From Academic Kids

Burglary is a crime related to theft. The original common law definition of burglary consisted of six specific elements: breaking and entering the dwelling of another during the night with the intention to commit a felony therein.

The first element, "breaking," required at least a minimal application of force. The opening of an an unlocked door was sufficient, but if a person entered a house through an already open door or window, there was no "breaking" and therefore no burglary, even if all other elements were present. However, if a person were to enter the house through an open door, and were then to open a closed door leading to another room in the house, that would qualify as "breaking" into that room. An exception to this rule applies where a person who had permission to enter the house did so at a time when they were not supposed to, or procured this permission by fraud or by threat. Under modern statutes, many jurisdictions have abandoned this element, now merely requiring entry.

The second element, "entry" required that the person enter the house with some part of their body, even if only for a moment, or that the person insert a tool into the house for the purpose of committing the requisite felony. For example, firing a bullet through a closed window into someone's house with the intent to injure that person was sufficient to constitute both a breaking and an entry. Entry continues to be a requisite element of burglary in all jurisdictions.

The third element required that the crime be committed against a "dwelling" - a place where another person regularly slept (even if the structure was also used as a business, or was temporarily abandoned at the time). This requirement has also been largely abandoned under modern statutes, which now permit a burglary conviction to be based on the entry into almost any structure, and sometimes even entry to fenced in yards and to automobiles.

The fourth element required that the dwelling be that of another person. A person could not burglarize their own dwelling, although a landlord could be found to have burglarized the dwelling of his tenant, even though the landlord was the owner of the property itself.

The fifth element required that the burglary had to be committed at night, which was defined under the common law as the time whan the person's face could not readily be distinguished under the natural light. Laws in many jurisdictions continue to impose much harsher penalties for burglaries committed or attempted at night, or upon an occupied residence. Finally, the sixth element required "intent to commit a felony therein." This intent had to exist at the time of the breaking and entering, even if the felony (e.g. murder, rape, larceny) was never carried out. If a person broke into a home and, once inside, decided to commit a felony, this would not constitute a burglary. The intent to commit a crime remains an element of all burglary laws, but some jurisdictions have expanded the list of requisite crimes beyond felonies to include any theft, even if it is a misdemeanor.

United States

In the United States burglary is generally a felony and involves trespassing, or entering a building with intent to commit any crime, not necessarily a felony or theft. Thus, a conviction for burglary may qualify as a conviction under a three strikes law or habitual criminal statute, even though only something of low value or nothing at all was stolen. As with all legal definitions in the U.S., the foregoing description may not be applicable in every jurisdiction since there are 51 separate criminal codes in force.

The state of Massachusetts is somewhat unique in that it does not formally use the term "burglary;" instead, the acts of breaking and entering and any theft that occurs coincident with such entry are treated as separate offenses, with the former being officially denoted "breaking and entering in the nighttime (or daytime, as applicable) with intent to commit a felony (or misdemeanor, as applicable)," and the latter "(grand or petit) larceny from a building," if any property was indeed stolen. Thus if the perpetrator's intended act after entering the burglarized premises was not a felony, the result can be two different misdemeanor charges rather than a felony count.

Many other U.S. states treat burglary as a more serious crime when it occurs at night; California formerly prosecuted nighttime burglary as "burglary in the first degree" and daytime burglary as "burglary in the second degree," under most circumstances (this state now uses building type — residential vs. commercial — in making the determination, with residential burglaries carrying the more serious charge). In states that continue to punish nighttime burglary more severely than daytime burglary and the crime occurred during twilight, a standard of 30 minutes after sunset or before sunrise will often be observed as the boundary between night and day.

England and Wales

In England and Wales, burglary is dealt with in the Theft Act 1968 under section 9. Subsection (1)(a) says that any person who enters any building, part of a building, inhabited vehicle or vessel with the intent to steal, cause grievous bodily harm, criminally damage or commit rape will be guilty of the offence of burglary. Subsection (1)(b) provides for a different type of burglary, where any person having entered any building, part of a building, inhabited vehicle or vessel commits a theft or inflicts gross bodily harm. It is a necessary component, however, that in either eventuality that the perpetrator must be trespassing at the time of the offence.

There is also an offence of Aggravated Burglary under Section 10 of the Act. A burglary becomes aggravated when a burglar has with him at the time a weapon of offence, imitation firearm, firearm or explosive. (There is no requirement that any of these items are used in the commission of the offence merely that they are in the possession of the burglar at the time). Maximum sentences for Section 9 offences are 10 years for a non-dwelling and 14 years for a dwelling. Section 10 offences carry a maximum of life imprisonment. Burglary is triable either summarily (before a Magistrate) or on indictment in the Crown Court.

See also


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