Concept
Modern Statutory Departures
Common-Law Burglary
Modern Statutory Departures
The five elements taught so far (breaking, entry, a dwelling of another, nighttime, and felonious intent) make up the common-law definition. That definition is the starting point for an exam answer, but many jurisdictions no longer apply it as written. Over the centuries legislatures have expanded or discarded so many of these elements that the modern offense called burglary often bears little resemblance to its common-law ancestor.1 The original definition was narrow for a reason. Common-law burglary rested on the protection of a person's right of habitation, so it reached only a breaking into a place where someone lived.2 The dangers of an intrusion do not stop at that boundary, though. An intruder who enters a shop by day, or who walks into a home through an open door, creates much the same risk for the people inside, and a definition drawn tightly around a nighttime breaking of a dwelling leaves that conduct outside burglary altogether.
Legislatures usually respond by changing the definition of the old crime and not by inventing a new one. A statute may extend burglary to daytime misconduct, to entry without a breaking, to buildings other than dwellings, or to an intent to commit a misdemeanor.3 Maryland shows a second pattern, in which the statutes sit beside the common-law offense and do not replace it. In Warfield v. State the court explained that the common-law felony of burglary became part of Maryland law and keeps its common-law meaning, because the legislature set a penalty without defining the offense. The gaps in that definition then prompted a series of statutes creating statutory burglary and statutory breaking offenses alongside it.4 Those statutes reach, among other things, a breaking of a dwelling in the daytime with intent to commit murder or another felony, and a breaking of a storehouse, garage, or similar outbuilding by day or night with a felonious or larcenous purpose.5 A single break-in in such a state can therefore fit one offense, several, or none, depending on which element the facts leave out, so the answer has to identify the offense by its elements and not by the label alone.
The changes sort into two kinds, and the next two subsections take them in turn. The first kind widens the structures covered, replacing the dwelling house with broader categories of building. The second kind removes elements outright, and the ones most often removed are the breaking and nighttime requirements. Each kind can reverse the result on facts that are decisive at common law, which is why the choice of governing law comes before any element-by-element analysis.
The practical consequence is an order of operations for a burglary question. When the stem identifies a jurisdiction's statute, that statute's elements control. When the stem says the question arises at common law, or says nothing about a statute, the five common-law elements control, and the answer can add where a modern statute would differ.6 A short-answer illustration about a bank shows how much depends on that choice. A defendant who breaks into a bank at night intending to steal commits no common-law burglary, because a bank is a place of business and not a dwelling. Many modern statutes extend burglary to any structure and would reach the same conduct.7 The error that costs the most points is applying a statutory expansion the stem never mentions, because it quietly drops an element that a common-law answer would have tested. The common-law framework therefore remains the default for any question that says 'at common law' or is silent on the statute.8
Broader Structures
The first kind of change identified above concerns the structure element, and it begins with vocabulary. The common-law question was whether the building was a dwelling, a place of human habitation, because the offense rested on protecting a person's right of habitation.10 Statutes ask a wider question. Only a few jurisdictions still require a dwelling for every degree of burglary; most use a term such as building or structure, read broadly, and some extend the offense to certain vehicles and coin-operated machines.11 Where a dwelling still matters, it usually works as a fact that raises the grade of the offense and is no longer a condition of the offense itself.12 The word burglary has in this way acquired a second meaning, which covers a break-in at any building and not merely at a dwelling.13
Iowa shows the change inside a single statute. Its first burglary statute tracked the common law, and in 1978 the legislature replaced "dwelling house" with the broader term "occupied structure."14 In State v. Rooney the Iowa Supreme Court traced that history and recognized that the new term significantly expanded the statute's reach.15 The statutory definition works through three alternatives: a building, structure, vehicle, or similar place qualifies if it is adapted for overnight accommodation of persons, or if persons occupy it to carry on business or other activity, or if it is used for the storage or safekeeping of anything of value, and the definition also reaches appurtenances to buildings.16 The first alternative preserves the old dwelling idea, so everything that was a dwelling is still covered. The second and third alternatives supply the expansion, and they are why an office, a shop, or a warehouse now falls inside burglary in Iowa. Iowa also divides burglary into degrees with graduated penalties, a subject this chapter leaves aside.17
The word occupied in Iowa's label is easy to misread. A structure counts as occupied whether or not a person is actually present, so the label describes how the place is used and not who happens to be inside at the moment of entry.18 That reading explains why stepping into a rowboat with no one aboard, intending to steal its fishing tackle, is burglary in Iowa, and why entry onto a homeowner's driveway with felonious intent also qualifies, since the driveway is an appurtenance of the building; the driveway holding comes from Rooney.19 The usual error is to ask whether a person was actually inside, a question the Iowa definition does not put.20
Each of the two added alternatives has its own logic. Where people carry on business, the danger that drives burglary law, a confrontation between an intruder and someone lawfully present, arises just as it does at home, and courts applying California's burglary statute describe its primary aim as forestalling dangerous confrontations between intruders and occupants, an aim that does not depend on whether the occupant sleeps in the building.21 Where a structure holds stored valuables, the concern shifts from people to property: the building is the place where a thief reaches goods that someone has deliberately secured, so a definition built around places of storage protects that security even when the building is empty at night. The common-law limit to dwellings was a choice about which enclosures deserve burglary's protection, and the statutes make a different choice.
