Burglary

Criminal law

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Burglary (also called breaking and entering^[1] and sometimes housebreaking^[2]) is a crime the essence of which is entry into a building for the purposes of committing an offence. Usually that offence will be theft, but most jurisdictions specify others which fall within the ambit of burglary. Commission of burglary is normally referred to as to burgle (in British English) or burglarize (in American English).

Contents 1 Common law definition 1.1 Historical definition 2 United States 2.1 Kentucky 2.2 Massachusetts 2.3 New Hampshire 2.4 New York 2.5 Night-time burglaries 2.6 Burglaries as inchoate crimes 3 England and Wales 3.1 Elements of the offence 3.1.1 "Enters" 3.1.2 "Building or part of a building" 3.1.3 "As a trespasser" 3.1.4 "With intent" 3.1.5 Mens Rea 3.1.6 Trial and Sentence 3.2 Aggravated burglary 3.2.1 "Has with him" 3.2.2 "At the time" 3.2.3 Mens Rea 3.2.4 Trial and Sentence 4 Scotland 5 Canada 6 Notes and References 7 See also 8 External links

Common law definition

The common law definition of burglary was described by Sir Matthew Hale as

“

The breaking and entering the house of another in the night time, with intent to commit a felony therein, whether the felony be actually committed or not.[3][4][5]

”

1. Breaking- this could be either actual, such as by forcing a door, or constructive, such as by fraud or threats^[3]
2. Entering- this can encompass either physical entry by a person or the insertion of some implement with which to remove property, but not one solely used for gaining entry^[3] Although seldom expressed as a separate element the common law required that the entry be a consequence of the breaking. [Perkins On Criminal Law, 200; citing Regina v. Davis, 6 Cox. C.C. 369 (1854) Thus if a wrongdoer succeeded in partially opening a window by using a pry bar and then noticed an open door through which he entered the dwelling there is no burglary at common law. [Id.]
3. House- this included a temporarily unoccupied dwelling but not a building only occasionally used as a habitation^[3]
4. Night time- defined as being between half an hour after sunset and half an hour before sunrise^[3]
5. Intent- most serious offences were classed as felony when this definition was prevalent, and included larceny, an alternative name for theft.^[3] This precludes licit break-ins whose intent cannot be for the commission of any crime, such as a forced entry to rescue a person from danger or to exercise a lawful arrest.

Occasionally this element is expressed as the intent to commit a felony “therein”. The use of the word “therein” adds nothing and certainly does not limit the scope of burglary to those wrongdoers who break and enter a dwelling intending to commit a felony on the premises. [Boyce & Perkins, 3rd Ed., 269, citing People v. Wright, 206 Cal.App.2d 184, 23 Cal.Rptr. 734 (1962)] It is sufficient if the evidence shows that the wrongdoer intended to commit a felony at the time he broke and entered regardless of the legal situs of the felony. [Id.]

The common law elements serve as a basic template, but individual jurisdictions occasionally alter them and they may vary slightly from state to state within federal jurisdictions. This definition has been greatly expanded in most jurisdictions, so that the building need not be a dwelling or even a building in the conventional sense, physical breaking need not occur, the entry no longer need be at night, and the intent may be to commit any felony or theft.

The etymology originates from Anglo-Saxon or Old English, one of the Germanic languages. According to one textbook, "The word burglar comes from the two German words berg, meaning "house," and laron, meaning "thief" (literally "house thief").^[6] However, berg (as in Helderberg) technically means "mountain," and its cognate burg (as in Harrisburg) actually means "town" or ""hilltop fortess," and thus from there, "house."

Historical definition

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". To a greater or lesser extent, these elements have been replaced in the various common law countries.

• Breaking

The first element, "breaking," required at least a minimal application of force. The opening of 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.

• Entering

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.

• Dwelling

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.

• Of another

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.

• Nighttime

The fifth element required that the burglary had to be committed at night, which was defined under the common law as the time when 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.

• Intent to commit a felony

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. arson, murder, rape, larceny, vandalism) 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

Burglary is prosecuted as a felony or misdemeanor,^[7] and involves trespassing and theft, entering a building or automobile, or remaining unlawfully with intent to commit theft or any crime, not necessarily a theft – for example, vandalism. Even if nothing is stolen in a burglary, the act is a statutory offense. Burglary may be an element in crimes involving rape, arson, kidnapping, identity theft, or violation of civil rights; indeed the "plumbers" of the Watergate scandal were technically burglars. As with all legal definitions in the U.S., the foregoing description may not be applicable in every jurisdiction, since there are 50 separate state criminal codes, plus Federal and territorial codes in force.

