BURGLARY IN THE SECOND DEGREE
(VENDING MACHINES) - ELEMENTS
No person may be convicted of burglary in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
Second, a (coin operated)/vending machine;
Third, of another;
Fourth, with the intent to steal/(commit any felony).
Statutory Authority: 21 O.S. 1991, § 1435.
In the opinion of the Commission, section 1435 creates a separate crime with different elements, still called burglary in the second degree, when the place burglarized is a vending machine. The Commission has concluded that "breaks into" is synonymous with "forcibly opens" so that the language indicates only one element. The Commission has also decided that "breaks into and forcibly opens" does not imply an "entry" as a separate element of the crime. The Commission has concluded that the court would decide that "breaks into or forcibly opens" means the use of force, however slight, to remove an obstruction to entry, Matthews v. State, 530 P.2d 1044 (Okl. Cr. 1975) (coinbox opened with key); Hudson v. State, 525 P.2d 1380 (Okl. Cr. 1974), but that actually reaching inside the machine to fetch the contents or money is not an element of the crime. The Commission has reached this conclusion because the other crime created by section 1435 has the specific language "breaks and enters," whereas the vending machine crime does not, although the word "into" possibly could be interpreted to require entry.
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