Anaya Nolan
The common-law elements of burglary typically involve breaking and entering into a dwelling or house of another at night, with the intent to commit a felony therein. The definition of breaking requires that some force be used to enter, while entering requires that part of the burglar's body or an instrument to remove property passes the threshold of the house. The dwelling need not be a building in the conventional sense, as it can include hangars, sheds, barns, boats, aircraft, trucks, and more. The intent to commit a felony can be any crime, not necessarily theft, and the actual commission of the felony is not necessary for burglary to be committed. The common-law definition of burglary has evolved and varies between jurisdictions, with some eliminating the elements of dwelling, breaking, and night.
| Characteristics | Values |
|---|---|
| Breaking | Requires that some force be used to enter the house |
| Entering | Requires that part of the burglar's body pass the threshold of the house |
| Dwelling or House | A place that is regularly used for sleeping |
| Time | At night |
| Intent | To commit a felony |
| Jurisdiction | Many have eliminated the elements of "dwelling" and "night" from the burglary definition |
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What You'll Learn
Breaking and entering
The definition of burglary has evolved and varies across jurisdictions. At common law, the crime of burglary had a very narrow definition, requiring breaking and entering into a dwelling at night with the intent to commit a felony therein. Breaking and entering are two separate elements of the offence.
"Breaking" requires the use of some force to enter the dwelling. For example, using a pry bar to partially open a window would constitute breaking, but not entry. If the perpetrator then used their hands to lift the window to gain entry, an "entry" would be deemed to have taken place.
"Entering" requires that some part of the burglar's body passes the threshold of the dwelling. In most jurisdictions, the breaking must occur for the purpose of entering the dwelling. Therefore, if a defendant gained entry without breaking but had to break open an opening to exit, this would not satisfy the breaking element.
The definition of "dwelling" has also been expanded in many jurisdictions. A dwelling need not be a building in the conventional sense and can include enclosed yards, hangars, sheds, barns, boats, aircraft, and trucks. The requirement for the breaking and entering to occur at night has also been eliminated in many jurisdictions.
It is important to note that the actual commission of a felony is not necessary for a burglary conviction. As long as the defendant intended to commit a felony at the time of breaking and entering, they can be convicted of burglary even if they did not ultimately carry out the intended crime.
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Intent to commit a felony
The intent to commit a felony is a crucial element of burglary at common law. This element is typically expressed as the intent to commit a felony "therein", referring to the intention to commit a felony within the dwelling or premises. It is important to note that the actual situs or location of the intended felony is not limited to the premises being entered. As long as there is an intention to commit a felony at the time of breaking and entering, burglary has occurred, regardless of where the felony itself was intended to take place.
The nature of the intended felony is also significant. Burglary requires the intent to commit a serious offence, such as assault, which is classified as a felony. On the other hand, intending a misdemeanour, such as petty theft, would generally not satisfy the intent element of burglary. This distinction is important because burglary is typically classified as a felony, even if the intended crime is a misdemeanour. Therefore, the intent to commit a felony elevates the unlawful entry into a more serious offence.
While the intent to commit a felony is necessary, the actual commission of the felony is not required for a burglary conviction. In other words, a defendant can be found guilty of burglary even if they never carry out the intended felony once inside the dwelling. The critical factor is their intention at the time of breaking and entering. This distinction is essential in understanding burglary as a separate offence from the intended crime. For example, if a person enters a building without authorisation and with the intent to commit vandalism, they can be charged with burglary, and the vandalism, if carried out, would be treated as a separate offence.
It is worth noting that the definition of dwelling has evolved in modern statutes. While traditionally, burglary required breaking and entering into a dwelling, many jurisdictions have eliminated this requirement. Instead, burglary may be committed by entering any premises, including buildings, ships, or even agricultural land, without authorisation and with the intent to commit a felony or another serious offence. This expansion of the definition reflects the changing understanding of burglary and its alignment with modern societal needs.
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Nighttime
The definition of burglary has evolved over time, with the common-law definition being narrower than modern interpretations. At common law, burglary must be committed at night to qualify as such. However, many jurisdictions have eliminated the element of "night" from the definition, considering burglary as entering any premises at any time with the intent to commit a felony.
The requirement for nighttime has been relaxed in some jurisdictions, where burglary is defined as entering a dwelling without permission, regardless of the time of day. This change reflects the understanding that burglary is a serious intrusion regardless of the time of day.
The traditional common-law definition of burglary included the requirement that the offence take place at night. This element distinguished burglary from the lesser crime of trespass, which could occur during the daytime. The specific timing of "nighttime" is not always defined, but it generally refers to the hours between dusk and dawn.
The requirement for nighttime in common-law burglary reflected the idea that darkness provided cover for wrongdoers and increased the fear and danger associated with the crime. It also aligned with the traditional notion of a dwelling as a place of refuge, where people sought safety and security at night.
