Breaking and entering a residence for the intention of committing a crime or while lawfully within, commit a crime and to thereafter break out.
At common law, as William Blackstone stated in his Commentaries on the Law of England, Volume 4 (1759), the original offence was limited to night-time occurrences and dwellings (residential premises). Night-time was determined to be when it was so dark that a person's face could not be readily discerned.
Contemporary criminal law developed by statute has, for the most part, removed the "night-time" distinction and, in some jurisdictions, such as in England, the "dwelling home" distinction.
England's Theft Act, 1968, defines burglary as:
"A person is guilty of burglary if he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned ... below; or having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
"The offences referred to ... above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any person therein, and of doing unlawful damage to the building or anything therein."
Australia's Criminal Code, at ¶401, defines burglary as:
"A person who enters or is in the place of another person, without that other person’s consent, with intent to commit an offence in that place...."
New York's Penal Code, at ¶140, defines burglary by degrees, the most severely punished, of the "first degree", being those which involve the use of a weapon (which, in England is distinguished as "aggravated burglary"), and the least serious as follows:
"A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein."
Some jurisdictions, such as Canada, prefer the term break and enter to "burglary" and even those that defer to burglary, such as New York, the term is limited to offences in regards to residence, deferring to the offence of criminal trespass to capture similar conduct on other private properties, such as commercial or educational premises.
Other jurisdictions present a comprehensive codification of the offence, such as this extract from California's Penal Code, at ¶459:
"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel ..., floating home ..., railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach ..., any house car ..., inhabited camper ..., vehicle ..., when the doors are locked, aircraft .., or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary.
"... (I)nhabited means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises."
It is customary for common law jurisdictions to have created a separate offence for the possession of break-in or burglar tools.
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