BURGLARY

The criminal offense of breaking and entering a building illegally for the purpose of committing a crime.

Burglary, at common law, was the trespassory breaking and entering of the dwelling of another at night with an intent to commit a felony therein. It is an offense against possession and habitation. The common-law elements of the offense have been modified in most jurisdictions by statutes that tend to make the crime less restrictive.

Elements of the Offense

Trespass The trespass element of the offense signifies that it must occur without the consent of the victim. If the thief gains entry by misrepresenting his or her identity, the element of trespass is satisfied, as there is no consent to entry.

Breaking Breaking consists of creating an opening for entry into the building. It can be accomplished by removing an object that is blocking an entry or by blasting open a wall. The use of force is not required. The breaking element is satisfied if access is obtained by opening a closed door or window, regardless of whether these are locked.

At common law, entering through a preexisting opening did not constitute breaking. If one gained access through an open door or window, burglary was not committed. The same rule applied when a door or window was partially open even though it was necessary to open it further in order to enter. The rationale under-lying this rule was that one who failed to secure his or her dwelling was not entitled to the protection of the law. A majority of states no longer follow this rule and consider breaking to be the slightest application of force to gain entry through a partially accessible opening.

When entry is gained by a misrepresentation of identity or by any other trick, it is called constructive breaking, which satisfies the breaking requirement of burglary. On the other hand,

if a person, such as a servant, has authority to enter, there is no breaking unless he or she breaks into and enters an unauthorized area.

Under the common law, the breaking had to occur immediately before the time of entry. Most jurisdictions that retain the breaking element are in agreement; in others, the breaking can occur during a reasonable time before the entry. Some jurisdictions have completely eliminated the element of breaking from the statutory definition of burglary, while others require it for one degree of burglary but not another.

Entry In the course of a burglary, entry is the act that follows the breaking. Literally, it occurs when there is physical intrusion into another's dwelling or building by any part of the intruder's body. A momentary intrusion will suffice. When a thief kicks open a window to gain access to a dwelling, the momentary insertion of the foot constitutes an entry.

When an instrument is used to gain access to a dwelling, the intrusion of the instrument is not an entry unless it is used to accomplish the intended felony. If the instrument is used to take something from inside the building, there is an entry sufficient for burglary.

An entry may be constructive. In other words, it is not always required that the thief enter the dwelling. If he or she directs another person not legally capable of committing the offense, such as a child, to enter, then the entry is imputed to the thief.

In jurisdictions where breaking is an element of burglary, there must be causation between the breaking and entry. Although the acts may occur at separate times depending upon statute, the entry must follow from the breaking. Where a hole is drilled into a wall on one day and entry occurs a few days later, there is a causal link between the breaking and entry.

Dwelling At common law, the entry had to be into the dwelling of another to constitute the offense. A dwelling was defined as a house or mansion where one normally sleeps, although it was not necessary that it be occupied at the time of entry. Structures and premises immediately surrounding the dwelling, such as an outhouse or a yard, were also protected since they were considered part of the dwelling.

A dwelling had to be a place of human habitation and occupancy. A storehouse protected by a nightwatchman was not a dwelling even if he occasionally slept in it. If, however, it was within the immediate surroundings of a dwelling, it would be treated as a dwelling for purposes of burglary.

Today, most jurisdictions have expanded the common-law requirement that the offense take place in a dwelling. There is no jurisdiction that retains this requirement for all degrees of burglary. Under modern statutes, the offense can occur in any enclosed structure, regardless of whether it is used for habitation.

Nighttime The requirement that the breaking and entering occur at night was an essential element of the offense at common law. Sunrise and sunset were not the means of determining night and day. The proper test was whether the countenance of a human could be discerned by natural light.

Many jurisdictions no longer require that the offense occur at night. Some states have retained it for higher degrees of the offense, but do not require it for all degrees. Under statutes retaining the nighttime element, it is defined as occurring 30 minutes before sunrise or 30 minutes after sunset. It is not necessary that all acts be done on the same night. If the breaking and entering is done one night and the felony is committed a few nights later, the offense is committed.

Intent Under the common law, an intent to commit a felony at the time of breaking and entering into the dwelling was an essential element of burglary. Since larceny was a felony at common law, an intent to commit a larceny would suffice. Statutes vary from one jurisdiction to another. An intent to commit a felony is no longer required for all grades of the offense. In some states an intent to commit any crime will suffice. Many states have retained the felony requirement for higher grades of the offense. Absent this intent element, a breaking and entry might be a trespass, but not be a burglary.

If a defense to the underlying crime or felony is sufficiently established, there can be no conviction for burglary. For example, if a person charged with burglary is accused of larceny and has a sufficient defense to the larceny charge, then there is no burglary.

Degrees of the Offense

Some jurisdictions have a statutory scheme under which the offense is divided into degrees. These types of statutes frequently impose heavier penalties when the offense involves the use of force or weapons. Under one such statute, burglary in the third degree is committed by a person knowingly entering or remaining unlawfully in a building with an intent to commit a crime therein. When the same offense is committed with explosives or deadly weapons, or when it results in physical injury to a person who is not a participant in the crime, it is burglary in the first degree, for which there is a greater penalty.

Imprisonment is the usual punishment for burglary. Under statutes in many states, the severity of the sentence is determined by the degree of the burglary.

further readings

Cromwell, Paul F., and James N. Olson. 2003. Breaking and Entering: Burglars and Burglary. St. Paul, Minn.: Wadsworth.

Thomas, D.A. 2003. "Domestic burglary—Sentencing Guidelines." Criminal Law Review (March): 209-214.

