Common Law Burglary

Common Law
Burglary
Definition
Burglary Breaking and entering the dwelling house of another in the
nighttime with the intent to commit a felony (or larceny) therein.
Elements
Breaking all breakings must be against the will of the dweller.
There are two types of breaking: 1. Actual and 2.
Constructive
o Actual breaking application of some force, slight though it
may be, whereby the entrance is effected.
Merely pushing open a door, turning the key, lifting
the latch, or resort to other slight physical force is
sufficient.
A further opening of an already opened door/window
is a sufficient actual breaking.
o Constructive breaking When an entrance is being
effected by violence, threat of violence, by fraud,
conspiracy, deception, false pretenses, gross imposition,
circumvention with the intent to commit a felony therein.
(but for the deception, no entry would have been
allowed)
Entering when any part of the defendants body crosses the
plane of the threshold, or the door/window (etc.) that has been
broken.
The entry is at the point of the breaking there
is not a breaking and entering if the application of
force occurs one part of the dwelling house and then
the body breaks the plane at another point of the
dwelling house.
In other words, if the defendant raises a
window and then sees that a door to the house
is standing wide open, and therefore, goes into
the house through the open door, there is not
a breaking and entry under the common
law burglary definition.
But note: One can break an interior door
(application of force, no matter how slight), if
the exterior door is wide open.
o The breaking *and entry* occur at the
interior door.
o The Tool Rule (when a tool is used) When the use of the
tool is the only entry contemplated (i.e. the burglar isnt
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Common Law Burglary

using the tool to make some other form of entry easier)
*and* it is the tool with which the burglar will commit the
theft or felony.
If a tool is used to break, but another form of entry
with ones body is contemplated (walking inside,
placing a hand inside, etc.), then the use of the tool
is not an entering.

Common Law Burglary

Dwelling House
o For an out building The dwelling hosue includes
more than just the mansion house. It includes out
buildings within the curtilage, used regularly by the
dwellers, that are not divided from the mansion house by a
public road (the Kings highway), are large enough for a
person to enter erect and turn around (meets the hokeypokey rule), and are enclosed with sides and a roof and
are within earshot/arrowshot of the mansion house.
The curtilage is not defined by a fence but rather is
defined by the requirements listed above.
o For dwelling house only The structure must be
occupied (the dweller has slept in the structure and
intends to return to the structure as a dwelling).
o Night watchman The use of a building of business or
other purposes does not prevent it from being a dwelling,
as in the case of a store building which has sleeping
apartments regularly used by the proprietor or one in his
employ.
It has been held that this rule does not apply if the
person who sleeps in the building is employed as a
night watchman.
This is sound if it is a temporary arrangement,
but not if the place becomes a regular
sleeping apartment of the employee.
Of Another someone elses dwelling house
o one cannot commit burglary of ones own dwelling house
In the nighttime the period of time between sunset and
sunrise during which there is not enough daylight to discern a
persons face.
With the intent to commit a felony (or larceny) therein
(piggy-back crime: IRAC all of the elements for the felony or
larceny they were intending to commit)
o the intent to commit larceny or any felony is not confined
to an intent to commit the crime in the building which is
entered if the intent at the time of entry is:
1. To commit the offense in the immediate vicinity of
the place entered,
*and*
2. If the entry is made as a means of facilitating the
commission of the crime
*and*
3. The two places are so closely connected that the
intent and consummation of the crime would

Common Law Burglary

constitute a single and practically continuous
transaction.
o The breaking and entering must be for the purpose of
committing the crime.
o If the breaking and entering were done with the intent to
commit a felony or larceny, then burglary was complete at
the point of the entry (body passing through the plane)
One need not accomplish the felony or larceny,
so long as the breaking and entering of a dwelling
house were done in the nighttime and were done
with the intent to commit the felony or larceny
therein.
o Felonies at Common Law:
Robbery
Arson the building must be an inhabited dwelling
house
Burglary done at night and an inhabited dwelling
house
Rape
Kidnapping
Abortion
Mayhem
Train Wrecking
Administering narcotics to a minor
Maxwell Notes
Possessing a key does not necessarily mean there is no breaking
o Look for restrictions for using the key
Common law burglary has been so altered by statute that it no
longer resembles the same elements in majority of jurisdictions
(statutory burglary is used to indicate this distinction)
Relevant Cases
Breaking
o Davis v. Commonwealth
o People v. Dupree
o Nichols v. State
Entering
o Hebron v. Maryland
o Walker v. State
Dwelling house
o State v. Nef
o Woods v. State
o State v. Mann
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Of another
o People v. Gauze
In the night time
o Gray v. State
With the intent to commit a felony or larceny therein
o Goldman v. Anderson