In modern times, the elimination of the nighttime requirement in some jurisdictions reflects the understanding that burglary is a serious offence regardless of the time of day. Additionally, the definition of "dwelling" has expanded beyond traditional physical homes to include other structures and vehicles, such as boats, aircraft, and trucks.
While the definition of burglary has evolved, the core elements of unauthorised entry with the intent to commit a crime remain consistent. The removal of the nighttime requirement ensures that burglary laws capture the seriousness of the offence and provide appropriate penalties, regardless of the time of day.
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Unauthorised entry
The definition of "unauthorised entry" has evolved over time, and jurisdictions have different interpretations of this element of burglary.
At common law, "unauthorised entry" was a narrow concept. Traditionally, burglary required "breaking and entering", and the entry had to occur as a consequence of the breaking. For example, if a window was partially opened with a tool but the burglar entered through an open door, this would not have constituted burglary under common law. However, if any part of the burglar's body entered the residence in an attempt to gain entry, it would be considered "unauthorised entry".
The definition of "unauthorised entry" has been expanded in most jurisdictions. The Model Penal Code's approach to burglary has broadened the scope of actions that could be considered unauthorised entry. Firstly, the burglary does not have to take place at night. Secondly, the burglar does not have to break anything to gain entry. Finally, the crime committed inside does not have to be a felony. For example, in New Zealand, the break element was removed from the definition, and now only unauthorised entry into a building or ship, or a part of it, is required.
Some jurisdictions have eliminated the element of "dwelling" from the definition of burglary, considering it unauthorised entry onto any premises with the intent to commit a felony. The definition of "dwelling" has also been expanded to include not just physical homes but also any building or structure, such as hangars, sheds, barns, and even boats and aircraft.
It is important to note that the unauthorised entry must be for the purpose of entering the dwelling. If the defendant gains entry without breaking but breaks an opening to exit, this does not satisfy the element of unauthorised entry in most jurisdictions. Additionally, the intent to commit a felony must be present at the time of unauthorised entry. If the intent to commit a felony is formed after entering the dwelling, it does not constitute burglary.
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Jurisdictional variations
United States
In the United States, burglary is prosecuted as a felony or misdemeanour, encompassing trespassing, theft, entering a building or automobile, or loitering with the intent to commit any crime, not just theft. The Model Penal Code's approach to burglary broadened the scope of actions considered burglary by eliminating the requirement for it to occur at night, removing the need to break into a house, and expanding the crime committed inside beyond a felony.
New Zealand
In New Zealand, burglary is addressed under the Crimes Act 1961. Initially, it mirrored the common law offence, but from October 2004, the definition was amended to exclude the 'break' element. Now, unauthorised entry into any building, ship, or part thereof constitutes burglary. The definition of a building is broad and includes enclosed yards and agricultural land.
Canada
Canada has a specific provision, Section 348 of the Criminal Code, prohibiting breaking and addressing burglary in residences. Burglary is considered an indictable offence when committed in a residence and otherwise as a hybrid offence.
Scotland
Common law crimes in Scotland are gradually being replaced by statutes.
Sweden
Sweden does not recognise burglary as a standalone offence. Instead, breaking into any premise can lead to charges of unlawful intrusion (olaga intrång) or breach of domiciliary peace (hemfridsbrott), depending on the specific circumstances.
These examples demonstrate how the common law elements of burglary have been adapted and modified by different jurisdictions, reflecting the evolving nature of criminal law and societal changes.
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Frequently asked questions
The common-law elements of burglary often vary between jurisdictions. The traditional common law definition of burglary is narrow and typically involves breaking and entering into a dwelling at night with the intent to commit a felony therein. However, the modern definition has been expanded in most jurisdictions, and the common law elements of burglary now include:
- Breaking and entering
- Into a dwelling or house of another
- At night or during the day
- With the intent to commit a felony or any other crime therein
"Breaking" requires that some force be used to enter the house. "Entering" requires that part of the burglar's body pass the threshold of the house. Breaking without entry or entry without breaking is not sufficient for common-law burglary. The breaking must occur for the purpose of entering the dwelling, and the entry must occur as a consequence of the breaking.
A "dwelling" is defined as a place regularly used for sleeping. The definition of a dwelling for burglary purposes can include buildings that are used for other purposes, as long as they are regularly slept in. In some jurisdictions, the element of "dwelling" has been eliminated from the burglary definition, and burglary is defined as entering any premises or structure with the intent to commit a felony or any other crime.
Burglary is typically considered a felony, even when the intended crime is a misdemeanour. Burglary is often distinguished from trespass and theft by the severity of its punishment. However, the drafters of the Model Penal Code considered eliminating burglary as a separate offence because punishing it more severely than trespass and theft was deemed "harsh and irrational". In some jurisdictions, burglary has been replaced by other offences such as unlawful intrusion or breach of domiciliary peace.
