CRIMINAL LAW 2.7 BURGLARY AND HOUSE BREAKING
Though technical, this topic would be best understood if the reader understands the guiding principles and tries to visualise every explanation and case.
Section 411 and 410 of the Criminal Code provides for this. A similar provision is found in Section 346 of the Penal Code.
:: The offence of burglary and housebreaking have the same elements but differ in TIME and PUNISHMENT.
:: House breaking is committed during the day and Burglary is committed at night. The Penal Code uses “Sunrise” and “Sunset” in place of Day and Night respectively.
:: Day means the period between 6:30 am and 6:30 pm. Night means the period between 6:30 pm and 6:30 am.
:: House breaking is punishable with 14 years while burglary is punishable with life imprisonment. An attempt at house breaking or burglary grounds 7 years or 24 years respectively.
:: We have noted the element of time and punishment which are basically the only differences. The other elements of the offence of Burglary and Housebreaking include:
ONE: There must be a Breaking: Into the dwelling house. Breaking need not be forceful or violent entry as the layman imagines. Breaking may be actual or constructive.
By Section 410, Breaking is actual when a person breaks, pushes, lifts, pulls, unlocks (lock-pick), lifts… any part… external or internal of the building intended to close or cover an opening… As such, breaking can be from coming outside the house into the house or from even where a lawful entrant with the intent to commit a felony, opens the door of another room in the house outside his scope.
Constructive breaking can occur where a person enters through an aperture which is permanently open (but not intended to be used as a means of entrance) for example a chimney. It can also occur through collusion, threat, misrepresentation, (for example posing as a sanitary inspector) in order to gain entrance as was done in R V Boyle. However, where the victim knows and nevertheless lets him in with the intention to catch him, there is no breaking- R V Apesi.
From the above, it is apparent (as was held in State V Onwemunlo) that if the accused merely walks in through an open door and goes away with a jewellery (or any other thing capable of being stolen), there is no breaking. He can however be convicted for stealing or entering a dwelling house with the intent to commit a felony. Except he pushes, lifts, moves, etc through or enters through a place that was not meant to be one for gaining entrance like chimney, window, etc.
TWO: There must be an Entry: by Section 410, an entry occurs when any part of the accused’s body or instrument is within the building. In R V Apesi the court held that where an accused’s finger enters within the building, there is sufficient entry.
At common-law, the instrument which entered must have been facilitative in obtaining the property stolen. This is no longer the case.
THREE: The Breaking and entry must be into a Dwelling house: Section 1 of the Criminal Code defines a dwelling house as any building or structure or a part connected to it, kept for residence, immaterial that from time to time it is uninhabited. The question is whether the building is used for residence whether someone habitually uses the building as a home. In R V Rose a caravan was held to be a dwelling house because the victim habitually slept inside it.
FOUR: there must have been an intent to commit a Felony: Not every breaking and entry would constitute Burglary and (or) house breaking. The intent to commit a felony must be present at the time of breaking and entry into the dwelling house. A felony is a serious offence punishable with 3 years or more imprisonment at first instance. For example stealing. In R V Williams, the accused entered the victim’s house and took off his clothes in the presence of the female inhabitant. This was considered an invitation to treat rather than rape… an indecent assault which was not a felony… therefore no housebreaking. Where a felony has in fact been committed, then there is no problem of proof on the part of the prosecution.
The accused can be convicted where he forms an intent to commit a felony after entering and breaks out of the house after committing a felony.
:: The breaking and entry need not occur on the same day. In R V smith, the accused “broke” (i.e. made an opening) on a Friday night and entered on a Saturday night.
Where the above elements cannot be established, a prosecutor can sue under the following Sections:
Section 412, entry of a dwelling house with the intent to commit a felony. 14 years. Here the element of breaking is unnecessary.
Section 413, breaking and entry into other buildings like school, office, store, and so on. 14 years. Here the building does not need to be a dwelling place.
Section 414, breaking and entry into a religious place of worship.