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The criminal offense of breaking and entering a building illegally for the purpose of committing a crime.
Burglary, at Common Law, was the trespassory breaking and entering of the dwelling of another at night with an intent to commit a felony therein. It is an offense against possession and habitation. The common-law elements of the offense have been modified in most jurisdictions by statutes that tend to make the crime less restrictive.
Elements of the Offense
Trespass The Trespass element of the offense signifies that it must occur without the consent of the victim. If the thief gains entry by misrepresenting his or her identity, the element of trespass is satisfied, as there is no consent to entry.
Breaking Breaking consists of creating an opening for entry into the building. It can be accomplished by removing an object that is blocking an entry or by blasting open a wall. The use of force is not required. The breaking element is satisfied if access is obtained by opening a closed door or window, regardless of whether these are locked.
At common law, entering through a preexisting opening did not constitute breaking. If one gained access through an open door or window, burglary was not committed. The same rule applied when a door or window was partially open even though it was necessary to open it further in order to enter. The rationale under-lying this rule was that one who failed to secure his or her dwelling was not entitled to the protection of the law. A majority of states no longer follow this rule and consider breaking to be the slightest application of force to gain entry through a partially accessible opening.
When entry is gained by a Misrepresentation of identity or by any other trick, it is called constructive breaking, which satisfies the breaking requirement of burglary. On the other hand, if a person, such as a servant, has authority to enter, there is no breaking unless he or she breaks into and enters an unauthorized area.
Under the common law, the breaking had to occur immediately before the time of entry. Most jurisdictions that retain the breaking element are in agreement; in others, the breaking can occur during a reasonable time before the entry. Some jurisdictions have completely eliminated the element of breaking from the statutory definition of burglary, while others require it for one degree of burglary but not another.
Entry In the course of a burglary, entry is the act that follows the breaking. Literally, it occurs when there is physical intrusion into another's dwelling or building by any part of the intruder's body. A momentary intrusion will suffice. When a thief kicks open a window to gain access to a dwelling, the momentary insertion of the foot constitutes an entry.
When an instrument is used to gain access to a dwelling, the intrusion of the instrument is not an entry unless it is used to accomplish the intended felony. If the instrument is used to take something from inside the building, there is an entry sufficient for burglary.
An entry may be constructive. In other words, it is not always required that the thief enter the dwelling. If he or she directs another person not legally capable of committing the offense, such as a child, to enter, then the entry is imputed to the thief.
In jurisdictions where breaking is an element of burglary, there must be causation between the breaking and entry. Although the acts may occur at separate times depending upon statute, the entry must follow from the breaking. Where a hole is drilled into a wall on one day and entry occurs a few days later, there is a causal link between the breaking and entry.
Dwelling At common law, the entry had to be into the dwelling of another to constitute the offense. A dwelling was defined as a house or mansion where one normally sleeps, although it was not necessary that it be occupied at the time of entry. Structures and premises immediately surrounding the dwelling, such as an outhouse or a yard, were also protected since they were considered part of the dwelling.
A dwelling had to be a place of human habitation and occupancy. A storehouse protected by a nightwatchman was not a dwelling even if he occasionally slept in it. If, however, it was within the immediate surroundings of a dwelling, it would be treated as a dwelling for purposes of burglary.
Today, most jurisdictions have expanded the common-law requirement that the offense take place in a dwelling. There is no jurisdiction that retains this requirement for all degrees of burglary. Under modern statutes, the offense can occur in any enclosed structure, regardless of whether it is used for habitation.
Nighttime The requirement that the breaking and entering occur at night was an essential element of the offense at common law. Sunrise and sunset were not the means of determining night and day. The proper test was whether the countenance of a human could be discerned by natural light.
Many jurisdictions no longer require that the offense occur at night. Some states have retained it for higher degrees of the offense, but do not require it for all degrees. Under statutes retaining the nighttime element, it is defined as occurring 30 minutes before sunrise or 30 minutes after sunset. It is not necessary that all acts be done on the same night. If the breaking and entering is done one night and the felony is committed a few nights later, the offense is committed.
Intent Under the common law, an intent to commit a felony at the time of breaking and entering into the dwelling was an essential element of burglary. Since Larceny was a felony at common law, an intent to commit a larceny would suffice. Statutes vary from one jurisdiction to another. An intent to commit a felony is no longer required for all grades of the offense. In some states an intent to commit any crime will suffice. Many states have retained the felony requirement for higher grades of the offense. Absent this intent element, a breaking and entry might be a trespass, but not be a burglary.
If a defense to the underlying crime or felony is sufficiently established, there can be no conviction for burglary. For example, if a person charged with burglary is accused of larceny and has a sufficient defense to the larceny charge, then there is no burglary.
Degrees of the Offense
Some jurisdictions have a statutory scheme under which the offense is divided into degrees. These types of statutes frequently impose heavier penalties when the offense involves the use of force or weapons. Under one such statute, burglary in the third degree is committed by a person knowingly entering or remaining unlawfully in a building with an intent to commit a crime therein. When the same offense is committed with explosives or deadly weapons, or when it results in physical injury to a person who is not a participant in the crime, it is burglary in the first degree, for which there is a greater penalty.
