According to M.G.L. c. 266, § 16 a person who breaks and enters into a building, ship, vessel, or vehicle with the intent to commit a felony can be punished. Violation of this statute carries a maximum penalty of 20 years in state prison.
This post will answer some frequently asked questions about this crime.
What is breaking and entering?
Legally speaking, the offense of “breaking and entering” is the charge of breaking and entering:
- A building
- A ship
- A vessel
- A vehicle
…in the nighttime, with the intent to commit a felony.
Remember that offenses for which a person may be sentenced to state prison are called “felonies” while other lesser offenses are called “misdemeanors”.
What does the government need to show to prove someone guilty of breaking and entering?
In order to prove the defendant guilty of the offense of breaking and entering, the Commonwealth must prove the following four elements of the offense beyond a reasonable doubt:
- That the defendant broke into:
- A building
- A ship
- A vessel
- A vehicle
…belonging to another person.
2. That the defendant entered that building, ship, vessel, or vehicle
3. That the defendant entered with the intent to commit a felony in that building, ship, vessel, or vehicle
4. That the event took place during the nighttime
Note that the Commonwealth is not required to prove that the defendant intended any particular felony, but it must prove that the defendant intended to commit some felony at the time he or she entered the building, ship, vessel, or vehicle.
What does it mean to break into?
Legally speaking, “breaking” is defined as exerting physical force, even slight physical force, and by doing so removing an obstruction and gaining entry.
Another definition of “breaking” would be moving in a significant manner anything that bars the way into the building, ship, vessel, or vehicle.
Examples of “breaking” include:
- Breaking a window
- Forcing open a door or window
- Removing a plank from a wall
- Opening a closed door or window (even if it is unlocked)
- Going into a building through an open window not intended for use as an entrance (note that if the entrance is unobstructed—e.g. an open door—it is legally not considered to be breaking)
- Leaning one’s torso and both arms through an open window of a parked park
What is entering?
The second part of the offense of breaking and entering is that the defendant in fact entered the building, ship, vessel, or vehicle in question.
Legally speaking, “entry” is the unlawful making of one’s way into a building, ship, vessel, or vehicle. Note that entry occurs if any part of the defendant’s body—even a hand or foot—or any instrument or weapon controlled by the defendant physically enters the building, ship, vessel, or vehicle in question. For example, breaking an outer storm window and reaching inside between the outer and inner windows with one’s hand is considered entry.
What is considered nighttime?
In order to prove a defendant guilty of breaking and entering, the Commonwealth must prove that the defendant’s alleged breaking and entering took place during the nighttime.
According to Massachusetts' law, “nighttime” legally begins one hour after sunset and ends one hour before sunrise the next day. It is measured according to the mean—or average—time at that time of the year in the specific place where the crime was committed.
The Commonwealth may prove that a crime occurred in the nighttime by (ONE OR MORE):
- Presenting evidence that it was completely dark outside at the time of the offense
- Offering an almanac or other reference book to show the time of sunset or sunrise on that day
- Asking jurors to rely on common knowledge of approximately when the sun rises or sets on a particular date in the area in question
Remember that regardless of the method used, it is the responsibility of the Commonwealth to prove beyond a reasonable doubt that the crime occurred sometime between one hour after sunset and one hour before sunrise.
The time of “sunset”, “sunrise”, or the “time of the year” are considered to be certain facts that jurors are allowed to take notice of that are NOT subject to reasonable dispute. This means that even absent introduced evidence establishing these facts as true, jurors can accept these facts as proven.
For it to be breaking and entering does there need to be physical force?
NO, it is not always necessary that a person physically break into a building, ship, vessel, or vehicle to be found guilty of the offense of breaking and entering.
A defendant may still be convicted of breaking and entering if either:
- An accomplice lets a defendant enter a building, ship, vessel, or vehicle
- The defendant convinced an innocent person by trick or threat to allow the defendant to enter, assuming the defendant entered with the intent to commit a felony
This type of breaking and entering is legally called “constructive breaking.”
What happens if it can't be proved that the breaking and entering took place at night?
If the Commonwealth cannot prove beyond a reasonable doubt that the defendant committed the offense of breaking and entering during the nighttime—that is, sometime between one hour after sunset and one hour before sunrise—but ALL other elements of the offense have been proved beyond a reasonable doubt, the defendant may be STILL be found guilty of the lesser included offense of breaking and entering in the daytime.
Note that the Commonwealth’s failure to provide direct evidence of the time of the crime is not fatal to the Commonwealth’s case because circumstantial evidence in this scenario is considered sufficient evidence to establish guilt.
Does breaking and entering mean the person who did it was also going to steal?
When a person breaks and enters during the nighttime, it is ordinarily a fair inference, in the absence of contrary evidence, that he or she intends to steal. Jurors are permitted to draw such an inference if they believe it is reasonable, but they are not required to do so.
Is breaking and entering and stealing the same thing?
NO, larceny and breaking and entering are different offenses.
However in the past, they were combined into one, called such by such names as “breaking and entering and stealing therein” or “breaking and entering with intent to steal”. During this time when the offense was charged in a compound form, the actual larceny could not also be charged as a separate count, and no separate sentence could be imposed for the larceny.
When the breaking and entering and the larceny are charged on separate counts, rather than merged in a single count, separate convictions and sentences are permissible for both.
Since there is no better proof of “intent to steal” than actual larceny, the allegation of actual stealing is legally regarded as equivalent to alleging the intent to steal.
Is there a misdemeanor version of breaking and entering?
A punishment that does not include the possibility of state prison time is called a misdemeanor. It is considered a lesser punishment than a felony, which does include the possibility of state prison time.
In order to prove the defendant guilty of the offense of breaking and entering with the intent to commit a misdemeanor, the Commonwealth must prove ALL four of the following elements of the offense beyond a reasonable doubt:
- That the defendant broke into either:
- A building
- A ship
- A vessel
- A vehicle
…belonging to another person.
That the defendant entered that building, ship, vessel, or vehicle
That the defendant entered with the intent to commit a misdemeanor in that building, ship, vessel, or vehicle
Note that with a breaking and entering with the intent to commit a misdemeanor, the Commonwealth does NOT need to prove that the event took place during the nighttime. The breaking and entering in this scenario can occur at any time.
However, a jury is allowed to find intent to commit an unspecified misdemeanor on a charge of breaking and entering in the daytime with intent to commit a felony.|
If there is breaking is there always entering?
If a defendant is entering a building, ship, vessel, or vehicle, it depends on the time of day to determine if the defendant is legally considered to be also breaking. Entering in the nighttime does not require breaking to be convicted of the offense of breaking and entering, but entering in the daytime does.
In either case, the owner of any other person lawfully in the building, ship, vessel, or vehicle lawfully must have additionally been put in fear.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH BREAKING AND ENTERING, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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