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Burglary at Common Law

In American History, History, Humanities, Jurisprudence, Law on December 12, 2013 at 8:45 am

Allen 2

At common law, burglary was defined as the “breaking and entering into the dwelling of another, at night, with the intent to commit a felony therein.” Nearly all jurisdictions in the United States today punish as burglary conduct that does not meet one or more of the elements of that definition; those elements, however, continue to be recognized, in some jurisdictions and under particular circumstances.

At common law, a person could become a “burglar” (i.e., one guilty of burglary) if he had but an intent to commit a different crime (i.e., not just breaking into the dwelling) and yet, having broken into the dwelling, had not committed that intended crime. The intent to break into the dwelling was not relevant to an evaluation of the elements of the crime of burglary; what was relevant was the reason (i.e., the person’s intent) for doing something criminal within the dwelling. Even before a person entered the house unlawfully, he could have been, according to the elements of the crime, guilty of attempted burglary. Burglary is inchoate to a theft or to other crimes that the person committing the burglary also intends to commit inside the dwelling.  In other words, the classification of “burglary” obtains if a person breaks into a house but does not actually commit the felony he intends to commit inside the house.

To be convicted of burglary at common law, one had to actually break into the house; the burglar had to create an opening through which to pass. It was not enough that the owner of the home left open a door or a window through which the burglar crawled.  If person X saw the door to person Y’s home left wide open, or if person Y invited person X into the home, and person X then entered through the door intending to steal silverware, then person X could not be guilty of burglary. And if the door were closed, but it was daytime, and person X busted through the door, he could not be guilty of burglary because it was not nighttime.  It was once apparently believed that the greatest danger to homeowners was during the night, and although statistics may suggest that is still the case, there is no longer a “nighttime” element to burglary.

In most states within the United States, if not all of them, the “breaking” element of burglary has been done away with; instead, if a person’s presence on the property of another is unlawful, and the person satisfies the other elements of burglary, with the exceptions mentioned above, then that person may be guilty of burglary.  Most states still retain the “entry” element of burglary, and this element is satisfied if any part of the body enters the structure, if only for a moment.

No states in the United States retain the “dwelling” requirement.  At common law, a “dwelling” was, more or less, a house; a place of business didn’t qualify.  Therefore, someone could break into your office, steal your equipment, and not be guilty of burglary.  Most states in the United States no longer require an “intent to commit a felony”; rather, the word “felony” has been dropped and replaced with “crime.”  Therefore, a person could be guilty of burglary for breaking into a home with the intent to commit any crime, even a misdemeanor.  This is not true in all jurisdictions, however, as some states still provide that, to be guilty of burglary, a person breaking into the home must do so with the intent to commit either a felony or some other theft crime.


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