burglary with explosives uses language which is as consistent as possible with the language of the second-degree burglary instruction.