Other crimes - Burglary

Learning Outcomes

This article examines the common law crime of Burglary. It breaks down the specific elements required for the offense, including the nature of the breaking and entering, the definition of a dwelling house, the timeframe requirement, and the necessary criminal intent. After reading this article, you will understand the distinct components of common law burglary and be able to differentiate it from related property crimes, enabling you to analyze MBE fact patterns accurately.

MBE Syllabus

For the MBE, you are required to understand the elements of common law burglary and how they are applied. This involves analyzing the defendant's actions and mental state at the time of the offense. You should be prepared to:

  • Define the actus reus elements: breaking and entering.
  • Identify what constitutes a "dwelling house of another."
  • Understand the "nighttime" requirement.
  • Analyze the specific intent required: the intent to commit a felony therein.
  • Distinguish burglary from larceny, robbery, and trespass.
  • Recognize common statutory modifications to the common law elements (though common law is the primary focus).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. At common law, which element distinguishes Burglary from Larceny?
    1. Taking property from the person of another.
    2. The use of force or threat of force.
    3. Breaking and entering a dwelling at night.
    4. The value of the property taken.
  2. Defendant unlocks the front door of Victim's house at 1 AM using a stolen key, enters the hallway, and decides to steal a valuable painting. At common law, has Defendant committed burglary?
    1. No, because opening a door with a key is not a "breaking."
    2. No, because Defendant formed the intent to steal only after entering.
    3. Yes, because Defendant entered the dwelling of another at night with felonious intent.
    4. Yes, but only if Defendant actually takes the painting.
  3. Which of the following structures would most likely qualify as a "dwelling house" for common law burglary?
    1. An abandoned warehouse used occasionally by homeless individuals.
    2. A detached garage located 50 feet from the main house.
    3. A houseboat currently occupied as someone's primary residence.
    4. An office building closed for the night.

Introduction

Burglary, at common law, is a specific intent crime designed to protect the security of the home. It is defined as the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony therein. Each element must be satisfied for the crime to be complete. Unlike larceny or robbery, the actual commission of the intended felony inside the dwelling is not required for burglary; the crime is complete upon the breaking and entering with the requisite intent. Modern statutes have significantly altered these elements, often broadening the scope of the offense, but the MBE frequently tests the common law definition.

Key Term: Burglary At common law, the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony therein.

Elements of Common Law Burglary

Breaking

The "breaking" element requires some use of force, however slight, to create an entry point. It does not require actual damage.

  1. Actual Breaking: Involves applying some force, no matter how minimal, to gain entry.
    • Examples: Opening a closed but unlocked door or window, pushing open a partially closed door, lifting a latch, or cutting a screen.
    • Not Breaking: Entering through a wide open door or window does not constitute a breaking at common law, as no force was used to create the opening. Raising a partially open window further may constitute a breaking.
  2. Constructive Breaking: Occurs when entry is gained through fraud, threats, intimidation, or collusion with someone inside (e.g., a servant).
    • Example: Defendant poses as a utility worker to trick the homeowner into opening the door.

Key Term: Breaking The creation of an opening or the enlargement of an opening by trespass, through the use of at least minimal force, threat, or fraud.

Entering

"Entering" occurs when any part of the defendant's body, or an instrument used by the defendant to effectuate the intended felony (not just to facilitate entry), crosses the threshold into the structure.

  • Body Part: Placing a hand, foot, or even a finger inside the structure is sufficient.
  • Instrument: Inserting a tool used to commit the intended felony (e.g., a pry bar to open a safe) constitutes entry. Inserting a tool solely to gain entry (e.g., a crowbar to pry open a window) does not, by itself, constitute the entry element, though the breaking element would be met.

Key Term: Entering Placing any portion of the body or an instrument used to commit the intended felony past the threshold of the structure.

Dwelling House

The structure entered must be a "dwelling house."

  1. Definition: A structure regularly used for sleeping purposes. It includes the building itself and structures within the "curtilage" (e.g., barns or outbuildings close to the house and used in connection with it).
  2. Regular Use: It must be used regularly as a place to sleep. Temporary absence (e.g., while on vacation) does not change its character as a dwelling. However, a house under construction before anyone has lived in it, or an abandoned house, is not a dwelling.
  3. Business Structures: Structures used only for business purposes do not qualify as dwellings at common law, though modern statutes often include them.