BURGLARY

Burglary is a criminal offense that may be generally described as the unauthorized entry of a dwelling (or another delineated building) with the intent to commit a crime therein. Every jurisdiction has its own precise statutory definition of the crime of burglary, with corresponding case law to carve out the limits and meanings of that particular definition. One will immediately notice that the crime of burglary is not dependent upon the success of the unauthorized entrant intending to commit a crime. The mere intent to commit a crime (when added to the other elements) is sufficient to constitute violation of a burglary statute. This is not to be confused with larceny, which involves the actual taking of property. The entry may occur by the use of force, such as breaking a door or window, or may occur by simply walking through an open doorway, as long as the person entering has no right to be present.

Origins of the offense

Modern burglary statutes are the result of a long evolution from the early burglary laws found in England. The crime of burglary was one of the earliest of laws that was reduced to writing in Anglo-Saxon jurisprudence. Burglary probably dates back in relation to the ancient Anglo-Saxon crime of "hamsoaken" ("hamesecken"), or housebreaking. William Blackstone describes burglary as "nocturnal housebreaking," and descendant from ancient law (p. 958). The early laws reflect the age-old maxim that "a man's home is his castle." Indeed, the legal systems of many different countries have historically contained laws to punish those who would invade or tamper with another's home. This was seen as a particularly violent and punishable act, both because of the element of personal danger likely to be involved in breaking into another's home, and also because it was a crime against the home itself, which has a sanctified place in many human cultures. There were strict definitions as to what constituted a house and what time of day was sufficient to be called nighttime in order to satisfy a burglary charge.

Burglary was defined in the common law as breaking and entering into a dwelling house belonging to another, at night, with the intent to commit a felony therein. If the dwelling was open so that no "breaking" was necessary to enter, there could be no burglary. Entering a dwelling was satisfied if the perpetrator merely reached his arm through a window—the focus being on the intrusion to the home itself rather than the body position of the perpetrator. The definition of a dwelling house was often extended to include appurtenances nearby. English common law had precise definitions as to what was night and what was daytime, but no American jurisdiction has followed this approach.

Modern statutory scheme

The old common law requirement of a "breaking" is rarely found in modern statutes. Instead there is often found such language as "unauthorized entry" or "unlawful entry." There may also be varying degrees of burglary (first degree, second degree, and so on) depending on the level of seriousness. States have expanded the scope of burglary so that the crime intended by the entrant may not necessarily need to be classified as a felony for the elements of burglary to be met.

As noted above, only the intent to commit a crime, not the success in completing it, is required to make out the elements of burglary. One might note that the proximity to success that is accomplished by the burglar is not taken into account by the statutory schemes. Therefore, it can be said that the intent to commit a crime found in the burglary definition is a somewhat more relaxed standard than the standard used to define an attempt to commit a crime (itself punishable in other criminal situations), the latter generally being defined by the actor's steps taken to effectuate the act and his proximity to the completion thereof. A burglar is guilty of burglary the moment he unlawfully enters a building intending to commit a crime. Whether he makes it one step into the building or actually completes the crime does not alter his guilt for the burglary statutes.

Under many statutes a burglar may be subject to two punishments if he or she completes the intended act. A perpetrator may be punished for both burglary and the crime committed therein. Under ordinary attempt law, the attempt is only punished when the crime remained incomplete.

Because modern statutory schemes have expanded the old common law element of a home to include a structure or building, critics have noted that the law of burglary has so far evolved from its modern origins that the original rationales for this cause of action no longer apply. Nevertheless, burglary is a widely recognized crime in modern American culture, and is clearly an offense that will remain cognizable by legal authorities.

Current trends in America

In 1996 the average maximum sentence for those receiving incarceration for burglary was forty-one months. Twenty-nine percent of all convicted burglars, however, received no jail or prison sentence whatsoever, receiving instead probation.

Burglary rates have been dropping significantly in the last twenty years. According to the Federal Bureau of Investigation, the amount of burglaries being committed per capita in the United States has declined by over one third since the late 1970s (measuring the number of "household" burglaries). Nevertheless, the Department of Justice reports that in 1998 alone there were 4.1 million "household" burglaries in the United States.

Another survey reports that in 1996 more burglaries occurred during daylight hours than at night, and overwhelmingly in urban settings. Additionally, burglaries represented only 1 percent of all felony convictions nationwide (Statistical Abstract of the United States ).

Charles H. Whitebread

See also Attempt; Theft; Trespass, Criminal.

BIBLIOGRAPHY

American Jurisprudence. Burglary. West Publishing Group, 1964. Current through April 1999 Cumulative Supplement.

Blackstone, William. Commentaries on the Laws of England (1769). 4th ed. Edited by George Chase. New York: Banks Law Publishing Company, 1974.

United States Department of Justice. Bureau of Justice Statistics Bulletin. July 1999.

United States Department of Commerce. Statistical Abstract of the United States, 1998. 118th ed. Washington, D.C.: Bernan Press, 1998.

burglar XV. — AN. burgler = AL. burg(u)lātor, varying with AN. burge(y)sour,- issour, and AL. burgātor, -isor, with corr. vb. AL. burg(u)lāre and noun of action AN. burglarie (whence burglary XVI; see -Y3); all apparently f. a base *burg-, repr. by OF. burgier pillage, plunder, agent-noun burgur, AL. burgāria, -eria, -ātio burglary.
Hence burglarious XVIII. burgle vb. XIX; joc. back-formation.

bur·glar·ize / ˈbərgləˌrīz/ • v. [tr.] (often be burglarized) enter (a building) illegally with intent to commit a crime, esp. theft: our summer house has been burglarized.

bur·gla·ry / ˈbərglərē/ • n. (pl. -ries) entry into a building illegally with intent to commit a crime, esp. theft: a two-year sentence for burglary.