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.Ī dwelling had to be a place of human habitation and occupancy. 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. 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.ĭwelling At common law, the entry had to be into the dwelling of another to constitute the offense.
Although the acts may occur at separate times depending upon statute, the entry must follow from the breaking. In jurisdictions where breaking is an element of burglary, there must be causation between the breaking and entry. 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 other words, it is not always required that the thief enter the dwelling. If the instrument is used to take something from inside the building, there is an entry sufficient for burglary.Īn entry may be constructive. 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. When a thief kicks open a window to gain access to a dwelling, the momentary insertion of the foot constitutes an entry. Literally, it occurs when there is physical intrusion into another's dwelling or building by any part of the intruder's body. 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.Įntry In the course of a burglary, entry is the act that follows the breaking. Most jurisdictions that retain the breaking element are in agreement in others, the breaking can occur during a reasonable time before the entry. Under the common law, the breaking had to occur immediately before the time of entry.
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. 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. 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. 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. 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. If one gained access through an open door or window, burglary was not committed. The breaking element is satisfied if access is obtained by opening a closed door or window, regardless of whether these are locked.Īt common law, entering through a preexisting opening did not constitute breaking. It can be accomplished by removing an object that is blocking an entry or by blasting open a wall. If the thief gains entry by misrepresenting his or her identity, the element of trespass is satisfied, as there is no consent to entry.īreaking Breaking consists of creating an opening for entry into the building. Trespass The Trespass element of the offense signifies that it must occur without the consent of the victim. The common-law elements of the offense have been modified in most jurisdictions by statutes that tend to make the crime less restrictive.
It is an offense against possession and habitation. The criminal offense of breaking and entering a building illegally for the purpose of committing a crime.īurglary, at Common Law, was the trespassory breaking and entering of the dwelling of another at night with an intent to commit a felony therein.