Gavin Howe
Burglary is a crime that has evolved over the centuries, with the common law definition requiring the offence to take place at night in the dwelling of another person. However, this element of burglary, requiring the offence to occur at night, has largely been abandoned in favour of a broader definition that includes businesses and no longer mandates a time of day. This evolution in the legal definition of burglary reflects the changing nature of society and the need to safeguard homes and prevent violence.
| Characteristics | Values |
|---|---|
| Common law elements | Breaking and entering |
| Night-time offence | |
| Dwelling | |
| Felony | |
| Modern changes | Breaking not required |
| No longer a night-time offence | |
| Broader definition of occupied structure | |
| Any crime committed inside | |
| Broader definition of building | |
| Intent to commit a crime |
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What You'll Learn
- Breaking without entry or entry without breaking is not burglary
- The use of an instrument to effect a break-in does not constitute an entry
- Breaking and entering must be done at night to qualify as burglary
- The intent to commit a crime must exist separately from the break-in
- Abandoned buildings do not qualify as structures for burglary charges
Breaking without entry or entry without breaking is not burglary
The concept of burglary has evolved over the years, with the understanding of the crime differing across jurisdictions. Burglary, under common law, has traditionally been defined as the unlawful entry into a building or dwelling at night with the intent to commit a felony therein. However, the requirement of "breaking" as an element of burglary has been a subject of debate and has undergone significant changes.
The common law element of "breaking" in burglary refers to the act of forcibly entering a dwelling or structure. Initially, common law required that "entry occur as a consequence of breaking". This meant that if an intruder used a pry bar to partially open a window but then entered through an open door, it would not constitute burglary under common law. The use of an instrument to initiate the breaking, without actual entry, was not sufficient.
However, this traditional interpretation of "breaking" has been largely abandoned. Today, most jurisdictions have expanded the definition of burglary, and the common law requirement of "breaking" is no longer necessary for a burglary charge. Many states have adopted a broader interpretation, where merely enlarging an already existing opening or using threats or fraud to gain entry can satisfy the element of breaking. This concept is known as "constructive breaking".
Additionally, the scope of burglary has been broadened to include any premises, not just dwellings, and the time of day is no longer restricted to the night. These changes reflect the evolving nature of burglary legislation, which aims to protect residents from harm and safeguard their homes. While burglary remains a separate criminal offense, the specific elements required for a conviction may vary depending on the jurisdiction.
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The use of an instrument to effect a break-in does not constitute an entry
The common-law elements of burglary often vary between jurisdictions. The traditional common-law definition of burglary has been expanded in most jurisdictions, such that the building need not be a dwelling or even a building in the conventional sense, physical breaking is not necessary, the entry does not need to occur at night, and the intent may be to commit any felony or theft.
In the context of burglary, the "break" aspect of the offence refers to the use of force to gain entry, which can involve breaking a window, picking a lock, or removing a door. However, the use of an instrument to effect a break-in does not constitute an entry. For example, if intruders partially open a window with a pry bar but then notice an open door, which they use to enter the dwelling instead, there is no burglary under common law. The use of the pry bar would not constitute an entry even if a portion of the pry bar "entered" the residence.
Under the instrumentality rule, the use of an instrument to effect a break-in does not constitute an entry. This rule states that if any part of the perpetrator's body enters the residence in an attempt to gain entry, the instrumentality rule does not apply. For example, if intruders use a pry bar to pry open a window and then use their hands to lift the partially opened window, an "entry" would have taken place when they grasped the bottom of the window with their hands.
The Model Penal Code (MPC) has influenced the evolution of burglary law in some states, broadening the scope of actions that can be considered burglary. The MPC eliminated the common-law elements of "at night" and "breaking" requirements. As a result, burglary no longer needs to occur at night, and the burglar does not have to break anything to gain entry. The MPC's approach to burglary considers the unauthorised entry and the intent to commit a crime within an occupied structure as the key elements of the offence.
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Breaking and entering must be done at night to qualify as burglary
The requirement that breaking and entering must occur at night to qualify as burglary has been largely abandoned. This element of burglary originated under common law, which historically defined burglary as a forcible invasion of the right of habitation. Sir Edward Coke distinguished burglary from housebreaking by noting that the offence was aggravated by night-time, as this was when "man was at rest" and when "the countenance of a man could not be discerned".
However, the modern definition of burglary has evolved and varies between jurisdictions. Many states have modified the definition of burglary, broadening it to include businesses and eliminating the requirement that the entry must take place at night. This evolution is reflected in the Model Penal Code, which was developed in 1962 by the American Law Institute to provide a model for states to enact their criminal laws. While the Model Penal Code is not a federal or state law, it has influenced the approach to burglary in many states. Under the Model Penal Code, burglary is defined as entering a building or structure, regardless of whether it is open to the public or not, with the intent to commit a crime therein.
