People v. Jacques
People v. Jacques
Opinion of the Court
The issue presented in this case is whether entry into an enclosure by crawling under a fence constitutes the crime of entry without breaking, MCL 750.111; MSA 28.306. The Court of Appeals held that a fence is included in the catchall category of “structure” contained in the statute. We disagree with the Court of Appeals and hold that a fence is not a structure for the purposes of the statute.
i
The defendant was arrested for stealing four crushed pop cans from a 7-UP distribution center. Apparently, he slid under the fence surrounding the center through a six- to eight-inch depression in the ground, picked up the cans, and put them in his pocket. He was discovered by the police holding on to the back of a trailer parked within the fenced area. When questioned by the police, he admitted that he did not have permission to be in the center, and that he had gained access to the enclosure by crawling under the fence.
Defendant was convicted of entry without breaking
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The crime of entry without breaking is defined as:
Any person who, without breaking, shall enter any dwelling, house, tent, hotel, office, store, shop, warehouse, bam, granary, factory or other building, boat, ship, railroad car or structure used or kept for public or private use, or any private apartment therein, with intent to commit a felony or any larceny therein, shall be guilty of a felony punishable by imprisonment in the state prison not more than 5 years, or fined not more than $2,500.00. [MCL 750.111; MSA 28.306.]
While the term “fence” or “fenced enclosure” does not appear in the specifically enumerated terms of the statute, both the trial court and the Court of Appeals found that a fence is included in the general term “structure.” The question before us is whether, in the context of the statute, the word structure was meant to include a fence.
Our first step in interpreting a statute is to look at the “common and approved usage” of the word in question. People v Fields, 448 Mich 58, 67; 528 NW2d 176 (1995). This principle of statutory construction
When the ordinary meaning of a term is not helpful, this Court has traditionally looked to a second principle of statutory construction, ejusdem generis. This principle was stated by this Court in People v Brown, 406 Mich 215, 221; 277 NW2d 155 (1979):
“This is a rule whereby in a statute in which general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated.” [Quoting People v Smith, 393 Mich 432, 436; 225 NW2d 165 (1975).]
In Smith, this Court used the principle of ejusdem generis to interpret the statutory offense of carrying a
Similarly, in the statute before us, the terms dwelling, house, tent, hotel, office, store, shop, warehouse, bam granary, factory or other building, boat, ship, and railroad car all appear before the term structure. The commonality shared by all these terms is that they are buildings or structures that may be entered into. Indeed, the purpose of the statute is to prohibit the unlawful entry into a building or structure. Because all the specific terms listed in the statute are limited to places that may be entered into, the general term structure must also be so limited.
The dissent argues that the use of ejusdem generis is inappropriate in this case because the term structure is not preceded by the modifying word “other” in the statute; therefore, the language employed by the Legislature manifests an intention for the term structure to be read expansively. We agree with the dissent
In contrast, we find no such manifestation of intent in the context of the present statute. First, none of the cases cited by the dissent require the use of a modifying term such as “other” to come before the general term in a statute.
The only remaining question is whether a fence is a structure that one may physically enter into. We hold that it is not. Of course one could enter into a fenced “area,” as the defendant did in the instant case. However, only the fence itself is “built up or composed of parts joined together,” Adams, supra at 738; on the other hand, the “area” is merely a piece of land on which a person can trespass. The area does not consist of anything built up, or anything made of parts joined together. Thus, limiting our consideration to the fence itself, we hold that a fence is not a structure that may be entered into. As counsel for the defendant stated at oral argument:
[Y]ou can’t be inside a fence. You can be on one side or the other or on top or underneath, but you can’t be inside a*359 fence. You can be on the property if you’re on the wrong side of the fence, but you can’t be in the fence.
Noticeably absent from the terms in the statute is anything resembling a fence. The Legislature chose not to include fence, wall, gate, or barrier in the statute. Nor did it include fenced enclosure, compound, or secured area. If the Legislature wanted to criminalize crawling under a fence as entry without breaking, it easily could have done so. For whatever reason, it chose not to include a fence in the statute, and we are not inclined to reword the statute to mean something the Legislature did not intend.
We note that nothing in this opinion should be construed to legalize crawling under a fence to steal. A person who does so may be guilty of trespassing and larceny or intent to commit larceny. However, in this case the defendant’s quest for pop cans, although criminal, did not violate this particular statute.
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The defendant also argues that the prosecution failed to fulfill its duty to render reasonable assistance in locating and serving process on a defense witness.
IV
Because we find a fence is not a structure under the entry without breaking statute, the decision of the Court of Appeals is reversed, and the defendant’s conviction is vacated.
The defendant was originally charged with breaking and entering, MCL 750.110; MSA 28.305. On a motion for directed verdict by the defendant at the close of the prosecution’s proofs, the trial judge found that there was no evidence of a breaking and reduced the charge to entry without breaking.
MCL 750.227; MSA 28.424.
Another part of the statute made it illegal to carry a concealed pistol. We also held that an m-i rifle did not fit the definition of a pistol.
The Court did note that the defendant could have been properly charged with carrying a firearm or dangerous weapon with unlawful intent. MCL 750.226; MSA 28.423. Thus, the defendant’s actions may have been criminal, just not by means of the statute under which he was charged.
MCL 333.7521(1)©; MSA 14.15(7521)(l)ffl.
In the first case relied on in the dissent, Pennsylvania Steel Co v J E Potts Salt & Lumber Co, 63 F 11 (CA 6, 1894), the Court never makes a distinction between the words “structure” and “other structure,” as asserted by the dissent. Bather, the case stands for the proposition that a general term following a list of more specific terms is limited by those specific terms. The limitation of the general term is not conditional upon the existence of the word “other” in the statute.
