Breaking and Entering involves going somewhere you do not have permission to be and intending to do some criminal act there. If you go there, but do not have the intent to do some other criminal act, then the offense is Trespassing.
There is no such thing as straight “breaking and entering” under Massachusetts General Laws. Rather, there must be the distinguishing element of intent, such as:
- Breaking and Entering with Intent to Commit a Misdemeanor;
- Breaking and Entering with Intent to Commit a Felony;
as well as whether the breaking and entering was committed during the
- Daytime; or
The major factor in the severity of punishment for a conviction is the time of day that the breaking and entering occurred. Breaking and entering in the daytime is a lesser offense.
If you are charged with breaking and entering for felony/misdemeanor in the nighttime/daytime, you are innocent until proven guilty. In order to prove you guilty, the Commonwealth must prove, beyond a reasonable doubt, that:
- You broke into a location/property (such as a vehicle) that belonged to another person;
- That you entered that location/property;
- That you did so with the intent to commit a misdemeanor or felony; and
- That this event took place during the nighttime (if applicable);
The obvious examples of breaking-in include breaking a window, forcing open a door, or removing plank from a wall. There are also less obvious examples that are also considered “break-ins,” such as opening a closed door or window (even if unlocked), and going into a location/property through an opening (like a window) that is not intended for use as an entrance.
On the other hand, entering through an unobstructed entrance-such as an open door-is not a break-in.
Entry simply means the unlawful making of one’s way into a location/property (such as a vehicle). This means that if any party of your body-even a hand and/or foot, or any instrument/weapon controlled by you physically enters the building, you have made “entry.” Thus, if you break a storm window and reach inside between merely the storm window and inner window, your hand has made entry.
Misdemeanor or Felony.
The Commonwealth is not required to prove that you intended to commit any particular misdemeanor or felony, but it must prove that you intended to commit some felony. When a person breaks and enters in the nighttime, it is ordinarily a fair inference, in the absence of contrary evidence, that he intends to steal.
Daytime vs. Nighttime.
The law clarifies that nighttime begins one hour after sunset and continues until one hour before sunrise the next day. The Commonwealth may prove that the crime occurred in the nighttime by presenting evidence via an almanac or other reference book, or even asking jurors to rely on their common knowledge of approximately when the sun rises or sets on a particular date in a particular geographical area.