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Burglary in common law was held as an act of trespassing through breaking into the residence of another person during the night with a motive of committing a felony. It is therefore classified as a crime of illegal habitation and possession. Whether a felony was committed after the act or not, the crime was still treated as burglary under the common law. The definition elements of burglary under the common law have since been modified to cover a range of circumstances and to expand the scope of the crime. Most jurisdictions have adjusted their statutes and have tended to make the crime more inclusive to eliminate eminent gaps realized after wide research (Lankenship, 2013).
In the current modern law of burglary, the element of trespass in definition of the crime occurs where there exists no consent of entry to the place or where entry is gained through identity misrepresentation. Breaking is defined as creating an entry point to the building. This may be through removing obstructing materials such as windows, doors, or part of the wall. Use of force is not a prerequisite in definition of breaking in the modern burglary law. If entry is obtained through a free opening to the building, the element of breaking into is satisfied. In common law, entering into the building through a free entry was not considered as breaking into. This means that if one entered into a building through a free opening burglary wasn’t committed regardless of the activities committed. The rationale of the common law under the burglary rule was that a person who did not provide adequate security to his dwelling was not enclosed by this law (Lankenship, 2013).
Lankenship (2013) recognizes that both common law and modern law recognizes that the defendant to the crime should be mens rea at the time of committing the crime. It should be attested beyond doubt that the defendant meant to commit the offence and was psychologically aware of the events. In the dimension of the actus rea of burglary, there should be physical evidence of the act. It should be satisfied without any doubt that the defendant actually committed the offense. The actus reus in common law of burglary differs with the modern law due to different scope of the crime. The common law did not include the act of entry through misrepresentation. Modern law recognizes constructive breaking where a person has limited authority in domicile of another but enters into unauthorized area. Dwelling in common law was a place where a person resides and sleeps basically a house or mansion and the crime ought to have happened when pa person was present. In the modern law, an act is considered as burglary even when the offence is committed in an inhabited enclosed structure. Hence the actus rea in common law on burglary cannot be referred to in modern law.
Hypothetical Case of Modern-day burglary
Peter and George are neighbours. Peter periodically peeps in George’s house to see whether there something of value he can steal. One day, Peter sees a golden wine decanter on top of George’s dining room table. He gains interest in the decanter and decides to go for it. In the night Peter slips quietly in George’s compound and sneaks into the dining room through the window which was partially closed. He causes a stumble in the room which wakes up George who consequently find him holding the wine decanter on his way out. This qualifies as an act of burglary under the modern-day burglary since Peter gains unauthorized access which amounts to breaking into as well as his intent to steal Georges wine decanter.
Lankenship, L. (2013). The Laws of God and the Laws of the State. City: Iuniverse Inc.