Burglary (history)

The original common law definition of burglary consisted of six specific elements: "breaking and entering the dwelling of another during the night with the intention to commit a felony therein". To a greater or lesser extent, these elements have been replaced in the various common law countries (see burglary).

Historical definition

*BreakingThe first element, "breaking," required at least a minimal application of force. The opening of an unlocked door was sufficient, but if a person entered a house through an already open door or window, there was no "breaking" and therefore no burglary, even if all other elements were present. However, if a person were to enter the house through an open door, and were then to open a closed door leading to another room in the house, that would qualify as "breaking" into that room.

An exception to this rule applies where a person who had permission to enter the house did so at a time when they were not supposed to, or procured this permission by fraud or by threat. Under modern statutes, many jurisdictions have abandoned this element, now merely requiring entry.

*EnteringThe second element, "entry" required that the person enter the house with some part of their body, even if only for a moment, "or" that the person insert a tool into the house for the purpose of committing the requisite felony. For example, firing a bullet through a closed window into someone's house with the intent to injure that person was sufficient to constitute both a breaking and an entry. Entry continues to be a requisite element of burglary in all jurisdictions.

*DwellingThe third element required that the crime be committed against a "dwelling" - a place where another person regularly slept (even if the structure was also used as a business, or was temporarily abandoned at the time). This requirement has also been largely abandoned under modern statutes, which now permit a burglary conviction to be based on the entry into almost any structure, and sometimes even entry to fenced in yards and to automobiles.

*Of anotherThe fourth element required that the dwelling be that of another person. A person could not burglarize their own dwelling, although a landlord could be found to have burglarized the dwelling of his tenant, even though the landlord was the owner of the property itself.

*NighttimeThe fifth element required that the burglary had to be committed at night, which was defined under the common law as the time when the person's face could not readily be distinguished under the natural light. Laws in many jurisdictions continue to impose much harsher penalties for burglaries committed or attempted at night, or upon an occupied residence.

*Intent to commit a felonyFinally, the sixth element required "intent to commit a felony therein." This intent had to exist at the time of the breaking and entering, even if the felony (e.g. arson, murder, rape, larceny, vandalism) was never carried out. If a person broke into a home and, once inside, decided to commit a felony, this would not constitute a burglary. The intent to commit a crime remains an element of all burglary laws, but some jurisdictions have expanded the list of requisite crimes beyond felonies to include any theft, even if it is a misdemeanor.