Kara Sears
Common law burglary is defined as the breaking and entering of a dwelling at night with the intent to commit a felony. The definition of a dwelling varies, but it generally refers to any structure that is fenced in, including barns and tool sheds. Breaking and entering do not have to occur on the same night, but there must be a causal relationship between the two. Modern statutes have expanded the definition of burglary to include the entering of any premises or vehicle with the intent to commit any crime, eliminating the requirement for it to be a felony.
| Characteristics | Values |
|---|---|
| Breaking | Requires some force to be used |
| Entering | Physical entry by a person or insertion of an instrument to remove property |
| Dwelling | Of another person; the right of habitation determines who the dwelling belongs to |
| Time | At night; modern statutes no longer require this |
| Crime | Intent to commit a felony or any other crime |
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What You'll Learn
Common law burglary requires breaking and entering
The common law elements of burglary often vary between jurisdictions. For example, in New Zealand, burglary is a statute offence under the Crimes Act 1961, but the break element was removed from the definition in 2004, so that unauthorised entry into a building or ship, or part of one, now constitutes burglary. In Sweden, burglary does not exist as an offence in itself, but there are equivalent offences of unlawful intrusion and breach of domiciliary peace. Under Scots law, burglary does not exist either, but theft by housebreaking covers theft where the security of a building is overcome. In the United States, burglary is prosecuted as a felony or misdemeanour and can include trespassing, theft, entering a building or automobile, or loitering unlawfully with the intent to commit any crime.
In many jurisdictions, the definition of burglary has been expanded so that the building need not be a dwelling, and physical breaking is not necessary. For example, in the United States, burglary can include hangars, sheds, barns, and coops, as well as boats, aircraft, trucks, military equipment, and railway cars. The entry also does not need to occur at night, and the intent may be to commit any felony or theft, rather than just a felony. However, burglary of a dwelling is considered an aggravating circumstance that will bring a higher penalty than burglary of a non-dwelling, and burglary committed at night is also often considered an aggravating circumstance.
It is important to note that the right of habitation, not the right of ownership, determines who the dwelling belongs to for burglary purposes. This means that it does not matter who owns the dwelling, but rather who has the right to live there. For example, in the case of a two-family house that is partitioned into two separate living spaces, one party's breaking and entering into the other party's living space at night with the intent to commit a felony would constitute burglary.
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It must occur at night
The requirement for burglary to be considered a crime at common law is that it must occur at night. This is because burglary was considered a "very heinous offence" due to the "abundant terror" it carried. The breaking and entering do not have to happen on the same night, but there must be a causal relationship between the two. For instance, a defendant can create an opening in a dwelling one night and use that opening to gain entry on another night.
However, modern statutes no longer require burglary to occur at night. Many jurisdictions have eliminated the element of "night" from the definition of burglary, instead considering it as the entering of any premises at any time with the intent to commit a felony. Nevertheless, burglary committed at night is often considered an aggravating circumstance, resulting in higher penalties than burglaries committed during the day.
In some countries, the definition of burglary has evolved beyond common law. For example, in New Zealand, burglary is a statutory offence under the Crimes Act 1961, which originally codified the common law offence. However, since 2004, the break element has been removed, and unauthorised entry into a building or ship, or a part of it, now constitutes burglary. In Sweden, burglary does not exist as a standalone offence; instead, unlawful intrusion or breach of domiciliary peace are considered depending on the premise in question. Under Scots law, burglary as a crime does not exist, and theft by housebreaking covers theft where the security of a building is overcome.
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The intent must be to commit a felony
At common law, burglary is defined as the breaking and entering of the dwelling of another at night with the intent to commit a felony therein. The intent requirement is an essential element of the offence of burglary. The prosecution must prove beyond a reasonable doubt that the accused had the specific intent to commit a felony at the time of the breaking and entering. This element distinguishes burglary from other crimes such as trespass or criminal damage, where the intent may be less specific or where no intent is required at all.
The felony intended is typically theft or larceny, but it can include any other felony offence. The specific felony intended does not need to be proven, as long as there was a general intent to commit a felony. This allows for a broader scope of prosecution and takes into account that circumstances may change or that the accused may have had multiple felonious intentions. For example, an intruder may break into a home intending to steal, but then also assaults the homeowner. As assault is also a felony, the intruder can be charged with burglary even if the original intent was to steal.
The intent must exist at the time of entry or breaking. If the intent to commit a felony forms after the unlawful entry, then it does not satisfy the requirements for burglary. For example, a person trespasses on a property and then, once inside, decides to steal something. As the intent to steal was formed after the unlawful entry, this would not constitute burglary. However, if the person intended to steal prior to trespassing, and the trespass was committed in furtherance of that intent, then this would meet the requirements for burglary.
