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the evolution of burglary, Summaries of Law

University of EssexLaw

Burglary began evolving from the common law crime almost as soon as Lord. Coke defined it in 1641 as breaking and entering a dwelling of another in the night ...

Typology: Summaries

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FROM THE THIEF IN THE NIGHT TO THE GUEST WHO
STAYED TOO LONG: THE EVOLUTION OF BUR GLARY
IN THE SHADOW OF THE COMM ON LAW
HELE N A. AND E RSO N*
ABST RA CT
Burglary began evolving from the common law crime almost as soon as Lord
Coke defined it in 1641 as breaking and entering a dwelling of another in the
night with the intent to commit a crime therein. But sometime between the
Model Penal Code in 1962 and today, burglary lost its core actus reus, “entry.”
In the majority of jurisdictions, burglary can now be accomplished by simply
remaining in a building or vehicle with the intent to commit a crime. Not only
does such an offense cover a wide range of situations, but it allows burglary to
be attached to almost any crime that occurred indoors, and justify a significant
additional penalty—even death. Burglary thus functions as a “location
aggravator” for other crimes. Paradoxically, it may be the shadow of the
common law crime that has obscured the breadth and significance of these
changes. Burglary’s long tradition and pedigree give an illusion of solidity to the
charge, even when it no longer necessarily describes real criminal conduct
beyond the target offense.
This is the first survey of burglary in the United States since the Model Penal
Code. It begins with a summary of burglary’s history from the common law
definition through the first two centuries of the republic, then explains the Model
Penal Code proposal for burglary—as well as the Model Code authors’
misgivings about the offense. The Article then looks in detail at what happened
in the states after the Model Penal Code—how the common law elements
continued to erode until we ended up with today’s very thin crime. The Article
shows what this has meant: a serious crime with significant penalties that can be
invoked in a range of situations, e.g., shoplifting, hold-up of a business, or
murder by a houseguest. It concludes that burglary’s evolution has finally gone
too far, and no longer necessarily describes a distinct offense. It is only the
memory of the common law offense that keeps courts and lawmakers from
recognizing how empty the crime has become.
INTR OD U CTI ON
What do the following scenarios have in common? An eleven-year-old girl
enters a store during business hours and eats a chocolate Easter egg without
paying. A man enters an open gas station, robs it and shoots two employees
dead. A man invited into a home to socialize turns on his host and kills her.
Answer: all can be prosecuted as burglaries. Such prosecutions would not have
1
* Associate Professor, University of Washington School of Law. I wish to thank Miriam
Korngold for her excellent research assistance. I also wish to thank Mary Fan and Elizabeth Porter
for their very helpful comments on an earlier draft.
1. See Davis v. State, 737 So. 2d 480 (Ala. 1999) (holding that evidence of a struggle during
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FROM THE THIEF IN THE NIGHT TO THE GUEST WHO

STAYED TOO LONG: THE EVOLUTION OF BURGLARY

IN THE SHADOW OF THE COMMON LAW

HELEN A. ANDERSON*

ABSTRACT

Burglary began evolving from the common law crime almost as soon as Lord

Coke defined it in 1641 as breaking and entering a dwelling of another in the

night with the intent to commit a crime therein. But sometime between the

Model Penal Code in 1962 and today, burglary lost its core actus reus , “entry.”

In the majority of jurisdictions, burglary can now be accomplished by simply

remaining in a building or vehicle with the intent to commit a crime. Not only

does such an offense cover a wide range of situations, but it allows burglary to

be attached to almost any crime that occurred indoors, and justify a significant

additional penalty—even death. Burglary thus functions as a “location

aggravator” for other crimes. Paradoxically, it may be the shadow of the

common law crime that has obscured the breadth and significance of these

changes. Burglary’s long tradition and pedigree give an illusion of solidity to the

charge, even when it no longer necessarily describes real criminal conduct

beyond the target offense.

This is the first survey of burglary in the United States since the Model Penal

Code. It begins with a summary of burglary’s history from the common law

definition through the first two centuries of the republic, then explains the Model

Penal Code proposal for burglary—as well as the Model Code authors’

misgivings about the offense. The Article then looks in detail at what happened

in the states after the Model Penal Code—how the common law elements

continued to erode until we ended up with today’s very thin crime. The Article

shows what this has meant: a serious crime with significant penalties that can be

invoked in a range of situations, e.g., shoplifting, hold-up of a business, or

murder by a houseguest. It concludes that burglary’s evolution has finally gone

too far, and no longer necessarily describes a distinct offense. It is only the

memory of the common law offense that keeps courts and lawmakers from

recognizing how empty the crime has become.

INTRODUCTION

What do the following scenarios have in common? An eleven-year-old girl

enters a store during business hours and eats a chocolate Easter egg without

paying. A man enters an open gas station, robs it and shoots two employees

dead. A man invited into a home to socialize turns on his host and kills her.

