AuthorJeffrey Lehman, Shirelle Phelps

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The criminal offense of breaking and entering a building illegally for the purpose of committing a crime.

Burglary, at COMMON LAW, was the trespassory breaking and entering of the dwelling of another at night with an intent to commit a felony therein. It is an offense against possession and habitation. The common-law elements of the offense have been modified in most jurisdictions by statutes that tend to make the crime less restrictive.

Elements of the Offense

Trespass The TRESPASS element of the offense signifies that it must occur without the consent of the victim. If the thief gains entry by misrepresenting his or her identity, the element of trespass is satisfied, as there is no consent to entry.

Breaking Breaking consists of creating an opening for entry into the building. It can be accomplished by removing an object that is blocking an entry or by blasting open a wall. The use of force is not required. The breaking element is satisfied if access is obtained by opening a closed door or window, regardless of whether these are locked.

At common law, entering through a preexisting opening did not constitute breaking. If one gained access through an open door or window, burglary was not committed. The same rule applied when a door or window was partially open even though it was necessary to open it further in order to enter. The rationale under-lying this rule was that one who failed to secure his or her dwelling was not entitled to the protection of the law. A majority of states no longer follow this rule and consider breaking to be the slightest application of force to gain entry through a partially accessible opening.

When entry is gained by a MISREPRESENTATION of identity or by any other trick, it is called constructive breaking, which satisfies the breaking requirement of burglary. On the other hand,

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if a person, such as a servant, has authority to enter, there is no breaking unless he or she breaks into and enters an unauthorized area.

Under the common law, the breaking had to occur immediately before the time of entry. Most jurisdictions that retain the breaking element are in agreement; in others, the breaking can occur during a reasonable time before the entry. Some jurisdictions have completely eliminated the element of breaking from the statutory definition of burglary, while others require it for one degree of burglary...

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