Keywords: Burglary, theft, stealing, criminal trespass

All laws have an origin. Almost all of the [criminal] laws in effect today can trace their heritage to England’s common-law. As with everything else, common law was depicted and reworded to fit the standards of the changing times. One of the crimes whose definition has changed over time is burglary. Common law burglary was a crime of stealth and cunning that was done in the time of night while the owners of the house were home. In modern times burglary is just an opportunity that can present itself anywhere at any time of the day.

Common-law burglary is explained in Blackstone's Commentaries Chapter sixteen:

"Burglary, or nocturnal housebreaking, burgi latrocinium, which by our ancient law was called hamesecken, as it is in Scotland to this day, has always been looked upon as a very heinous offence: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature; an invasion, which in such a state, would be sure to be punished with death, unless assistance of the weaker party: and, besides that they leave him this natural of killing the aggressor, if he can they also protect and avenge him, in café the might of the assailant is too powerful. And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with immunity: agreeing herein with the sentiments of ancient Rome, a expressed in the works of Tully; 'quid enim sancturs, quid omni religione munitirs, quam domus uniufcjufque civium?' For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supercedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nusancers, and incendiaries: and to this principal it must be assigned, that a man may assemble people together lawfully without danger of raising a riot, rout, or unlawful assembly, in order to protect and defend his house; which he is not permitted to do in any other case." (Blackstone).

Along with the common-law definition of burglary is the definition of a burglar, "he that by night breaketh and entreth into a mansion house, with intent to commit a felony" (Blackstone). By common-law in order for a person to commit burglary four acts must be committed. First, the burglar must commit the crime at night, not in the day. It’s not considered burglary if the act is committed during the day. Second, the place must be a mansion house (under burglary a church is also considered a house). Third is manner, or way of doing it. Blackstone writes, "There must be both a breaking and an entry to complete it. But they need not be both done at once: for, if a hole be broken one night, and the same breakers enter the next night through the same, they are burglars. There must be an actual breaking; not a mere legal clufum fregit, (by leaping over invisible ideal boundaries, which may constitute a civil trespass) but a substantial and forcible irruption. As at least by breaking, or taking out the glass of, or otherwise opening, a window; picking lock, or opening it with a key; nay, by lifting up the latch of a door, or unloosing any other fastening which the owner has provided" (pp.227). The fourth and final requirement is the intent to commit a felonious act. When evidence of these elements has been established, the corpus delecti (Latin for body of the crime) of burglary has been proven. During the time common-law was enforced just about every crime’s punishment was death.

As the United States has moved into the twentieth century, the laws of burglary have changed with the times. With modern day burglary there are two definitions of burglary that apply to every citizen in every aspect. The first criminal code that a person could be charged with would be the state criminal code, which is the most likely to be used in a court case.

The criminal code of burglary is defined differently in many states. Although the definitions are relatively the same they have distinct differences. In the state of Maryland "neither common law burglary nor statutory burglary encompassed the breaking of a dwelling house in the daytime. This gap was filled by legislative enactment. A former version of this section proscribed the felony 'of breaking a dwelling house in the daytime with intent to commit murder or felony therein, or with intent to steal, take or carry away the personal goods of another of any value therefrom' and a maximum penalty of ten years there for was authorized"(Md. CRIMIMAL LAW Code Ann. 6-201). Maryland's criminal cod also defined the burglar's tool as: "a tool, instrument, or device adapted, designed. Or used to commit or facilitate the commission of a burglary crime. A burglars tool includes: a picklock, key, crowbar, prybar, jack, bit, explosive material including nitroglycerine, dynamite, gunpowder, a device capable of burning through metal, concrete, or other solid material, including an acetylene torch, electric arc, and a burning bar thermal lance, or oxygen lance."

In California burglary is defined as:

"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, when the doors are thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary " (Cal Pen Code 459).

In Arkansas the definition of burglary is simple, "a person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment" (A.C.A. 5-39-201).

