Common Law Burglary:
Breaking and Entering:
Example of a Modern Statutory Definition of Burglary:
The common law definition of burglary is the breaking and entering of someone else’s dwelling at night with the intent to commit a felony therein.
For the entry element to be satisfied, there must be either actual or constructive entry into the dwelling. Even the smallest entry into the dwelling by any part of the defendant’s body is enough to qualify as entering. For example:
George and Al are next door neighbors. George is not the most honest person in the world and frequently looks through the windows of Al’s house to see if Al has anything worth stealing. One day George sees a crystal wine decanter sitting on Al’s dining room table and George decides that he must have it. That night, George quietly slips through Al’s yard and hides beneath Al’s dining room window. The window is open slightly and, in order to gain entry, George slips his fingers underneath the window and begins to open it. In this case George has entered Al’s house as soon as his fingers slip under the window because even the smallest entry of any part of George’s body into Al’s house is considered to be an entering.
The rule is slightly different when the entry of an instrument is involved. The entry of an instrument will also be considered entering, but only if the purpose of placing the instrument inside the house is to commit the felony. If the instrument is only being used to gain entry into the house, inserting the instrument into the house is not considered entering. For example:
EXAMPLE (1): George is trying to steal a crystal wine decanter from Al’s house. George quietly makes his way to Al’s dining room window. George uses a crowbar to pry the window open and then steps through into the dining room. In this case, entry has not been committed until George has stepped through the window. Slipping the crowbar underneath the window in order to pry it open is not considered an entry in this case because the crowbar was used simply to gain entry into Al’s house. It was not used to actually commit the felony.
EXAMPLE (2): George is trying to steal a crystal wine decanter from Al’s house. George makes his way over to Al’s dining room window and he pries it open with a crowbar. George has fashioned a long metal tool with a claw at the end of it that he can use to grab the decanter without ever entering Al’s house. George slips the tool through the window and uses it to grab the decanter. In this case, even though George has not physically entered Al’s house, entry is considered complete when the grabbing tool is put through the window. Since the instrument is being used to actually commit the felony and not only for purposes of entry, putting the tool into Al’s house is considered adequate for entry.
There are some jurisdictions, however, that consider the insertion of an instrument for any purpose (including for the purpose of gaining an entry) as being adequate for entry. See
"Constructive" entry occurs when a defendant causes a person who is either
- legally incapable of committing a crime or
- directly under the defendant’s control,
to enter the dwelling of another in order to commit the felony that the defendant wants to commit. For example:
George would like to steal the crystal wine decanter sitting on Al’s table. George takes his four year old son, George Jr., puts him through Al’s dining room window, and tells George Jr. to go get the decanter. In this case, even though George has not actually entered Al’s house, he has constructively entered the house because he has caused someone under his control to enter the house in order to commit the felony that George intends to commit.
As far as the element of breaking is concerned, it must be shown that the defendant used either actual or constructive force to create an opening in the house. Please note that breaking as far as burglary is concerned does not have the same definition as the word "breaking" in our ordinary lexicon. The defendant does not have to shatter a window or break down a door in order to satisfy the requirement of breaking. Simply opening a closed window or nudging open a closed but unlocked door, which requires very minimal use of force, is enough to satisfy the element of breaking. All that is required for there to be a breaking is that the defendant needs to create an opening that was not there before. Thus, if the defendant is confronted with a closed door and opens that door, he has now created an opening that didn’t exist before. Therefore he has satisfied the requirement of breaking.
It used to be that enlarging an already existing opening was not considered breaking so that, if a door or window was partially opened and the defendant opened it wider, he would not have satisfied the requirement of breaking. However, today, that rule has been done away with, and enlarging an already existing opening is now adequate to satisfy the element of breaking. See
"Constructive" breaking occurs when the defendant does not use any force to create an opening but rather gains entry into the house either by threats of force, by fraud, or through a proverbial "inside job" where someone, usually a co-conspirator who is already in the house, lets the defendant in.
