Burglary (also called
breaking and entering and sometimes
housebreaking) is a
crimeCrime is the breach of one or more rules or laws for which some governing authority, via mechanisms such as police power, may ultimately prescribe a conviction...
, the essence of which is entry into a building for the purposes of committing an offence. Usually that offence will be
theftIn criminal law, theft is the illegal taking of another person's property without that person's freely-given consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting, fraud and sometimes...
, but most jurisdictions specify others which fall within the ambit of burglary. To commit a burglary is to
burgle (in
British EnglishBritish English, or UK English or English English , is the broad term used to distinguish the forms of the English language used in the United Kingdom from forms used elsewhere...
) or
burglarize (in
American EnglishAmerican English is a set of dialects of the English language used mostly in the United States. Approximately two thirds of native speakers of English live in the United States.English is the most common language in the United States...
).
Common law definition
The
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
burglary was defined by
Sir Matthew HaleSir Matthew Hale SL was a Lord Chief Justice of England.-Early life and education:Matthew Hale was born at Alderley, Gloucestershire, where his father, Robert Hale, a retired barrister, had a small estate....
as
- Breaking can be either actual, such as by forcing open a door, or constructive, such as by fraud or threats. 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.
- 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. It is generally required at common law that entry occurs as a consequence of the breaking. 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. 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 hand.
- House includes a temporarily unoccupied dwelling, but not a building used only occasionally as a habitation
- Night time is defined as hours between half an hour after sunset and half an hour before sunrise
- The most serious form of burglary was classed as felony
A felony is a serious crime in the United States and previously other common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
when this definition was prevalent, and included larcenyLarceny is a form of theft. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of England into their own law. It has been abolished in England and Wales, Northern Ireland and the Republic of Ireland...
, a type of theftIn criminal law, theft is the illegal taking of another person's property without that person's freely-given consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting, fraud and sometimes...
. 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. 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.
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
etymologyEtymology is the study of the history of words and how their form and meaning have changed over time.For languages with a long written history, etymologists make use of texts in these languages, and texts about the languages, to gather knowledge about how words were used at earlier stages, and...
originates from
Anglo-SaxonAnglo-Saxon may refer to:* historically, the Anglo-Saxons, a Germanic people inhabiting parts of England during the Dark Ages** their Anglo-Saxon language, commonly referred to as Old English** anything pertaining to the History of Anglo-Saxon England...
or Old English, one of the
Germanic languagesThe Germanic languages are a group of related languages that constitute a branch of the Indo-European language family. The common ancestor of all the languages in this branch is Proto-Germanic, spoken in approximately the mid-1st millennium BC in Iron Age northern Europe...
. According to one textbook, "The word
burglar comes from the two
GermanGerman is a West Germanic language, thus related to and classified alongside English and Dutch. It is one of the world's major languages and the most widely spoken first language in the European Union. Around the world, German is spoken by approximately 105 million native speakers and also by...
words
berg, meaning "house," and
laron, meaning "thief" (literally "house thief").
United States
Burglary is prosecuted as a
felonyA felony is a serious crime in the United States and previously other common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
or
misdemeanorA misdemeanor, or misdemeanour in many common law legal systems, is a "lesser" criminal act. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions...
and involves trespassing and
theftIn criminal law, theft is the illegal taking of another person's property without that person's freely-given consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting, fraud and sometimes...
, entering a building or automobile, or remaining unlawfully with
intentIntent in law is the planning and desire to perform an act, to fail to do so or to achieve a state of affairs in psychological view it may mean a different thing....
to commit theft or any crime, not necessarily a theft for example,
vandalismVandalism is the behaviour attributed to the Vandals, by the Romans, in respect of culture: ruthless destruction or spoiling of anything beautiful or venerable...
. Even if nothing is stolen in a burglary, the act is a statutory offense. Burglary may be an element in crimes involving
rapeRape, also referred to as sexual assault, is an assault by a person involving sexual intercourse with or without sexual penetration of another person without that person's consent....
,
arsonArson is the crime of deliberately and maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires caused by lightning for example. The study of the causes is the subject of fire investigation...
,
kidnappingIn criminal law, kidnapping is the taking away or asportation of a person against the person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
,
identity theftIdentity theft is a term used to refer to fraud that involves someone pretending to be someone else in order to steal money or get other benefits. The term is relatively new and is actually a misnomer, since it is not inherently possible to steal an identity, only to use it...
, or violation of civil rights; indeed the "plumbers" of the
Watergate scandalThe Watergate scandal was a political scandal in the United States in the 1970s. Named for the Watergate office complex in Washington, D.C., effects of the scandal ultimately led to the resignation of Richard Nixon, President of the United States, on August 9, 1974...
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
CaliforniaCalifornia is the most populous state in the United States, and the third largest by area. California is the second most populous sub-national entity in the Americas, behind only São Paulo, Brazil...