Whether the definition of burglary is similar to the common-law definition like Maryland, long and precise like California, or short and simple like Arkansas, either way burglary is still a crime. But those who are not convicted of burglary can be charged with a similar crime, criminal trespass. Criminal trespass is defined as: "a person knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any building or occupied structure, or separately secured or occupied portion thereof. An offense under this subsection is a misdemeanor if it is committed in a dwelling at night. Otherwise it is a petty misdemeanor" (Criminal Law and Procedure). At times burglary and criminal trespass get mixed up because their definitions are similar in nature, but either way the offender is still charged and convicted regardless of the approach the prosecution takes.

The second code that a person could be charged with is the Military Criminal Code. With all of the laws in existence in the United States, servicemen in the United States Armed Forces (USAF) not only have to abide by the laws set forth by the states in which they are stationed, but they also have to abide by the laws set forth in the United States Code Service. The men and women of the USAF have a much higher sense of responsibility because they are obligated to a higher standard than most civilians. Burglary defined by the U.S.C.S. is as follows, "Any person subject to this chapter who with intent to commit an offense punishable under sections 918-928 of this title, breaks and enters, in the nighttime, the dwelling house of another, is guilty of burglary and shall be punished as a court-martial may direct"(10 USCS 929 Art. 129). Military personnel that are tried and convicted for a crime either go the brig (military prison) or are forced to an early retirement sometimes with a dishonorable discharge.

A main point that links common-law and modern law throughout the span of time is the motive behind the burglary. The point of all burglaries is to take something of value from another person or to position the burglar in a way that enables him to commit another felony such as assault or rape. During the common-law era most of the people that committed burglary were people that had little or no income and turned to crime to provide for their families. In modern day, people that commit burglary just like in common-law have little or no income, but instead of turning to crime to provide for their families they are doing it to support a habit of some sort like an alcohol or a drug addiction.

One of the main points that separates common-law and modern law is the time of day at which the burglary takes place. According to common-law, the burglar can only be prosecuted if the break in occurs at night. Under the laws in effect today this idea has been revised so that all times of the day and night are now included.

One aspect of the crime that has changed is the sentence and consequences that the offender must serve. Common-law sentenced people to death on a regular basis. The person accused of the crime rarely got a fair trial if they even had one. In the United States people are guaranteed the right to a trial by jury with the option of a change in venue so that the person being charged can have a jury that is impartial. And if the person is convicted instead of being sentenced to death there are factors that the jury uses to decide what his punishment will be appropriate. They look at if it is a first time offense and if there is a pre-existing criminal record. Juries also look at the state of mind the defendant was in when he was committing the crime. With all of the different factors a jury has to consider the sentence could range anywhere from simple probation or a specified amount of hours of community service to long-term incarceration.

Blackstone, W.B. (1979). Commentaries on the Laws of England, Volume 4. Chicago: University Chicago Press.

Boyce, Ronald N., Perkins, Rollin M. (1989). Criminal Law and Procedure Cases and Materials, Seventh Edition. Westbury, New York: The Foundation Press, Inc.

Samaha, Joel. (2002). Criminal Law, Seventh Edition. Belmont CA: Thompson Learning, Inc.

Annotated Code Of Maryland. (2002). Crimes Against Property. Md. Criminal Law Code Ann. Title 6. Subtitle 2. (6-202).

United States Code Service. (2002). Uniform Code of Military Justice, Punitive Articles. Title 10. Subtitle A. Part II. Chapter 47. Subchapter X. (929 Art. 129).

Deering’s California Codes Annotated. (2001). California Penal Code. Part 1. Title 13. Chapter 2. (Cal Pen Code 459).

Arkansas Code of 1987. (1987). Criminal Offenses. Subtitle 4. Chapter 39. Subchapter 1. (A.C.A 5-39-101).

Burglary on Encyclopedia. http://www.encyclopedia.com/html/b1/burglary.asp

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