Today we’ll be looking at the offence of burglary. a brief histroical analysis of burglary and it’s definition at common law, it’s variation among jurisdictions like Canada, Finland, New Zealand, Sweden, United Kingdom, United States etc, and protection against burglars.
Burglary means the breaking and entering a building or other areas without permission, with the intention of committing a criminal offence. Usually offences like theft, robbery, murder or kidnapping. Most jurisdictions include others within the ambit of burglary. To commit burglary is to burge, a term back-formed from the word burglar, or to burglarize.
Historical analysis of Burglary
Ancient references to breaking into a house can be found in the Code of Hammurabi (no.21) and the Jewish Bible (Exodus 22.2).
Sir Edward Coke, in chapter 14 of the third part of the Institute of the Laws of England, describes the felony of Burglary adn explains the various elements of the offence. He distingushed this from housebreaking because the night aggravated the offence since the night time was when man was at rest. He also described the night as the time when the countenance of a man could not be discerned.
In pleas of the Crown. A Methodical Summary, Sir Mathew Hale classifies Burglary and Arson as offences against the dwelling or habitation.
In Chapter 16 of the fourth book of the Commentaries on the Laws of England, Sir William Blackstone observes that Burglary “…has always been looked on as a very heinous offence: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion of that right of habitation,…”
During the 19th Century, English politicians turned their minds to codifying English law. In 1826, Sir Robert Peel was able to achieve some long advocated reforms by codifying offences concerning larceny and other property offences as well as offences against the person.
Further reforms followed in 1861. Colonial legislatures generally adopted the English reforms. However, while further Criminal Code reforms failed to progress through the English parliament during the 1880s, other colonies, including Canada, India, New Zealand and various Australian States codified their criminal law.
Common-law definition of Burglary
At common law, burglary was defined by Sir M. Hale as:
- Breaking can either be 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 occuring. 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 to remove property. Insertion of a tool to gain entry may not constitute entering by itself. Note that there must be a breaking and an entering for common-law burglary. Breaking without entry or entry without breaking is not sufficient for common-law burglary.
- House includes a temporarily unoccupied dwelling , but not a building used only occasionally as a habitation.
- Night times is defined as hours between half an hour after sunset and half an hour before sunrise.
- Typically 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 suits of the felony does not matter, and burglary occurs if the wrongdoers intended to commit a felony at the time they broke and entered.
The common-law elements of burglary often vary between jurisdictions. The 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.
In Canada, breaking and entering is prohibited by Section 348 of the Criminal Code. It is an indictable offence when committed in relation to a residence, and otherwise a hybrid offence. Breaking and entering is defined as breaking into a place with intent to commit another indictable offence (including, but not limited to, theft).
The crime is commonly referred to in Canada as break and enter, which in turn is often shortened to B and E.
There is no crime of burglary as such in Finland. In the case of breaking and entering, the Finnish Penal Code states that
A person who unlawfully
(1) enters domestic premises by force, stealth or deception, or hides or stays in such premises
shall be sentenced for invasion of domestic premises to a fine or to imprisonment for at most six months.
However, if theft is committed during unlawful entering, then a person is guilty of theft or aggravated theft depending on the circumstances of the felony.
(1) If in the theft
(5) the offender breaks into an occupied residence, and the theft is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated theft to imprisonment for at least four months and at most four years.
In New Zealand, burglary is a statute offence under section 231 of the Crimes Act 1961. Originally this was a codification of the common law offence, though from October 2004 the break element was removed from the definition and entry into the building (or ship), or part of it, now only needed to be unauthorized. The definition of a building is very broad to cover all forms of dwelling, including an enclosed yard. Unauthorized entry onto agricultural land with intent to commit an imprisonment offence (section 231A) was added in March 2019 as a burglary type offence.
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, they are technically guilty of either unlawful intruision (olaga intrang) or breach of domiciliary peace (hemfridsbrott), depending on the premise in question. Breach of domicilliary peace is applicable only when people “unlawfully intrude or remian where others have their living quarters”.
The only punishments available for any of these offences are fines, unless the offences are considered gross. In such cases, the maximum punishment is two years imprisonment.
However, if the person who has forced themselves into a house steals anything (“takes whay belongs to another with intent to acquire it”), they are guilty of (ordinary) theft (stold). However, the section regarding gross theft (chapter 6, 4s of the Penal Code, grov stold) states “in assessing whether the crime is gross, special consideration shall be given to whether the unlawful appropriation took place after intruision 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.
England and Wales
Burglary is defined by Section 9 of the Theft Act 1968, which describes two variants:
- A person is guilty of burglary if they enter any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm or do unlawful damage to the building or anything in it.
- A person is guilty of burglary if, having entered a building as a trespasser, they steal or attempt to steal anything in the building, or inflict or attempt to inflict grievous bodily harm on any person in the building.
The offence is defined in similar terms to England and Wales by the Theft Act (Northern Ireland) 1969.
Under Scots law, the crime of burglary does not exist. Instead theft by housebreaking covers theft where the security of the building is overcome. It does not include any other aspect of burglary found in England and Wales. It is a crime usually prosecuted under solemn procedure in a superior court. another common law crime still used is Hamesuken, which covers forced entry into a building where a serious assault on the occupant takes place. Common law crimes in Scotland are gradually being replaced by statutes.