Answer: all can be prosecuted as burglaries. 1 Such prosecutions would not have

  • Associate Professor, University of Washington School of Law. I wish to thank Miriam Korngold for her excellent research assistance. I also wish to thank Mary Fan and Elizabeth Porter for their very helpful comments on an earlier draft.
  1. See Davis v. State, 737 So. 2d 480 (Ala. 1999) (holding that evidence of a struggle during

630 INDIANA LAW REVIEW [Vol. 45:

been possible in the time of Blackstone or Coke, when the common law

definition of burglary (a capital offense) was breaking and entering the dwelling

house of another in the night.^2

Few crimes have changed as much over the years as burglary. From its

origins as the Anglo-Saxon crime of “hamsoken,” or forcible housebreaking, this^3

offense has evolved into a flexible modern one of entering, or merely remaining,

some place with intent to commit a crime. Not only is the offense generally

simpler, covering much more conduct, but burglary now also functions

increasingly as a way to add to the punishment for the target offenses, those

intended by the defendant. 4 Some of the most significant changes have occurred

during the past fifty years. Criticized heavily in the mid-twentieth century by

scholars and law reformers, the crime of burglary nevertheless survived their

challenges and emerged leaner, and meaner, stripped of its more restrictive

common law requirements and effective as a “location aggravator” —even to the^5

point of justifying the death penalty for certain murders. The modern crime is

a far cry from our idea of the common law offense—a forcible night time

intrusion into the home.

Yet paradoxically, it may be that the idea of the common law offense has

allowed burglary to survive and change. Burglary’s long tradition and pedigree

gives an illusion of solidity to the charge, even when it no longer necessarily

describes real criminal conduct beyond the target offense. And courts return to

the common law treatises occasionally to resolve burglary conundrums—as if the

common law offense were still relevant. Like an impoverished aristocrat,

burglary can rely on its name and reputation to keep courts and lawmakers from

realizing just how little remains of its former estate.

This Article explores the history of burglary law in the United States, with

particular emphasis on the last fifty years, when burglary evolved so far as to lose

the central conduct of its “actus reus,” entry. In the majority of jurisdictions,

burglary can now be accomplished by simply remaining in a building or vehicle

a murder can support finding of unlawfully remaining on premises and therefore support burglary charge); Bowling v. Commonwealth, 942 S.W.2d 293 (Ky. 1997), overruled on other grounds by McQueen v. Commonwealth, 339 S.W.3d 441 (Ky. 2011) (upholding burglary conviction where defendant entered two different gas stations, and shot employees at both); In re T.J.E., 426 N.W.2d 23 (S.D. 1988), superseded by statute as stated in State v. Miranda, 776 N.W.2d 77 (S.D. 2009), discussed infra notes 127-28 and accompanying text.

  1. See infra notes 17-25 and accompanying text.
  2. “[Burglary’s] origins lie in the ancient Anglo-Saxon crime of hamsocn or hamsoken, which was an attack upon, or forcible entry into, a man’s house.” Theodore E. Lauer, Burglary in Wyoming , 32 LAND & WATER L. REV. 721, 721 (1997).
  3. See infra Part II.
  4. As used here, the term “location aggravator” refers to the use of burglary charges to add significant penalties to other completed crimes based on where those crimes took place. See infra Part IV. Thus, for example, burglary might be charged along with assault and robbery where the victims are assaulted and robbed in a building. See infra Part IV.

632 INDIANA LAW REVIEW [Vol. 45:

For the most part, states ignored this advice. Burglary evolved 14 and

survived—despite the lack of clear rationale and in the face of significant

critique. However, the Model Code authors’ misgivings about the offense proved

well-founded as its reach expanded.

Part I of this Article lays out Lord Coke’s influential common law definition

of burglary and then summarizes the evolution of burglary law in the states,

providing the background for the Model Penal Code proposal in 1962. Part II

looks at the Model Penal Code proposal for burglary, and explains the drafters’

critique of burglary as it then existed in most American jurisdictions. Part III

addresses developments since the Model Penal Code until the present day,

examining how states have addressed each of the common law elements,

particularly “entry.” Part IV describes the several federal breaking and/or

entering statutes. Part V examines burglary’s increasingly significant role as a

location aggravator—the way in which it is used to add punishment (even the

death penalty) to offenses committed in particular locations. Part VI looks at

how, despite all these changes, the common law crime continues to play a role

in discussions of modern burglary, demonstrating that burglary still exists in the

shadow of the common law.

I. HISTORICAL DEVELOPM ENT OF BURGLARY

A study of the law of burglary in the United States presents significant

challenges. Every state has its own statutory scheme, and the variation is

enormous. Some states define a single crime of burglary. Others divide the

crime into degrees. Still others have developed different statutes for the type of

structure entered, the type of crime intended, or the status of the victim.

Jurisdictions with determinate sentencing schemes may deal with aggravating

factors through sentencing, rather than in the definition of the crime. There is

little agreement among states as to the essential elements of burglary. A study

in 1951 commented on the wide variation in state approaches. 15 Revised

comments to the Model Penal Code made the same point in 1980. 16 More than

  1. “Evolution” is a useful metaphor for the process of change over time to the offenses that fall under the heading of burglary. The term suggests adaptation and the gradual withering away of aspects (elements) that are no longer useful. But obviously this metaphor is not perfect. Burglary is not an organism; it exists only as an artifact of human lawmakers, and any changes occur in their (successive) minds and actions. See Kay L. Levine, The External Evolution of Criminal Law , 45 AM. CRIM. L. REV. 1039, 1047-48 (2008) (discussing the usefulness, with caveats, of considering change in criminal law through the lens of “external evolution”). At the same time, the metaphor of evolution reinforces the enduring link to the common law crime, and mirrors the way in which judges even now refer back to the common law when deciding questions about modern statutory versions of the crime. See infra Part V.
  2. See Wright, supra note 7, at 415.
  3. MODEL PENAL CODE § 221.1 cmt. 1, at 66 (Official Draft & Revised Comments 1980) (“It is also worth noting that a haphazardly defined burglary offense impedes scientific study of crime and its treatment by making statistical studies based on this categorization virtually

2012] THE EVOLUTION OF BURGLARY 633

thirty years later, it is safe to say that there has been no subsequent trend toward

uniformity.

