Kara Sears
Burglary is a felony that involves the unlawful entry into a house or building with the intent to commit a crime. The common-law definition of burglary has evolved over time, with some jurisdictions expanding the definition to include structures beyond dwellings, eliminating the requirement for physical breaking, and removing the stipulation that the crime must occur at night. While the specifics may vary, the core elements of burglary remain consistent: breaking and entering into a structure with the intent to commit a crime.
| Characteristics | Values |
|---|---|
| Breaking | Requires some force |
| Entering | Requires that part of the burglar's body passes the threshold of the house |
| Dwelling or House | A place regularly used for sleeping |
| Of Another | Breaking into someone else's home |
| At Night | Most states have eliminated this requirement |
| With the intent to commit a felony | Most states have expanded this to include any crime |
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What You'll Learn
Breaking and entering
The common-law definition of burglary has several key elements, including "breaking and entering". Breaking and entering involves the use of force to enter a dwelling or house that belongs to another person. The definition of a dwelling varies, but it typically refers to a place regularly used for sleeping. Some jurisdictions consider any occupied structure, such as a storage unit, to be a dwelling, while others specify that it must be a physical home.
The "breaking" element of burglary has been eliminated in most states and jurisdictions, meaning that physical breaking is not necessary for a burglary charge. However, the use of some force is typically required. For example, entering through an open window may not constitute breaking, but opening the window oneself and then climbing through would.
The "entering" element of burglary requires that part of the burglar's body passes the threshold of the dwelling. This means that the burglar must physically enter the dwelling, even if only partially. In some jurisdictions, the entry does not need to occur at night, and burglary committed at night may be considered an aggravating circumstance resulting in a higher penalty.
It is important to note that the intent to commit a felony is also a crucial aspect of burglary. The felony is usually theft, but it can also include intent to commit other crimes such as murder, rape, arson, or assault. It is not necessary for the felony to be carried out, only for the intent to have been present at the time of breaking and entering.
The common-law definition of burglary has been expanded and modified in many jurisdictions. For example, some jurisdictions have eliminated the requirement of a "dwelling," considering burglary to be the entering of any premises with the intent to commit a felony. Additionally, the definition of "occupied structure" has been broadened in some jurisdictions to include any property owned by a victim.
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Time of day
The time of day is an important factor in the common-law definition of burglary. Traditionally, burglary was defined as the unlawful entry into a dwelling or house at night with the intent to commit a felony or theft. The requirement for the crime to be committed at night distinguished burglary from the lesser crime of trespass, which was typically applied to daytime break-ins.
However, the definition of burglary has evolved over time, and many jurisdictions have eliminated the "night" element from the definition. This means that burglary can now be committed at any time of day, as long as there is an unlawful entry into a dwelling with the intent to commit a felony or theft. This expanded definition reflects the understanding that the intent to commit a felony is more important than the time of day the crime is committed.
Despite these changes, some jurisdictions still maintain the "night" requirement for burglary. For example, in the United States, the Model Penal Code, which serves as a model for state criminal laws, retains the common-law element of "at night." This means that in some states, burglary committed during daylight hours may be considered a different offence, such as housebreaking or trespass.
The definition of "nighttime" or "night" in the context of burglary may also vary between jurisdictions. Traditionally, it referred to the period between sunset and sunrise. However, modern interpretations may differ, and the specific hours considered as "nighttime" may be defined by statute or case law in each jurisdiction.
It is worth noting that the elimination of the "night" requirement in some jurisdictions does not necessarily mean that daytime break-ins are always treated with the same severity as nighttime burglaries. Prosecutors and courts may still consider the time of day as a mitigating or aggravating factor when determining charges, sentencing, or other consequences for the offender.
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Occupied structure
The definition of "occupied structure" varies across jurisdictions. In some states, "occupied structure" is defined as any property owned by a victim. This definition does not require the structure to be a dwelling or for it to be physically broken into. For example, in New Zealand, burglary is defined as unauthorised entry into a building or ship, or part of it.
In other jurisdictions, the definition of "occupied structure" is more limited. For instance, in some jurisdictions, a "'dwelling'" is required for burglary, and this term has specific meanings. A "dwelling" typically refers to a physical home or a place regularly used for sleeping. For instance, a summer home used only in July and August is considered a dwelling even if it is unoccupied for the rest of the year. However, a dwelling under construction that has not yet been slept in does not meet this definition.
