Burglary (law Lat. burgi latro, a robber of a burg or enclosure), the crime of breaking and entering in the night time the dwelling house of another, with intent to commit some felony therein. To constitute burglary it is held: 1. That the house broken into must be a place of actual residence; yet, if it is habitually occupied, the fact that no one was in the house at the time of breaking into it will make no difference in the character of the offence. An outhouse, if immediately connected with the dwelling, is deemed a part thereof, so as to make the offence of entering it the same; and this rule has been extended to barns, stables, etc, though they are not under the same roof with the dwelling house, or contiguous, provided they are in a common enclosure, called curtilage. So also a room in a private house which the lodger occupies as his own, independent of the control of the proprietor of the house, or a room in a college or inns of court, is in law deemed the mansion of the occupant, and the breaking into it is the same as the breaking through an outer door. But in a hotel or boarding house, where the apartments are under the management of the proprietor of the house, and there is a common entrance to them, the whole constitute but one mansion.
Burglary may be committed in a church, because, as explained by Lord Coke, it is domus mansionalis Dei. 2. The breaking may be either actual or constructive. It is actual when any impediment to an entry is overcome or removed, as where a door is opened, a window raised or broken, or a screen cut away from an open window, or any fastening to either broken or removed, or the like. It is constructive when an entry is gained by fraud, conspiracy, or threats. The breaking of an inner door, where an entrance has been obtained through an open door or window, will be sufficient; and so would be knocking at a door, and upon its being opened rushing in with felonious intent. 3. The entry may be of the whole body or any part thereof, as the hand or foot; but the introduction of an instrument or weapon for the purpose of the contemplated felony, and not for the purpose of the breaking merely, will be sufficient; as if a sword be reached through a raised window to -stab a person sleeping inside. 4. It must be in the night, not by day. The peculiar criminality of.the offence is the supposed danger to life. The English rule is, that if there is daylight enough to distinguish a man's face, the entering of a house will not be burglary.
This does not include moonlight, for the offence is not so much that it is done in the dark as at an hour when the inmates of the house would be unguarded. 5. The intent must be to commit a felony; if it be to commit a trespass only, or a misdemeanor, it will be no burglary. But if the felonious intent exist, it will be immaterial to this crime whether the felony was actually committed or not. 6. By the English statute 24 and 25 Victoria, c. 96, it is provided that whoever shall enter the dwelling "house of another with intent to commit any felony therein, or being in such dwelling house shall commit any felony therein, and shall in either case break out of the said dwelling house in the night, shall be deemed guilty of burglary." This disposes of a question which had been raised at the common law, whether such a breaking out was burglary. The punishment of the offence in England was formerly death; now it is penal servitude for life, or for any term of years not less than five, or imprisonment not more than two years, with or without hard labor, and with or without solitary confinement. - In the United States burglary is a felony, punishable with imprisonment as prescribed by state statutes.
In addition to the common law offence, there are also statutory burglaries, differing in one or more particulars. - The Scotch hamesucken, sometimes confounded with burglary, differs from it in being an assault upon a person in his own house, either in the night or day time.