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What is a Burglary?

Updated on April 18, 2010

A burglary is a crime that was specifically defined in English common law as breaking and entering a dwelling house at night with intent to commit a felony therein. In the United States, although burglary is usually thought of in connection with a person's sneaking into a house with the intention of stealing something, its definition varies greatly from state to state.

In nearly all states, the crime of burglary deals with making some sort of entry into some sort of structure with intent to commit another crime. Beyond that, the statutes defining the crime and its punishment—and their interpretation by the courts—may vary according to (1) the time such entry was made (night or day), (2) the kind of structure (whether a house, any building, a movable "structure"), (3) the nature of the entry (whether permissive or preceded by a breaking, by picking a lock, or by use of explosives), (4) what has made the entry (whether part of the body or some instrument), (5) what the person has with him (dangerous weapon), and (6) what crime the burglar intends to commit or what he does after entry (whether it is serious or whether he uses violence).

Early English Origin

The simple explanation for these many variations is that modern burglary statutes in the United States are derived from the old English common law crime and that, over the years, the crime has been modified and extended to effect purposes beyond that originally intended. Confined to the common law elements —the violent entry into a man's house at night (when he may be sleeping and defenseless) to commit a serious crime—burglary was formerly regarded as a capital offense. This reflected the great emphasis in early English criminal law on the view that "a man's home is his castle" and that he should be highly protected in it. Indeed, this concern was peculiar to the English law; there is no true counterpart to burglary in systems of law not derived from it. The closest are housebreaking crimes of lesser seriousness.

U.S. Variations

Today, in many U. S. jurisdictions, original burglary concepts have been altered nearly beyond recognition. In about one third of the states, the element of breaking into the structure has been eliminated. In others, breaking may be required in certain cases—for example, if entry is made during the day or into a structure other than a dwelling—but the breaking may consist of merely raising a window or pushing open a door. The fact that entry was made at night may be a circumstance that calls down more serious punishment; but it is not, in any state, a requirement in all cases, and in some it has been eliminated entirely.

That the structure is a dwelling is also a circumstance that may increase the possible punishment, which may also be affected by whether the structure is occupied at the time of entry. However, in nearly all states, burglary may now be committed on entry into virtually any kind of structure—either set forth in a long list including warehouses, shops, hen houses, telephone booths, and the like or simply by reference to "any building" or "any structure"—and, in many places, may be committed on entry into boats, airplanes, railroad cars, and even automobiles.

Intent to commit a felony has been retained by most states; but some include all larcenies, even the most petty thefts, and others all crimes whether major or minor. In practice, burglary is most often charged against thieves, but it may also apply to rapists, murderers, narcotics peddlers, and even adulterers. Entry into something is still required in all states; but this too has undergone change in some states to include permissive entries, such as those into stores or saloons, and entry of only a part of the body or of an instrument. In Texas, it has even included the firing of a gun into a house.

Double Penalty

Although various common law concepts have been altered to accommodate changes in the times, the scope of the changes made in burglary is unusual, owing to a relatively unique aspect of the crime. While protecting the householder from the terror that the mere presence of an intruder may instill, the concept of common law burglary essentially made a separate crime out of the taking of an "early step" on the way to commission of some other, more harmful offense. It was this aspect of burglary that was seized on by American lawmakers to make up for existing deficiencies in the law governing attempts to commit crimes. These deficiencies included (1) the view that, to be punished for an attempt, a person must be on the verge of doing the final act and (2) the fact that disproportionately low penalties were assigned to attempts even though only "bad luck" may have prevented completion. Expansion of burglary has thus permitted conviction, and more severe punishment, of persons attempting some form of mischief, even though they fail of success beyond unlawful entry. Clearly, unfairness may result from this use of burglary, which the law governing attempts would not permit: that is, punishing the offender for both the attempt and the completed crime, and actually imposing greater punishment for the attempt than is prescribed for the completed crime.

Proposals for Reform

Efforts at comprehensive revisions of American criminal jurisprudence, such as the Model Penal Code developed by the American Law Institute (1962), have faced the question of whether "burglary" should be eliminated from modern codes. (In any case, deficiencies in the existing law governing attempts could be dealt with directly by remedial legislation.) The conclusions reached about burglary are that this concept is too deeply embedded in American law to be excised, but that it should be narrowed more closely to the original conception and that double penalties should be prohibited.


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    • thevoice profile image

      thevoice 7 years ago from carthage ill

      legal hub read terrific read thanks