BURGLARY (burgi latrocinium; in ancient English law, hamesucken[1]), at common law, the offence of breaking and entering the dwelling-house of another with intent to commit a felony. The offence and its punishment are regulated in England by the Larceny Act 1861. The four important points to be considered in connexion with the offence of burglary are (1) the time, (2) the place, (3) the manner and (4) the intent. The time, which is now the essence of the offence, was not considered originally to have been very material, the gravity of the crime lying principally in the invasion of the sanctity of a man’s domicile. But at some period before the reign of Edward VI. it had become settled that time was essential to the offence, and it was not adjudged burglary unless committed by night. The day was then accounted as beginning at sunrise, and ending immediately after sunset, but it was afterwards decided that if there were left sufficient daylight or twilight to discern the countenance of a person, it was no burglary. This, again, was superseded by the Larceny Act 1861, for the purpose of which night is deemed to commence at nine o’clock in the evening of each day, and to conclude at six o’clock in the morning of the next succeeding day.
The place must, according to Sir E. Coke’s definition, be a mansion-house, i.e. a man’s dwelling-house or private residence. No building, although within the same curtilage as the dwelling-house, is deemed to be a part of the dwelling-house for the purposes of burglary, unless there is a communication between such building and dwelling-house either immediate or by means of a covered and enclosed passage leading from the one to the other. Chambers in a college or in an inn of court are the dwelling-house of the owner; so also are rooms or lodgings in a private house, provided the owner dwells elsewhere, or enters by a different outer door from his lodger, otherwise the lodger is merely an inmate and his apartment a parcel of the one dwelling-house.As to the manner, there must be both a breaking and an entry. Both must be at night, but not necessarily on the same night, provided that in the breaking and in the entry there is an intent to commit a felony. The breaking may be either an actual breaking of any external part of a building; or opening or lifting any closed door, window, shutter or lock; or entry by means of a threat, artifice or collusion with persons inside; or by means of such a necessary opening as a chimney. If an entry is obtained through an open window, it will not be burglary, but if an inner door is afterwards opened, it immediately becomes so. Entry includes the insertion through an open door or window, or any aperture, of any part of the body or of any instrument in the hand to draw out goods. The entry may be before the breaking, for the Larceny Act 1861 has extended the definition of burglary to cases in which a person enters another’s dwelling with intent to commit felony, or being in such house commits felony therein, and in either case breaks out of such dwelling-house by night.
Breaking and entry must be with the intent to commit a felony, otherwise it is only trespass. The felony need not be a larceny, it may be either murder or rape. The punishment is penal servitude for life, or any term not less than three years, or imprisonment not exceeding two years, with or without hard labour.
Housebreaking in English law is to be distinguished from burglary, in that it is not essential that it should be committed at night, nor in a dwelling-house. It may, according to the Larceny Act 1861, be committed in a school-house, shop, warehouse or counting-house. Every burglary involves housebreaking, but every housebreaking does not amount to burglary. The punishment for housebreaking is penal servitude for any term not exceeding fourteen years and not less than three years, or imprisonment for any term not exceeding two years, with or without hard labour.
In the United States the common-law definition of burglary has been modified by statute in many states, so as to cover what is defined in England as housebreaking; the maximum punishment nowhere exceeds imprisonment for twenty years.
Authorities.—Pollock and Maitland, History of English Law; Stephen, History of Criminal Law; Archbold, Pleading and Evidence in Criminal Cases; Russell, On Crimes and Misdemeanours; Stephen, Commentaries.
Endnotes
edit- ↑ In Scots law, the word hamesucken meant the feloniously beating or assaulting a man in his own house.