Nevertheless, the current array of statutes has a common ancestor in the

English common law.

A. Common Law Burglary

In his Institutes of the Laws of England , Lord Coke in 1641 defined burglary

as:

A Burglar (or the person that committeth burglary) is by the common

law a felon, that in the night breaketh and entreth into a mansion house

of another, of intent to kill some reasonable creature, or to commit some

other felony within the same, whether his felonious intent be executed

or not.^17

This is the oft-cited 18 common law definition that still influences the law today.

Burglary had been an offense long before Lord Coke’s formulation, having its

roots in the crime known as “housebreaking” or “hamsecken.” 19 But Coke’s six-

element crime took hold.

Coke also defined each element of burglary. Night he defined as when

“darkeness comes” and “you cannot discerne the countenance of a man.” 20 Night

“doth aggravate the offence, for the night is the time wherein man is to rest, and

wherein beasts runne about seeking their prey.”^21 Breaking he defined through

examples: If a thief enters the house through an open door or window, there is

no breaking; but if the thief breaks the glass of the window and uses a hook to

meaningless.”).

  1. SIR EDWARD COKE, THE THIRD PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 63 (London, W. Clarke & Sons 1809) (1644).
  2. Coke “through his Institutes turn[ed] a jumble of law into an astonishingly complete, reconciled, organized body of propositions which concealed all the ‘inconsistencies and difficulties which were inherent in his position[.]’” GERHARD O. W. MUELLER, CRIME, LAW AND THE SCHOLARS 17 (1969). Coke’s burglary definition is cited in Wright, supra note 7, at 411, and A Rationale of the Law of Burglary , supra note 7, at 1009. This is substantially the common law definition referred to, without attribution, in the commentaries to the Model Penal Code. MODEL PENAL CODE § 221.1 cmt. 1, at 61 (Official Draft & Revised Comments 1980).
  3. Commonwealth v. Hope, 39 Mass. (22 Pick.) 1, 4-5 (quoting 1 Hale’s P.C. 547). The gravamen of the offense was to break and enter a house, and a felonious intent was more or less assumed from the breaking and entering. Id. The crime was intended to protect the sanctity and security of the home, and was punishable by death. Lauer, supra note 3, at 724. The crime was mentioned as early as 942. Id. A thirteenth century reference to burglars defines them as “all those who feloniously in the time of peace break churches, or the houses of others, or the walls or gates of our cities or boroughs.” BRITTON: AN ENGLISH TRANSLATION AND NOTES 36 (Francis Morgan Nichols ed. 1901), cited in Lauer, supra note 3, at 725 n.15.
  4. COKE, supra note 17, at 63.
  5. Id.

2012] THE EVOLUTION OF BURGLARY 635

in retreat.” 32 More and more states passed comprehensive penal codes, and there

was a prevailing idea that judges should not make up crimes.^33

As burglary became a creature of statute, it varied by jurisdiction. By the end

of the nineteenth century, the elements of night time, entry, breaking, and the

structure to be entered, varied considerably.^34 “Some states retained the common

law elements of dwelling house and in the night time; others broadened burglary

to include structures of nearly all kinds, and embraced entries made in both day

and night.” 35 These variations persisted through the first half of the twentieth

century. By 1950, breaking and night time were on the wane, the mansion house

or dwelling had been expanded to include many types of structures, but entry was

still required, as shown by the following summary of the two 1951 surveys of

burglary law.^36

1. Night Time .—Already in 1951, night time was not an element in eleven

jurisdictions. 37 In nine jurisdictions, however, it was the sole aggravating

circumstance for first degree burglary, 38 and in thirty-two jurisdictions it was a

requirement for the highest level of burglary. 39 Night time was usually defined

as the hours between sunset and sunrise, or thirty minutes after sunset until thirty

minutes before sunrise. 40 An alternative definition was Coke’s “when a man’s

face could not be discerned.”^41

2. Breaking .—In 1951, breaking was an element of burglary in eighteen 42 or

nineteen 43 jurisdictions. At that time, twelve jurisdictions did not require

breaking. 44 But even where breaking was a statutory element, courts were

willing, as under the common law, to stretch the requirement to include minimal

force such as raising a partly open window, or pushing open an unlatched door.^45

Breaking might also be satisfied by “constructive breaking,” gaining entry by

ruse or deceit. 46 As noted later in the Model Penal Code commentaries, “the

‘breaking’ had become little more than symbolic.”^47

32. LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 65 (1993).

  1. See id.
  2. See Lauer, supra note 3, at 728-30.
  3. Id. at 731-32.
  4. See A Rationale of the Law of Burglary , supra note 7; Wright, supra note 7.
  5. Wright, supra note 7, at 417.
  6. Id.
  7. A Rationale of the Law of Burglary , supra note 7, at 1015.
  8. Wright, supra note 7, at 417 & n.52.
  9. Martha Grace Duncan, Beauty in the Dark of Night: The Pleasures of Form in Criminal Law , 59 EMORY L.J. 1203, 1242 (2010) (citation omitted).
  10. A Rationale of the Law of Burglary , supra note 7, at 1014.
  11. Wright, supra note 7, at 415.
  12. A Rationale of the Law of Burglary , supra note 7, at 1013.
  13. Wright, supra note 7, at 416 n.44.
  14. A Rationale of the Law of Burglary, supra note 7, at 1012 n.19 (citing cases where defendants lied or otherwise tricked a person into admitting them onto premises).
  15. MODEL PENAL CODE § 221.1 cmt. 3, at 69 (Official Draft & Revised Comments 1980).

