BURGLARY

BURGLARY

The criminal offense of breaking and entering a building illegally for the purpose of committing a crime.

Burglary, at COMMON LAW, was the trespassory breaking and entering of the dwelling of another at night with an intent to commit a felony therein. It is an offense against possession and habitation. The common-law elements of the offense have been modified in most jurisdictions by statutes that tend to make the crime less restrictive.

Elements of the Offense
Trespass The TRESPASS element of the
offense signifies that it must occur without the
consent of the victim. If the thief gains entry by
misrepresenting his or her identity, the element
of trespass is satisfied, as there is no consent to
entry.
Breaking Breaking consists of creating an
opening for entry into the building. It can be
accomplished by removing an object that is
blocking an entry or by blasting open a wall. The
use of force is not required. The breaking ele-
ment is satisfied if access is obtained by opening
a closed door or window, regardless of whether
these are locked.
At common law, entering through a pre-
existing opening did not constitute breaking. If
one gained access through an open door or win-
dow, burglary was not committed. The same
rule applied when a door or window was par-
tially open even though it was necessary to open
it further in order to enter. The rationale under-
lying this rule was that one who failed to secure
his or her dwelling was not entitled to the pro-
tection of the law. A majority of states no longer
follow this rule and consider breaking to be the
slightest application of force to gain entry
through a partially accessible opening.
When entry is gained by a MISREPRESENTATION of identity or by any other trick, it is called
constructive breaking, which satisfies the breaking
requirement of burglary. On the other hand, if a person, such as a servant, has authority to
enter, there is no breaking unless he or she
breaks into and enters an unauthorized area.
Under the common law, the breaking had to
occur immediately before the time of entry.
Most jurisdictions that retain the breaking element
are in agreement; in others, the breaking
can occur during a reasonable time before the
entry. Some jurisdictions have completely eliminated
the element of breaking from the statutory
definition of burglary, while others require
it for one degree of burglary but not another.
Entry In the course of a burglary, entry is
the act that follows the breaking. Literally, it
occurs when there is physical intrusion into
another’s dwelling or building by any part of the
intruder’s body. A momentary intrusion will
suffice. When a thief kicks open a window to
gain access to a dwelling, the momentary insertion
of the foot constitutes an entry.
When an instrument is used to gain access to
a dwelling, the intrusion of the instrument is not
an entry unless it is used to accomplish the
intended felony. If the instrument is used to take
something from inside the building, there is an
entry sufficient for burglary.
An entry may be constructive. In other
words, it is not always required that the thief
enter the dwelling. If he or she directs another
person not legally capable of committing the
offense, such as a child, to enter, then the entry
is imputed to the thief.
In jurisdictions where breaking is an element
of burglary, there must be causation
between the breaking and entry. Although the
acts may occur at separate times depending
upon statute, the entry must follow from the
breaking. Where a hole is drilled into a wall on
one day and entry occurs a few days later, there
is a causal link between the breaking and entry.
Dwelling At common law, the entry had to
be into the dwelling of another to constitute the
offense. A dwelling was defined as a house or
mansion where one normally sleeps, although it
was not necessary that it be occupied at the time
of entry. Structures and premises immediately
surrounding the dwelling, such as an outhouse
or a yard, were also protected since they were
considered part of the dwelling.
A dwelling had to be a place of human habitation
and occupancy.A storehouse protected by
a nightwatchman was not a dwelling even if he
occasionally slept in it. If, however, it was within
the immediate surroundings of a dwelling, it
would be treated as a dwelling for purposes of
burglary.
Today, most jurisdictions have expanded the
common-law requirement that the offense take
place in a dwelling. There is no jurisdiction that
retains this requirement for all degrees of burglary.
Under modern statutes, the offense can
occur in any enclosed structure, regardless of
whether it is used for habitation.
Nighttime The requirement that the breaking
and entering occur at night was an essential
element of the offense at common law. Sunrise
and sunset were not the means of determining
night and day. The proper test was whether the countenance of a human could be discerned by
natural light.
Many jurisdictions no longer require that the
offense occur at night. Some states have retained
it for higher degrees of the offense, but do not
require it for all degrees.Under statutes retaining
the nighttime element, it is defined as occurring
30 minutes before sunrise or 30 minutes after
sunset. It is not necessary that all acts be done on
the same night. If the breaking and entering is
done one night and the felony is committed a
few nights later, the offense is committed.
Intent Under the common law, an intent to
commit a felony at the time of breaking and
entering into the dwelling was an essential element
of burglary. Since LARCENY was a felony at
common law, an intent to commit a larceny
would suffice. Statutes vary from one jurisdiction
to another. An intent to commit a felony is
no longer required for all grades of the offense.
In some states an intent to commit any crime
will suffice.Many states have retained the felony
requirement for higher grades of the offense.
Absent this intent element, a breaking and entry
might be a trespass, but not be a burglary.
If a defense to the underlying crime or
felony is sufficiently established, there can be no
conviction for burglary. For example, if a person
charged with burglary is accused of larceny and
has a sufficient defense to the larceny charge,
then there is no burglary.
Degrees of the Offense
Some jurisdictions have a statutory scheme
under which the offense is divided into degrees.
These types of statutes frequently impose heavier
penalties when the offense involves the use of
force or weapons. Under one such statute, burglary
in the third degree is committed by a person
knowingly entering or remaining unlawfully
in a building with an intent to commit a crime
therein. When the same offense is committed
with explosives or deadly weapons, or when it
results in physical injury to a person who is not
a participant in the crime, it is burglary in the
first degree, for which there is a greater penalty.
Imprisonment is the usual punishment for
burglary. Under statutes in many states, the
severity of the sentence is determined by the
degree of the burglary.
FURTHER READINGS
Cromwell, Paul F., and James N. Olson. 2003. Breaking and
Entering: Burglars and Burglary. St. Paul, Minn.:
Wadsworth.
Thomas, D.A. 2003. “Domestic burglary—Sentencing
Guidelines.” Criminal Law Review (March): 209-214.