Cecily Zamora
Burglary, also called breaking and entering, is a property crime that involves illegally entering a building or area without permission, usually with the intention of committing a further criminal offence. The requirements for a burglary conviction have changed over time. Under common law, burglary must have been committed at night, and the defendant must have broken and entered a dwelling with the intention of committing a felony. Modern statutes have changed these requirements, eliminating the necessity for the crime to be committed at night, or for the defendant to have broken into the dwelling, and expanding the type of intended crime beyond felonies.
| Characteristics | Values | |
|---|---|---|
| Common Law Burglary | Modern-Day Burglary | |
| Definition | If any people break and enter the dwelling of another, in the nighttime, with the intent to commit a felony or any larceny (theft $500) therein, shall be guilty of burglary. | Any entry into the building or automobile of another with the intent to commit a crime, even if the entry would otherwise be permitted for lawful purposes, may constitute burglary. |
| Breaking Requirement | Must break and enter | No breaking and entering requirement. The offender may trespass through an open door. |
| Timing | Must occur at night | Can occur at any time |
| Type of Structure | Dwelling or house | Any type of building or structure as long as it meets certain requirements. Most states require that the structure is capable of either housing people or animals. |
| Intention | Must intend to commit a felony | Intention to commit any crime |
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What You'll Learn
Common law burglary required 'breaking and entering'
Common law burglary is defined as the breaking and entering of a dwelling of another person at night, with the intention to commit a felony or theft. The breaking element requires the use of force, such as creating an opening in the house that did not exist before. This could include opening a closed window or unlocking a door, as long as it involves the use of force. Entering can involve either physical entry by a person or the insertion of an instrument to remove property, as long as there is a causal relationship between the breaking and entering.
The definition of a dwelling varies, but it typically refers to a place regularly used for sleeping. Even if the building is used for other purposes, such as business, it can still be considered a dwelling if it is regularly slept in. However, a building under construction that has not yet been slept in would not be considered a dwelling for burglary purposes.
In the context of common law burglary, the felony intended to be committed inside the dwelling is usually theft, but it can also include other crimes such as murder, rape, arson, or assault. It is important to note that the actual commission of the felony is not necessary for a burglary conviction. As long as the defendant intended to commit a felony when breaking and entering, they can be convicted of burglary even if they later decide not to carry out the felony.
The requirements for burglary have evolved over time, and many jurisdictions have eliminated the requirement of breaking, allowing a conviction based solely on entry with the intent to commit a crime. Additionally, burglary no longer needs to take place at night, and the crime committed inside does not have to be a felony. These changes have broadened the scope of actions considered burglary, reflecting the evolving nature of criminal law and societal changes.
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Modern burglary does not require 'breaking'
The definition of burglary has evolved over time, with modern statutes doing away with the requirement of breaking. Many jurisdictions today allow a conviction for burglary based simply on entry with the intent to commit a crime. At common law, burglary required breaking and entering into a dwelling at night, with the intent to commit a felony or theft. Breaking entailed the use of force to create an opening in the house, but it did not require breaking down a door or shattering a window. Simply opening a closed window or nudging open an unlocked door was sufficient to meet the breaking element.
The Model Penal Code (MPC) significantly broadened the scope of actions considered burglary. Firstly, burglary no longer had to occur at night. Secondly, the burglar no longer needed to break into the house, and the crime committed inside did not have to be a felony. The MPC's approach to burglary indicated that burglary should be eliminated as a separate offence, as punishing it more severely than trespass and theft was deemed "harsh and irrational". The drafters believed that the law on "'attempt' now covered what was traditionally considered burglary.
However, burglary remained deeply embedded in American law and could not be discarded. Under the MPC, burglary requires "breaking and entering" or "entering and concealing" in a dwelling or house of another with the intent to commit a felony or theft. The "breaking" element can be actual or constructive, where the defendant causes another person to enter the dwelling to commit the felony. The "entering" element requires that part of the burglar's body passes the threshold of the house.
While burglary laws vary across states, the general understanding of burglary has evolved with societal changes. Some scholars argue that burglary should no longer be a separate criminal offence, and many states have modified or eliminated the traditional definitions. Modern burglary statutes reflect these changes, removing the requirement of breaking and focusing on the intent to commit a crime upon entry.