636 INDIANA LAW REVIEW [Vol. 45:

3. Entry .—In 1951, “virtually all” jurisdictions required an entry for

burglary, although the requirement was often applied in surprising ways.^48

Texas, for example, included the firing of a bullet into a house as an entry. 49 As

under common law, the entry of any part of the body or a tool connected to the

body might qualify. 50 Some jurisdictions had statutes that required breaking or

entering, but a breaking without entry would most likely be treated as an

attempted burglary.^51

4. Dwelling .—The common law requirement that the site of burglary be a

dwelling was early on broadened to include other types of buildings, especially

outbuildings within the curtilage. 52 Well before the mid-twentieth century, many

statutes included shops, storehouses, ships, churches, etc., as buildings that could

be burglarized. 53 By 1951, many statutes contained long lists of structures,

including vehicles and railroad cars. 54 Not all statutes were so broad, but none

was restricted to dwellings.^55

In thirty-one jurisdictions, burglary of a dwelling was a distinguishing aspect

of the highest degree of burglary in 1951. 56 But, while the burglary of a dwelling,

especially an occupied dwelling, continued to be treated severely, by 1951 the

burglary laws had expanded to include all kinds of structures and vehicles.

5. Of Another .—The common law requirement that the place entered be that

“of another” had almost disappeared from the statutory definitions of burglary

by the mid-twentieth century.^57 However, it remained an implied element.

Courts consistently ruled that “a man cannot commit burglary in his own

house.” 58 The right protected was possession. Possession meant a right of

  1. See Wright, supra note 7, at 416.
  2. Id. at 416 n.47. The statutory definition of entry no longer includes shooting into a building. See TEX. PENAL CODE ANN. § 30.02 (West 2011).
  3. Wright, supra note 7, at 416.
  4. Id. at 416 n.45.
  5. See State v. Engel, 210 P.3d 1007, 1011 (Wash. 2009) (discussing the curtilage concept in determining the scope of a “fenced area” under the burglary statute).
  6. Lauer, supra note 3, at 731.
  7. One example comes from Nebraska: “dwelling house, kitchen, smokehouse, slaughterhouse, shop, office, storehouse, mill, pottery, factory, watercraft, schoolhouse, church or meetinghouse, barn, chicken house, stable, warehouse, malthouse, stillhouse, public building, or other private building, railroad car factory, station house, railroad car, public or private telephone pay station or booth.” Wright, supra note 7, at 417 (quoting NEB. REV. STAT. § 28-532 (1948)).
  8. See id. at 418. “In every jurisdiction, virtually all buildings are covered by one or more degrees of the crime.” A Rationale of the Law of Burglary , supra note 7, at 1011.
  9. A Rationale of the Law of Burglary , supra note 7, at 1011. According to the other 1951 article, the element of “dwelling” was an additional aggravating circumstance in fourteen states, and the sole aggravating circumstance in seven. Wright, supra note 7, at 418-19. Many of these statutes required that the dwelling be occupied or inhabited—in contrast to the common law. See id. at 419.
  10. Wright, supra note 7, at 419.
  11. Id.

638 INDIANA LAW REVIEW [Vol. 45:

Model Penal Code, the critical elements of burglary were entry of a structure

with intent to commit a crime. The more serious grades of burglary often

included the elements of an occupied dwelling, or weapons.

II. THE MODEL PENAL CODE’S BURGLARY PROPOSAL

The Model Penal Code Final Draft appeared in 1962. 70 The final draft

included general provisions about criminal liability and defenses, as well as

proposals for specific offenses. 71 The comments to the model burglary offense

noted the way in which the crime had already been significantly broadened from

the common law definition, and criticized the harshness and irrationality of the

offense. 72 The comments suggest that the authors considered eliminating

burglary as a distinct offense, but that “[c]enturies of history and a deeply

imbedded Anglo-American conception such as burglary, however, are not easily

discarded.” 73 Instead, the Model Code proposed an offense “limited... to the

invasion of premises under circumstances especially likely to terrorize

occupants.”^74

Section 221.1 defined the crime of burglary as follows:

(1) Burglary Defined. A person is guilty of burglary if he enters a

building or occupied structure, or separately secured or occupied portion

thereof, with purpose to commit a crime therein, unless the premises are

at the time open to the public or the actor is licensed or privileged to

enter. It is an affirmative defense to prosecution for burglary that the

building or structure was abandoned.

(2) Grading. Burglary is a felony of the second degree if it is perpetrated

in the dwelling of another at night, or if, in the course of committing the

offense, the actor:

(a) purposely, knowingly or recklessly inflicts or attempts to

inflict bodily injury on anyone; or

(b) is armed with explosives or a deadly weapon.

Otherwise, burglary is a felony of the third degree. An act shall be

deemed “in the course of committing” an offense if it occurs in an

attempt to commit the offense or in flight after the attempt or

commission.

(3) Multiple convictions. A person may not be convicted both for

burglary and for the offense which it was his purpose to commit after the

  1. See MODEL PENAL CODE: COMPLETE STATUTORY TEXT (1985) (containing the completed official draft adopted in 1962).
  2. See generally id.
  3. See MODEL PENAL CODE § 221.1 cmts. 1-2, at 61-68 (Official Draft & Revised Comments 1980).
  4. Id. § 221.1 cmt. 2, at 67.
  5. Id.