Additionally, some jurisdictions have specific requirements for the time of day when burglary occurs. Traditionally, burglary was required to take place at night, but many jurisdictions have eliminated this requirement. As a result, burglary committed at any time of day may still be considered an offence.
The intent of the burglar is also a crucial factor in defining "occupied structure". In some jurisdictions, the burglar must intend to commit a felony, such as theft, assault, murder, rape, or arson, or another indictable offence. However, in other jurisdictions, the requirement has been expanded to include the intent to commit any crime, not just a felony. It is important to note that the actual commission of the felony or crime is not always necessary for a burglary conviction.
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Intent to commit a felony
The definition of burglary has evolved and varies across jurisdictions. At common law, burglary required both a "breaking and entry" into a "dwelling or house" of another at night with the intent to commit a felony therein. The "intent to commit a felony" is an important element of common law burglary and is typically associated with theft, but it can also include other crimes such as murder, rape, arson, and assault.
The intent to commit a felony is a crucial aspect of burglary, as it distinguishes it from other crimes such as criminal trespass, which involves unlawful entry without the intent to commit a felony. The felony intended during a burglary may be a separate felony, such as assault or theft, or it may be burglary-specific, such as possessing burglar's tools.
While the specific requirements have evolved and vary by jurisdiction, the intent to commit a felony remains an essential element in many definitions of burglary. For example, in New Zealand, burglary under the Crimes Act 1961 originally required a "breaking" element, but this was removed in 2004, and now only unauthorised entry into a building or ship is needed. However, the intent to commit an imprisonable offence remains a key component of burglary in New Zealand law.
In some jurisdictions, the definition of burglary has been expanded to include the intent to commit any felony or crime, not just theft or traditional felonies. This expansion ensures that a broader range of criminal behaviour is captured by burglary statutes. For example, in Canada, "breaking and entering" is prohibited by the Criminal Code, and it is an indictable offence when committed in a residence, while in Finland, there is no crime of burglary per se, but similar behaviour may fall under unlawful intrusion or breach of domiciliary peace.
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 at the time of breaking and entering, they can be convicted of burglary even if the felony itself is never carried out. This distinction highlights the significance of the "intent to commit a felony" element in burglary, as it is the intent that forms the basis of the offence, rather than the completion of the intended crime.
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Degree of burglary
Burglary is defined by common law as the unlawful breaking and entering of a dwelling house, at night, with the intent to commit a felony. The traditional definition of burglary has evolved over time, and today, many jurisdictions 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 degree of burglary typically varies based on the specific circumstances of the crime, the location where it occurred, and the applicable state or local laws. In some jurisdictions, burglary is further delineated between first-degree and second-degree burglary, with first-degree burglary being the more serious offence.
For instance, in North Carolina, first-degree burglary occurs when the dwelling house or sleeping apartment is occupied by an individual at the time of the commission of the crime. On the other hand, second-degree burglary is charged when the dwelling house is not occupied, or if the crime is committed in any house within the curtilage of a dwelling house or in a building that is not a dwelling house.
In California, the distinction between first and second-degree burglary is made between the burglary of a residence and the burglary of a commercial building, with the former being punished more severely.
In Florida, burglary can be classified as third, second, or first-degree, or even life felonies, depending on the circumstances of the crime. The presence of a firearm or other dangerous weapon during the commission of the crime can also elevate the degree of burglary and result in more severe punishments.
It is important to note that the specific definitions, elements, and penalties associated with each degree of burglary may vary across different jurisdictions, and it is always advisable to refer to the specific laws and legal guidance applicable in your relevant state or country.
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Frequently asked questions
Common law burglary is defined as the unlawful entry into a dwelling house or 'building' of another with the intent to commit a felony or theft.
Under the modern definition of burglary, a person can be convicted of burglary for entering any type of building or structure, whereas common law burglary only applied to dwellings. Modern statutes have also eliminated the requirement for the crime to be committed at night and for there to be an intention to commit a felony.
The Model Penal Code (MPC) is a set of rules designed to guide states in enacting their criminal laws. The MPC defines burglary similarly to most states, but it eliminates the common law elements of "at night" and "breaking".
Actual breaking involves the use of physical force, such as picking a lock or kicking a door in. Constructive breaking involves gaining entry through other means, such as threats, blackmail, or fraud.
Some common defences to a burglary charge include proving that you were not at the location when the crime was committed (alibi) and demonstrating that you did not intend to commit a crime when you broke into the structure.
