Burglary

MBEMax wiki article — paired with the Criminal Law question set on mbemax.com.

One-line summary

Common-law burglary is the breaking and entering of the dwelling of another, at night, with the intent to commit a felony therein — a specific-intent crime that modern statutes have broadened considerably.

Mnemonic

B-E-D-A-N-I-F — Breaking, Entering, Dwelling, of Another, Night, Intent to commit a Felony.

Picture all seven letters painted on a front door of a dark house — each letter is an element that must appear at the time of entry.

Common-law burglary

Rule. Burglary is the breaking and entering of the dwelling of another in the nighttime with the intent to commit a felony therein.

Elements

1. Breaking — any use of force to gain entry, even slight (opening an unlocked but closed door). Entry through an already open door or window is NOT burglary at common law. Constructive breaking — entry by fraud, threat, or chimney — satisfies.
2. Entering — any portion of the body crosses the threshold. Insertion of an instrument used to commit the felony (e.g., hook to grab loot) counts; insertion only to accomplish entry does not.
3. Dwelling — place regularly used for sleeping (whether occupied at moment or not). A structure only used commercially is NOT a dwelling at common law.
4. Of another — cannot burgle one's own dwelling; landlord could not burgle tenant's apartment at common law (legal possession controls).
5. Nighttime — between sunset and sunrise.
6. Intent to commit a felony — must exist at the time of breaking and entering; later-formed intent is larceny or trespass, not burglary.

Modern burglary (statutory)

Most states have expanded:

• Entry without breaking often sufficient.
• Daytime entries covered.
• Commercial structures, vehicles, vessels often included.
• Intent to commit any crime (not just felony) in some states.
• Aggravated burglary — armed, occupied, with assault, of a dwelling.

NCBE loves to test

• Intent at entry. Specific-intent crime — intent must coexist with entry, not form later.
• Breaking nuances. Constructive breaking (threat, fraud) counts. Entry through open door does NOT (common law).
• Entry requirement. Partial entry — any body part crossing the threshold. Instrument for entry ≠ entry; instrument for felony commission = entry.
• Dwelling breadth. Common-law strict. Modern expands.
• Compound / alternative charging. Burglary + intended felony — no merger; both sustainable.
• Attempt. If breaking but interrupted before entry, attempted burglary.
• Mistake of fact. If defendant believes structure is his own, no burglary (specific intent negated).
• Consent. Possessor's consent to entry usually negates breaking and entry elements, but fraud in inducement may not (some jurisdictions deem it "constructive breaking").

Fast hypos

Hypo 1. At night, D pushes open an unlocked door and walks in, intending to steal a TV. Breaking + entering + dwelling (if a home) + night + intent to commit felony (grand larceny if TV valuable enough) = common-law burglary.

Hypo 2. D climbs through an open window at 3:00 a.m. into house. No breaking — open window. Not common-law burglary. Modern statute often does not require breaking, so statutory burglary likely.

Hypo 3. D enters a store at noon to steal cash. Not common-law burglary — daytime + commercial structure. Modern statute typically covers.

Hypo 4. D enters a home through an unlocked door to hide from police. Inside, D decides to steal items. No burglary — intent to commit felony did not exist at entry. Larceny applies.

Hypo 5. D uses fishing pole through window to hook jewelry from a bedroom. Insertion of instrument to commit felony counts as entry; breaking element satisfied if window had to be opened.

Related crimes

• Criminal trespass — unlawful entry without intent to commit felony.
• Arson — malicious burning of a dwelling (common law; modern statutes broader). Formerly specific intent now often general intent.
• Robbery — larceny from person by force or threat.
• Home invasion — statutory crime in many states; entry while home occupied with intent to commit a felony.

Case anchors

• People v. Davis, 18 Cal. 4th 712 (1998) — fishing through teller window as entry.
• Welch v. Commonwealth, 425 S.W.2d 537 (Ky. 1968) — constructive breaking.
• State v. Strong, 294 N.C. 85 (1978) — specific intent at entry.
• People v. Gauze, 15 Cal. 3d 709 (1975) — cannot burgle own home (consent / possession).

See also

• Theft
• Inchoate Crimes
• Homicide
• Miranda

Sources

Model Penal Code § 221.1; People v. Davis, 18 Cal. 4th 712 (1998); Welch v. Commonwealth, 425 S.W.2d 537 (Ky. 1968); State v. Strong, 294 N.C. 85 (1978); People v. Gauze, 15 Cal. 3d 709 (1975); see generally LaFave & Scott, Substantive Criminal Law § 21.1 (for outline reference).