Kentucky

The acts of burglary and any theft that occurs coincident with such entry are treated as separate offenses. 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. The theft itself might be charged as "(grand or petit) larceny from a building". However, in Kentucky, only unlawful presence and an intent to commit a crime are required.^[8]

Massachusetts

The Commonwealth of Massachusetts formally uses the term "breaking and entering" as well as "burglary".^[9]

New Hampshire

In the criminal code of the State of New Hampshire, "A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied section thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter."^[10]

New York

Under New York penal law, burglary is always a felony, even in third degree.^[11] It is more serious if the perpetrator uses what appears to be a dangerous weapon, or if he or she enters a dwelling.^{[12] [13]}

Night-time burglaries

Many other U.S. states treat burglary as a more serious crime when it occurs at night; California formerly prosecuted night-time 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/auto – in making the determination, with residential burglaries carrying the more serious charge). In states that continue to punish night-time 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.

Burglaries as inchoate crimes

There is some scholarly treatment of burglaries in American law as inchoate crimes, but this is in dispute. Burglaries "are actually inchoate crimes in diguise."^[14]

Other scholars warn about the consequences of such a theory:

Burglary, as a preliminary step to another crime, can been seen as an inchoate, or incomplete, offense. As it disrupts the security of persons in their homes and in regard to their personal property, however, it is complete as soon as the intrusion is made. This dual nature is at the heart of a debate about whether the crime of burglary ought to be abolished, leaving its elements to be covered by attempt or as aggravating cirucmstances to other crimes, or retained and the grading schemes reformed to reflect the seriousness of the individual offense.

—McCord and McCord.^[15]

Certainly, possession of burglary tools, in those jusridictions that criminalize that activity, creates an inchoate crime.^[16] It is clear that:

In effect piling an inchoate crime onto an inchaote crime, the possession of burglary tools with the intent to use them in a burglary is a serious offense, a felony in some jurisdictions. Gloves that a defendant was trying to shake off as he ran from the site of a burglary were identified as burglar's tools in Green v. State (Fla. App. 1991).

—McCord and McCord.^[15]

England and Wales

Burglary is defined by section 9 of the Theft Act 1968 which created two variants:

“

A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm [or raping any person therein][17], or do unlawful damage to the building or anything in it.(section 9(1)(a))

”

“

A person is guilty of burglary if, having entered a building or part of a building as a trespasser, he steals or attempts to steal anything in the building, or inflicts or attempts to inflict grievous bodily harm on any person in the building.(section 9(1)(b))

”

Elements of the offence

"Enters"

Although physical evidence of entry is not normally difficult to obtain, it can be difficult on occasions to decide whether an entry has occurred in law. In R v Collins, it was held that entry had to be "substantial" and "effective". The issue arose in R v Brown 1985 71 Cr App R 15 in which the defendant had been found on the pavement outside a shop with the top half of his body through the broken window, sorting though property on display for sale; this was held by the Court of Appeal to constitute an effective entry, while regarding the use of the word "substantial" as unnecessarily wide. It was ruled that the jury had been entitled to conclude that the entry had been effective. Furthermore, in R v Ryan 1996 160 JP 610, the defendant had been found partially within a building, having been trapped by a window, and argued that this was not a sufficient entry. However, he was convicted as it was held that a partial entry was sufficient and that it was irrelevant that he was due to circumstances incapable of stealing anything.

"Building or part of a building"

The Theft Act 1968 does not define a building, so this must be a matter of fact for the jury, however Section 9(3) specifically states that the term includes an "inhabited vehicle or vessel"; hence motor homes, caravans and houseboats are protected by the section even when temporarily unoccupied.^[18] Burglary can also be committed in "part of a building" and in R v Walkington 1979 1 WLR 1169 the defendant had entered a large shop during trading hours but went behind a counter and stole money from a till. The court held that he had entered that part of the building normally reserved for staff as a trespasser and was therefore guilty of burglary.

"As a trespasser"

The essence of trespass is entering or remaining another's property without authority; a person having permission to enter property for one purpose who in fact enters for another purpose may become a trespasser, and in R v Jones and Smith,^[19] a defendant who had a general permission to enter his father's home became a trespasser when he did so in order to steal a television set, because doing so was inconsistent with the general permission. In recent years, the terms "distraction burglary", "artifice burglary" and "burglary by trick" have been used in crime prevention circles when access to premises is granted as a result of some deception on the occupier, usually by a pretence that the burglar represents some body who might reasonably request access such as a water, gas or electricity supplier.^[20][21] There is no separate legal definition of this variant.