Finally, most jurisdictions hold that the breaking must occur for the purposes of entering the dwelling. Thus, if the defendant got into the dwelling without breaking but had to break open an opening in order to exit the dwelling, most courts hold that this does not satisfy the element of breaking.
Please note that the breaking will not satisfy the requirement for burglary if the breaking is not then used to gain entry into the dwelling. For example:
George pries open a window in Al’s living room so that he can enter the house and steal a crystal wine decanter that Al owns. While George is prying open the window he notices that a different window a few feet over is wide open. Since George has only managed to pry the window half open, he puts down his crowbar and enters Al’s house through the open window. In this case George cannot be convicted of burglary because the breaking was not the means by which George gained entry into Al’s house. Therefore, the breaking does not satisfy the requirement for burglary.
Please note that many jurisdictions today have simply done away with the requirement of breaking altogether, and allow a conviction for burglary simply based on an entry with the intent to commit a crime inside.
At common law, in order to be convicted of burglary, the defendant must have broken and entered into a dwelling, which is defined as a place that is regularly used for sleeping. A building satisfies the definition of dwelling for burglary purposes if it is regularly slept in, even if the building is used for other purposes, such as business, as well. Please note that a dwelling that is under construction but has not yet been slept in is not considered a dwelling for burglary purposes. However, once a building meets the definition of a dwelling for burglary purposes, it remains a dwelling even when the people residing in it leave for a temporary period of time. Therefore, if someone owns a summer home that they only use in July and August, the summer home is considered a dwelling even though it is not used for ten months out of the year. Therefore, if someone breaks and enters into the summer home with the intent of committing a felony therein, he can be convicted of burglary even if he breaks and enters the dwelling during a time of year when nobody is using it.
Please also note that if a dwelling structure is fenced in, any other structure inside the fence is considered an extension of the dwelling, even if those buildings are not used as living quarters. If there is, for example, a farmhouse, a barn, and a tool shed that all sit within one large fence, the barn and the tool shed are considered part of the dwelling even though they are not used as living quarters and, if a defendant breaks and enters into the barn or the tool shed with the intent of committing a felony, he can be convicted of burglary.
Also please note that if a defendant enters a dwelling without breaking, but, once inside, breaks into a closed part of the dwelling, he can be convicted of burglary. However, the part of the building that he breaks into must actually be a part of the dwelling. For example:
EXAMPLE (1): George is walking by Al’s house when he notices that Al’s front door is wide open. George walks into the house to say hello to Al. It appears that Al is not home so George takes the opportunity to look around and see if there is anything in Al’s house that might be worth stealing. George opens up a closet door and inside finds a brand new Brooks Bros. suit that looks to be about George’s size. George takes the suit and goes home with it. In this situation George can be convicted of burglary. Even though George did not commit an act of breaking in order to gain entry into Al’s house, and even though George did not intend to commit a felony when he entered Al’s house, he did break and enter a closed part of Al’s house; the closet; with the intent of committing a felony. Therefore, George can be convicted of burglary.
EXAMPLE (2): George is walking by Al’s house when he notices that Al’s front door is wide open. George walks into the house to say hello to Al. It appears that Al is not home so George takes the opportunity to look around and see if there is anything in Al’s house that might be worth stealing. George finds a safe sitting on Al’s kitchen table. George pries the safe open and finds several hundred dollars in gold coins inside the safe which George puts inside his pocket and takes home with him. In this case, George cannot be convicted of burglary because, although he did break the safe with the intent of committing a felony, the safe was not part of the dwelling.
In order to be convicted of burglary the defendant must break and enter into the dwelling of another person. The right of habitation, not the right of ownership, determines who the dwelling belongs to for burglary purposes. In other words, it does not matter who actually owns the dwelling. What is determinative is who has the right to live in the premises. See
Fred owns an apartment which he rents to Barney for a year. As Barney is moving in, Fred notices that Barney owns several very expensive hand woven rugs. One night, Fred uses a spare key he keeps to enter the apartment and steals one of the rugs. In this case, Fred can be convicted of burglary because, even though he actually owns the apartment, he does not have the right of habitation. By renting the apartment to Barney, he has given Barney the right of habitation. Therefore, although Fred owns the building, he has broken in to the dwelling of another.
