Editing Burglary (section)

==Common-law definition==
[[File:John Lewis High Wycombe break-in aftermath, 13 December 2021.jpg|thumb|The aftermath of a burglary at a branch of [[John Lewis & Partners|John Lewis]] in [[High Wycombe]], [[Buckinghamshire]], UK. The thieves entered the building via the roof and descended to the second floor through the ceiling to steal electronic goods, inflicting substantial damage to the ceiling and floor space.]]
At [[common law]], burglary was defined{{Dubious |Common-law_definition_of_Burglary|reason=The Common Law is not defined by a single document, rather it is defined by the way cases are decided, consequently it can only be described or summarized.|date=January 2020}}{{when|reason=When and where did Hale make the quoted statement?|date=January 2020}} by [[Matthew Hale (jurist)|Sir Matthew Hale]]{{Explain|date=January 2020|reason=Why is Hale being quoted as the authority on common law in this instance? What is the historical significance of quoting Hale?}} as:{{Citation needed|date=January 2020|reason=In what work does Hale make this statement?}}
{{quote|The breaking and entering the house of another in the night time, with intent to commit a felony therein, whether the felony be actually committed or not.<ref name="Lawdict">{{cite book |last1=Lehman |first1=Jeffrey |last2=Phelps |first2=Shirelle |title=West's Encyclopedia of American Law, Vol. 2 |date=2005 |publisher=Thomson/Gale |location=Detroit |isbn=9780314201614 |page=169 |edition=2}}</ref><ref>Charles E. Torcia, Wharton's Criminal Law § 326 (14th ed. 1980)</ref><ref>''Taylor v. United States'' 1990, 495 U.S. 575 citing W. LaFave & A. Scott, Substantive Criminal Law § 8.13, p. 464 (1986)</ref>}}
#''Breaking'' can be either actual, such as by [[door breaching|forcing open a door]], or constructive, such as by fraud or threats.<ref name="Lawdict"/> Breaking does not require that anything be "broken" in terms of physical damage occurring. A person who has permission to enter part of a house, but not another part, commits a breaking and entering when they use any means to enter a room where they are not permitted, so long as the room was not open to enter.
#''Entering'' can involve either physical entry by a person, or the insertion of an instrument to remove property. Insertion of a tool to gain entry may not constitute entering by itself.<ref name="Lawdict"/> There must be a breaking and an entering for common-law burglary. Breaking without entry or entry without breaking is not sufficient for common-law burglary.
#Although rarely listed as an element, the common law required that "entry occur as a consequence of the breaking".<ref name=Perkins>{{cite book|last=Perkins|first=Rollin M.|author2=Ronald N. Boyce|title=Criminal Law|edition=3rd|year=1982|publisher=West Publishing Company|isbn=978-0-88277-067-3|page=200}}, citing R v Davis (1854) 6 [[Cox's Criminal Cases|Cox CC]] [https://books.google.com/books?id=Emg0AAAAIAAJ&pg=PA369 369]</ref> For example, if wrongdoers partially open a window with a pry bar—but then notice an open door, which they use to enter the dwelling instead, there is no burglary under common law.<ref name=Perkins/>{{refn|Common law burglary requires both a breaking ''and'' entry. Some statutory offences are phrased in terms of a breaking ''or'' entry. The use of the disjunctive is intended to expand the scope of the offence.{{Citation needed|date=June 2012}}|group="Note"}} The use of the pry bar would not constitute an entry even if a portion of the prybar "entered" the residence. Under the instrumentality rule the use of an instrument to effect a breaking would not constitute an entry. However, if any part of the perpetrator's body entered the residence in an attempt to gain entry, the instrumentality rule did not apply. Thus, if the perpetrators used the prybar to pry open the window and then used their hands to lift the partially opened window, an "entry" would have taken place when they grasped the bottom of the window with their hands.<ref name=Perkins/><ref>{{cite court|litigants=People v. Wright
|vol=206|pinpoint=184|court=Cal. App.|date=1962|url=|quote=}}</ref>
#''House'' includes a temporarily unoccupied dwelling, but not a building used only occasionally as a habitation.<ref name="Lawdict"/>
#''Night time'' is defined as hours between half an hour after sunset and half an hour before sunrise.<ref name="Lawdict"/>
#Typically this element is expressed as the intent to commit a felony "therein". The use of the word "therein" adds nothing and certainly does not limit the scope of burglary to those wrongdoers who break and enter a dwelling intending to commit a felony on the premises.<ref name=Perkins/> The situs of the felony does not matter, and burglary occurs if the wrongdoers intended to commit a felony at the time they broke and entered.<ref name=Perkins/>

The common-law elements of burglary often vary between jurisdictions. The common-law definition has been expanded in most jurisdictions, such that the building need not be a dwelling or even a building in the conventional sense, physical breaking is not necessary, the entry does not need to occur at night, and the intent may be to commit any felony or theft.<ref>{{cite journal |last1=Anderson |first1=Helen A. |title=From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law |journal=Indiana Law Review |date=2011 |volume=45 |page=643}}</ref>