F. Burglary (Article 129, UCMJ). The accused can be convicted of burglary if he unlawfully
broke and entered the dwelling house of another in the nighttime with the intent to commit one of the
offenses punishable under Articles 118 through 128, except Article 123a.
Offenses of breaking and entering include murder, manslaughter, rape and carnal knowledge,
larceny and wrongful appropriation, robbery, forgery, maiming, sodomy, arson, extortion, and assault.
The accused must have the specific intent to commit one of these offenses at the time he breaks and
enters the structure. Also, note some offenses under Article 134 involve assault with intent to commit
various crimes. If that was the accused's intent, this element is satisfied.
QUESTION: SUPPOSE PVT BROWN IS TIRED, HE SEES A HOME, AND DECIDES TO ENTER
AND REST. THEREAFTER, HE SEES SOME JEWELRY AND TAKES IT. IS THIS BURGLARY?
HE HAS NOT COMMITTED BURGLARY EVEN THOUGH HE HAS
COMMITTED ONE OF THE PRESCRIBED OFFENSES: LARCENY. HIS INTENT TO COMMIT
THE LARCENY WAS FORMED AFTER THE UNLAWFUL BREAKING AND ENTRY. OF
COURSE, PVT BROWN WILL MOST LIKELY HAVE SOME DIFFICULTY CONVINCING THE
COURT OF THIS. AS WITH HOUSEBREAKING, THE COURT MAY INFER THAT THE
ACCUSED HAD THE SPECIFIC INTENT TO COMMIT ANY OFFENSES HE ACTUALLY
COMMITS ONCE INSIDE THE DWELLING.
Further, there must be a breaking, actual or constructive. An example of an actual breaking would
be breaking the lock off a door. A constructive breaking would include gaining entry by trickery such as
concealing one's self in a box or under false pretenses (gaining entry by misrepresenting one's self as a
representative from the telephone or gas company).
QUESTION: IF THE HOMEOWNER LEAVES HIS FRONT DOOR WIDE OPEN AND SOMEONE
ENTERS THROUGH THE DOORWAY AT NIGHT INTENDING TO COMMIT A CRIMINAL
OFFENSE INSIDE, IS THIS BURGLARY?
ANSWER: NO. UNDER UCMJ, BURGLARY REQUIRES MORE THAN MERELY ENTERING A
DWELLING. IF THE DOOR TO THE DWELLING IS WIDE OPEN, SO THAT THE CRIMINAL
CAN WALK RIGHT IN WITHOUT MOVING ANY PART OF THE DOOR, THERE IS NO
BREAKING. SIMILARLY, IF ENTRY IS GAINED THROUGH A WINDOW WHICH HAS BEEN
LEFT OPEN WIDE ENOUGH TO PERMIT THE BURGLAR TO ENTER, THERE IS NO
BREAKING. ON THE OTHER HAND, THE BREAKING REQUIRED BY THE STATUTE DOES
NOT REQUIRE A BREAKING DOWN OF A WALL OR DOOR. IF A DOOR IS CLOSED BUT
UNLOCKED, ALL THE CRIMINAL HAS TO DO IS OPEN IT TO CONSTITUTE A BREAKING.
IF THE DOOR OR WINDOW IS PARTIALLY OPEN AND THE CRIMINAL MUST OPEN IT
WIDER IN ORDER TO GET INSIDE, THEN THIS IS BREAKING. FINALLY, SHOVING ASIDE
AN EXTENDED VENETIAN BLIND TO ENTER A DWELLING THROUGH AN OPEN,
SCREENLESS WINDOW IS "BREAKING" UNDER ARTICLE 129, UCMJ, US V. THOMPSON, 32
MJ 65 (CMA 1991).
QUESTION: MUST AN ACCUSED PLACE HIS ENTIRE BODY INTO THE DWELLING BEFORE
AN "ENTRY" OCCURS?
ANSWER: NO. ENTRY ALSO DOES NOT REQUIRE A COMPLETE ENTRY OF THE
CRIMINAL'S BODY. IF ANY PART OF THE BODY, INCLUDING A FINGER, IS INSERTED