Burglary

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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. To commit a burglary is to burgle (in British English) or burglarize (in American English).^[3]

Common law definition

Burglars codes

The common law burglary was defined by Sir Matthew Hale as

1. Breaking can be either actual, such as by forcing open a door, or constructive, such as by fraud or threats.^[4] Breaking does not require that anything be "broken" in terms of physical damage occurring. A person who has permission to enter part of a house, but not another part, commits a breaking and entering when they use any means to enter a room where they are not permitted, so long as the room was not open to enter.
2. Entering can involve either physical entry by a person or the insertion of an instrument with which to remove property. Insertion of a tool to gain entry may not constitute entering by itself.^[4] Note that there must be a breaking and an entering for common law burglary. Breaking without entry or entry without breaking is not sufficient for common law burglary.
3. Although rarely listed as an element, the common law required that entry occur as a consequence of the breaking.^[7] For example, if a wrongdoer partially opened 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.^[7][8] The use of the pry bar would not constitute an entry even if a portion of the prybar "entered" the residence. Under the instrumentality rule the use of an instrument to effect a breaking would not constitute an entry. However, if any part of the perpetrator's body entered the residence in an attempt to gain entry, the instrumentality rule did not apply. Thus, if the perpetrator uses the prybar to pry open the window and then used his hands to lift the partially opened window, an "entry" would have taken place when he grasped the bottom of the window with his hands.^[7][9]
4. House includes a temporarily unoccupied dwelling, but not a building used only occasionally as a habitation^[4]
5. Night time is defined as hours between half an hour after sunset and half an hour before sunrise^[4]
6. Typically 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.^[7] The situs of the felony does not matter, and burglary occurs if the wrongdoer intended to commit a felony at the time he broke and entered.^[7]

The common law elements of burglary often vary between jurisdictions. The common law definition has been expanded in most jurisdictions, such that the building need not be a dwelling or even a building in the conventional sense, physical breaking is not necessary, the entry does not need to occur 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").^[10] Another suggested etymology is from the later Latin word burgare, "to break open" or "to commit burglary", from burgus, meaning "fortress" or "castle", with the word then passing through French and Middle English, with influence from the Latin latro, "thief". .^[11] The British verb "burgle" is a late back-formation.^[12]

United States

A car that has been burgled

Burglary is prosecuted as a felony or misdemeanor 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.

Nighttime burglaries

In many jurisdictions in the U.S., burglary occurring at night is punished more severely than burglary occurring at other time. In California, for example, nighttime burglary was punished as burglary in the first degree, while daytime burglary was punished as burglary in the second degree. California now distinguishes between entry into a residence and into a commercial building, with the burglary into a residence with heavier punishment.

In states that continue to punish nighttime burglary more severely than daytime burglary and burglary which occurred during twilight, night is traditionally defined as hours between 30 minutes after sunset and 30 minutes before sunrise.

Inchoate crime

Some academics consider burglary as an inchoate crime.^[13] Others say that because the intrusion itself is harmful, this justifies punishment even when no further crime is committed.

Burglary, as a preliminary step to another crime, can be 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 circumstances to other crimes, or retained and the grading schemes reformed to reflect the seriousness of the individual offense.

—McCord and McCord.^[14]

Possession of burglar's tools, in jurisdictions that make this an offense, has also been viewed as an inchoate crime:^[15]

In effect piling an inchoate crime onto an inchoate 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.^[14]

California

Under Penal Code 459, a burglary in California takes place when one enters a structure intending to commit a petty theft, or any felony, once inside. The key is that the person must have formed this criminal intent prior to entering the structure. The crime is complete once the person enters with the criminal intent, even if he/she never carries out the criminal purpose once inside. California law also treats burglary of an inhabited dwelling (residential burglary) more seriously than burglary of other types of structures.^[16]

Florida

Under Florida State Statutes, "burglary" occurs when a person "enter[s] a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.^[17] Depending on the circumstances of the crime, burglary can be classified as third-, second-, or first-degree felonies, with maximum sentences of five years, fifteen years, and life, respectively.^[18]

Georgia

A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof. A person convicted of the offense of burglary, for the first such offense, shall be punished by imprisonment for not less than one nor more than 20 years. For the purposes of this Code section, the term "railroad car" shall also include trailers on flatcars, containers on flatcars, trailers on railroad property, or containers on railroad property. O.C.G.A. § 16-7-1

Kentucky

Burglary and the intended crime, if carried out, are treated as separate offenses. Burglary is a felony, even when the intended crime is a misdemeanor, and the intent to commit the crime can occur when one "enters or remains unlawfully" in the building, expanding the common law definition. It has three degrees. Third-degree burglary is the broadest, and applies to any building or other premises. Second-degree burglary retains the common-law element of a dwelling, and first-degree burglary requires one to be in a dwelling and to be armed with a weapon or to cause injury.^[19] A related offense, criminal trespass, covers unlawful entry to buildings or premises without the intent to commit a crime, and is a misdemeanor or, in the third degree, a violation.^[20] Possession of burglar's tools, with the intent to use them to commit burglary or theft, is a misdemeanor.^[21]