The abandonment of the 'at night' requirement in many jurisdictions reflects a shift in the understanding of burglary. Burglary laws now aim to safeguard people's homes and prevent violence, rather than solely focusing on the taking of property. This shift has led to a broader definition of burglary that captures a wider range of criminal behaviour and provides greater protection for residents.
Despite these changes, some jurisdictions retain the 'at night' requirement for burglary. For example, in New Zealand, burglary is a statute offence under the Crimes Act 1961, which originally codified the common law offence, including the 'break' element. However, in October 2004, New Zealand updated the definition, removing the requirement for breaking and instead focusing on unauthorised entry into any part of a building or ship. This evolution of the law demonstrates how the common law element of burglary requiring breaking and entering at night has been largely abandoned in favour of a more flexible and comprehensive approach to addressing criminal behaviour.
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The intent to commit a crime must exist separately from the break-in
Burglary, as a crime, has evolved over the years. It originally developed under common law, but states have since incorporated the crime of burglary into their penal codes. As a result, the definition of burglary and the elements that constitute it vary widely among jurisdictions.
One of the most critical elements of burglary is the offender's intent to commit a crime inside the building. Typically, this crime is theft or petty theft, but other crimes can also result in a burglary charge. Importantly, the offender's intent to commit a crime must exist separately from the break-in. For example, consider a person who uses fraud to gain entry into a closed museum to view a piece of art. In this case, the only crime committed is fraud to gain entrance to the building, not burglary. However, if the individual proceeds to steal a painting while inside the museum, the offense then becomes burglary.
The intent to commit a crime, therefore, must be present at the time of the break-in for burglary to be considered. The actual commission of the crime is not necessary for burglary to occur. For instance, a defendant can be convicted of burglary even if they never actually commit a felony once inside the dwelling, as long as they intended to commit a felony when they broke and entered.
In the context of burglary, the term "intent" refers to the specific intention to commit a crime within the structure being entered. This intent is often inferred from the circumstances surrounding the incident, such as the time of day, the use of tools, or the nature of the structure being entered. For example, if a person breaks into a closed museum at night using a pry bar, it may be inferred that they intended to commit a crime within.
In conclusion, the intent to commit a crime is a crucial aspect of burglary, and this intent must exist separately from the act of breaking and entering. The specific crime intended may vary, but it is typically theft or a felony. The presence of this intent, along with other elements such as unauthorized entry and the nature of the structure, determines whether the offense constitutes burglary under the applicable jurisdiction's definition.
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Abandoned buildings do not qualify as structures for burglary charges
The definition of burglary has evolved over time, and the common law elements of burglary often vary between jurisdictions. While burglary traditionally involved breaking and entering, the modern definition of burglary is much broader and includes other forms of intrusion into a personal residence or occupied structure.
In some states, abandoned buildings do not qualify as structures for burglary charges. For example, in Connecticut, it is a defense to a charge of burglary that the building is abandoned. In such cases, a person who enters an abandoned building and steals something may be convicted of theft, but not burglary. This is because burglary laws are intended to protect people's homes and property from intrusion and prevent violent encounters. When a building is abandoned, there is no longer a sanctity of private property or right of habitation to protect.
However, it is important to note that entering an abandoned building without permission is typically illegal and can lead to criminal charges such as trespassing. If a person enters an abandoned building with the intent to steal or vandalize, they may be charged with burglary. The definition of a structure for burglary charges can vary, and in some states, any building with a roof over it can qualify as a structure.
The degree of burglary charges can also vary depending on the specific circumstances of the crime. For example, in Florida, burglary of an unoccupied structure is classified as a third-degree felony, while burglary of a dwelling or conveyance is likely to be charged as first-degree burglary. The timing of the intent to commit a crime can also affect the degree of burglary charges, with most states charging a higher degree if the intent was formed before breaking into the building.
In summary, while abandoned buildings may not always qualify as structures for burglary charges, entering such buildings without permission is illegal and can result in other criminal charges. The specific laws and definitions related to burglary vary across jurisdictions, and it is important to understand the legal landscape to build a defense in the event of facing burglary or trespass charges.
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Frequently asked questions
The requirement for burglary to take place at night has been abandoned.
No, the common-law elements of burglary vary between jurisdictions. However, most states have eliminated the "at night" requirement.
Burglary under common law involves breaking and entering into a dwelling or building with the intent to commit a crime, usually a felony.
The MPC is a set of criminal law rules designed to help states enact their criminal laws. The MPC defines burglary as entering a building or structure, without the need to break in, with the intent to commit a crime, unless the building is open to the public.
The definition of burglary has broadened to include businesses and any time of day. Additionally, physical breaking is not necessary, and the intent may be to commit any felony or theft.
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