## Facts

- Annie Davis was indicted for burglary, alleged to have broken and entered at night the dwelling house owned by E. P. Fowlkes and stolen $412.50 belonging to Dolly Wingfield.
- The money was kept in a room occupied and controlled by Wingfield within Fowlkes’s house.
- Davis had a long-standing, close relationship with the occupants and was treated “the same as home folks.”
- With their consent, Davis carried a key to the house and came and went freely, day or night, eating and sleeping there whenever she wished.
- Davis was not a servant, employee, caretaker, or custodian; her access was described as as free and unlimited as Wingfield’s.
- The prosecution theory was that Davis entered at night and stole the money; Davis challenged the legal sufficiency of the evidence, including whether any “breaking” occurred.

## Issues

1. Whether a defendant’s nighttime entry into a dwelling constitutes the “breaking” element of burglary when the defendant had an ongoing, unrestricted right of entry and a key given by the occupants.
2. Whether, absent proof of threat, fraud, or conspiracy, entry under such permission can be treated as constructive breaking.

## Decision

- The Supreme Court of Appeals of Virginia reversed the burglary conviction and awarded a new trial.
- The court held the evidence did not establish a “breaking,” an essential element of burglary.
- The court concluded there was no constructive breaking because the entry was not obtained by threat, fraud, or conspiracy.
- The court declined to decide other challenges to the sufficiency of the evidence (including ownership/location of the theft and identification of Davis as the thief), because reversal was required on the breaking element alone.

## Legal Principles

- Burglary requires proof of a “breaking,” which may be actual or constructive.
- Constructive breaking requires that entry be procured by threat of violence, fraud, or conspiracy.
- When a person has an unrestricted license to enter a dwelling—such as possessing a key with the occupants’ consent and the freedom to enter at will—entry pursuant to that license is not an actual breaking.
- The burglary breaking element focuses on the manner of obtaining entry; criminal intent formed before or during a lawful entry does not substitute for proof of breaking.

## Conclusion

Because Davis’s access to the dwelling was authorized, broad, and continuous, and the Commonwealth proved neither actual force at entry nor constructive breaking by threat, fraud, or conspiracy, the “breaking” element of burglary was not shown; the conviction was reversed and a new trial ordered.


Davis v. Commonwealth, 132 Va. 521, 110 S.E. 356 (1922)