2012] THE EVOLUTION OF BURGLARY 639

burglarious entry or for an attempt to commit that offense, unless the

additional offense constitutes a felony of the first or second degree.^75

In addition to this model burglary offense, the Model Code proposed the

crime of criminal trespass, which did not require proof of intent to commit a

crime.^76 At common law, trespass was not a crime, only a private wrong.^77

The model burglary statute thus is broader than the common law crime

because it encompasses entry of buildings, not just dwellings, and is not

restricted to night time. The intended crime need not be a felony. However, the

authors rejected other expansions of the crime already endorsed by various

jurisdictions. For example, the proposed statute applies only to buildings and

occupied structures, not vehicles or storage containers, and it requires an

unprivileged entry. 78 However, entry of a dwelling at night results in a higher

degree of the model offense. 79 The crime is also aggravated if the actor attempts

bodily injury or is armed 80 —reflecting a concern with the risk to personal

security. Thus, the Model Code increases the punishment for conduct that

threatens human life or safety. Moreover, reflecting a concern for

proportionality, the Model Code prohibits adding a burglary conviction to the

conviction for the completed or attempted target offense.

The authors of the Model Penal Code believed that the crime had broadened

to compensate for defects in the law of attempts, and that the expanded crime

was no longer necessary in light of the Model Penal Code reform of attempt

law. 81 According to the comments, common law attempt was difficult to prove

because the actor must have come very close to achieving the criminal

goal—sometimes requiring that the actor commit the “final act,” and only being

thwarted by circumstances beyond the actor’s control.^82

Burglary was a common law offense long before attempts were made

generally punishable.^83 A possible illustration of burglary substituting for

attempt is a seventeenth century English case in which the defendants were

convicted and executed for burglary after unsuccessfully trying to kill a man by

shooting him through a hole in the wall of their adjoining houses. 84 Today, such

  1. Id. § 221.1.
  2. Id. § 221.2.
  3. See, e.g. , State v. Pierce, 417 A.2d 1085, 1087 (N.J. Super. Ct. Law Div. 1980).
  4. See MODEL PENAL CODE § 221.1 cmt. 3. The authors sought to avoid the application of burglary to what would otherwise be considered theft or shoplifting from a commercial establishment open to the public. See id. They specifically rejected the expansion of entry to include “remaining,” or even “remaining surreptitiously,” drawn from the model criminal trespass statute. See id. § 221.2.
  5. Id. § 221.1(2).
  6. Id.
  7. Id. § 221.1 cmt. 2.
  8. Id.
  9. See LAFAVE, supra note 9, § 11.4(e).
  10. This case is recounted in HOSTETTLER, supra note 25, at 76. “Presumably it was shown

2012] THE EVOLUTION OF BURGLARY 641

with deterrence and rationalization of the criminal code. Burglary had been

broadened far beyond housebreaking, to the point where it could function as a

“generalized law of attempts” in many jurisdictions, protecting personal and

property security. 92 But burglary was never solely aimed at attempted crimes.

Its original concern was for the security of the home and the potential for

violence and terror resulting from home invasion. 93 In any event, burglary has

picked up multiple justifications along its journey to its present form.^94

The Model Penal Code drafters were correct, however, in their observations

that burglary unfairly added excessive penalties to otherwise ordinary thefts.

They could not have foreseen how much further the crime would expand, and

how its role as a location aggravator would grow.

  1. “There exists persuasive argument that statutory burglary has been enlarged to such an extent that it has become, in reality, a generalized law of attempts, and there exists conclusive support for the proposition that burglary is no longer aimed at the protection of the habitation.” Cocke, supra note 86, at 213 (citations omitted).

It is evident that the offense of burglary at common law was considered one aimed at the security of the habitation rather than against property. That is to say, it was the circumstance of midnight terror aimed toward a man or his family who were in rightful repose in the sanctuary of the home, that was punished, and not the fact that the intended felony was unsuccessful. Such attempted immunity extended to a man’s dwelling or mansion house has been said to be attributable to the early common-law principle that a man’s home is his castle. The jealousy with which the law guarded against any infringement of this ancient right of peaceful habitation is best illustrated by the severe penalties which at common law were assessed against a person convicted of burglary, even though the enterprise, except for the essential elements of breaking and entering a mansion house or dwelling house at night with intent to commit a felony therein, was unsuccessful. Id. at 211 n.5 (quoting Annotation, Burglary: Outbuildings or the Like as Part of a “Dwelling House , ” 43 A.L.R.2d 831, 834-35 (1955)).

  1. See 13 AM. JUR. 2 D Burglary § 3 (2009). The purpose of burglary statutes is to protect possessory rights with respect to structures and conveyances, to define prohibited space and to protect the integrity of the home. The historical principle underlying the law of burglary is protection of the right of habitation. Thus, burglary is actually an offense against the possession of property and not necessarily against the ownership thereof.

However, it has also been stated that burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape, and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. Thus, burglary laws are also designed primarily to protect against the creation of a situation dangerous to personal safety caused by unauthorized entry. Id. (citations omitted).

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III. BURGLARY AFTER THE MODEL PENAL CODE

In 1980-85, revised commentaries to the Model Penal Code were published

“to reflect and explore the far reaching legislative and judicial response to the

Code.”^95 By then, there had been “widespread revision and codification of the

substantive criminal law of the United States”; 96 at least twenty-nine revised

codes by 1980, with more in process. 97 With respect to burglary laws, some

aspects of the Model Penal Code were incorporated in many revisions, but there

was great variation, as shown below. 98 Some aspects of the proposed code were

soundly rejected, as reflected by, for example, the widespread adoption of

“remaining” as an alternative to “entry” in defining the elements of burglary.

