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BURGLARY AND HOUSEBREAKING.

BURGLARY.

“NIGHT” is referred to as the interval between eight (8) o’clock in the evening and
five (5) o’clock in the morning of the next day. There must have been a breaking and
entering or a breaking out and it must be in the night. If someone breaks one night
and enters the dwelling house of another person on another night, it is still burglary.

THE PLACE.

It must be the dwelling house of another person, but much technicality has arisen as
to what buildings are to be regarded as “houses” and as to when a house is to be
regarded as being a “dwelling”. Clearly a house must be more than a movable
caravan, tent or even booth. It must be a permanent structure but it is not necessary
that it should consist of the whole of such structure.

A house is regarded as including its accessory buildings that stand outside its own
walls – (a) if only they stand in the same curtilage with the house. (Curtilage is the
grounds around the house) (b) are occupied along with it and (c) communicate with
it either directly or at least by a covered or enclosed passage. So to break an area
gate for the purpose of gaining admittance to the house through a door in the area is
not a breaking of the house itself. But a building, although it be a house is not to be
regarded as being a “dwelling” unless, some person habitually sleeps there and
sleeps in it as his home. He must thus be a member of the household that occupies it,
whether as himself the possessor of the house or only as one that possessor’s family
or servants, and not a mere temporary licensee whose home the place is not. But
though he must sleep there habitually, need not do invariably e.g. his residence may
at intervals be interrupted. For if the householder goes away from home, but with an
intention to return – (animus revertendi). This is still considered to be a dwelling
although not a single person remains in it.

BREAKINGS.

To make a way into, or open up a house. There is no breaking where persons goes
through an open window or door which he finds open. The breaking may be actual
or constructive.
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ACTUAL BREAKING.

If a door or window, or other point of entry is closed or shut ingress or entry through
such point of entry can be had only by breaking. It is a breaking to push a closed but
unsecured door, to raise a closed but unfastened door or window or to raise a cellar
flap which is kept down only by its own weight. Where a door or window or other
point of entry is partly opened it is not a breaking to widen the entry for this purpose
of ingress unless to do so involves tampering with some fastening device.
This means that it is not a breaking to raise a partly opened sash or window but it is
a breaking to open further a partly opened casement window if this involves
tampering with the catch which regulates the extent to which this kind of window
may be opened. This is hardly satisfactory and there is something to be said for
treating the former as one of breaking because the point of entry being too small to
admit a person. He still has to make a way (that is break) into the house on the other
side. If a householder leaves a window or door partly open, he gives, as it were a
visible invitation to enter. But the fact of his having left it merely unbolted is not
thus conspicuous to the passer-by.

CONSTRUCTIVE BREAKING.

Besides the actual breaking in which the intruder himself displaces the fastenings
etc. The definition of burglary covers cases in which breaking is in reality non
existent and is designated, “constructive breakings”.
This is where the burglar came into the house by some aperture which by actual
necessity is permanently left open e.g. the burglar came through a chimney. Though
there would be no breaking if he came through a window the builder had not filled
with glass. By a false analogy the term constructive breaking has been traditionally
employed to indicate also an actual breaking , yet one effected not by the burglar
himself but by some innocent person at his “the burglar’s” investigation. Thus if an
intending burglar gains admittance to the house by threats of violence which put
inmates into such fear they may open the door or window to him, there is a breaking
for which he is largely responsible, or if he rings the bell like an ordinary visitor and
the door is accordingly opened he comes in on a pretense of being representative of
some authority or business firm, or on the pretense of wanting to talk to some
member of the household. This is a true breaking by him as if he had opened the
door himself. But if the pretense thus attempted should fail to deceive so that
although the door be opened to the evil-doer, it is opened solely for the purpose of
entrapping him. The law does not regard such an opening as being in any way his
“The burglarious Act” and does not hold it to be a constructive breaking.
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INTERNAL BREAKINGS AND BREAKINGS.

It should be added that the breaking whether actual or constructive need not be
committed only upon the external parts of the house, it will be sufficient if an inner
door or window be broken. Therefore if a thief gains admittance to a house means of
an open door or window. But then while inside, proceeds to unlock a parlour door
and enter the parlour, he from the movement becomes guilty of burglary. The same
principles hold good in the case of a servant or guest whilst resident in the house,
opens and enters any of the rooms for a felonious purpose. At common law to break
out of a house did not amount to a burglarious “breaking” but by statute Section 27
(b) of the Larceny Act Chapter 11:12 outlines the position. Both a breaking and an
entering is still necessary, either of them may now precede the other.

THE ENTRY.

The entry may be sufficiently made by the insertion of any part of the body of the
intruder, however small that part may be. Thus a finger or even part of a finger will
suffice and there may be sufficient entry without any part whatever of the man
himself having come into the house by inserting some instrument which he is
holding. It is immaterial where only the instrument is used unless it were inserted for
the purpose (not merely of entering or of breaking out) of that ulterior arrestable
offence for the sake of which the house was broken into. Thus if a man pushes a bar
through a window for the single purpose of making a whole in a shutter, there is
only a breaking but no entry. Yet if he had pushed the bar through a window for the
purpose of drawing towards him a spoon which he was going to steal, there would
have been both a breaking and an entry. It would be no entry to push a pistol through
a window merely to make an aperture through which to get in, but if after breaking
the window he were to push a pistol through the hole in order to shoot one of the
persons in the room, this would be a sufficient entry.

THE INTENT.

It requires an intent to commit an arrestable offence e.g. to kill, rape or steal. It is not
necessary that the arrestable offence should be actually committed, more so ever,
this intention must exist at the time of the breaking and not arise merely after he is in
the house. Hence if people break open the front door of a house illegally but only for
some honest purpose e.g. Constables acting on an invalid search warrants; and then
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one is tempted by the sight of something inside that they steal it, such person will
not be guilty of burglary.
The fact that an arrestable offence is committed affords strong evidence that such
person entered to commit such arrestable offence, but where no arrestable offence is
committed, then the jury may be justified in concluding from the circumstances that
the person entered with intent.

QUESTION.

A broke into a house while the family were away but contended himself with
winding up all the clocks and setting them going. Had he been detected before he
had undertaken this comparatively innocent course of action, he must have found it
difficult to rebut the inference that he had broken into the house for the purpose of
that discussed. The offence of burglary is not simply an intent to commit an
arrestable offence in the dwelling house. One’s conduct must be intentional or
reckless to all elements of the actus reas with the exception of the element of time

HOUSE BREAKING.

Burglary is essentially a nocturnal offence. To do this what would be burglary to do

BEING FOUND BY NIGHT

ANTERIOR ACTS.

The offence in each case lies in being found by night in any of the prescribed
situation. Strictly anterior acts such as getting armed or blackening the face, are no
part of actus reas. Certainly it is no offence for one to be found by night about to get
armed or about to blacken his face. (Lumsden 1951).