This same idea extends to things like two family houses where two parties share one dwelling but the dwelling is partitioned into two separate living spaces. In such cases, one party’s breaking and entering into the other party’s living space at night with the intent of committing a felony will constitute burglary.
Many jurisdictions have also eliminated the element of "dwelling" from the burglary definition and consider burglary the entering onto any premises with the intent to commit a felony therein.
As we have said, the breaking and entering must be done at night in order to qualify as burglary. However, the breaking and entering do not have to be done on the same night. That is to say, the defendant can create the opening in the dwelling on one night and then use that opening to gain entry on another night. Please remember, however, that, as we said before, there must be a causal relationship between the breaking and entering so that, even though the breaking and entering can occur on different nights, the breaking must be the means that the defendant uses to gain access to the dwelling.
Many jurisdictions have also eliminated the element of "night" from the burglary definition and consider burglary the entering onto any premises at any time with the intent to commit a felony therein.
In order to be convicted of burglary, the defendant must intend to commit a felony when he breaks and enters the dwelling. Please note that the defendant must have the intent to commit a felony at the time he enters the dwelling. If he forms the intent to commit a felony after he enters the dwelling there is no burglary. See
EXAMPLE (1): George breaks a window in Al’s house one night and enters through the broken window with the intent of stealing a crystal wine decanter that Al has. In this case George will be convicted of burglary because he has broken and entered Al’s dwelling at night with the intent of committing a felony.
EXAMPLE (2): George comes over to Al’s house one night to say hello. After ringing the bell a few times and not getting an answer George decides to try the door, which he finds unlocked. George pushes the door open and enters Al’s house only to discover that Al is not home. George turns around and is about to leave when he sees a crystal wine decanter sitting on Al’s dining room table. George decides to take the decanter. In this case George cannot be convicted of burglary because, although he broke and entered Al’s house at night, he did not have the intent to commit a felony when he entered Al’s house. The intent to commit the felony was only formed after George was already inside.
Please note that the actual commission of a felony is not necessary. In other words, a defendant can be convicted of burglary even if he never actually commits a felony once he is inside the other person’s dwelling. As long as he intended to commit a felony when he broke and entered the other person’s dwelling, he has committed the crime of burglary. Thus, the defendant can be convicted even if, after he enters the other person’s dwelling, he has a change of heart and decides not to commit a felony. This is because the crime of burglary has been completed as soon as the defendant has actually entered the dwelling with the requisite intent.
As has been noted throughout this section, modern statutes have changed the requirements for burglary in a number of ways. First, modern statutes have done away with the requirement that there be a breaking. Second, modern statutes now hold that the defendant can be convicted of burglary for entering buildings other than just dwellings. However, please note that burglary of a dwelling is considered an aggravating circumstance that will bring a higher penalty than burglary of a non-dwelling. Third, modern statutes no longer require that the breaking and entering occur at night. However, once again, burglary committed at night is often considered an aggravating circumstance that will result in a higher penalty than a burglary committed during the day. Fourth, it is no longer necessary for the defendant to have intended to commit a felony at the time he broke and entered into the victim’s premises. Modern statutes have expanded this requirement to include both felonies and any other kind of crime.
At common law, burglary is a felony and remains so under modern statutes. However, modern statutes have divided burglary into degrees and, the higher the degree of burglary committed, the harsher the penalty that will result from a conviction.
First degree burglary, which results in the harshest punishments, is:
- burglary that includes the burglary of an inhabited dwelling,
- burglary where the defendant is armed with a deadly weapon, and
- burglary where the defendant assaults a person while committing the crime.
Finally, if the defendant successfully commits the crime he intends to commit when breaking and entering into the premises, he can be convicted of both the burglary and the target crime. For example: