Burglary And Robbery — Identify burglary and robbery - Bar Exam Uniform

SECTION 1

Historical Context & Motivation

The offenses of burglary and robbery occupy distinct positions in the common law tradition, yet both reflect a longstanding societal concern with protecting individuals from invasive criminal conduct that threatens both property and personal safety. At common law, burglary was conceived primarily as an offense against the security of the habitation—the sanctity of the dwelling at night—while robbery was understood as an aggravated form of larceny distinguished by the element of force or intimidation directed at a person. Understanding their historical roots is essential for bar examination preparation, because the Model Penal Code and modern statutes have expanded and modified both offenses in ways that only make sense against the backdrop of the common law definitions.

c. 1200 • Common Law Burglary Emerges

English common law crystallizes burglary as the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein, reflecting the era's concern with nocturnal invasions of the home.

c. 1300 • Robbery Defined as Aggravated Larceny

Common law courts distinguish robbery from simple larceny by requiring a taking from the person or presence of the victim through force or threat of immediate force, elevating the seriousness of the offense.

1769 • Blackstone's Commentaries

Sir William Blackstone's influential treatise codifies and clarifies the elements of burglary and robbery, providing the analytical framework that American jurisdictions would later adopt and modify.

1962 • Model Penal Code Published

The American Law Institute's Model Penal Code modernizes both offenses—broadening burglary beyond dwellings and nighttime, and restructuring robbery to emphasize the degree of force or threat involved.

Present • Modern Statutory Variations

All fifty states have enacted burglary and robbery statutes that depart in various ways from the common law, creating graded offenses with aggravating factors such as the use of weapons, bodily injury, or targeting of occupied structures.

The critical question that this lesson addresses is straightforward yet frequently tested on the bar examination: given a set of facts, how does one correctly identify whether the crime committed is burglary, robbery, both, or neither? Answering this question demands a precise understanding of each element of both offenses, the distinctions between common law and modern formulations, and the doctrinal rationale behind each requirement.

SECTION 2

Core Principles & Definitions

Both burglary and robbery are classified as offenses against persons and property, but they protect different interests and require different elements. Burglary protects the security of the habitation—the right to feel safe within one's dwelling—while robbery protects both personal property and bodily security by criminalizing takings accomplished through force or fear. The foundational principles below provide the analytical scaffolding necessary for distinguishing these two offenses on a bar examination question.

Common Law Burglary Elements

Breaking and entering the dwelling house of another in the nighttime with the intent to commit a felony therein. All six elements must be satisfied; the absence of any one element defeats the charge.

Common Law Robbery Elements

A taking and carrying away of the personal property of another from the person or in the presence of the victim, by force or intimidation, with the intent to permanently deprive. Robbery is essentially larceny plus force or threat.

MPC Burglary (§ 221.1)

Entering a building or occupied structure (or separately secured portion thereof) with purpose to commit a crime therein, unless the premises are open to the public or the actor is licensed or privileged to enter. No nighttime or breaking requirement.

MPC Robbery (§ 222.1)

In the course of committing a theft, the actor inflicts serious bodily injury, threatens or purposely puts another in fear of immediate serious bodily injury, or commits or threatens a felony of the first or second degree. Graded by severity of force.

Key Distinction: Inchoate vs. Completed Crime

Burglary is complete upon entry with the requisite intent—no further felony need actually be committed. Robbery requires an actual taking of property, though the force may precede, accompany, or immediately follow the taking.

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KEY TAKEAWAY

Think of burglary as a crime of trespassory invasion and robbery as a crime of confrontational taking. A useful analogy: burglary is like breaching a perimeter security system (the harm lies in the unauthorized entry itself), whereas robbery is like a hostile negotiation where the currency is force or fear and the transaction is the victim's property. The first crime is complete the moment the boundary is crossed with criminal purpose; the second requires that property actually change hands under coercion.

SECTION 3

Visual Explanation — Elements Comparison

This diagram contrasts the elements of common law burglary (left panel, five elements) with common law robbery (right panel, six elements). Note the different protected interests and the distinct point at which each offense reaches completion.

As the diagram illustrates, the two offenses share no overlapping elements. Burglary is fundamentally about an unauthorized entry coupled with criminal intent, while robbery centers on a forceful or coercive taking of property from a person. A defendant can be charged with both offenses arising from the same course of conduct—for example, breaking into a home at night and then using force to take property from a sleeping occupant—but the charges rest on entirely distinct elemental analyses. This distinction is a frequent testing point on multistate bar examination questions, which may present a single factual scenario and ask examinees to identify all applicable offenses.

SECTION 4

Doctrinal Deep Dive — Element-by-Element Analysis

Burglary Elements in Detail

The breaking element requires the creation of an opening or the enlargement of an existing opening to gain entry. A physical (actual) breaking involves the application of some force, however slight—pushing open a closed but unlocked door suffices, while walking through a wide-open door does not. A constructive breaking occurs when entry is gained by fraud, threat, or through a co-conspirator such as a servant who opens the door from the inside. The critical distinction is that entering through an already-open entryway, without any act to create or widen the opening, does not satisfy the breaking requirement at common law.

The entering element is satisfied when any part of the defendant's body, or any instrument used to commit the intended felony, crosses the threshold of the structure. Inserting a hook through a window to pull out property constitutes an entry, while placing a tool against the exterior does not. The dwelling house requirement limits common law burglary to structures regularly used for sleeping, including outbuildings within the curtilage of the home (such as a connected garage), but excluding businesses and warehouses. The of another element refers to occupancy rather than ownership—a landlord who breaks into a tenant's apartment satisfies this element. The nighttime requirement was traditionally defined as the period between sunset and sunrise when the countenance of a person could not be discerned by natural light.

Robbery Elements in Detail

Robbery builds upon the elements of larceny—a trespassory taking and carrying away of personal property of another with intent to permanently deprive—and adds two additional requirements. First, the taking must be from the person or in the presence of the victim. Property is in the victim's presence if it is within the victim's area of control, such that the victim could have prevented the taking but for the use of force or intimidation. Second, the taking must be accomplished by force or intimidation. Force must go beyond the amount necessary to effectuate the taking itself—mere pickpocketing is larceny from the person, not robbery. Intimidation requires a threat of imminent bodily harm; a threat of future harm or harm to property alone does not suffice for robbery but may support an extortion charge.

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Timing of Force

A frequently tested nuance: force or intimidation used during the taking or immediately after to retain possession satisfies the robbery element. If a shoplifter uses force against a security guard while fleeing with merchandise, the crime may be elevated from larceny to robbery. However, force used hours after the taking, in a separate transaction, generally does not convert the larceny into robbery.

SECTION 5

Grading & Modern Statutory Variations

Modern jurisdictions have significantly expanded both burglary and robbery beyond their common law definitions, creating graded offenses that reflect the varying degrees of harm and culpability involved. Understanding these statutory variations is critical for the bar examination, which may test both common law and modern statutory formulations, sometimes within the same question. The following diagram and table outline the principal ways in which modern law has departed from common law.

This decision tree guides the analysis of whether a property crime constitutes burglary, robbery, larceny, or a combination. Follow the branches from the starting point to the applicable outcome by answering each doctrinal question.

Feature	Common Law	Modern / MPC
Burglary — Structure	Dwelling house only	Any building, occupied structure, or separately secured portion
Burglary — Time	Nighttime required	Any time; nighttime may be an aggravating factor
Burglary — Breaking	Required (actual or constructive)	Not required under MPC; unauthorized entry or remaining suffices
Burglary — Intent	Intent to commit a felony	Purpose to commit any crime (MPC); many states retain felony/theft requirement
Robbery — Force	Force or intimidation required	Same; MPC grades by degree of force (serious bodily injury vs. threat)
Robbery — Grading	Ungraded; single offense	First degree (armed/serious injury) vs. second degree; many states add aggravating factors

Common Law vs. Modern/MPC Formulations of Burglary and Robbery

SECTION 6

Worked Example — Bar-Style Analysis

Consider the following fact pattern, typical of the sort encountered on the Multistate Bar Examination: Defendant (D) entered a convenience store through the front door during business hours, concealing a knife. After selecting merchandise and placing it in a bag, D approached the cashier, brandished the knife, and demanded all the money in the register. The cashier complied, and D fled with the cash and merchandise.

Issue-Spotting: Burglary and Robbery Analysis

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Step 1 — Identify the Potential Offenses

The fact pattern involves both an entry into a structure and a forceful taking of property. We must analyze whether the facts support charges of burglary, robbery, or both under common law and modern statutory formulations.
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Step 2 — Analyze Common Law Burglary

Breaking: D entered through the front door of a store that was open to the public during business hours. There was no breaking—D did not create or enlarge any opening, and the door was already open for customers. Entering: D did cross the threshold, so entering is satisfied. Dwelling house: A convenience store is not a dwelling house. Nighttime: The entry occurred during business hours. Intent to commit a felony therein: D intended to commit armed robbery (a felony) at the time of entry. Conclusion: Common law burglary fails because at least three elements—breaking, dwelling house, and nighttime—are not satisfied.