The intent must also be to commit a felony, not a misdemeanour or lesser offence. This is because burglary is a serious offence that carries significant penalties, and so the intent requirement reflects the gravity of the crime. If the intruder only intended to commit a minor offence, such as a petty theft or vandalism, then this would not meet the threshold for burglary, and other charges would be more appropriate.
The prosecution must rely on circumstantial evidence to prove the intent, as it is rarely possible to produce direct evidence of a person's state of mind. This may include the time and manner of entry, the tools or weapons carried by the accused, any statements made, and the behaviour of the accused before and after the incident. For example, if an accused is found with burglary tools, this may indicate an intent to commit burglary.
It is important to note that the common law definition of burglary has been modified and updated in many jurisdictions, and so the specific requirements and elements of the offence may vary depending on the location and applicable legislation. However, the intent to commit a felony remains a key feature of burglary offences, even in these modified forms.
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The structure must be a dwelling
In the United States, burglary is prosecuted as a felony or misdemeanour and involves trespassing and theft, entering a building or automobile, or loitering unlawfully with the intent to commit any crime. The structure in question can include hangars, sheds, barns, and coops, and in some cases, boats, aircraft, trucks, military equipment, and railway cars.
In New Zealand, the definition of a building is very broad and can include all forms of dwelling, including an enclosed yard. However, the definition of a dwelling can vary between jurisdictions, and some have removed the requirement for the structure to be a dwelling at all. For example, in some jurisdictions, burglary is defined as the "trespassory entry into any structure or vehicle with the intent to commit any crime".
The definition of a dwelling is important in determining the severity of the burglary conviction. Burglary of a dwelling is considered an aggravating circumstance that will bring a higher penalty than burglary of a non-dwelling.
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The dwelling must belong to another person
At common law, burglary is defined as the breaking and entering of the dwelling of another at night with the intent to commit a felony therein. One of the key elements of burglary is that "the dwelling must belong to another person." This element distinguishes burglary from other crimes like trespass or criminal damage and underlines the seriousness of the offense.
The requirement that the dwelling belongs to another person means that the perpetrator cannot have a legal right or claim to the property. This element protects an individual's right to safety and security in their own home. It is a fundamental principle that a person's home is their castle, and this element of burglary recognizes the sanctity of the home in criminal law.
The dwelling in question can take various forms and does not necessarily have to be a traditional house. It can include any structure or place that is used for habitation or residence, such as an apartment, mobile home, boat, or even a tent. The key consideration is that it is a place where people live or regularly sleep. Additionally, the dwelling must be one that the perpetrator is not licensed or privileged to enter.
For a burglary conviction, it must be proven that the perpetrator did not have permission or the right to be in the dwelling. This means that the perpetrator is considered a trespasser. If the perpetrator has a legal right to be in the dwelling, such as if they are a resident or have been invited in, then burglary cannot be charged. However, if the invitation or license to enter has been revoked or expired, and the person remains or returns, then a trespass may occur, and burglary may be applicable.
The requirement that the dwelling belongs to another also excludes a person from burglarizing their own home. This may seem counterintuitive, but it is based on the legal principle that a person cannot steal from themselves. However, this does not give an individual free rein to commit crimes in their own dwelling. Other criminal offenses, such as criminal damage or assault, may still apply if a person engages in criminal activity within their own home.
In summary, the element of "the dwelling must belong to another person" in common law burglary emphasizes the protection of an individual's dwelling from unauthorized intrusion. It ensures that the perpetrator is considered a trespasser and has no legal right or claim to the property. This element is crucial in distinguishing burglary as a serious offense against an individual's right to safety and security in their own home.
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Frequently asked questions
The common law elements of burglary are breaking, entering, into a dwelling or house, of another, at night, with the intent to commit a felony therein.
Breaking requires that some force be used. Entering can involve either physical entry by a person or the insertion of an instrument to remove property.
Modern statutes no longer require that the breaking and entering occur at night, or that the defendant intended to commit a felony. Burglary of a dwelling is considered an aggravating circumstance that will bring a higher penalty than burglary of a non-dwelling.
In New Zealand, burglary is a statute offence under the Crimes Act 1961. In Sweden, burglary does not exist as an offence in itself, instead unlawful intrusion or breach of domiciliary peace are the closest equivalent offences. Under Scots law, the crime of burglary does not exist, instead theft by housebreaking covers theft where the security of a building is overcome.
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