An Introduction to the Common Law Offense of Burglary
The common law definition of burglary has evolved over time, as have its different degrees. Initially, in the 14th century, the crime was defined as the nighttime entry into a dwelling with the intent to commit a felony within it (Statute of Westminster II, 13 Edw. 1, c. 34, 1285). Common law later extended the definition to include daytime entry and the entering of commercial buildings. The theory behind this increase in scope was that daytime entries into even the most secure buildings posed the greatest threat to personal safety, especially in rural settings where the residents were often armed and tended to be more or less permanently agitated and suspicious of outsiders.
Blackstone, in Vol. 4, Criminal Law, p. 223, defined burglary as, "breaking and entry into a dwelling house, of another in the night time, with intent to commit a felony therein." This definition explicitly required the element of nighttime. Burglary was a felony at common law no matter what the value of the property stolen (also see 2 Haw. 64; 10 Vt. 371).
Burglary at common law, of either the first or second degrees, "included any breaking and entry in the day time, with the intent to commit a larceny. But by the weight of authority, such a breaking and entry at day time, in order to amount to either the first or second degree of burglary, must be into a dwelling house." (People v. Crews, 2 Hill 435 , citing Regina v. Collins (1860) 175 to 178).
The terms "daytime" and "nighttime" left a great deal to the courts’ discretion. For example, what is the exact time that constitutes day or night? 4 a.m. could be considered neither by some, while 10 p.m. would almost always be considered nighttime. In addition, the phrase "the dwelling house of another" implicitly included the dwelling of a cohabiting spouse, although no law expressly provided for this. Three degrees of burglary (all felonies) were distinguished in the early common law as follows: Under the first degree, i.e., burglary of the king’s mansion, possession of any tool or implement adapted and designed for the theft or burglary of another structure would have been viewed as a direct attempt to execute a breaking and entering of the king’s mansion. The second and third degrees set forth no requirement for nighttime nor dwelling house, but did require that the breaking and entering occur in a building or an edifice. "Habitiation," "enjoyment," or "tenement" were used interchangeably with "dwelling house," and not "building" or "structure."
More recently, the common law elements of burglary have been replaced by statutes in the U.S. and many other countries. Although the continental systems differ in their treatment of burglary, the crimes they define have a common element: "the entry of a building or an enclosed space with felonious intent." (Encyclopedia Britannica.)
Key Elements of Burglary
The common law elements of burglary are: (1) a breaking and entering of the dwelling house of another, (2) at nighttime, (3) with intent to commit a felony inside.
Black’s Law Dictionary 222 (6th ed. 1990), defines "Burglary" as "breaking and entering into a dwelling house at nighttime with the intent to commit a felony therein stale; a statutory offense of similar nature; or in a more general sense, any breaking and entry into the house of another during the night, with intent to commit a felony."
Black’s Law Dictionary 224 (8th ed. 2004), goes on to note, "Burglary. The unlawful entry into a structure with the intent to commit a crime. The crime must have been committed in the structure or the defendant must have intended to commit a crime in the structure. It is a statutory offense of a broader scope than at common law."
Other definitions of burglary note that the entry was once a necessary physical invasion instead of the current statutes would suggest the entry can be either without regard to force. In terms of what constitutes the crime of burglary, it has been defined as follows:
"The essential elements of the offense of burglary at common law, which are to be found in all of the statutory definitions of burglary, are 1st (actual) breaking, 2nd. entering the premises of another person, 3rd. the intent (at the time of breaking and entering) of actually committing a felony, 4th. within the dwelling house of another, 5th. under the cover of night."