No common law burglary
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Step 3 — Analyze Modern/MPC Burglary

Under MPC § 221.1, burglary requires entering a building or occupied structure with purpose to commit a crime therein, unless the premises are open to the public or the actor is licensed or privileged to enter. Here, the convenience store was open to the public at the time D entered. Under the MPC, D's entry does not constitute burglary because the open-to-the-public exception applies. However, some modern statutes do not include this exception and might treat entry with criminal intent into any structure as sufficient.

No MPC burglary (open-to-public exception); result varies by jurisdiction
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Step 4 — Analyze Robbery

Taking: D obtained cash from the register and merchandise—property was taken. Carrying away: D fled the store with both items, satisfying asportation. Personal property of another: The cash belonged to the store owner; the merchandise had not been purchased. From the person or presence: The cash was taken directly from the cashier's register in the cashier's presence. Force or intimidation: D brandished a knife and demanded money, constituting both force and intimidation through threat of imminent bodily harm. Intent to permanently deprive: D's flight with the property demonstrates the requisite intent.

Robbery is established — all elements satisfied
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Step 5 — Determine Grading (Modern Law)

Because D was armed with a deadly weapon (a knife), this would constitute armed robbery or first-degree robbery under most modern statutes and under MPC § 222.1, which grades robbery as a felony of the second degree (elevated to first degree if the actor inflicts or attempts to inflict serious bodily injury or is armed with a deadly weapon). The use of a knife constitutes being armed with a deadly weapon, elevating the offense.

First-degree (armed) robbery under modern grading

SECTION 7

Comparing Burglary, Robbery, and Related Offenses

Bar examination questions frequently test the ability to distinguish burglary and robbery from several related offenses, including larceny, extortion, and criminal trespass. The following table highlights the key distinctions that determine which offense applies to a given set of facts.

Offense	Distinguishing Feature	Key Limitation / Scope
Burglary	Unauthorized entry into structure + intent to commit crime inside	No actual crime inside need be completed; common law limited to dwellings at night
Robbery	Larceny + force or intimidation from person/presence	Must have actual taking; threat must be of imminent bodily harm
Larceny	Trespassory taking and carrying away of property without force	No force against person; can occur anywhere, no entry requirement
Extortion	Obtaining property through threats of future harm (not immediate)	Threat need not be of bodily harm—can include threats to reputation, property, or criminal accusation
Criminal Trespass	Unauthorized entry or remaining without intent to commit crime inside	Lacks the criminal intent element of burglary; lesser offense

Distinguishing Burglary and Robbery from Related Property Offenses

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KEY TAKEAWAY

The conceptual boundary between robbery and extortion is the imminence of the threat: robbery involves a threat of immediate harm that coerces an immediate surrender of property, while extortion involves a threat of future harm that coerces future compliance. Similarly, the boundary between burglary and criminal trespass is the presence or absence of criminal intent at the time of entry. Think of it in terms of a negotiation analogy: in robbery, the 'deal' is struck at gunpoint in real time; in extortion, the 'deal' is proposed through a threatening letter to be acted upon later.

SECTION 8

Connection to Advanced Doctrines & Constitutional Protections

Burglary and robbery intersect with several advanced doctrinal areas that appear on the bar examination, including the felony murder rule, merger doctrine, accomplice liability, and constitutional protections related to the Fourth Amendment. Understanding these connections ensures a complete doctrinal picture.

Doctrine	Connection to Burglary	Connection to Robbery
Felony Murder Rule	Burglary is a predicate felony for felony murder in virtually all jurisdictions; death during a burglary supports a murder charge.	Robbery is inherently dangerous and serves as a predicate felony; the 'in furtherance' requirement extends to flight from the scene.
Merger Doctrine	Burglary generally does not merge with the underlying felony; D may be convicted of both burglary and the crime committed inside.	Some jurisdictions hold that assault merges with robbery, precluding a separate assault conviction; others permit both convictions.
Accomplice Liability	A lookout who aids the principal in a burglary is liable as an accomplice for burglary and any reasonably foreseeable crimes committed inside.	A getaway driver who facilitates the robbery is liable for robbery and any natural and probable consequences thereof.
Fourth Amendment	The right against unreasonable searches gives constitutional weight to the dwelling—the same interest burglary protects; Payton v. New York limits warrantless home arrests.	Stop-and-frisk jurisprudence (Terry v. Ohio) may apply when officers detain robbery suspects based on reasonable suspicion.

