burglary (law) | Definition

Doc's CJ Glossary by Adam J. McKee
Course: Introduction / Criminal Law

Burglary is the crime of entering or remaining unlawfully in a structure with the intent to commit a crime therein.

Burglary is a serious crime that involves unlawful entry into a building with the intent to commit a crime. The criminal act has been defined differently across different jurisdictions, but the elements of the crime remain relatively constant.

In general, to prove the crime of burglary, prosecutors must establish the following elements: the defendant entered a building, the defendant did so without authorization, and the defendant did so with the intent to commit a crime inside the building. The nature of the building entered can vary and include residential, commercial, or public buildings. Similarly, the type of crime intended to be committed can range from theft to violent crimes such as assault.

At common law, burglary had to occur during the nighttime, and the dwelling entered had to be someone else’s. However, modern statutes have expanded the definition of burglary to include entry into other types of buildings, such as commercial or public buildings, and at any time of day. Additionally, most modern statutes require only the intent to commit any crime inside the building, and the presence of a weapon or the use of force is not necessary.

Penalties for burglary vary widely depending on the jurisdiction and the circumstances of the crime. In some states, burglary is classified as a felony, with potential sentences ranging from a few years in prison to life imprisonment, depending on the severity of the crime. Some states may also impose additional penalties for aggravating factors, such as the use of a weapon or the presence of a child during the commission of the crime.

Under the Model Penal Code, burglary is defined as the act of unlawfully entering or remaining in a building, structure, or occupied structure with the intent to commit a crime therein. The key elements of the crime are:

      • Unlawful entry or remaining: The defendant must have entered or remained in a structure without authorization or permission from the owner or lawful occupant.
      • Structure: The defendant must have entered or remained in a “structure,” which includes any building, vehicle, or other enclosed space that is adapted for overnight accommodation or for carrying on business therein.
      • Intent to commit a crime: The defendant must have had the intent to commit a crime at the time of entry or remaining in the structure. The specific crime does not need to be carried out, only the intent to commit one.

It is important to note that the Model Penal Code does not require that the burglary occurs at night or that the structure be a dwelling house. Additionally, the Model Penal Code includes a separate offense for trespassing, which is the act of entering or remaining on another person’s property without permission but without the intent to commit a crime.

The grading of burglary offenses under the Model Penal Code varies by the type of structure entered and the level of force used to gain entry. For example, burglary of a dwelling is typically considered a more serious offense than burglary of a non-dwelling structure. Additionally, if the defendant used force to enter the structure, the offense may be graded as a higher degree of burglary.

It is also worth noting that some jurisdictions have added additional elements to the crime of burglary, such as the requirement that the defendant be armed at the time of the offense or that the structure be occupied at the time of entry. However, these elements are not included in the Model Penal Code definition of burglary.

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Last Modified: 04/10/2023


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