When states adopted aspects of the model crime, such as basing a higher

degree on possession of a deadly weapon or infliction of bodily injury, it is

difficult to know whether the Model Code influenced the legislatures, or vice

versa. Regardless of the cause, there are some very clear trends in burglary

statutes since the Model Penal Code. The element of “night time” has almost

disappeared. “Breaking” remains a formal element in only twelve jurisdictions,

and even in these, it is broadly interpreted. “Entry,” once considered an essential

aspect of burglary, is no longer required in a majority of

jurisdictions—“remaining” may suffice. The structure entered or remained in

need not always be that “of another,” especially where domestic violence is

involved. The majority of states no longer require the “intent to commit a

felony,” but more commonly require only the intent to commit a crime. Thus,

since the Model Penal Code, the erosion of the common law elements has

continued. The most significant change is the widespread elimination of entry

as a requirement.

Developments in the law of burglary since the Model Penal Code are

addressed in detail below with respect to each of the major common law

elements.

A. Night Time

The Model Penal Code burglary proposal did not have night time as an

element of ordinary burglary but included it as an element of the higher degree

offense. 99 This approach has not been taken up by the states. Today, only two

  1. 1 MODEL PENAL CODE AND COMMENTARIES, pt. I, at xii (1985) [hereinafter MPC COMMENTARIES]. The revised commentaries to the model burglary statute were published in 1980. See MODEL PENAL CODE (Official Draft & Revised Comments 1980).
  2. MPC COMMENTARIES, supra note 95, at xi.
  3. See id.
  4. The general provisions of the Model Penal Code were very influential, but its proposals for the definitions of particular crimes were less so. See Gerard E. Lynch, Towards a Model Penal Code, Second (Federal?): The Challenge of the Special Part , 2 BUFF. CRIM. L. REV. 297, 299 (1998).
  5. MODEL PENAL CODE § 221.1 (Official Draft & Revised Comments 1980).

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home, and night time is no longer what it was when the common law was

developed. The fact that the element of night time is retained at all in nine

jurisdictions is a testament to the enduring influence of the common law

definition.

B. Breaking

The element of breaking was not included in the Model Penal Code proposal.

As with night time, even the formal breaking requirement has significantly

eroded in the last sixty years. As an element, breaking has long been interpreted

liberally, and now it has been eliminated altogether in more than two-thirds of

United States jurisdictions.

Twelve jurisdictions retain breaking as an element, although not for all

degrees of the offense, and in most, it has been judicially interpreted to mean

little more than unlawful entry. 105 Most jurisdictions permit “constructive

breaking,” meaning entry gained by artifice, trick, fraud or threat. 106 In Virginia

and Massachusetts, breaking is required for daytime burglary, but entry alone is

sufficient for night. 107 The use of force to gain entry is no longer an essential

aspect of burglary.

  1. See MD. CODE ANN. CRIM. LAW §§ 6-202, -203, -204 (West 2011) (includes breaking as an element, but breaking includes entry gained by artifice or fraud, Winder v. State, 765 A.2d 97, 124 (Md. 2001)); TEX. PENAL CODE ANN. §§ 30.02, -.03, -.04 (West 2011) (breaking is an element only of burglary of coin-operated machines or burglary of vehicles); W. VA. CODE ANN. §§ 61-3- 11, -12 (West 2012) (breaking only required for some burglary crimes); see also Commonwealth v. Labare, 416 N.E.2d 534, 538 (Mass. App. Ct. 1981) (holding breaking includes “constructive breaking”); People v. Toole, 576 N.W.2d 441, 443 (Mich. Ct. App. 1998) (holding any force, however slight, used to open a door or window constitutes a breaking); Magee v. State, 966 So. 2d 173, 180 (Miss. Ct. App. 2007) (holding any effort, such as turning a door knob, constitutes a breaking); State v. McDowell, 522 N.W.2d 738, 744 (Neb. 1994) (holding that opening of a closed door is breaking); State v. Abdullah, 967 A.2d 469, 476 (R.I. 2009) (holding breaking requires force, however slight, to gain entry); Bright v. Commonwealth, 356 S.E.2d 443, 445 (Va. Ct. App.
  1. (opening of secured window is breaking).
  1. See, e.g. , State v. Parker, 516 S.E.2d 106, 117 (N.C. 1999) (holding that for first degree burglary, “breaking may be actual or constructive”); Patton v. State, 973 P.2d 270, 287 (Okla. Crim. App. 1998) (holding breaking includes constructive breaking by fraud, trick or threat).
  2. In Massachusetts, breaking is accomplished by any slight force, and includes constructive breaking. See 14A HOWARD J. ALPERIN, MASS. PRACTICE, SUMMARY OF BASIC LAW § 7.206 (4th ed. 2011). The law is similar in Virginia. See, e.g. , Johnson v. Commonwealth, 275 S.E.2d 592, 594 (Va. 1981). The breaking requirement cannot be completely ignored, however. See, e.g. , Finney v. Commonwealth, 671 S.E.2d 169, 173-74 (Va. 2009) (holding no evidence of breaking where no indication defendant applied even slight force to enter owner’s shed); Broady v. Commonwealth, 429 S.E.2d 468, 473-74 (Va. Ct. App. 1993) (reversing burglary conviction where no evidence of actual or constructive breaking when defendant followed couple into their hotel room).