, 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
twilightTwilight is the time between dawn and sunrise, and the time between sunset and dusk. Sunlight scattered in the upper atmosphere illuminates the lower atmosphere, and the surface of the Earth is neither completely lit nor completely dark. The sun itself is not actually visible because it is below...
, 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. Others say that because the intrusion itself is harmful, this justifies punishment even when no further crime is committed.
Possession of burglar's tools, in jurisdictions that make this an offense, has also been viewed as an inchoate crime:
Florida
Under
Florida State StatutesFlorida law is based on the Florida Constitution , which defines how the statutes must be passed into law, and defines the limits of authority and basic law that the Florida Statutes must be comply with...
, "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.
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. 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. Possession of burglar's tools, with the intent to use them to commit burglary or theft, is a misdemeanor.
Massachusetts
The Commonwealth of
MassachusettsThe Commonwealth of Massachusetts is a state in the New England region of the northeastern United States. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. Most of its population of...
formally uses the term "breaking and entering" as well as "burglary".
New Hampshire
In the criminal code of
New HampshireNew Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It borders Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian province of...
, "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."
New York
Under the
penal lawIn the most general sense, penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation, as opposed to civil law that seeks to redress private wrongs...
in New York, burglary is always a felony, even in third degree. It is more serious if the perpetrator uses what appears to be a dangerous weapon, or if he or she enters a dwelling.
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.
England and Wales
Burglary is defined by section 9 of the
Theft Act 1968The Theft Act 1968 is an Act of the Parliament of the United Kingdom, governing most of the general property offences in English law. On 15 January 2007 the Fraud Act 2006 came into force repealing most of the offences of deception.-History:...
which created two variants:
"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 CollinsR v Collins 1973 QB 100 is a case decided by the Court of Appeal of England and Wales which examined the meaning of "enters as a trespasser" in the definition of burglary...
, 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
pavementA sidewalk , pavement , footpath , platform or footway is a path for pedestrians that is situated alongside a road or a paved...
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 AppealThe Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it....
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.
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
tillA cash register is a mechanical or electronic device for calculating and recording sales transactions, and an attached cash drawer for storing cash. The cash register also usually prints a receipt for the customer....
. 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
trespassTrespass is a legal concept, which refers to intrusion into another person's property. Trespass to land is a type of trespass, which can cause criminal or a tort liability...
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, 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. 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.
Mens Rea
R v CollinsR v Collins 1973 QB 100 is a case decided by the Court of Appeal of England and Wales which examined the meaning of "enters as a trespasser" in the definition of burglary...
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. Section 4 of the Crime (Sentences) Act 1997 specifies a minimum 3 year prison sentence for third-time domestic burglary unless exceptional circumstances apply.
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
Aggravated burglary
Under section 10, aggravated burglary is committed when a burglar enters and "at the time has with him a firearm, imitation firearm, weapon of offence, or any explosive".]
"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
A video recorder may be any of several related devices:*Digital video recorder*Video tape recorder*Videocassette 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 imprisonmentLife imprisonment is a sentence of imprisonment for a serious felony crime where the convicted person is to remain in prison for the rest of his or her life...
and is therefore triable only on
indictmentIn the common law legal system, an indictment is a formal accusation that a person has committed a criminal offence. In those jurisdictions which retain the concept of a felony, the serious criminal offence would be a felony; those jurisdictions which have abolished the concept of a felony often...
.
Scotland
Under
Scots lawScots law is a unique legal system with an ancient basis in Roman law. Grounded in uncodified civil law dating back to the Corpus Juris Civilis, it also features elements of common law with medieval sources...
in
ScotlandScotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
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
acquisitiveAcquisition may refer to:*Takeover, the acquisition of a company*Mergers and acquisitions, strategy of buying and selling of various companies to quickly grow a company...
crimeCrime is the breach of one or more rules or laws for which some governing authority, via mechanisms such as police power, may ultimately prescribe a conviction...
. It is a crime usually prosecuted under
solemn procedureIn the common law legal system, an indictment is a formal accusation that a person has committed a criminal offence. In those jurisdictions which retain the concept of a felony, the serious criminal offence would be a felony; those jurisdictions which have abolished the concept of a felony often...
.
Canada
In Canada, burglary is labelled as "Breaking and Entering" under section 348 of the
Criminal CodeA Criminal Code is a compilation of government laws that outline a nation's laws regarding criminal offenses, and the maximum and minimum punishments that courts can impose upon offenders when such crimes are committed .-By country: Australian Criminal Code Criminal Code of Belarus Penal code of...
and is a
hybrid offenceA hybrid offence, dual offence, Crown option offence, dual procedure offence, or wobbler are the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or as indictment...
. Breaking and entering is defined as trespassing with intent to commit an
indictable offenceIn many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
. The crime is commonly referred to in Canada as "break and enter".
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".
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." For theft, the punishment is imprisonment of at most two years, while gross theft carries a punishment of between six months and six years.
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