Key Term: Dwelling House A structure regularly used for sleeping, including buildings within the curtilage.

Of Another

The dwelling must be that "of another." This refers to rightful occupancy, not necessarily ownership.

  • Example: A landlord can commit burglary by breaking and entering into a tenant's apartment at night with the intent to commit a felony, as the tenant has the right to occupancy.

At Nighttime

The breaking and entering must occur at nighttime.

  • Definition: Common law defined nighttime as the period between sunset and sunrise when there is not enough daylight to discern a person's face. Modern statutes often eliminate this requirement or define nighttime specifically (e.g., 30 minutes after sunset to 30 minutes before sunrise).

Intent to Commit a Felony Therein

This is the mens rea element and requires a specific intent.

  1. Specific Intent: The defendant must have the specific intent to commit a felony inside the dwelling at the time of the breaking and entering.
    • Timing: The intent must exist at the moment of entry. If the defendant breaks and enters without felonious intent, and only forms the intent after being inside, common law burglary has not occurred (though other crimes like larceny or trespass may have).
    • Felony: The intended crime must be a felony at common law (e.g., murder, rape, robbery, larceny, arson). Modern statutes often expand this to include the intent to commit any crime (felony or misdemeanor theft).
  2. Completion Not Required: The intended felony does not need to be completed for burglary to occur. The crime is complete upon breaking and entering with the required intent.

Key Term: Intent (for Burglary) The specific intent, existing at the time of breaking and entering, to commit a felony inside the dwelling.

Worked Example 1.1

Defendant sees a window on Victim's house slightly ajar (open about two inches) at 11 PM. Defendant wants to steal Victim's laptop. Defendant pushes the window open further, reaches inside, unlocks the window latch, climbs into the house, but is immediately apprehended by Victim before taking anything. Has Defendant committed common law burglary?

Answer: Yes. Defendant enlarged an opening (pushing the window further open constitutes a "breaking"). He placed part of his body (his hand) inside the structure ("entering"). It was Victim's house ("dwelling of another") and occurred at 11 PM ("nighttime"). Defendant had the intent to commit larceny (a felony) inside at the time he broke and entered. The fact that he did not complete the larceny is irrelevant.

Worked Example 1.2

At midnight, Defendant crawls through a fully open basement window of Victim's home, intending to assault Victim once inside (a felony). Before finding Victim, Defendant hears a noise and flees without committing the assault. Has Defendant committed common law burglary?

Answer: No. Although all other elements are present (entering, dwelling of another, nighttime, intent to commit a felony), there was no "breaking" because Defendant entered through a window that was already wide open.

Exam Warning

Pay close attention to the timing of the intent element. If the defendant forms the intent to commit a felony only after having already entered the dwelling, the specific intent for common law burglary is lacking. Also, be precise about the "breaking" element – merely entering an already open door or window is insufficient at common law.

Modern Statutory Changes

While the MBE primarily tests common law burglary, be aware that modern statutes frequently modify the common law elements:

  • Breaking: Often eliminated or broadened to include any unlawful entry.
  • Dwelling: Expanded to include almost any structure (offices, stores, barns, cars).
  • Nighttime: Often eliminated, though nighttime burglary might carry a higher penalty.
  • Intent: Often expanded to include the intent to commit any crime, including misdemeanors (especially theft).

Key Point Checklist

This article has covered the following key knowledge points:

  • Common law burglary requires: (1) breaking, (2) entering, (3) dwelling house, (4) of another, (5) at nighttime, (6) with intent to commit a felony therein.
  • "Breaking" involves creating or enlarging an opening using at least minimal force, threat, or fraud. Entering through an already open door/window is not a breaking.
  • "Entering" occurs when any part of the body or an instrument used for the felony crosses the threshold.
  • A "dwelling house" is a place regularly used for sleeping, including structures within the curtilage.
  • "Of another" relates to occupancy rights, not ownership.
  • "Nighttime" is traditionally defined by the inability to discern a face by natural light.
  • The specific intent to commit a felony inside must exist at the time of the breaking and entering.
  • The intended felony need not be completed for burglary to occur.
  • Modern statutes often broaden the definitions of breaking, entering, dwelling, and the required intent.

Key Terms and Concepts

  • Burglary
  • Breaking
  • Entering
  • Dwelling House
  • Intent (for Burglary)
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