Anaya Nolan
The definition of burglary has evolved over time, with some scholars arguing that it should no longer be a separate criminal offence. Traditionally, common law defined burglary as breaking and entering into a dwelling at night with the intent to commit a felony therein. However, modern statutes have broadened the scope of burglary, eliminating the requirement for it to take place at night or for the burglar to break into the dwelling. Additionally, in some jurisdictions, the intent to commit a felony is no longer necessary, as a lesser crime can now suffice. Despite these changes, the core element of burglary remains the unlawful entry into a dwelling or structure with the intent to commit a crime.
| Characteristics | Values |
|---|---|
| Breaking | Requires the use of force to enter |
| Entering | Requires that part of the burglar's body passes the threshold of the house |
| Dwelling or House | A place that is regularly used for sleeping |
| Time | At night |
| Intent | To commit a felony |
| Victim | No victim present during the incident |
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Breaking and entering
At common law, burglary was defined as breaking and entering the dwelling of another at night with the intent to commit a felony therein. The "breaking" element requires that some force be used to enter, and the "entering" element requires that some part of the burglar's body passes the threshold of the house. The "dwelling" was defined as a place regularly used for sleeping, and the offence had to be committed at night.
However, the Model Penal Code (MPC) has broadened the definition of burglary. Firstly, burglary no longer needs to take place at night. Secondly, the burglar does not have to break anything to gain entry, and the crime committed inside does not have to be a felony. Many jurisdictions have eliminated the elements of "dwelling" and "night" from the definition of burglary, and consider it to be the entering of any premises at any time with the intent to commit a felony.
It is important to note that the actual commission of a felony is not necessary for burglary charges to be valid. The intention to commit a felony at the time of breaking and entering is sufficient, and the defendant does not need to specify the type of felony intended.
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Dwelling
The definition of 'dwelling' has been expanded by most jurisdictions since the common law definition. At common law, a dwelling was defined as a house or mansion where one normally sleeps, although it did not need to be occupied at the time of entry. Structures and premises immediately surrounding the dwelling, such as an outhouse or yard, were also considered part of the dwelling. A dwelling had to be a place of human habitation and occupancy. A storehouse protected by a night watchman was not considered a dwelling, even if the watchman occasionally slept there.
Today, the definition of a dwelling is broader. Under modern statutes, the offence can occur in any enclosed structure, regardless of whether it is used for habitation. A converted storage unit, for example, can be considered a dwelling.
In a two-family house, where there are two parties sharing one dwelling but partitioned into two separate living spaces, one party entering the other party's living space at night with the intent to commit a felony would constitute burglary.
In some jurisdictions, the element of 'dwelling' has been eliminated from the definition of burglary altogether. Here, burglary is defined as entering any premises with the intent to commit a felony.
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Nighttime
The determination of night and day is not based on sunrise and sunset. Instead, it is determined by whether the countenance of a human can be discerned by natural light. In jurisdictions that retain the nighttime element, it is defined as occurring 30 minutes before sunrise or 30 minutes after sunset.
While many jurisdictions have eliminated the element of "night" from the burglary definition, it is still considered an aggravating circumstance that will result in a higher penalty than burglary committed during the day.
In the example of John and Ben, John could not be convicted of burglary under common law because he did not break into a dwelling at night.
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Intent to commit a felony
The intent to commit a felony is a critical element of common law burglary. This specific intent must be present at the time of the unlawful entry for a burglary charge to stand.
For instance, in the case of 'People v. Hill, 67 Cal. 2d 105 (1967)', the defendant must have intended to commit a felony when they broke and entered the dwelling. If the intent to commit a felony is formed after entering the premises, it does not constitute burglary.
The actual commission of a felony is not necessary for a burglary charge. The mere intent to commit a felony once inside the dwelling is sufficient to establish the crime of burglary. This intent is evaluated based on the defendant's actions and the surrounding circumstances. For example, if a person breaks into a former spouse's apartment, it may be inferred that they intended to commit assault or another crime.
In some states, the severity of the intended crime influences the penalty for burglary. A more serious intended crime, such as a felony, will result in harsher penalties compared to a misdemeanour. For instance, stealing less than $1 is considered a misdemeanour, not a felony, and therefore does not meet the intent requirement for burglary under common law.
Prosecutors must prove the defendant's intent to commit a felony to secure a burglary conviction. This can be achieved through various means, including confessions, circumstantial evidence, and, in some cases, evidence of prior burglary convictions.
In summary, the intent to commit a felony is a crucial aspect of common law burglary. The presence of this intent at the time of unlawful entry elevates the crime from trespass to burglary, even if the felony is not ultimately committed.
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Victimless crime
Burglary is considered a common law offence in many jurisdictions. It involves breaking and entering into a dwelling or house of another at night with the intent to commit a felony therein. The "breaking" requires some force to be used to enter the house, and the "entering" requires that some part of the burglar's body passes the threshold of the house.
The concept of "victimless crime" is complex and multifaceted. It refers to illegal acts that do not have an identifiable victim or directly involve only the perpetrator. These acts are typically consensual in nature, occurring between consenting adults, and do not cause harm to others. The definition of victimless crimes varies across different legal systems and geographical locations, but often includes possession of illegal contraband, recreational drug use, prostitution, prohibited sexual behaviour, assisted suicide, and smuggling.
The identification of victimless crimes can be nuanced, and scholars like Jim Leitzel propose three characteristics: excessive behaviour, indicative of a distinct pattern, and adverse effects impacting only the perpetrator. Victimless crimes often arise from the desire for illegal products or services in high demand, leading to inflated prices and monopoly profits for criminals.
The legal stance on victimless crimes varies, with some arguing for their decriminalisation. For example, the prohibition of alcohol in the United States, repealed in 1933, is seen as a failed experiment that drove citizens towards homemade spirits. Similarly, the War on Drugs criminalises drug use despite it not directly harming others, leading to inflated drug prices and driving addicts to commit more harmful crimes to fund their addiction.
The categorisation of certain acts as victimless crimes is subject to debate, and opinions vary across societies and over time. For instance, homosexual sex was once criminalised but has since been legalised in many countries, reflecting evolving social values and laws.
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Frequently asked questions
Common law burglary involves breaking and entering into a dwelling at night with the intent to commit a felony.
Breaking requires that some force be used to enter a house. This could include picking a lock, breaking down a door, or breaking a window.
Entering requires that some part of the burglar's body passes the threshold of the house.
A dwelling is a house or mansion where one normally sleeps. It does not need to be occupied at the time of entry, but it must be a place of human habitation and occupancy.
Night is defined as occurring 30 minutes before sunrise or 30 minutes after sunset.