Massachusetts

The Commonwealth of Massachusetts uses the term "burglary" to refer to a night-time breaking and entering of a dwelling with the intent to commit a felony. Burglary is a felony punishable by not more than twenty years; should the burglar enter with a dangerous weapon, they may be imprisoned for life.^[22] Unlawful entries of a structure other than a dwelling are labeled "breaking and entering" and punishments vary according to structure.^[23]

Maryland

In Maryland, under title 6, subtitle 2 of the criminal law code, the crime of burglary is divided into four degrees. The first three degrees are felonies, while fourth-degree burglary is a misdemeanor. Breaking and entering into a dwelling with intent to commit theft or a crime of violence is first-degree burglary. Breaking and entering into a "storehouse" (a structure other than a dwelling, also including watercraft, aircraft, railroad cars, and vessels) with intent to commit theft, arson, or a crime of violence is second-degree burglary. Third-degree burglary is defined as breaking and entering into a dwelling with intent to commit a crime.

Simple breaking and entering into a dwelling or storehouse without specific intent to commit an additional crime is fourth-degree burglary. This degree also includes two other offenses that do not have breaking and entering as an element: Being in or on the yard, garden, or other property of a storehouse or dwelling with the intent to commit theft, or possession of burglar's tools with the intent to use them in a burglary offense.

New Hampshire

In the criminal code 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."^[24]

New York

Under the penal law in New York, burglary is always a felony, even in third degree.^[25] It is more serious if the perpetrator uses what appears to be a dangerous weapon, or if he or she enters a dwelling.^[26][27]

Virginia

In Virginia, there are degrees of burglary. The crime may be committed at any time, but is a higher degree of crime, and therefore punished more harshly, if it occurs at night.

Wisconsin

In Wisconsin, burglary is committed by one who enters a building without consent and with intent to steal or to commit another felony. Burglary may also be committed by entry to a locked truck or trailer or a ship.^[28] The crime of burglary is treated as being more serious if the burglar is armed with a dangerous weapon when the burglary is committed or arms himself/herself during the commission of the burglary.^[29] It is a lesser offense to enter property of another without consent but with no intention to steal or commit a felony.^[30]

United Kingdom

England and Wales

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

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.^[32] 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 on 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,^[33] 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.^[34][35] 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.^[36]

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.^[32] Section 4 of the Crime (Sentences) Act 1997 specifies a minimum 3 year prison sentence for third-time domestic burglary unless exceptional circumstances apply.^[37] 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^[38]

Aggravated burglary

Under section 10, aggravated burglary is committed when a burglar enters and "at the time has with him a firearm,^[39] imitation firearm,^[40] weapon of offence,^[41] or any explosive^[42]".]

"Has with him"

In R v Kelt 1977 65 Cr App R 74 it was held that this phrase will normally 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.^[43] 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

Burglars Tools Found in the Bank, printed in 1875 in the Canadian Illustrated News

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".^[44][45][46]

Nordic countries

Sweden

In Sweden, burglary does not exist as an offence in itself, instead there are two available offences. If a person simply breaks into any premise, he is technically guilty of either unlawful intrusion or breach of domiciliary peace (olaga intrång and hemfridsbrott), depending on the premise in question. Breach of domiciliary peace is only applicable when a person "unlawfully intrudes or remains where another has his living quarters".^[47] The only punishment available for any of these offences is fines, unless the offence is considered gross. In that case, the maximum punishment is two years in prison.

However, if the person who has forced himself into a house, steals anything (literally "takes what belongs to another with intent to acquire it"), he is guilty of (ordinary) theft (stöld). However, the section regarding gross theft (Chapter 6, 4s of the Penal Code, grov stöld) states "in assessing whether the crime is gross, special consideration shall be given to whether the unlawful appropriation took place after intrusion into a dwelling."^[47] For theft, the punishment is imprisonment of at most two years, while gross theft carries a punishment of between six months and six years.

Finland

As in Sweden, there is no crime of burglary as such in Finland. In the case of breaking and entering, the Finnish penal code states that

A person who unlawfully
(1) enters domestic premises by force, stealth or deception, or hides or stays in such premises [...]
shall be sentenced for invasion of domestic premises to a fine or to imprisonment for at most six months.^[48]

However, if theft is committed during unlawful entering, then a person is guilty of theft or aggravated theft depending on the circumstances of the felony.

Aggravated theft: (1) If in the theft

(5) the offender breaks into an occupied residence,

and the theft is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated theft to imprisonment for at least four months and at most four years.^[48]

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
• Home Invasion
• Watergate burglaries
• "Cat burglar" at Wiktionary

External links

• California Penal Code Section 459 - Burglary
• Massachusetts General Laws - Crimes Against Property
• The Chula Vista Residential Burglary Reduction Project
• Wisconsin Statutes Home Page