Maryland reached a similar result by a different route, the one described in Warfield v. State: the common-law offense stayed as it was, and the legislature added separate statutes for buildings the common law left out.22 The bill file for one of those statutes records the motive. An earlier provision made it a crime to break into a dwelling house, but the courts had held that an unoccupied beach cottage is not a dwelling house, so the new provision went beyond dwellings to cover a long list of structures and boats.23 The cottage marks the edge of the common-law rule. A house whose residents are merely away for a time or for part of the year is still a dwelling, but a building that no one is using as a residence is outside the word even though someone owns it.24 The Maryland provisions also show that wider structures do not automatically carry a felonious-intent element along, because the two gap-filling provisions in that opinion are misdemeanors of criminal trespass requiring only a general intent to break and enter.25
Other codes draw the line in still other places. The Model Penal Code defines burglary as entering a building or occupied structure, or a separately secured or occupied portion of one, with purpose to commit a crime inside, unless the premises are open to the public or the actor is licensed or privileged to enter.26 California reaches further. A footnote in People v. Ceballos observes that California's burglary statute covers numerous places other than a mansion house, so that a person who enters a store intending to commit theft is guilty of burglary.27 In Taylor v. United States the Supreme Court, comparing state definitions, noted that California's statute extends to shoplifting and to theft from a locked but unoccupied automobile, and that Texas's extends to theft from a coin-operated vending machine.28 The range is wide enough that no single state's list can be assumed, which is why the common-law element remains the baseline when a stem is silent.
The contrast with the common law is sharpest on a place of business. A defendant who breaks into a bank at night intending to steal commits no common-law burglary, because a bank is a place of business and not a dwelling, although many modern statutes cover the breaking and entering of any structure, dwelling or not.29
On an exam, the jurisdiction named in the stem decides which question to ask about the structure. A stem that names no statute calls for the common-law question, whether the place is a dwelling, and the answer can add that a statute using building, structure, or occupied structure would reach a bank, office, or warehouse. A stem that quotes such a statute calls for the statutory question, whether the place falls within the definition the stem supplies.
Dropped Common-Law Elements
The second kind of statutory change removes elements instead of widening the list of structures, and California's burglary statute shows the two most common removals side by side. Penal Code section 459 punishes a person who enters a house, room, apartment, or similar place with intent to commit larceny or any felony, and California courts read it to require neither a breaking nor darkness.31 In People v. Gauze the California Supreme Court described the 1850 codification as making two major changes. The first enlarged the protected structures, as the previous subsection showed. The second eliminated the breaking requirement, so that an entry with felonious intent is itself the burglary and it no longer matters whether the intruder came through a closed door, an open door, or a window.32 The same opinion counted the elimination of the nighttime requirement, together with the wider list of structures, as a sign that the statute no longer stops at safeguarding occupancy.33 A later California decision compresses the result into a sentence: the entry may occur in the daytime, in numerous places other than a mansion house, and breaking is not required.34
The breaking element went first because its force component had produced the least defensible distinctions in the common law. Breaking tested whether the intruder overcame a barrier, and courts drew lines unrelated to the danger of the intrusion: entry through a closed door or window was a breaking whether or not it was locked, yet pushing a partly open window wider was not.35 A Maine decision, State v. Thibeault, traced the history: common-law judges, perhaps wishing to confine what was then a capital crime, built up a host of fine distinctions about force, and once burglary stopped carrying the death penalty the irrationality of those distinctions became plain, so many legislatures struck the element and left an offense of entering a structure with intent to commit a crime.36 The functional reason follows from what burglary punishes. The harm is an intruder with a criminal purpose inside a place that others occupy, and that harm is complete once the intruder is inside; whether the intruder lifted a latch or walked through an open door changes nothing about what the occupant faces. A statute aimed at the felonious entry therefore has no use for a force requirement.
