Originally Posted by Big  Hey pm,
It is true that many states do not require “breaking”. In this case breaking is a requirement and climbing through an open window is not “breaking”.
Further, should Mia invite Litton or a boy at 7/11 while the store is open for business, there is no burglary but only larceny. While breaking is not always required, a burglar has to enter the premises uninvited or by fraud. Where entry is welcomed, there is no burglary.
Robbery is basically a larceny with force involved.. |
Statutes and their elements of crime (and obviously case law) vary between states. If you post interesting criminal law questions you might need to clarify the state in which we are to form our answer. I better understand how to read your question. New York (or the jurisdiction of your scenario) and California clearly use different elements. Federal constitutional law are the same, but state constitutional and state laws differ. This is the reasoning for my asking which state requires "breaking and enter", and tried to clearly frame my answers were based on California state law. I answered corrected based on California, but defer to you for New York, or whatever state you are studying under.
In California, there is absolutely no element of being on the premises without permission. I have arrested many people (probably well over a 100) for (shoplift) burglary. The turning point is proving the intent. A classic bank robbery, in California, is also a burglary and if arrested are booked for both. The DA may charge, combine or drop at their discretion.
In California larceny is merely a synonym for theft (the taking of property of another with the intention to permanently deprive). Theft is broken into two basic groups: grand theft and petty theft. There is lengthy description of grand theft but very generally it is the theft of property with a value of $400 or more, or the taking of certain indigenous fruit/vegetable > $100, the theft of any car or firearm irrespective of its value. All other thefts are considered petty. I forgot to mention that a pick-pocket theft is also grand theft.
If you invite me to a party in your San Francisco home and knowing you that have a bundle of cash hidden in your desk I accept the invitation with the prior intent to take it during the party. After arriving you leave me alone in the room and I take your cash. That is burglary but it’s the prosecutor’s burden to prove the intent was formed outside th premises and not after already arriving. It’s not always easy, but it isn't too difficult.
If "permission" is required in another state, and I don't doubt it does, could not one try to raise the claim that an implied "without permission" existed if the intent to commit a theft existed before entering? After all what business, property owner, etc would grant permission to someone who had the intent to steal prior to entering; therefore satisfying the "without permission" element?
In California robbery requires force or fear, which both were absent in your scenario. That's why I was asking.