2012] THE EVOLUTION OF BURGLARY 645

C. Entry

One mid-century researcher noted that if breaking were not a requirement,

the practical result might be the elimination of the element of unlawful entry.^108

“The result is that, where the scope of the crime extends to stores, every

shoplifter who enters with the requisite intent... is liable to far larger penalties

than those for larceny.” 109 His example was not that far-fetched, 110 and his

analysis of the relationship between a decline in breaking and a decline in the

requirement of entry proved prescient. The breaking requirement, however

weak, was one way to ensure entry was unlawful.^111

The Model Penal Code proposal required entry, but it attached no liability

if “the premises are at the time open to the public or the actor is licensed or

privileged to enter.”^112 Thus, under the Model Code, entry must be unauthorized.

Since that time, the requirement of entry has become the minority approach.

At least twenty-nine jurisdictions have modified the statutory entry requirement

to include “remaining unlawfully” or “remaining.” 113 Only some of these

  1. A Rationale of the Law of Burglary , supra note 7, at 1014-15.
  2. Id. at 1014. He advocated a requirement that if breaking is not an element, the entry be unpermitted or trespassery. Id.
  3. Even one hundred years ago, there were courts that upheld burglary convictions where the entry was lawful. See, e.g. , Pinson v. State, 121 S.W. 751, 753-54 (Ark. 1909) (defendant entered saloon through main door during business hours with intent to steal whiskey); People v. Barry, 29 P. 1026, 1027 (Cal. 1892) (defendant entered grocery store during business hours with intent to steal food), cited in Wright, supra note 7, at 419 n.71. California has continued to adhere to this rule. See Comment, Criminal Law—Development of the Law of Burglary in California , 25 S. CAL. L. REV. 75, 88 (1951) (citing cases); see also Magness v. Superior Court, 126 Cal. Rptr. 3d 318, 325 (Ct. App.), petition for review granted , 260 P.3d 284 (Cal. 2011) (citing Barry , 29 P. 1026).
  4. In fact, Coke treated breaking and entry together, almost as a single requirement. COKE, supra note 17, at 64.
  5. MODEL PENAL CODE § 221.1 (Official Draft & Revised Comments 1980).
  6. See ALA. CODE §§ 13A-7-5, -6 (2012); ALASKA STAT. § 11.46.310 (2011); ARIZ. REV. STAT. ANN. §§ 13-1506, -1507 (2012); ARK. CODE ANN. § 5-39-201 (2012); COLO. REV. STAT. §§ 18-4-202, -203 (2011); CONN. GEN. STAT. ANN. §§ 53a-101,-102, -103 (West 2012); DEL. CODE ANN. tit. 11, §§ 824, 825, 826 (West 2012); FLA. STAT. ANN. § 810.02 (West 2012); GA. CODE ANN. § 16-7-1 (2011); HAW. REV. STAT. §§ 708-810, -811 (West 2011); 720 ILL. COMP. STAT. ANN. 5/19-1 (West 2012); IOWA CODE ANN. § 713.1 (West 2012); KAN. STAT. ANN. § 21- (West 2011); KY. REV. STAT. ANN. §§ 511.020, -.030, -.040 (West 2011); ME. REV. STAT. ANN. tit. 17-A, § 401 (2011); MO. REV. STAT. §§ 569.160, -170 (2011); MONT. CODE ANN. § 45-6- (2009); N.J. REV. STAT. § 2C:18-2 (2011); N.Y. PENAL LAW §§ 140.20, -.30 (McKinney 2010); N.D. CENT. CODE § 12.1-22-02 (2011); OHIO REV. CODE ANN. §§ 2911.11, -.12, -.13 (West 2011) (“No person by force, stealth, or deception, shall trespass... .”) (Trespass is defined in part as to “knowingly enter or remain.” Id. § 2911.21); OR. REV. STAT. ANN. § 164.215 (West 2011); S.D. CODIFIED LAWS §§ 22-32-1, -3, -8 (2011); TENN. CODE ANN. § 39-14-402 (2011); TEX. PENAL CODE ANN. § 30.02 (West 2011); UTAH CODE ANN. § 76-6-202 (West 2011); VT. STAT. ANN. tit.

2012] THE EVOLUTION OF BURGLARY 647

of house-breaking.^123

The extreme breadth of a statute that only requires “remaining” with the

intent to commit a crime is illustrated by a series of South Dakota cases. The

South Dakota statute enacted in 1976 defined third degree burglary as follows:

“Any person who enters or remains in an unoccupied structure, with intent to

commit any crime therein, is guilty of third degree burglary.” 124 In one case, a

defendant entered a laundromat while it was open to the public and then pried

open coin boxes with a crow bar, and stole a case of soda pop. 125 Another

burglary conviction was upheld where the defendant entered a convenience store

during business hours and attempted to steal a frozen pizza. 126 But the court

decided the expansion had gone too far when an eleven-year-old girl was

prosecuted for eating a chocolate Easter egg in a department store without

paying. 127 The court reversed the conviction and held that “remains” means

“unlawful presence.” 128 The court eventually overruled this holding in a case

where it upheld the conviction of twenty counts of burglary for a delivery driver

who, over an extended period of time, took cases of soda pop from a store during

his regular deliveries. 129 In these South Dakota cases, burglary functions as a

location enhancement for what might otherwise be petty theft.