In the United States, burglary is prosecuted as a felony or misdemeanor and involves trespassing and theft, entering a building or automobile, or loitering unlawfully with intent to commit any crime, not necessarily a theft-for example, vandalism. Even if nothing is stolen in a burglary, the act is a statutory offense. Building can include hangers, sheds, barns, and coops; burglary of boats, aircraft, trucks, military equipment, and railway cars is possible. Burglary may be an element in crimes involving rape, arson, kidnapping, identity theft, or violation of civil rights; indeed, the “plumbers” of the Watergate scandal were technically burglars. Any entry into the building or automobile of another with the intent to commit a crime, even if the entry would otherwise be permitted for lawful purposes, may constitute burglary on the theory that the permission to enter is only extended for lawful purposes (for example, a shoplifter may be prosecuted for burglary in addition to theft, for entering a shop with the intent to steal). 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.
Commission of a burglary with the intention or result of confronting persons on the premises may constitute an aggravated offense known as “home invasion”. Taking or attempting to take property by force or threat of force from persons on the premises also constitutes the offense of robbery.
In some states, a burglary committed during the hours of daylight is technically not burglary, but housebreaking. In many jurisdictions in the U.S., burglary is punished more severely than housebreaking. In California, for example, burglary was punished as burglary in the first degree, while housebreaking was punished as burglary in the second degree. California now distinguishes between entry into a residence and into a commercial building, with the burglary of a residence bearing heavier punishments.
There is some recent scholarly treatment of burglaries in American law as inchoate crimes, but this is in dispute. Some academics consider burglary an inchoate crime. Others say that because the intrusion itself is harmsul, this justifies punishment even when no further crime is committed.
Burglary, as a preliminary step to another crime, can be seen as an inchoate, or incomplete, offense. As it disrupts the security of persons in their homes and in regard to their personal property, however, it is complete as soon as the intrusion is made. This dual narure is at the heart of a debate about whether the crime of burglary ought to be abolished and its elemets covered by attempt or aggravating circumstances to other crimes – or retained, and the grading schemes reformed to reflect the seriousness of individual offenses.
Possession of burglars’ tools, in jurisdictions taht make this an offense, has also been viewed as an inchoate crime.
In effect pilling an inchoate crime onto an inchoate crime, the possession of burglary tools with the intent to use them in a burglary is a serious offense, a felony in some jurisdictions. Gloves that defendants were trying to shake off as they ran from the site of a burglary were identified as burglar’s tools in Green V. State (Fla. App. 1991).
Under Florida State Statutes, “burglary” occurs when a person enters a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter. Depending on the circumstances of the crime, burglary can be classified as third, second, first-degree, or life felonies, with maximum sentences of five years, fifteen years, thirty years, and life, respectively.
The minimum sentences are probation, 21 months, and 124/12 months, except that if the person has a gun, a judge uses the 10-20life law, 10 years on anyone convicted of committing or attempting to commit any of the above felonies (with certain exceptions), while armed with a firearm or destructive device. If a firearm was discharged, 20 years. If a bullet injures or kills someone, 25 years.
A person commits the offense of burglary when, without authority adn with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof. A person convicted of the offense of burglary, for the first such offense, shall be punished by imprisonment for not less than one nor more than 20 years. For the purposes of this Code section, there term “railroad car” shall also include trailers on flatcars, containers on flatcars, trailers on railroad property, or containers on railroad property. O.C.G.A. S16-7-1.
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, expaning 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 that the accused be in a dwelling and armed with a weapon or have intent 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.
The commonwealth of Massachusetts uses the term “burglary” to refer to a night-time breaking and entering of a dwelling with the intent to commit a felony. Burglary is a felony punishable by not more than twenty years; should the burglar enter with a dangerous weapon, they may be imprisoned for life. Unlawful entries of a structure other than a dwelling are labeled “breaking and entering” and punishments vary according to structure.
In Maryland, under title 6, subtitle 2 of the criminal law code, the crime of burglary is divided into four degrees. The first three degrees are felonies, while fourth-degree burglary is a misdemeanor. Breaking and entering into a dwelling with intent to commit theft or a crime of violence is first-dregree burglary.
Breaking and entering into a “storehouse” (a structure other than a dwelling, also including watercraft, aircraft, railroad cars, and vessels) with intent to commit theft, arson, or a crime of violence is second-degree burglary. Third-degree burglary is defined as breaking and entering into a dwelling with intent to commit a crime.
Simply breaking and entering into a dwelling or storehouse without specific intent to commit an additional crime is fourth-degree burglary. This degree also includes two other offenses that do not have breaking and entering as an element. Being in or on the yard, garden, or other property of a storehouse or dwelling with the intent to commit theft, or possession of burglar’s tools with the intent to use them in a burglary offense.
In the criminal code of New Hampshire, “A person is guilty if they enter 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.
Under the New York Penal Law, burglary is always a felony, even in third degree. It is more serious if the perpetrator uses what appears to be a dangerous weapon and enters a dwelling.
In Pennsylvania, it is a defense to prosecution if the building or structure in question is rendered abandoned.
In Wisconsin, burglary is committed by one who forcibly enters a building without consent and with intent to steal or to commit another felony. Burglary may also be committed by entry to a locked truck, car or trailer or a ship. The crime of burglary is treated as being more serious if the burglar is armed with a dangerous weapon when the burglary is committed or arms him/herself during the commission of the burglary.
Protection against burglars
Protection of property against burglars can include defenses such as anti-climb paint, safety and security window film, lock and key, and burglar alarms. Dogs of size can warn residents through loud barking, with larger dogs or multiple medium-to-small dogs posing a threat of severe injury to an intruder. Self defense is also an option in some jurisdictions.