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45 Ind. L. Rev. 629 (2011-2012)
From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law

handle is hein.journals/indilr45 and id is 651 raw text is: FROM THE THIEF IN THE NIGHT TO THE GUEST WHO
Burglary began evolving from the common law crime almost as soon as Lord
Coke defined it in 1641 as breaking and entering a dwelling of another in the
night with the intent to commit a crime therein. But sometime between the
Model Penal Code in 1962 and today, burglary lost its core actus reus, entry.
In the majority of jurisdictions, burglary can now be accomplished by simply
remaining in a building or vehicle with the intent to commit a crime. Not only
does such an offense cover a wide range of situations, but it allows burglary to
be attached to almost any crime that occurred indoors, and justify a significant
additional penalty--even death. Burglary thus functions as a location
aggravator for other crimes. Paradoxically, it may be the shadow of the
common law crime that has obscured the breadth and significance of these
changes. Burglary's long tradition and pedigree give an illusion of solidity to the
charge, even when it no longer necessarily describes real criminal conduct
beyond the target offense.
This is the first survey of burglary in the United States since the Model Penal
Code. It begins with a summary of burglary's history from the common law
definition through the first two centuries of the republic, then explains the Model
Penal Code proposal for burglary-as well as the Model Code authors'
misgivings about the offense. The Article then looks in detail at what happened
in the states after the Model Penal Code-how the common law elements
continued to erode until we ended up with today's very thin crime. The Article
shows what this has meant: a serious crime with significant penalties that can be
invoked in a range of situations, e.g., shoplifting, hold-up of a business, or
murder by a houseguest. It concludes that burglary's evolution has finally gone
too far, and no longer necessarily describes a distinct offense. It is only the
memory of the common law offense that keeps courts and lawmakers from
recognizing how empty the crime has become.
What do the following scenarios have in common? An eleven-year-old girl
enters a store during business hours and eats a chocolate Easter egg without
paying. A man enters an open gas station, robs it and shoots two employees
dead. A man invited into a home to socialize turns on his host and kills her.
Answer: all can be prosecuted as burglaries.' Such prosecutions would not have
* Associate Professor, University of Washington School of Law. I wish to thank Miriam
Korngold for her excellent research assistance. I also wish to thank Mary Fan and Elizabeth Porter
for their very helpful comments on an earlier draft.
1. See Davis v. State, 737 So. 2d 480 (Ala. 1999) (holding that evidence of a struggle during

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