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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.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Bryan Treaties (Bryan Arbitration Treaties) to James Earl Carter Jr. - Further ReadingsBurglary - Elements Of The Offense, Degrees Of The Offense