Introduction

Burglary at Common Law

Introduction

Common-law burglary protects the place where a person lives. Blackstone regarded burglary as an especially heinous offense because it invaded a person's right of habitation, the right to live securely in one's own dwelling.¹ Courts have accordingly described the offense as one against the security of habitation or occupancy rather than against ownership of property, which sets it apart from theft statutes, whose subject is who owns what.² A second function follows from the same design. Under the common law of attempt, a person caught breaking into a dwelling to commit a felony could often not be convicted of attempting that felony, because the person had not yet come close enough to carrying it out (nobody has yet seen the property worth stealing, for instance).³ Burglary closes that gap by making the intrusion itself the crime.⁴

The common-law definition has six parts: (i) a breaking, (ii) an entry, (iii) of the dwelling, (iv) of another, (v) at nighttime, and (vi) with the intent to commit a felony inside the dwelling.⁵ The sixth element looks to what the defendant meant to do, so the felony inside need never be carried out for the burglary to be complete. This chapter takes the elements in the order a fact pattern unfolds. The first question is how the defendant got in, which is the breaking. The next group concerns what was entered: whether there was an entry, whether the structure is a dwelling, and whether it is the dwelling of someone other than the defendant. Then comes when it happened, because the offense requires nighttime, and last comes what the defendant had in mind on going in. That order also tracks the purpose of the crime. Each element asks, in its own way, whether an occupant's secured living space was violated: whether the occupant had closed it off, who actually lives there, and whether the hour was one when people are most likely to be at home asleep. Reading the elements through that purpose lets you predict how each will apply to facts you have not seen.

Before running any of these elements on a problem, you have to know which burglary law governs, because legislatures have reworked the definition so extensively that the modern offense bears little relation to its common-law ancestor.⁶ Legislatures typically do this by amending the definition of burglary itself, so the same label can carry different meanings from state to state.⁷ Iowa, for example, replaced "dwelling house" with the broader "occupied structure" in 1978.⁸ Maryland, by contrast, still gives the common-law offense its common-law meaning and has layered statutory burglary and statutory breaking crimes on top of it.⁹ This chapter closes by showing where those departures occur and why a statute's wording can change the answer. The common-law elements remain the baseline, and the first of them is the breaking requirement, which has the most separable checkpoints of any element. A fact pattern therefore begins with a single question: how did the defendant get in?