Nighttime followed the same path for a parallel reason. The common law treated darkness as the period when honest people were most exposed to criminals, which is why the hour became part of the definition.37 California courts describe the burglary statute's primary aim as forestalling dangerous confrontations between intruders and occupants.38 That danger is present at noon as readily as at midnight, so the hour no longer separates burglary from lesser conduct. Jurisdictions now sort three ways: only a few still require nighttime for every form of burglary, several keep it as an element of a higher degree, and the rest have discarded it entirely.39 California belongs with the group that keeps the hour for grading, since its first-degree burglary includes nighttime burglaries of dwellings along with armed burglaries.40 The Model Penal Code follows the same pattern by making burglary of another's dwelling at night a second-degree felony and leaving other burglaries, absent injury or a weapon, a felony of the third degree.41 A daytime entry therefore no longer escapes burglary; it receives a lower grade.
Even after dropping those two elements, California kept a trespass-based core. Gauze read the statute as preserving two features of the common-law offense: a burglary remains an entry that invades a possessory right in a building, and it must still be committed by a person who has no right to be in the building.42 The store thief shows the second feature at work. In People v. Barry a thief who entered a store during regular business hours was convicted of burglary, and the court explained why the open door did not help him: a party who enters intending to commit a felony is not one of the public invited and could be refused at the threshold or ejected once inside.43 Gauze summarized the principle as an implied invitation to the public to enter a store during business hours for legal purposes only.44 The invitation has a scope, and a felonious purpose falls outside it, so the entry is made without consent even though nothing was broken and no one objected.
The roommate in Gauze shows the other side of the line. Gauze shared an apartment with Richard Miller and had the right to enter it at all times; after a furious quarrel he borrowed a shotgun from a neighbor, returned to the apartment, walked into the living room, and fired at Miller, and he was convicted of assault with a deadly weapon and of burglary, the burglary resting on his entry into his own apartment with intent to commit the assault.45 The court held that he could not burglarize his own home, because his entry invaded no possessory right of habitation and his right to enter was a personal one that could not be conditioned on his roommates' consent.46 Both Gauze and the store thief entered with a felonious purpose, and neither broke anything. The difference is the source of the right to be there. The thief's license depends on purpose, so a criminal purpose defeats it, while the roommate's license depends on residence, so purpose is irrelevant to it. The result also fits the harm burglary addresses, since Miller was endangered by the shotgun and not by Gauze walking into the living room, and a burglary charge would have added nothing to his protection.47
Other statutes that drop breaking commonly substitute a violation-of-consent test for it.48 The Model Penal Code, for example, defines burglary as entering a building or occupied structure with purpose to commit a crime inside, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.49 That open-to-the-public exception is a limit the Barry line does not recognize for the store thief. The form of the limit also varies from state to state, because the Maine decision observed that where no vestige of breaking remains, consent to enter is no defense, since the entry need not be trespassory to be burglarious.50 The statute in the stem therefore has to be read for what it says about unprivileged or unconsented entry, because that language decides whether a defendant with a claim of right to be inside can be a burglar.
On an exam, a stem that names no statute calls for the five common-law elements, and the dropped elements enter the answer only as a note on what a modern statute would change. A stem that supplies a statute like California's changes the shape of the analysis, and the changed analysis is best run as a short sequence because each step removes an issue that a common-law answer would have spent time on.
The step that loses points is the third. Students lose this issue by assuming that dropping the breaking element also drops the right-to-enter limit, and a student who reasons that any entry with bad intent is burglary will convict the roommate in Gauze, which is the result the California court refused to reach.