
    PEOPLE v. LARSON
    Burglary — Breaking and Entering — Occupied Dwelling.
    “Occupied dwelling” as used in the statute establishing the offense of breaking and entering an occupied dwelling refers to any dwelling house habitually used as a place of abode whether or not an occupant is physically present at the time of the breaking and entering (MOLA § 750.110).
    Reference for Points in Headnote
    13 Am Jur 2d, Burglary §§ 3, 4,
    Appeal from Muskegon, Albert J. Engel, J.
    Submitted Division 3 November 7, 1969, at Grand Rapids.
    (Docket No. 6,625.)
    Decided November 26, 1969.
    Maurice “Hook” Larson was convicted, on his plea of guilty, of breaking and entering an occupied dwelling house with intent to commit larceny. Defendant appeals.
    Affirmed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Paul M. Ladas, Prosecuting Attorney, for the people.
    
      Jerome R. Sanford, for defendant.
    Before: Fitzgerald, P. J., and R. B. Burns and Bronson, JJ.
   Per Curiam.

Defendant pled guilty to and was convicted of breaking and entering an occupied dwelling bouse with intent to commit larceny. MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28-.305) . Tbe only relevant facts are as follows:

Tbe crime occurred on or about April 2,1968. Tbe structure into wbicb defendant broke and entered with intent to commit larceny was used exclusively as a dwelling bouse by tbe family that owned it. At tbe time of tbe breaking and entering, no one was physically present in tbe dwelling bouse, tbe owners having temporarily departed to do errands.

Tbe trial court held that tbe dwelling was in fact, at tbe time of the breaking and entering, an occupied dwelling bouse, and, therefore, defendant was guilty of tbe crime charged in the information. Defendant on appeal argues that the bouse was unoccupied at tbe time of tbe crime and therefore tbe maximum sentence be could receive was 10 years, rather than tbe 4-to-15-year sentence be actually received.

Tbe only issue is whether defendant broke and entered an “occupied dwelling bouse” within tbe meaning of tbe statute as it read at tbe time of tbe crime.

Defendant knowingly pled g’uilty to a charge of breaking and entering an occupied dwelling. The trial judge found that the residence broken into was indeed an occupied dwelling.

Defendant’s unsupported argument that occupancy requires physical presence must fail. ■ The trial judge in rejecting that argument noted that within the common law definition occupancy does not require physical presence.

“[I]t is not necessary that he remain in the house or be there at the time of the commission of the burglary, nor is the duration of his absence material, provided he actually intends to return.” 85 ALR, 424, 429; 13 Am Jur 2d, Burglary, § 4, p 321.

In People v. Birts (1969), 16 Mich App 237, this Court stated, at pp 239, 240:

“We regard this clarifying amendment [PA 1968, No 324] as expositive of the correct construction of this section prior to the effectiveness of such amendment rather than as changing the meaning of the section. The term ‘occupied’ was used to convey the meaning attaching to that word in definitions of common-law burglary. At common law a breaking and entering of a structure habitually used as a dwelling house was burglary even though none of the occupants of the house were physically present at the time the offense was committed. 13 Am Jur 2d, Burglary, §§ 3, 4; 2 Wharton’s Criminal Law and Procedure, §§ 423, 427. See, also, Handy v. State (1904), 46 Tex Crim 406 (80 SW 526).”

The Court in Birts concluded that when the owners are temporarily absent from their home at the time of the breaking and entering, it does not convert their home from an occupied to an unoccupied dwelling. The Court also held on the basis of Stupetski v. Transatlantic Fire Insurance Co. (1880), 43 Mich 373, 375:

“It would we think be regarded as singular doctrine to hold that families leaving their houses on excursions or other temporary occasions cease to occupy them.”

We find the reasoning and outcome of People v. Birts, supra, compelling and controlling.

Affirmed. 
      
       “Any person who shall break and enter with intent to commit any felony, or any larceny therein, any tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat or ship, railroad car or any private apartment in any of such buildings or any unoccupied dwelling house, shall be guilty of a felony punishable by imprisonment in the state prison not more than 10 years. Any person who breaks and enters any occupied dwelling house, with intent to commit any felony or larceny therein, shall be guilty of a felony punishable by imprisonment in the state prison for not more than 15 years.”
     
      
       PA 1968, No 324 amended MCLA § 750.110 by adding the following: “For the purpose of this section 'any occupied dwelling house’ includes one that does not require the physical presence of an occupant at the time of the breaking and entering but one which is habitually used as a place of abode.” This amendment became effective November 15, 1968,
     