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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]
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The common law burglary was defined 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.[4][5][6] | ” |
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.[7] The situs of the felony does not matter, and burglary occurs if the wrongdoer intended to commit a felony inside at the time he broke and entered.[7]
The common law elements of burglary often vary between jurisdictions. This 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]
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.
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.
Some academics consider burglary as an inchoate crime.[11] 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.[12]
Possession of burglar's tools, in jurisdictions that make this an offense, has also been viewed as an inchoate crime:[13]
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.[12]
Under Florida State Statutes, "burglary" occurs when a person unlawfully enters or remains in a dwelling, a structure, or a conveyance to commit therein, unless he or she remains in the dwelling, structure, or conveyance to commit a forcible felony. In essence, burglary is trespass when, at the time of the trespass, the perpetrator had the intention of committing an offense in the location. 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.[14]
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.[15] 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.[16] Possession of burglar's tools, with the intent to use them to commit burglary or theft, is a misdemeanor.[17]
The Commonwealth of Massachusetts formally uses the term "breaking and entering" as well as "burglary".[18]
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."[19]
Under the penal law in New York, burglary is always a felony, even in third degree.[20] It is more serious if the perpetrator uses what appears to be a dangerous weapon, or if he or she enters a dwelling.[21][22]
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.
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],[23] 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)) | ” |
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.
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.[24] 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.
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,[25] 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.[26][27] There is no separate legal definition of this variant.
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.[28]
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.
The maximum penalty for burglary is 14 years imprisonment if committed in a dwelling and 10 years otherwise.[24] Section 4 of the Crime (Sentences) Act 1997 specifies a minimum 3 year prison sentence for third-time domestic burglary unless exceptional circumstances apply.[29] 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[30]
Under section 10, aggravated burglary is committed when a burglar enters and "at the time has with him a firearm,[31] imitation firearm,[32] weapon of offence,[33] or any explosive[34]".]
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.
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).
Aggravated burglary carries a maximum sentence of life imprisonment and is therefore triable only on indictment.
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.
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".[35][36][37]
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".[38] 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."[38] For theft, the punishment is imprisonment of at most two years, while gross theft carries a punishment of between six months and six years.
BURGLARY (burgi latrocinium; in ancient English law, hamesucken 2), at common law, the offence of breaking and entering the dwelling-house of another with intent to commit a felony. The offence and its punishment are regulated in England by the Larceny Act 1861. The four important points to be considered in connexion with the offence of burglary are (1) the time, (2) the place, (3) the manner and (4) the intent. The time, which is now the essence of the offence, was not considered originally to have been very material, the gravity of the crime lying principally in the invasion of the sanctity of a man's domicile. But at some period before the reign of Edward VI. it had become settled that time was essential to the offence, and it was not adjudged burglary unless committed by night. The day was then accounted as beginning at sunrise, and ending immediately after sunset, but it was afterwards decided that if there were left sufficient daylight or twilight to discern the countenance of a person, it was no burglary. This, again, was superseded by the Larceny Act 1861, for the purpose of which night is deemed to commence at nine o'clock in the evening of each day, and to conclude at six o'clock in the morning of the next succeeding day.
The place must, according to Sir E. Coke's definition, be a mansion-house, i.e. a man's dwelling-house or private residence. No building, although within the same curtilage as the dwellinghouse, is deemed to be a part of the dwelling-house for the purposes of burglary, unless there is a communication between such building and dwelling-house either immediate or by means of a covered and enclosed passage leading from the one to the other. Chambers in a college or in an inn of court are the dwelling-house of the owner; so also are rooms or lodgings in a private house, provided the owner dwells elsewhere, or enters by a different outer door from his lodger, otherwise the lodger is merely an inmate and his apartment a parcel of the one dwelling-house.
In Scots law, the word hamesucken meant the feloniously beating or assaulting a man in his own house.
As to the manner, there must be both a breaking and an entry. Both must be at night, but not necessarily on the same night, provided that in the breaking and in the entry there is an intent to commit a felony. The breaking may be either an actual breaking of any external part of a building; or opening or lifting any closed door, window, shutter or lock; or entry by means of a threat, artifice or collusion with persons inside; or by means of such a necessary opening as a chimney. If an entry is obtained through an open window, it will not be burglary, but if an inner door is afterwards opened, it immediately becomes so. Entry includes the insertion through an open door or window, or any aperture, of any part of the body or of any instrument in the hand to draw out goods. The entry may be before the breaking, for the Larceny Act 1861 has extended the definition of burglary to cases in which a person enters another's dwelling with intent to commit felony, or being in such house commits felony therein, and in either case breaks out of such dwellinghouse by night.
Breaking and entry must be with the intent to commit a felony, otherwise it is only trespass. The felony need not be a larceny, it may be either murder or rape. The punishment is penal servitude for life, or any term not less than three years, or imprisonment not exceeding two years, with or without hard labour.
Housebreaking in English law is to be distinguished from burglary, in that it is not essential that it should be committed at night, nor in a dwelling-house. It may, according to the Larceny Act 1861, he committed in a school-house, shop, warehouse or counting-house. Every burglary involves housebreaking, but every housebreaking does not amount to burglary. The punishment for housebreaking is penal servitude for any term not exceeding fourteen years and not less than three years, or imprisonment for any term not exceeding two years, with or without hard labour.
