Concept

Walking the Elements

Common-Law Burglary

Walking the Elements

Common-law burglary has six elements: a breaking, an entry, of the dwelling, of another, at nighttime, with the intent to commit a felony inside the dwelling.¹ The prosecution must prove each one, so the case reduces to a list of ultimate facts: that there was a breaking, that there was an entering, that the place was the dwelling of another, that the entry came at night, and that the defendant intended a felony inside.² The list has a shape that helps in organizing an answer. The breaking and the entry describe what the defendant does, the dwelling of another and the nighttime are attendant circumstances, meaning conditions that must be present when that conduct occurs, and the intent is the mental element.³ Everything taught earlier in this chapter fits into one of those three groups, and the walk-through below visits them in the order the chapter taught them.

The order matters for a practical reason. Because every element is required, the first element that clearly fails ends the common-law charge, and an answer that states each element with the facts bearing on it shows the reader exactly where the analysis turned. One question comes before all the elements, though, and it is which definition governs. Legislatures have rewritten burglary in many places, so the jurisdiction named in the stem decides what to ask, and when the stem supplies no definition the common-law elements are the ones to discuss.⁴

Exam Analysis Steps

Because every element is required, the analysis works best as a fixed sequence in which the first clear failure ends the common-law charge and each step names the facts that bear on it. The steps are these:

Identify the definition the jurisdiction uses, and when the stem names none, apply the six common-law elements and say that you are doing so.
Ask whether there was a breaking, which is actual when the defendant puts aside any barrier, however slight (a closed but unlocked door suffices), and constructive when entry is gained by fraud or threat.⁵
Ask whether the breaking was a trespass, so that no invitation, key, or public opening authorized the entry, and whether it opened the structure itself, or a separately secured part of it, to let the defendant in rather than out.⁶
Confirm that an entry followed the breaking, which any part of the body placed inside the structure will supply.⁷
Ask whether the place was a dwelling, meaning a place of human habitation regularly used for sleeping, and whether it was the dwelling of another, which turns on who occupies it and not on who owns it.⁸
Fix the hour, because common-law burglary is a nocturnal offense, and state an assumption when the stem is silent.⁹
Ask whether the defendant intended, at the moment of entry, to commit a felony inside, any felony and not only theft, and recall that the offense is complete on entry whether or not the felony is carried out.¹⁰

Step six deserves particular attention because stems often omit the hour, or some other fact, when the writer is focused on a different issue. An answer that moves silently past an element the facts do not mention gives the reader no way to tell whether the element was considered or forgotten. The remedy takes one sentence: where nothing in the stem mentions the time, write that you are assuming the entry occurred at night or that the jurisdiction has abandoned the nighttime requirement.¹¹ Students lose this issue by skipping an element the facts never mention, when one sentence stating an assumption would have kept the analysis complete.

A stock exam scenario shows the sequence producing a conviction. A thief obtains entry to a hotel room by fraud and, once inside, takes the occupant's property. No force is used, yet the breaking element is met, because entry gained by fraud is a constructive breaking.¹² The reason lies in why the law demands a breaking at all. The law protects a closed dwelling against an intruder and withholds that protection from an occupant who invited the entry, so an occupant who opens the door only because of a lie has not truly invited anyone, and the intruder is the one who caused the opening.¹³ A hotel room is a dwelling for this purpose, and the thief's intent to commit larceny existed when the thief entered the room, which places the mental element at the right moment.¹⁴ A complete answer still fixes the hour, stating its assumption if the stem is silent, before concluding that every element is met.

A companion scenario shows how a single missing element ends the common-law analysis. Two boys, Bob and Jim, open the closed but unlocked door of Smith's garage one afternoon, intending to take whatever catches their fancy.¹⁵ Opening the door is a breaking, because the element asks only whether some barrier to entry was put aside, no matter how flimsy, and neither a lock nor any damage to the structure is required. The entry was unauthorized and therefore trespassory, and the garage is the modern equivalent of a stable, an outbuilding within the curtilage (the fenced area around the main house) that the common law already treated as part of the dwelling.¹⁶ The afternoon hour is where the common-law analysis stops, since common-law burglary was a nocturnal offense and an afternoon entry cannot satisfy it. The sound answer then states that most jurisdictions have eliminated the nighttime requirement, assumes that change for the rest of the analysis, and turns to intent: the boys had at most a contingent intent to steal whatever struck their fancy, and a contingent intent is treated no less seriously than a firm resolve.¹⁷ The same scenario also raises whether boys of these ages can form the mental state any crime requires, a question of capacity that sits outside the six elements and is not taken up in this chapter.¹⁸

Where a fact cuts both ways, the sound answer says so and explains why. A closed but unlocked door ordinarily supplies the breaking, yet one exam stem treated the element as questionable because the defendant went through the door while in a place open to the public, where entering such a door was not unlawful.¹⁹ That doubt follows from the trespass checkpoint in step three, since no common-law breaking occurs where the owner has invited everyone in.²⁰ An answer that names the competing facts and the checkpoint they bear on gives the reader both possible outcomes and the reason each might follow.

Walking the Elements

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