D. Dwelling

As noted, burglary had extended well beyond the home by the nineteenth

  1. In this weakening or outright elimination of the common law elements of breaking and entering, the history of modern burglary bears a striking resemblance to the history of another crime with roots in the common law: rape. The common law definition of rape had elements that parallel those of burglary’s breaking and entering: force and penetration. See LAFAVE, supra note 9, § 17.1, at 892. As with burglary, these elements are retained in most modern statutes for the most serious grades of the offense, but not necessarily for lesser degrees. Moreover, the degree of force may be minimal, and permission for entry may be revoked. Lesser offenses have been defined for sexual conduct that does not rise to the level of rape, just as lesser breaking or entering offenses such as trespass have developed in most jurisdictions. Like common law burglary, common law rape was both a crime against property and a crime against personal security. Unlike burglary, of course, modern rape is clearly an offense against a person, rather than property. It can nevertheless be viewed, like burglary, as essentially a kind of invasion.
  2. S.D. CODIFIED LAWS § 22-32-8 (1976) (amended 1989 and 2005).
  3. State v. Blair, 273 N.W.2d 187, 187-88 (S.D. 1979) The conviction was upheld under the plain language of the statute. Id. at 188.
  4. State v. Shult, 380 N.W.2d 352, 356 (S.D. 1986).
  5. In re T.J.E., 426 N.W.2d 23, 25 (S.D. 1988), superseded by statute as stated in State v. Miranda, 776 N.W.2d 77 (S.D. 2009).
  6. Id.
  7. State v. Burdick, 712 N.W.2d 5, 10 (S.D. 2006). The legislature then amended the statute to add language based on the Model Penal Code: “unless the premises are, at the time, open to the public or the person is licensed or privileged to enter or remain.” S.D. CODIFIED LAWS § 22-32- (2011).

648 INDIANA LAW REVIEW [Vol. 45:

century. The Model Penal Code accepted this enlarged scope of the crime,

referring to the entry of a “building or occupied structure, or separately secured

or occupied portion thereof,” 130 but it stopped short of including vehicles or

storage containers.^131

The great variety in statutory schemes makes state approaches difficult to

compare. Some states provide a list of places that may be burglarized in a

definition section. Others include the list in the section that defines the crime of

burglary. Still others create separate provisions or crimes for each type of

structure, and others develop the list in caselaw. Despite this variation, however,

the substantive law of the states is quite similar; buildings, structures, vehicles,

and containers for storing or securing goods can all be objects of burglary.

Today, many jurisdictions have lists 132 that usually include the buildings and

structures already commonly mentioned in 1951, but with some very specific

additions: outhouse, 133 cash register,^134 vending machine, 135 “vault, safe, cash

register, coin vending machine, product dispenser,... coin telephone,”^136

cemetery, 137 tent, 138 “outside showcase or other outside enclosed counter.”^139

Other jurisdictions have more general provisions that can be read broadly to

  1. MODEL PENAL CODE § 221.1 (Official Draft & Revised Comments 1980).
  2. “Restricting the offense to buildings and other occupied structures confines it to those intrusions that are typically the most alarming and dangerous.” MODEL PENAL CODE § 221.1 cmt. 3(b), at 72 (Official Draft & Revised Comments 1980).
  3. See, e.g. , ALA. CODE § 13A-7-1(2) (2012); ARIZ. REV. STAT. ANN. §§ 13-1501(12) (“any vending machine or any building, object, vehicle, railroad car”), -1506(A)(1) (“a fenced commercial or residential yard”) (2012); ARK. CODE ANN. § 5-39-202 (2012); CAL. PENAL CODE § 459 (West 2012); D.C. CODE § 22-801(b) (2012); FLA. STAT. ANN. § 810.011 (West 2012) (containing special provisions for structures damaged during a state of emergency—presumably meant to cover hurricane damaged property); IDAHO CODE ANN. § 18-1401 (2011); KAN. STAT. ANN. § 21- (West 2011); MICH. COMP. LAWS ANN. § 750.110 (West 2012); MISS. CODE ANN. § 97-17- (2011); NEV. REV. STAT. ANN. § 205.060 (West 2011); OKLA. STAT. tit. 21, § 1435 (2011); WASH. REV. CODE ANN. § 9A.04.110(5) (West 2012); W. VA. CODE ANN. § 61-3-12 (West 2012). Some jurisdictions define separate offenses for different categories of structures or vehicles entered. See, e.g. , MICH. COMP. LAWS ANN. §§ 750.113, -.114, -.115, -.356b (West 2012); N.C. GEN. STAT. §§ 14-51, -53, -54, -56, -56.1, -56.2, -56.3 (2011); R.I. GEN. LAWS § 11-8-2 to - (2011); TEX. PENAL CODE ANN. §30.02 to -.04 (West 2011).
  4. See CAL. PENAL CODE § 459.
  5. See ARK. CODE ANN. § 5-39-202.
  6. See ARIZ. REV. STAT. ANN. § 13-1501(13) (2012); ARK. CODE ANN. § 5-39-202.
  7. COLO. REV. STAT. § 18-4-204(1) (2011) (third degree burglary).
  8. See LA. REV. STAT. ANN. § 14:62 (2011).
  9. See KAN. STAT. ANN. § 21-5807 (West 2011); MICH. COMP. LAWS ANN. § 750.110 (West 2012); OKLA. STAT. tit. 21, § 1438 (2011).
  10. MICH. COMP. LAWS ANN. § 750.114 (West 2012).