Our understanding of burglary has evolved greatly as our society has changed. Some scholars even argue that burglary should no longer be a separate criminal offense. Every state has its own rules for burglary and they vary widely from state to state.
Common Law Elements
The required historical elements of burglary are:
- an entering;
- into a dwelling or house;
- of another;
- at night;
- with the intent to commit a felony therein.
“Breaking” requires that some force be used to enter the house. “Entering” requires that part of the burglar’s body pass the threshold of the house. Originally, a “dwelling or house” meant only the physical home of a person. Next, common law burglary must have been committed at night (daytime breaking and entering was the lesser crime of trespass). The “of another” requires that the burglar break into someone else’s home, as a person cannot commit burglary in his own home. Finally, the burglar must intend to commit a felony once inside the dwelling. This is usually theft, but can also include intent to commit other crimes such as murder, rape, arson, and assault. Since these definitions were created, states have broadened, eliminated, or modified them extensively.
The Model Penal Code’s Approach
The Model Penal Code is a series of criminal law rules written by experts in criminal law as a “model” for how they suggest states enact their criminal laws. It contains suggested statutory language and comments to help states codify criminal law. The Model Penal Code has been adopted to some extent in some states. The comments of the Model Penal Code indicate that the drafters considered eliminating burglary as a separate offense because punishing it more severely than trespass and theft was “harsh and irrational.” The drafters of the code believed that the law concerning the crime “attempt” (as in “attempted theft”) now encompassed actions that were traditionally thought of as burglary. However, the drafters believed that burglary was so deeply embedded in American law that it could not be discarded.
Under the Code the required elements for burglary are:
(1) A person entering;
(2) A building, occupied structure, or separately secured portion thereof of another; and
(3) With the purpose to commit a crime therein.
These elements apply unless the premises are open to the public or the person is licensed to be there.
The MPC’s approach to burglary significantly broadened the scope of actions that could be considered burglary. First, the burglary no longer must take place at night. Second, the burglar does not have to break anything to get into the house. Finally, the crime committed inside does not have to be a felony.
Developments Post-Model Penal Code
The extent to which the Model Penal Code’s approach to burglary has been adopted by the states is mixed. Like the Code suggests, most states have eliminated the common law elements of “at night” and the “breaking” requirements. Also, many states have broadened the definition of “occupied structure” to include any property owned by a victim. Lastly, many states provide that a burglary occurs if any crime is committed inside a structure. However, states’ laws vary on whether they require an “entry,” if the structure must be a “dwelling,” and if the dwelling must belong to “another.”
The following example will compare the common law approach to burglary with the MPC approach.
Ben recently turned his storage unit into a high-tech “man-cave” and wants to show it off to one of his best friends, John. Ben invites John to watch a baseball game in the man-cave at noon. When John arrives, Ben opens the storage unit’s door and beckons John to enter the man-cave. John sits down inside and they watch the game. After the game, Ben asks John to leave, and John does. John makes it to his car, turns around, walks back into the man-cave, and grabs eighty-three cents worth of loose change that was on a side table right at the man-cave’s entrance. He takes the change from in front of Ben and runs away.
Common Law Approach to Burglary
John could not be convicted of burglary under the common law. John did not break into a dwelling at night and he did not intend to commit a felony (stealing less than $1 is a misdemeanor, not a felony). For John to be convicted, the following facts would have to be different. First, the man-cave must be Ben’s house. Second, John must break into the house. Third, John must intend to commit a felony, such as assault, not a misdemeanor, such as petty theft. Fourth, John must have taken these actions at night. Since John did none of these things, he could not be convicted of burglary under common law.
MPC Approach to Burglary
John could be convicted of burglary under the Model Penal Code. First, John entered an occupied structure, in this case Ben’s converted storage unit. Second, while John did not have to break into the man-cave, he did have to enter uninvited. Once John left the man-cave, he was no longer an invited guest and could re-enter the structure as a burglar. Finally, John must have intended to commit a crime in the building or structure. Here, John entered Ben’s man-cave with the goal of taking eighty-three cents worth of loose change. Thus, he could be charged with burglary.
State approaches to burglary offenses vary depending on what elements a jurisdiction’s statute has adopted. Some steadfastly adopt portions of the common law, some embrace the MPC’s take on burglary, and others go far beyond either the common law or the MPC. No matter what elements are needed, the intent of what burglary seeks to prevent remains clear and evident.
 From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L. Rev. 629, 667.
 Id. at 632
 From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L. Rev. 629, 633.
 Model Penal Code FOREWARD
 From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L. Rev. 629, 638.
 Id. at 640.
 Model Penal Code § 221.1
 From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L. Rev. 629, 642.
 Id. at 649-51.