It is further noted that some courts have held that the elements of burglary include the following: "Breaking; Overcoming physical obstacles by actual use of brawn or win, of deceptions, or by threats with the use of some type of implements. Breaking may also consist of an unlawful entry through common open areas. For example, if the door does not have a latch or lock it is simply leaving an open door. Entering; In addition to common law breaking, entry does not require physical use of force or entry by the person charged as the burglar. By way of example, the following would be sufficient, without an overt action by the defendant to effect entry into a structure: 1) placing an object (like a straw) into the key-opening mechanism in order to drape it as if it was a key, thus allowing the person to simply open the door, 2) using a wire to simply pull a latch or chain to allow entry to a door, 3) using a glass cutter to cut away glass, allowing for access to window locks, 4) using a rock to smash glass and then, having disabled the window locks using one of the above methods, reaching in and manually unlocking the door, etc. With regard to "entry", it is further noted that this element may extend to the outer limits of the house, inclusive of: the adjacent porch, patio, balcony, or other area immediately below or adjacent to the house, i.e., the entire package comprising the house, patio, balcony, etc., as well as the area immediately below the roof, the eaves, the gutters, etc. The issue, however, is not the physical entering of a portion of a structure but, instead, whether entrance to any area of the parcel of property on which the building is located has occurred, by the use of forceful means. Finally, to determine whether the element of "breaking" has occurred the court will focus on this inquiry: whether by the use of force, subtlety or by medium of deceit or trickery, or an attempt to deceive, entry was made into a structure, once again, by the use of any one of the methods outlined above, such that an unauthorized intrusion occurred into the premises. Intent; Whether the person intended to commit a crime must be viewed from the general character of the act and the circumstances before and after the act and all surrounding circumstances, viewed as to the intent of the person and the intent that could be inferred therefrom. Now, about part five, the entering was alleged to have occurred within the "inside" of the dwelling house: "within" is generally distinguished from "without." In other words, the crime must be limited to the "interior" of the structure and not the entrances or exits to the structure. Finally, the entry had to occur during the night. Once again, this element of "nighttime" has been defined as follows:
"A good working rule is that you start counting from the going until the coming of the natural day, and the breaking and entering by [the] alleged burglar between the two events is burglary in the nighttime. A common, recognized definition of "nighttime" is "the time between sunset and sunrise," Thomas v. State, 24 Ark. 38, 39, 198 S.W. 781, 782 (1946) (citations omitted). In the case of a visible moon the determination of when "nighttime falls" is based on the length of time it would take to generally illuminate the interior of a dwelling and allow those who might be inside to see what is taking place outside. In addition, the term "nighttime" has been defined as the time between sundown and sunup, Campbell v. State, 227 Ark. 623, 300 S.W.2d 50, 51 (1957). The essence of the "nighttime" element is that the ordinary course of nature is such that entry would typically occur when most of the people living in or around the structure are asleep. Thus, the event is usually associated with a time when the victim will not be able to see the incident due to depravation of vision and blindness as a result of natural forces. This element is to be given a common, normal and everyday meaning and does not need to be defined by the statute."
A Critical Component: Trespassing
The common law tradition in Canada for burglary required the occupier of a dwelling to have exclusive possession of the dwelling and that the entry must be without the consent of the occupier.
In 1972, the Supreme Court of Canada in R. v. British Columbia Board of Police Commissioners changed the definition of trespass such that entry upon property with the consent of the occupier, whether expressed or implied, would not be considered as a trespass and therefore did not fulfill one of the basic elements required to be proved by the Crown at the trial for burglary. The Court held that the "offender’s consent, be it express or implied, joined the persons entering to the legal possession of the occupier," at pp. 227-228. In other words, a burglar did not need to possess the intent to commit an indictable offence at the time of entry upon property if they enjoyed the acquiescence of the occupier. Entering upon premises without the owner’s permission was considered an unlawful entry upon property, an essential element required to prove the offence of burglary beyond a reasonable doubt. Following British Columbia Board of Police Commissioners, a burglar was no longer a burglar until the occupier’s permission was revoked:
The acquiescence of the occupier to the entry which, but for such acquiescence, would have been criminal, does not negate the malicious intent when the permission is thereafter revoked. From that moment onward, the original intent to commit a criminal offence within the premises is revived, and, in the case of a dwelling-house, the dwelling-house becomes one "in which a human being has his home and in whose presence a danger of criminal mischief might be feared" [at p. 230].
Notwithstanding this shift, to prove burglary the accused still must have had the required intent at the time of entry upon the premises. Thus, a burglar could enter the premises with the intent to commit an indictable offence without the owner’s permission, leave the premises and seek the owner’s revocation of his or her permission, and then the burglar could be charged with burglary even after their permission was revoked, provided that the entry was without permission and remained without permission.
In R v. Went, the Supreme Court of Canada held that under a similar provision in the Canadian Criminal Code, entering a dwelling-house with the consent of the owner, but remaining after the owner’s permission has been revoked, does not amount to burglary. The Court stated, "[t]he very fact that Went was invited in by Mrs. Bailey shows that he entered the Bailey residence without the intent to commit an indictable offence therein, …it would be in contradiction of the statute’s object to permit Went to be punished as if he had been guilty of such intent before entering pursuant to an invitation." Further, the Court noted that Section 348 of the Criminal Code has a similar purpose to the similar section in the Code of 1953, and the intent of the 1953 code was to protect the owner "against the trespasser who, without an intention to commit a crime, could obtain access to an inhabited place shielded from public view which might be protected from entrance by outsiders." Finally, the Court noted that section 348 was not intended to convert the home into a "closed stockade" and its aim was to provide reasonable protection of the owner’s right … against the occasional intruder whose intention was only to commit mischief but damages all persons entering thereafter on account of the prosecution of his plan." Thus the Court dismissed the appeal and upheld Went’s conviction.
