Breaking and entering at night with intent to commit a felony is charged under G.L. c. 266, § 16. It is a felony punishable by up to 20 years in state prison. The same post also covers the two lesser versions a jury can consider: breaking and entering in the daytime with intent to commit a felony (§ 18), and breaking and entering with intent to commit a misdemeanor (§ 16A). District Court Instruction 8.100 sets out what the Commonwealth must prove beyond a reasonable doubt.
At a Glance: Breaking and Entering
Night, felony intent
§ 16: up to 20 years in state prison or 2½ years in jail
Day, felony intent
§ 18: up to 10 years in state prison, or a fine up to $500 and up to 2 years in jail
Misdemeanor intent
§ 16A: up to 6 months, a fine up to $200, or both
Intent at the break
the intent must exist when you break in, not form later
The law: G.L. c. 266, §§ 16, 16A, and 18; District Court Instructions 8.100 (March 2023), 8.104, and 8.106
What the Law Covers
Section 16 makes it a crime to break and enter a building, ship, vessel, or vehicle in the nighttime with intent to commit a felony. A felony is any crime that can be punished by a state prison sentence. The intended crime doesn't have to happen. What matters is what you meant to do when you broke in.
What the Commonwealth Must Prove
Under Instruction 8.100, the Commonwealth must prove four things beyond a reasonable doubt:
You broke into someone else's building, ship, vessel, or vehicle. "Breaking" means using physical force, even slight force, to remove something that blocks the way in. Opening a closed door or window counts, even if it was unlocked. So does going in through an open window that isn't meant as an entrance. Walking through an open door is not a breaking.
You entered it. Any part of your body crossing the threshold, even slightly, is an entry. Reaching in with only a tool or object is not an entry, unless that object was used to commit a felony inside.
You intended to commit a felony inside. The intent must exist at the time of the break. The Commonwealth doesn't have to prove which felony you intended, only that you intended one. Read more about criminal intent.
It happened at night. Nighttime starts one hour after sunset and ends one hour before sunrise. The Commonwealth can prove this with evidence that it was fully dark, an almanac, or the jurors' common knowledge of when the sun sets and rises.
A breaking can also happen without your own hands. If you get an innocent person to open the way by a trick or a threat, that can count as a breaking.
The Lesser Charges
If the jury isn't convinced that the break happened at night, it may convict of breaking and entering in the daytime with intent to commit a felony under § 18. If it isn't convinced that you intended a felony, it may convict of breaking and entering with intent to commit a misdemeanor under § 16A, which applies day or night.
Intent to Steal
Many of these cases involve a claimed intent to steal. Stealing property left in a building for safekeeping is a felony, and so is stealing property worth more than $1,200. Under Instruction 8.100, the jury may infer an intent to steal from the circumstances if that is reasonable, but it doesn't have to. Breaking and entering and larceny are separate crimes and can be charged as separate counts.
Penalties
The maximum penalties are:
Nighttime, intent to commit a felony (§ 16): up to 20 years in state prison, or up to 2½ years in a jail or house of correction.
Daytime, intent to commit a felony, no one inside put in fear (§ 18): up to 10 years in state prison, or a fine of up to $500 and up to 2 years in jail.
Intent to commit a misdemeanor, day or night (§ 16A): a fine of up to $200, up to 6 months in jail, or both.
Defenses
No breaking: going through an open, unobstructed doorway is not a breaking.
No entry: if only a tool crossed the threshold, and it wasn't used to commit a felony inside, there was no entry.
No intent at the time of the break: deciding to do something only after getting inside is not enough for the felony charge.
Not nighttime: if the Commonwealth can't prove the time, the § 16 charge fails, though a lesser charge may remain.
Identification: the Commonwealth must prove you were the person who broke in.
Why a Lawyer Matters
Breaking and entering cases often turn on small details: how the door or window was opened, what crossed the threshold, when it happened, and what you meant to do. Those details can decide whether the charge is a 20-year felony, a lesser charge, or nothing at all. I have defended criminal cases for 23 years. If you have been charged with breaking and entering, call 781-393-5900.
Related Charges
Larceny by stealing (G.L. c. 266, § 30): often charged along with breaking and entering.
Larceny from the person (G.L. c. 266, § 25): stealing from someone's body or immediate control.
Vandalism: damaging or destroying someone else's property.
Criminal intent: how the Commonwealth proves what you meant to do.
Disclaimer
This information is for general educational purposes only and not legal advice. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.