"With intent"

The intention to commit an offence, being an essential element of burglary, requires proof beyond reasonable doubt. For example, if entry is made to regain property which the defendant honestly believes he has a right to take, there is no intention to steal and the defendant is entitled to be acquitted. However, it has been held that a conditional intent to steal anything found to be of value is enough to satisfy this requirement.^[22]

Mens Rea

R v Collins is authority for the proposition that the defendant must at least be reckless as to whether his entry is a trespass. For the Section 9(1)(a) offence, proof beyond reasonable doubt is required that the defendant intended to commit the offence specified as part of the burglary. In the Section 9(1)(b) offence, the mens rea is that of the offence committed, such that, for example, if grievous bodily harm is inflicted, recklessness will be sufficient to establish liability.

Trial and Sentence

The maximum penalty for burglary is 14 years imprisonment if committed in a dwelling and 10 years otherwise.^[18] Section 4 of the Crime (Sentences) Act 1997 specifies a minimum 3 year prison sentence for third-time domestic burglary unless exceptional circumstances apply.^[23] Higher courts have consistently upheld lengthy custodial sentences for burglaries of dwellings; see, for example R v Brewster 1998 1 Cr App R (S) 181^[24]

Aggravated burglary

Under section 10, aggravated burglary is committed when a burglar enters and "at the time has with him a firearm^[25], imitation firearm^[26], weapon of offence^[27], or any explosive^[28]".

"Has with him"

In R v Kelt 1977 65 Cr App R 74 it was held that this phrase will normally mean mean "carrying", and in R v Klass 162 JP 105, The Times, 17 December 1997 (CA) others had entered a building for criminal purposes while the defendant remained outside, but in possession of a scaffolding pole which had been used to break a window. This did not, in law, constitute an entry for the purposes of burglary. It was held that since Klass had not himself entered the building, he was guilty of burglary and not aggravated burglary.

"At the time"

• In R v O'Leary 1986 82 Cr App R 337, the defendant entered a house unarmed but picked up a kitchen knife once inside; he then used it to force the occupier to hand over property. It was held that this constituted aggravated burglary because the offence which was part of the enterprise had been committed while in possession of the weapon.
• In R v Kelly, 1992 The Times, December 2, the defendant had used a screwdriver to gain entry; once inside the premises, he was confronted by the occupiers and used the screwdriver as a weapon to force them to hand over a video recorder. It was held that the screwdriver became an offensive weapon when he formed an intention to use it for causing injury to the occupier at the time of the theft, and therefore he was guilty of aggravated burglary.

Mens Rea

It is necessary to prove that the defendant was aware of his possession of a weapon to convict of aggravated burglary. In R v Russell 1984 Crim L R 425, the defendant was found in possession of a knife but had forgotten that he had it; it was held that he was not guilty of aggravated burglary. A plea that the defendant did not intend to use the weapon is not a defence to this charge (R v Stones 1989 1 WLR 156).

Trial and Sentence

Aggravated burglary carries a maximum sentence of life imprisonment and is therefore triable only on indictment.

Scotland

Under Scots law in Scotland the crime of burglary is called theft by housebreaking. It does not include any other aspect of burglary. Housebreaking when combined with other crimes is considered acquisitive crime. It is a crime usually prosecuted under solemn procedure.

Canada

In Canada, burglary is labelled as "Breaking and Entering" under section 348 of the Criminal Code and is a hybrid offence. Breaking and entering is defined as trespassing with intent to commit an indictable offence. The crime is commonly referred to in Canada as "break and enter".^[29][30][31]

Notes and References

• Allen, Michael. Textbook on Criminal Law. Oxford University Press, Oxford. (2005) ISBN 0-19-927918-7.
• Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
• Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell. ISBN 0-421-19960-1
• Martin, Jacqueline. Criminal Law for A2 Hodder Arnold. (2006) ISBN 978-0-340-91452-6
• Ormerod, David. Smith and Hogan Criminal Law, LexisNexis, London. (2005) ISBN 0-406-97730-5
• Smith, J. C. Law of Theft, LexisNexis: London. (1997) ISBN 0-406-89545-7

See also

• R v Collins
• Trespass
• smash and grab

External links

• Apartment security for tenants
• California Penal Code Section 459 - Burglary
• Massachusetts General Laws - Crimes Against Property
• The Chula Vista Residential Burglary Reduction Project