¶1(dissenting).
¶2I dissent from the conclusion of the majority opinion that there was in this case sufficient evidence from which the jury could have concluded that the defendant had the intent to commit either grand or petit larceny, or any other felony. I agree with the majority that the state introduced evidence, albeit slim, on the basis of which the jury could have concluded that the defendant at one time was in the building. The circumstantial evidence' might have been construed by the jury to indicate that the defendant had probably broken open the rooftop door to gain entrance.
¶3The more difficult question presented, however, is whether it may be presumed that since the defendant was once in the store he had the intent to commit larceny or another felony. If the defendant were apprehended in the store, such presumption might have some validity, but here the evidence discloses that the defendant entered the building and thereafter left it, and insofar as the record discloses took nothing from the store. Nothing from the store was found in his possession, nor in any other place outside the store. Nothing was established to be missing from the store. Thus I believe if there was a presumption of intent to commit larceny it was rebutted by the state’s own evidence.
¶4In my opinion, therefore, the evidence at best showed that the defendant had broken and entered the store. I do not believe the record sustains the conviction of burglary.