Anaya Nolan
Burglary, also known as breaking and entering, is a property crime that involves entering a building or other areas without permission, with the intent to commit a further criminal offence. The definition of burglary has evolved over time, with modern statutes changing the requirements in several ways. Common law burglary typically involves breaking and entering into a dwelling at night, with the intent to commit a felony therein. Modern law has broadened the scope of burglary, removing the requirement of breaking, allowing conviction based on unauthorized entry with the intent to commit any crime. Additionally, modern law may not limit burglary to dwellings or require the crime to be committed at night. While the specific elements of burglary may vary between jurisdictions, the evolution of burglary law demonstrates how societal changes and legal reforms have shaped the definition of this offence.
| Characteristics | Values |
|---|---|
| Breaking | Common law requires breaking and entering, but modern law has done away with the requirement of breaking. |
| Entering | Entering can be physical or involve inserting an instrument to remove property. |
| Dwelling | Common law requires breaking and entering into a dwelling, but modern law states that the building need not be a dwelling or even a building. |
| Time | Common law requires the crime to take place at night, but modern law does not have this restriction. |
| Crime | Common law requires the intent to commit a felony, but modern law states that the intent may be to commit any felony or theft. |
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What You'll Learn
Breaking and entering
At common law, to be convicted of burglary, there must be a "breaking and entering" into a "dwelling". A "dwelling" is defined as a place that is regularly used for sleeping. Even if a building is used for other purposes, such as business, it can still be considered a "dwelling" if it is regularly slept in. A dwelling under construction that has not yet been slept in does not meet this definition. However, once a building is considered a "dwelling", it retains this status even if the residents leave for a temporary period. Furthermore, if a dwelling structure is fenced in, any other structure inside the fence is considered an extension of the dwelling, even if those buildings are not used as living quarters.
Common law burglary also requires that the "breaking" involves the use of some force, which can include the insertion of an instrument to remove property. However, the use of a tool to gain entry may not constitute entering by itself. The common law also requires that the entry occur as a consequence of the breaking. For example, if a perpetrator uses a pry bar to partially open a window but then enters through an open door, there is no burglary under common law.
Modern statutes in many jurisdictions have eliminated the requirement of "breaking", allowing a conviction for burglary based solely on unauthorised entry with the intent to commit a crime inside. The Model Penal Code (MPC) in the United States, for instance, broadened the scope of actions considered burglary by removing the need for the burglary to take place at night, eliminating the requirement to break into the house, and allowing any crime committed inside to constitute burglary, rather than just a felony. Similarly, in New Zealand, the break element was removed from the definition of burglary in 2004, and unauthorised entry into a building or ship, or any part of it, now constitutes burglary.
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Dwelling definition
The definition of a 'dwelling' is a key aspect of burglary, and this has evolved from common law to modern law.
Common Law
At common law, a 'dwelling' is defined as a place that is regularly used for sleeping. This definition is satisfied if the building is regularly slept in, even if it is also used for other purposes, such as business. A building under construction is not considered a dwelling until someone has slept in it. Once a building is considered a dwelling, it retains this status even if the residents leave for a temporary period.
Modern Law
Many jurisdictions have eliminated the element of 'dwelling' from the definition of burglary. Now, burglary can be defined as entering any premises with the intent to commit a felony therein. However, some states still consider the definition of a 'dwelling' when prosecuting burglary. For example, in Florida, a 'dwelling' is defined as a building or conveyance of any kind that has a roof and is designed to be occupied by people lodging therein at night, along with the surrounding curtilage.
Model Penal Code
The Model Penal Code (MPC) has also broadened the scope of burglary. Under the MPC, burglary no longer needs to take place at night, and the burglar does not have to break into the dwelling. The crime committed inside does not have to be a felony, and any crime committed inside a structure can constitute burglary.
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Nighttime requirement
The nighttime requirement, a key feature of common law burglary, has been a subject of debate in modern law. At common law, burglary was defined as the "breaking and entering" of a dwelling at night with the intent to commit a felony. The requirement for nighttime has been a distinguishing factor between burglary and other property crimes.
However, modern statutes and legal codes have relaxed this requirement, reflecting societal changes and evolving notions of criminal justice. In some jurisdictions, the time of day is no longer considered an essential element of burglary. This evolution in legal thinking aligns with the understanding that burglary is a severe offence due to the invasion of the right of habitation, regardless of whether it occurs during the day or night.
For example, the Model Penal Code (MPC) in the United States has broadened the scope of burglary by eliminating the nighttime requirement. Under the MPC, burglary can occur at any time of day, and the focus is on the unauthorized entry and the intent to commit a crime. This change acknowledges that burglary can be equally harmful and distressing to victims, regardless of the time of day.