Breaking and Entering Defined
When it comes to burglary in Ohio courts, you would need to engage in an "affirmative act" that "opens [a structure] up." The act has to be something that a common, normal person would recognize as being some sort of "breaking in" act.
Commonly, whenever you think of breaking and entering, you might envision some sort of physical break-in, breaking down a door or some sort of forced entry. Forcing open a window or climbing through an unreachable place may also be a good example of breaking in.
However, breaking in can also mean something that’s not so obvious – constructive breaking. Constructive breaking means you’ve done something that allowed you to enter the home without entering it physically. A good example of constructive breaking is when you have a key that the owner of the premises had previously given to you and your use of that key allows you entry.
It’s important to note that entry must be actual entry. Just touching the door handle or doing something else to enter a building but stop before you enter doesn’t count.
Intent: An Integral Part of Burglary
When determining which common law element of burglary differentiates it from other crimes, the most prominent feature is the surrounding intent when entering a structure. Though some offenses may share elements of burglary like entry, remaining unlawfully, using tools or deception, the motive behind the entry is what usually determines whether or not it can be classified as burglary. According to the Federal Bureau of Investigation, burglary is the most commonly committed crime in America. Because of the frequency in which these crimes are committed, it is important to consider how intent factors into the classification of burglary. Without intent to commit a theft or felony upon entry, a crime of burglary cannot exist.
The general definition of burglary is the unlawful entry into a structure with intent to commit a theft or any felony inside. At common law, burglary was defined enough to require proof of an unlawful entry , remaining within the structure unlawfully with intent to commit a felony or theft. However, the Model Penal Code and most states have adopted a more specific definition requiring intent to commit a specific type of crime before the entry. Among felonies that an individual may intend to commit when entering a dwelling, there are three offenses that are sometimes considered alternative intents: burglary, criminal trespass and housebreaking. Unlike burglary, criminal trespass involves no unlawful entry into a structure, and housebreaking requires actual physical breaking or unlocking of an exterior door into the structure in order to satisfy the intent element. It is nearly impossible to commit a crime of burglary without the specific intent that the defendant had when he or she unlawfully entered the structure. Intent to commit a theft or felony inside a dwelling is the most important element of burglary.
Possible Burglary Defenses
The common law elements of burglary are: the unlawful entry into the structure of another, supplemented by specific intent to commit a crime or the commission of a crime at the time of entry.
The model penal code modifies these elements by eliminating the common law requirement that the entry be onto the structure of another and that the entry be made in the nighttime. Thus the model penal code requires simply that the burglar enter the structure of any kind of another (even during the daytime) with the specific intent to commit a crime therein.
Several common defenses have evolved over the years to protect individuals from being convicted of burglary crimes. One defense is lack of intent and the concept that a person did not intend to commit a crime before entering the dwelling. To prove such an absence of intent, the accused must produce compelling evidence of his intentions at the time of entry, or else prove that the intent to commit a crime arose after the initial entry.
Another defense is consent, or the idea that the accused received permission to enter the dwelling and was not attempting to break in with harmful intentions. If accused can show that he had the appropriate permission, he may not be found guilty of burglary.
Other defenses against burglary charges may involve the presence of an alibi for the time of the crime.
Modern Relevance and Adaptations
Recognizing the potential for loopholes in these definitions, modern jurisdictions have retained elements of each of the older definitions. For instance, many countries offer some variation of the requirement that the burglary being defined must occur in the dwelling of another person. This provision both broadens the reach of the law (in the second definition, burglary of one’s own dwelling is permissible) and closes a loophole where traditional definition is applied. In addition, many jurisdictions require that an element with the name or function of burglary witness the entry and subsequent crime, thereby closing these often-cited loopholes. The first criminal code solely devoted to burglary was published by the German Federal Criminal Code in 1871. This code remained in light use in the United States until 1970 when the American Law Institute promulgated an official Model Penial Code. These modern codes account for variable changes in criminal attitudes in regard to burglary. Additionally, the size of the area defined as the dwelling was altered. The most common definition of the area of the dwelling in the modern codes is now defined as being 4 walls but not including the airspace above or the ground below.
Conclusion: The History and Significance of Burglary Statutes
The common law elements of committing burglary as a defined crime is a historical remnant that has been today lifted to a law that now defines a burglar in terms and language reflective of a modern era as well as one that is still focused on upholding and enforcing the basic legal precepts even after thousands of years of changing times .