Imprisonment is the usual punishment for burglary. Under statutes in many states, the severity of the sentence is determined by the degree of the burglary.
Cromwell, Paul F., and James N. Olson. 2003. Breaking and Entering: Burglars and Burglary. St. Paul, Minn.: Wadsworth.
Thomas, D.A. 2003. "Domestic burglary—Sentencing Guidelines." Criminal Law Review (March): 209-214.
n. the crime of breaking and entering into a structure for the purpose of committing a crime. No great force is needed (pushing open a door or slipping through an open window is sufficient) if the entry is unauthorized. Contrary to common belief, a burglary is not necessarily for theft. It can apply to any crime, such as assault or sexual harassment, whether the intended criminal act is committed or not. Originally under English Common Law burglary was limited to entry in residences at night, but it has been expanded to all criminal entries into any building, or even into a vehicle. (See: breaking and entering)
burglaryin English criminal law, the crime of entering any building or part of a building or inhabited vehicle or vessel as a trespasser with the intent to steal or rape or commit grievous bodily harm or do unlawful damage. It is still burglary if, having entered as a trespasser, the accused attempts to steal or inflict personal injury. It is an aggravation to carry additional weapons, particularly firearms, whether real or artificial, or explosives. For Scotland, see HOUSEBREAKING.
BURGLARY, crim. law. 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 Inst. 63; 1 Hale, 549; 1 Hawk. c. 38, s. 1; 4
Bl. Com. 224; 2 East, P. C. C. 15, s. 1, p. 484; 2 Russell on Cr. 2; Roscoe,
Cr. Ev. 252; Coxe, R. 441; 7 Mass. Rep. 247.
2. The circumstances to be considered are, 1. in what place the offence can be committed; 2. at what time 3. by what means; 4. with what intention.
3.- 1. In what place a burglary can be committed. It must, in general, be committed in a mansion house, actually occupied as a dwelling; but if it be left by the owner animo revertendi, though no person resides in it in his absence, it is still his mansion. Fost. 77; 3 Rawle, 207. The principal question, at the present day, is what is to be deemed a dwelling-house. 1 Leach, 185; 2 Leach, 771; Id. 876; 3 Inst. 64; 1 Leach, 305; 1 Hale, 558; Hawk. c. 38, s. 18; 1 Russ. on Cr. 16; 3 Berg. & Rawle, 199 4 John. R. 424 1 Nott & M'Cord, 583; 1 Hayw. 102, 242; Com. Dig. Justices, P 5; 2 East, P. C. 504.
4. - 2. At what time it must be committed. The offence must be committed in the night, for in the day time there can be no burglary. 4 Bl. Com. 224. For this purpose, it is deemed night when by the light of the sun a person cannot clearly discern the face or countenance of another 1 Hale, 550; 3 nst. 63. This rule, it is evident, does not apply to moonlight. 4 Bl. Com. 224; 2 Russ. on Cr. 32. The breaking and entering need not be done the same night 1 Russ. & Ry. 417; but it is necessary the breaking and entering should be in the night time, for if the breaking be in daylight and the entry in the night, or vice versa, it will not be burglary. 1 Hale, 551; 2 Russ. on Cr. 32. Vide Com. Dig. Justices, P 2; 2 Chit. Cr. Law, 1092.
5.-3. The means used. There must be both a breaking and an entry. First, of the breaking, which may be actual or constructive. An actual breaking tal-,es place when the burglar breaks or removes ally part of, the house, or the fastenings provided for it, with violence. Breaking a window, taking a pane of glass out, by breaking or bending the nails, or other fastenings, raising a latch where the door is not otherwise fastened; picking open a lock with a false key; putting back the lock of a door or the fastening of a window, with an instrument; turning the key when the door is locked in the inside, or unloosening any other fastening which the owner has provided, are several instances of actual breaking. According to the Scotch law, entering a house by means of the true key, while in the door, or when it had been stolen, is a breaking. Alis. Pr. Cr. Law, 284. Constructive breakings occur when the burglar gams an entry by fraud, conspiracy or threats. 2 Russ. on Cr. 22 Chit. Cr. Law, 1093. The breaking of an inner door of the house will be sufficient to constitute a burglary. 1 Hale, 553. Any, the least, entry, with the whole or any part of the body , hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, will be sufficient to constitute the offence. 3 Inst. 64; 4 Bl. Com. 227; Bac. Ab. Burglary, B Com. Dig. Justices, P 4. But the introduction of an instrument, in the act of breaking the house, will not be a sufficient entry, unless it be introduced for the purpose of committing a felony.
6. - 4. The intention. The intent of the breaking and entry must be felonious; if a felony however be committed, the act will be prima facie evidence of an intent to commit it. If the breaking and entry be with an intention to commit a bare trespass, and nothing further is done, the offence will not be a burglary. 1 Hale, 560; East, P., C. 509, 514, 515; 2 Russ. on Cr. 33.