Similarly, in New Zealand, the Crimes Act 1961 originally codified common law burglary, including the break-in element. However, in 2004, the definition was amended to remove the break element, and now only unauthorized entry is required. This evolution demonstrates how legal systems are adapting to modern contexts, where burglary may involve more sophisticated methods beyond traditional breaking and entering.
While the nighttime requirement has been relaxed or eliminated in many jurisdictions, it is important to note that burglary remains a serious offence. The removal of this requirement does not diminish the severity of the crime but rather recognizes the need for a more comprehensive definition that captures the essence of the offence, which is the unauthorized intrusion with criminal intent.
In conclusion, the nighttime requirement of common law burglary has been a significant point of departure for modern legal systems. By re-evaluating and, in some cases, removing this requirement, modern law has adapted to changing societal needs and a more nuanced understanding of criminal behaviour. This evolution in legal thinking underscores the dynamic nature of the law and its ongoing effort to balance justice, deterrence, and the protection of citizens' rights.
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Intent to commit a felony
The intent to commit a felony is a critical aspect of burglary in both common law and modern law. In common law, burglary was defined as the "breaking and entering into the dwelling of another at night, with the intent to commit a felony therein". The definition has evolved in modern law, and while the specific elements vary across jurisdictions, the intent to commit a felony remains a key component.
In common law, burglary required the intent to commit a felony, such as assault or grand theft, as opposed to a misdemeanour like petty theft. For example, if John enters Ben's house without permission and steals $0.83 worth of loose change, he cannot be convicted of burglary under common law because he committed a misdemeanour, not a felony.
Modern law has expanded the scope of burglary by including the intent to commit any crime, not just a felony. This means that the prosecution must prove that the defendant entered a building or structure without permission and with the intent to commit a crime, regardless of its severity. This expansion ensures that a broader range of criminal behaviour is captured by burglary statutes, reflecting the evolving nature of society and criminal activity.
However, the distinction between felonies and misdemeanours still plays a role in modern burglary charges. In some states, the seriousness of the intended crime influences the degree of burglary charged and the severity of the penalty. For instance, burglary with the intent to commit a felony may result in a first-degree burglary charge, while burglary with the intent to commit a misdemeanour may be charged as second-degree burglary.
Furthermore, modern statutes have introduced nuances to the concept of "intent". For example, the timing of when the intent to commit a felony arose can affect the degree of burglary. If the defendant formed the intent before entering the building, it may be considered first-degree burglary. However, if the intent arose after entering, it could be classified as second-degree burglary.
In conclusion, while common law and modern law differ in their specific requirements for burglary, the intent to commit a felony or any crime remains an essential element in both legal frameworks. The evolution of burglary statutes reflects the changing nature of society and the need to adapt criminal law accordingly.
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Modern statutes
Another significant change in modern statutes is the expanded definition of a "dwelling." At common law, burglary was typically limited to breaking and entering into a dwelling, which was defined as a place regularly used for sleeping. Modern statutes, however, have broadened this definition to include various structures and enclosures. For example, in New Zealand, the definition of a "building" in the context of burglary includes an enclosed yard, and unauthorised entry onto agricultural land with the intent to commit an imprisonable offence is also considered burglary. This expansion ensures that burglaries involving non-traditional dwellings or structures are recognised and prosecuted.
The time of day is another factor that has been modified in modern statutes. Under common law, burglary typically had to occur at night to be considered a crime. However, modern statutes have removed this restriction, allowing burglary charges to be applied regardless of the time of day. This change reflects a more comprehensive understanding of criminal behaviour and acknowledges that burglaries can occur at any time.
Additionally, modern statutes have evolved to address the intent element of burglary. While common law often required the intent to commit a felony within the dwelling, modern statutes may broaden this to include any felony or theft. This expansion recognises that burglars may have varying intentions and that the severity of the intended crime should not diminish the seriousness of the unauthorised entry.
It is worth noting that while these changes reflect a modern understanding of burglary, the specific definitions and requirements can vary between jurisdictions. Each state or country may have its own unique adaptations to the burglary statutes, reflecting the evolving nature of criminal law and societal needs.
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Frequently asked questions
The common law elements of burglary are breaking and entering into a dwelling of another person at night with the intent to commit a felony therein.
"Breaking" requires that some force be used. It can be either physical entry by a person or the insertion of an instrument to remove property.
Modern statutes have changed the requirements for burglary. For example, modern laws have eliminated the requirement of breaking, and allow a conviction for burglary based on an entry with the intent to commit a crime inside.
The Model Penal Code's approach to burglary broadens the scope of actions that could be considered burglary. Burglary no longer must take place at night, the burglar does not have to break anything to enter, and the crime committed inside does not have to be a felony.
An example would be if a person enters a dwelling without breaking but then breaks into a closed part of the dwelling. This would constitute burglary under common law but may not under modern law, as modern laws often do away with the requirement of breaking.