The other case relied on by the dissent, C K Eddy & Sons v Tierney, 276 Mich 333; 267 NW 852 (1936), involved a statute that used the terms “building, structure, or premises.” The Court held that the three terms were used disjunctively, and therefore, the doctrine of ejusdem generis should not apply. In that statute, the Legislature used three general terms, none of which was specific enough to limit the others. The Court properly concluded that the three general terms were not modified by each other, and therefore, ejusdem generis was inappropriate. In contrast, the statute
This is still the case if the listed words in the statute are divided into two groups, as advocated by the dissent. “[B]oat, ship, [and] railroad car” are still all structures that may be entered into.
MCL 767.40a; MSA 28.980(1).
Dissenting Opinion
(dissenting). I would affirm the judgment of the Court of Appeals because a fence of the sort here in question (seven feet high, effecting a full enclosure) constitutes a “structure” under the entry without breaking statute. MCL 750.111; MSA 28.306.
The majority opinion is premised on the ejusdem generis doctrine. As stated in In re Mosby, 360 Mich 186, 192; 103 NW2d 462 (1960):
The rule of ejusdem generis is not to be invoked in every case where general words follow (or possibly precede) specific words. For example, it applies only where the specific words relate to subjects of a single kind, class, character, or nature, as noted above. In all events, the rule is useful only for purposes of aiding the judicial search for the sometimes elusive scrivener’s intent. Where the language used, considered in its entirety, discloses no purpose of limiting the general words used, the rule of ejusdem generis may not be invoked to defeat or limit the purpose of the enactment.
Also relevant is the following language from Black’s Law Dictionary, which this Court cited with approval in In re Forfeiture of $5,264, 432 Mich 242, 252-253, n 7; 439 NW2d 246 (1989), a case in which this Court refused to apply the doctrine of ejusdem generis to a statute:
“The rule, however, does not necessarily require that the general provision be limited in its scope to the identical things specifically named. Nor does it apply when the context manifests a contrary intention.”
After full consideration of the statute in question, I am satisfied that the doctrine should not be applied to limit the items that can be considered to be a
The crime of entry without breaking is defined as:
Any person who, without breaking, shall enter any dwelling, house, tent, hotel, office, store, shop, warehouse, bam, granary, factory or other building, boat, ship, railroad car or structure used or kept for public or private use, or any private apartment therein, with intent to commit a felony or any larceny therein, shall be guilty of a felony punishable by imprisonment in the state prison not more than 5 years, or fined not more than $2,500.00. [MCL 750.111; MSA 28.306.]
The first part of the statute consists of a list starting with “any dwelling, house, tent,” etc., and ends with the phrase “factory or other building.” The second part of the list continues “boat, ship, railroad car or structure.” I find it significant that the Legislature chose to modify “building” in the first listing with the word “other,” but did not so modify the word “structure” in the second. While the majority apparently dismisses this as a distinction without a difference, all would acknowledge that it is at least curious that there was such an omission. It is our duty to grapple with this and give meaning, if such is possible, to the
Further, because “other” restricts the noun “building,” its lack before “structure” means that structure should be read as an effort by the Legislature to use the word expansively as a catchall term. Reinforcement for this analysis comes from Pennsylvania Steel Co v J E Potts Salt & Lumber Co, 63 F 11, 15 (CA 6, 1894), in which the United States Court of Appeals for the Sixth Circuit considered the Michigan mechanic’s lien statute. The Sixth Circuit said that the words “other structure” had to be understood in relation to the words immediately preceding, to wit, “house, building, machinery, wharf.” Implicitly, the failure to qualify “structure” with the word “other” logically leads to the view that the Legislature did not
Further support for my conclusion that the rule of ejusdem generis should not be applied to the word structure comes from C K Eddy & Sons v Tierney, 276 Mich 333, 340-341; 267 NW 852 (1936). In that case, the Court considered an ordinance forbidding the alteration of a “building, structure, or premises” except for specified purposes. This Court refused to apply the doctrine of ejusdem generis because each of the series of terms, “buildings, structures, or premises” was used disjunctively, standing independent of any other, the whole encompassing the broad field that the ordinance manifestly intended to reach. Thereafter this Court cited a definition of the word “structure” that was broad enough to include a seven-foot high fence.
The majority asserts, for reasons unclear to me, that one cannot be inside a fence. I disagree. An area which people enter is commonly described as being in a fenced-in area. In this sense, then, one can be inside a fence. It is only because the majority has not
Accordingly, by utilization of the syntactical rules that control our language, I conclude, along with the Court of Appeals, that the Legislature contemplated a fence
I would affirm defendant’s conviction.
MCL 8.3a; MSA 2.212(1) (“All words and phrases shall be construed and understood according to the common and approved usage of the language”).
Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992) (In construing a statute, a court should presume that every word has some meaning and no word should be treated as surplusage or rendered nugatory if at all possible).
It is in fact this type of analysis, as the majority notes, that led the Court in People v Smith, 393 Mich 432, 435; 225 NW2d 165 (1975), to conclude that “other” triggered the ejusdem generis analysis.
The majority asserts that the commonality shared by all the terms in the statute is that each may be entered into. However, this is not entirely correct. For example, a barge is a boat or ship and one would not normally state that one entered into a barge.
Black’s Law Dictionary (6th ed), p 618, defines a “fence” as a “hedge, structure or partition.”
I would leave for a later day the interesting question of a burglary in a bread box.
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