Burglary - Common Law Definition

Common Law Definition

The common law burglary was defined by Sir Matthew Hale as:

The breaking and entering the house of another in the night time, with intent to commit a felony therein, whether the felony be actually committed or not.

1. Breaking can be either actual, such as by forcing open a door, or constructive, such as by fraud or threats. Breaking does not require that anything be "broken" in terms of physical damage occurring. A person who has permission to enter part of a house, but not another part, commits a breaking and entering when they use any means to enter a room where they are not permitted, so long as the room was not open to enter.
2. Entering can involve either physical entry by a person or the insertion of an instrument with which to remove property. Insertion of a tool to gain entry may not constitute entering by itself. Note that there must be a breaking and an entering for common law burglary. Breaking without entry or entry without breaking is not sufficient for common law burglary.
3. Although rarely listed as an element, the common law required that "entry occur as a consequence of the breaking". For example, if a wrongdoer partially opened a window by using a pry bar and then noticed an open door through which he entered the dwelling, there is no burglary at common law. The use of the pry bar would not constitute an entry even if a portion of the prybar "entered" the residence. Under the instrumentality rule the use of an instrument to effect a breaking would not constitute an entry. However, if any part of the perpetrator's body entered the residence in an attempt to gain entry, the instrumentality rule did not apply. Thus, if the perpetrator uses the prybar to pry open the window and then used his hands to lift the partially opened window, an "entry" would have taken place when he grasped the bottom of the window with his hands.
4. House includes a temporarily unoccupied dwelling, but not a building used only occasionally as a habitation
5. Night time is defined as hours between half an hour after sunset and half an hour before sunrise
6. Typically this element is expressed as the intent to commit a felony “therein”. The use of the word “therein” adds nothing and certainly does not limit the scope of burglary to those wrongdoers who break and enter a dwelling intending to commit a felony on the premises. The situs of the felony does not matter, and burglary occurs if the wrongdoer intended to commit a felony at the time he broke and entered.

The common law elements of burglary often vary between jurisdictions. The common law definition has been expanded in most jurisdictions, such that the building need not be a dwelling or even a building in the conventional sense, physical breaking is not necessary, the entry does not need to occur at night, and the intent may be to commit any felony or theft.

The etymology originates from Anglo-Saxon or Old English, one of the Germanic languages. According to one textbook, "The word burglar comes from the two German words berg, meaning "house", and laron, meaning "thief" (literally "house thief"). Another suggested etymology is from the later Latin word burgare, "to break open" or "to commit burglary", from burgus, meaning "fortress" or "castle", with the word then passing through French and Middle English, with influence from the Latin latro, "thief". The British verb "burgle" is a late back-formation.