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Modern burglary can occur in any building or structure
The definition of burglary has evolved significantly over time, with modern statutes changing the requirements in several ways.
At common law, burglary was defined as breaking and entering the dwelling of another at night with the intent to commit a felony or theft therein. The dwelling had to be a place regularly used for sleeping, and the burglar had to use some force to gain entry.
However, modern burglary statutes have broadened the scope of what constitutes burglary. Firstly, burglary no longer needs to take place at night, as many jurisdictions have eliminated the element of "night" from the definition. Secondly, the burglar does not necessarily have to break anything to gain entry, as simply entering a building or structure with the intent to commit a crime may be considered burglary. This includes any building or automobile that the perpetrator is not licensed to be in or that is not open to the public.
Third-degree burglary, the broadest category, applies to any building or premises. Second-degree burglary retains the common-law element of a dwelling, while first-degree burglary requires the accused to be in a dwelling, armed, or intending to cause injury.
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Common law burglary was committed at night
The definition of burglary has evolved over time, with many jurisdictions modifying, broadening, or eliminating the traditional elements of the crime. Under common law, burglary was committed at night. This is no longer the case in many jurisdictions, which have eliminated the "night" element from the definition of burglary.
Common law burglary typically involved breaking and entering into a dwelling or house of another person, with the intent to commit a felony therein. The "breaking" element required the use of force, such as creating an opening in the house that did not exist before. However, this could occur on a different night than the "entering," as long as there was a causal relationship between the two.
The requirement for "breaking" has been eliminated in many jurisdictions, allowing for a conviction based solely on entry with the intent to commit a crime. Additionally, the definition of "dwelling" has been broadened to include structures beyond just the physical home of a person, such as automobiles and other premises.
The Model Penal Code (MPC) approach to burglary has also contributed to the evolution of the crime's definition. The MPC broadened the scope of actions considered burglary by eliminating the requirement for it to take place at night, removing the need to break into the house, and no longer requiring the crime committed inside to be a felony.
Despite these changes, burglary remains a separate criminal offense in most jurisdictions. The punishment for burglary is typically more severe than that of trespass or theft, reflecting the invasive and terrifying nature of the crime.
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Modern burglary can occur at any time
The definition of burglary has evolved over time, with modern statutes changing the requirements in several ways. One of the most significant changes is that modern burglary can occur at any time, unlike common law burglary, which required the offence to take place at night.
Common Law Burglary
Common law burglary is defined as breaking and entering the dwelling of another person at night, with the intent to commit a felony or theft. The breaking element required the use of force, such as creating an opening in the house. However, this could be done on a different night than the entry, as long as there was a causal relationship between the two.
Modern Burglary
Modern statutes have eliminated the requirement for the offence to take place at night, recognising that burglary can occur at any time of day. Additionally, the requirement to break into the dwelling has also been removed in many jurisdictions, allowing for a conviction based solely on unlawful entry with the intent to commit a crime.
The Model Penal Code (MPC) approach to burglary has broadened the scope of actions considered burglary. Firstly, by removing the time restriction, secondly, by eliminating the need to break into the dwelling, and finally, by including any crime committed inside, rather than just felonies.
The understanding of burglary has evolved to adapt to societal changes, with scholars even arguing that it should no longer be a separate criminal offence. The varying state laws and the embedded nature of burglary in American law have made it challenging to standardise its definition. However, the core elements of unlawful entry and criminal intent remain consistent across different interpretations.
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Frequently asked questions
Common law burglary is defined as breaking and entering the dwelling of another person at night, with the intent to commit a felony or theft.
Modern-day burglary definitions vary depending on the jurisdiction. Many have eliminated the requirement of breaking and the element of night from the definition. Modern burglary is defined as entering any premises with the intent to commit a felony or any crime.
The Model Penal Code is a set of criminal law rules written by experts to serve as a model for how states should enact their criminal laws. It significantly broadened the definition of burglary, eliminating the requirements of breaking and entering at night.
Common law burglary requires breaking and entering into a dwelling at night, whereas modern-day burglary definitions vary but often eliminate these requirements, focusing instead on the intent to commit a crime.
Some common defenses to a burglary charge include proving that you were not at the location when the crime was committed, or that you did not intend to commit a crime when breaking and entering.