In the United States the common-law definition of burglary has been modified by statute in many states, so as to cover what is defined in England as housebreaking; the maximum punishment nowhere exceeds imprisonment for twenty years.
Pollock and Maitland, History of English Law; Stephen, History of Criminal Law; Archbold, Pleading and Evidence in Criminal Cases; Russell, On Crimes and Misdemeanours; Stephen, Commentaries.
Categories: BUI-BYZ | Criminal law
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In English and American law burglary is the offense of breaking into a dwelling-house at night, with the intent to commit a felony, generally with the intent to steal. The Biblical passage on the subject (Ex 22:1-2 [A. V. 2-3]) reads thus: "If the thief be found breaking in ["be-Maḥteret," literally, "in the breach"] and be smitten that he die, there shall be no blood-guiltiness for him. If the sun be risen upon him, there shall be blood-guiltiness for him: he should make restitution; if he have nothing, he shall be sold for his theft."
The offense of breaking into a house at night is deemed graver than simple theft only in so far as the offender exposes himself to death at the hands of the inmates; but no greater punishment can be inflicted by the judges. Of the old Jewish versions the Septuagint renders the first half of the second verse thus: "If the sun rise upon him, he is guilty and should die in return." But Onkelos, in the spirit of the tradition, says: "If the eye of the witnesses has fallen upon him, there is blood-guiltiness." Among the commentators, Rashi, as is his usage, gives to the verse a construction found in the Mekilta and in the Talmud; but Ibn Ezra holds to the literal meaning of the text, and maintains that the word ("maḥteret" ) used for "breaking in," like the English word "burglary," implies breaking in at night.
The word "maḥteret" also occurs in Jer 2:34, where the prophet complains that he found at Jerusalem the blood of innocent poor men, killed, but not in the act of housebreaking—an indication that violent death to the housebreaker had become a common occurrence.
The Mekilta on the passage in Exodus (Mishpaṭim xiii.) treats the shining of the sun as a mere figure of speech, signifying that it was clear as the sun that the housebreaker meant to do no harm to the inmates. The Mishnah treats of burglary among capital offenses (Sanh. viii. 6): "He who comes through the breach is judged on account of his latter end [i.e., on account of what he is expected to do in the end]. If one has come through the breach and broken a jar, if there is blood-guiltiness for him, he is bound to pay damages: if not, he is free from paying them." This is ruled onthe principle that where an act is punishable with death (though only with death at the hands of the injured party), the actor does not pay damages.
In the discussion of this Mishnah some of the Babylonian sages (Sanh. 72a) go so far as to claim that even when the burglar has carried the goods away, he can not be held to double restitution, except in the cases where the figurative light of the sun—that is, the certainty of his not intending harm to the person in the house—would raise blood-guiltiness for his death. The apparent result of the discussion is that single restitution is to be made even by the burglar, who has taken his life in his hands; that he has not "with his life" acquired the stolen goods; but at any rate he seems not to be liable to double restitution like the ordinary thief.
As to estimating the intent of the burglar, the Gemara, by way of illustration, puts the case of the father breaking into the house of the son, where it may be taken for certain that the housebreaker would not kill the owner, even if the latter should stand up for the retention of his goods (Sanh. 72d et seq.). One argument for this figurative meaning of the text is drawn from the words: "If the sun rise upon him," as though the sun shone on him alone and not on all alike; hence the light cast upon him by the circumstances must be meant (Mek. l.c.; Sanh. 72d; Yer. Ket. iv. 28c).
The question is also raised (Sanh. 72b) whether any one other than the master of the house is justified in killing the burglar; and it is solved in the affirmative, as the text says, "and be smitten," in the passive, not defining who smote him. Also, whether there must be a breaking into the house proper, or whether coming into another man's courtyard or stable, or upon his roof, would constitute burglary; and the decision is that it would (Sanh. l.c.; Yer. Sanh. viii. 26c; Maimonides, "Yad," Genebah, ix. 7-12). Except Maimonides, the codifiers have taken but little trouble to clear up these points or to decide what the true Halakah is, as questions of criminal law had long ceased to be of practical value (Ṭur. Ḥoshen Mishpaṭ, 351, 2; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 425, 1, gloss).
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Burglary is when a person goes somewhere where they should not be, like in another person's house or car, and does a crime there. If someone goes somewhere that they should not, but they do not do a crime, it is trespassing, not burglary. Burglary is against the law. If the police can prove that a person is a burglar as well as the crime they did there, they can be sent to prison for longer than if they had done the crime in public. A person who does a burglary is a burglar.
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| | Massachusetts Law - Massachusetts General Laws - Crimes Against Property - Chapter 266, Section 16 - Massachusetts Attorney Resources - Massachusetts Laws |
| | KRS 511.050 - Kentucky Revised Statutes |
| | Criminal Justice Act 1991 - Criminal Justice Act 1991 (c. 53) |
| | Home Office Circular 55/1999 - Electronic Records Online |
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