Burglary

Breaking and Entering

Under Lord Hale's definition of the crime, the initial actus reus (criminal act) is the breaking element of the crime. There had to be some type of forcible entry, no matter how slight. This would often entail forcing open a door or window, but if that door or window had been left open, even if the entry was uninvited, there was no breaking in. The common law did not protect the “fool” who failed to secure his door and windows.

Breaking at common law was not simply limited to the outer door either. In other words, if one entered through an unlocked or open door, but thereafter had to force the lock on an inner door to get to an area otherwise off limits, sufficient breaking occurred to satisfy the element. The breaking contemplated by Lord Hale had to occur immediately before the forcible entry but could also be accomplished constructively, such as through fraud or deception. Constructive breaking occurred when a perpetrator caused an unsuspecting third person to create an opening for the purpose of allowing the perpetrator to enter unlawfully. In such a situation, even though the perpetrator never touched or made physical contact with the dwelling, a breaking has occurred.

The entry, actual or constructive, the second actus reus of the crime, was the act that immediately followed the breaking. There had to be an actual entry—a physical intrusion into another's dwelling or building within the curtilage by a part of the intruder's body—even if that entry was so slight as to be just a head, hand, arm, or foot. Constructive entry occurred when one used some tool or other implement to penetrate the dwelling and accomplish the theft or other felony.

The essence of burglary under common law was the interference with an individual's sense of safety and security within the home, so naturally, a burglary had to involve the dwelling house of another. Another's “dwelling” included his or her curtilage and was defined as any kind of structure used as a place of habitation and occupied by persons other than the offender. The temporary absence of the occupant did not deprive the place of its character as a dwelling house, nor was it necessary to prove that the owner or occupant or some member of the family was in the house at the time of the burglary. Common-law burglary did not extend to shops, stores, and warehouses, however, unless they were occupied in part as a dwelling. But, stables, smokehouses, kitchens, shops, offices, and other outbuildings, if they were within the fenced or walled-in curtilage of the dwelling house, were regarded as parts of the dwelling and, if broken into, could be [Page 86]the situs of a burglary even if the actual “dwelling area” remained untouched.

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