Advanced Doctrinal Connections for Burglary and Robbery

Looking forward, examinees should also be aware of evolving trends in criminal law reform. Several jurisdictions have begun to narrow the scope of burglary statutes in response to concerns about over-criminalization, particularly where broadly drafted statutes treat shoplifting in an open store as burglary. At the federal level, the Supreme Court's decision in Taylor v. United States (1990) defined "generic burglary" for purposes of the Armed Career Criminal Act, adopting a uniform federal definition that closely tracks the MPC approach. These developments underscore the importance of distinguishing between the common law definition, the MPC formulation, and the specific statutory language in any given jurisdiction.

SECTION 9

Practice Problems

Question 1: CONCEPTUAL

Under common law, what is the primary interest that burglary is designed to protect, and how does this differ from the interest protected by robbery? Explain how this distinction affects the elements of each offense.

Show answer

Common law burglary protects the security of the habitation—the right to feel safe within one's dwelling, particularly at night. This protective interest explains why burglary requires a breaking, entry into a dwelling house, and nighttime commission; these elements define the invasion of the protected space. Robbery, by contrast, protects both personal safety and property rights simultaneously, which is why it requires force or intimidation directed at a person and a taking from the person or presence. The dual protective interest of robbery explains its dual nature as both a crime against property (requiring larceny elements) and a crime against the person (requiring force or threat).

Question 2: BASIC APPLICATION

Defendant pushed open the closed but unlocked back door of a neighbor's house at 2:00 a.m. with the intent to steal jewelry. The neighbor was away on vacation. Defendant found no jewelry and left empty-handed. Has Defendant committed common law burglary? Identify each element and apply it to the facts.

Show answer

Yes, Defendant has committed common law burglary. Breaking is satisfied because pushing open a closed, unlocked door constitutes the application of force sufficient to create an opening, even though minimal force was used. Entering is satisfied when Defendant crossed the threshold. The structure is a dwelling house (neighbor's house used for sleeping). 'Of another' is met because the neighbor, not the Defendant, has occupancy rights. Nighttime is satisfied at 2:00 a.m. Finally, Defendant entered with the intent to commit theft, which is a felony (larceny). The fact that Defendant found no jewelry and left empty-handed is irrelevant; burglary is complete upon entry with the requisite intent, regardless of whether the intended felony is accomplished.

Question 3: INTERMEDIATE

Alex enters a department store during regular business hours with the intent to shoplift. After concealing merchandise, Alex is confronted by a loss prevention officer near the exit. Alex shoves the officer to the ground and runs from the store with the merchandise. Analyze whether Alex has committed burglary, robbery, or both under (a) common law and (b) the MPC.

Show answer

Under common law, burglary fails because a department store is not a dwelling house, the entry occurred during business hours (not nighttime), and there was no breaking since the store was open to the public. Common law robbery, however, is likely established: Alex took personal property (merchandise) of another, and while the initial taking was by concealment (shoplifting/larceny), the use of force against the loss prevention officer while fleeing with the merchandise elevates the offense to robbery, because force used immediately after the taking to retain possession satisfies the force element. Under the MPC, burglary fails under § 221.1 because the store was open to the public. MPC robbery under § 222.1 is established because Alex inflicted bodily injury on the officer in the course of committing a theft. The degree would depend on whether the shoving constitutes 'serious bodily injury' (first degree) or merely a lesser use of force (second degree). Thus, under both frameworks, this is robbery but not burglary.

Question 4: APPLIED

Dana, a tenant, enters the apartment of her landlord, Mr. Park, by using a key she secretly copied months ago, at 11:00 p.m. Dana intends to steal Mr. Park's valuable coin collection. Inside, she encounters Mr. Park unexpectedly. She pulls out a replica gun (which appears real) and says, 'Hand over the coins or I'll shoot.' Mr. Park, terrified, gives her the collection. Dana takes the coins and leaves. Analyze Dana's criminal liability for burglary and robbery, addressing any issues of grading under modern law.

Show answer

Burglary analysis: Dana committed a constructive breaking by using a fraudulently obtained key to gain entry—using a secretly copied key satisfies the breaking requirement because Dana was not authorized to use this key. She entered Mr. Park's apartment, which is a dwelling house of another (Dana is a tenant in the building, but Mr. Park's apartment is his dwelling and Dana has no right of occupancy there). The entry occurred at 11:00 p.m., satisfying the nighttime element. Dana had the intent to commit larceny (a felony) at the time of entry. All common law burglary elements are satisfied. Under modern law, the offense would likely be graded as first-degree burglary because it involved a dwelling and the defendant was apparently armed. Robbery analysis: Dana took Mr. Park's coin collection (taking and carrying away personal property of another) from Mr. Park's presence, by intimidation (threatening to shoot with what appeared to be a real gun). The fact that the gun was a replica does not defeat the intimidation element; what matters is whether the victim reasonably feared imminent bodily harm, and Mr. Park was terrified. Dana intended to permanently deprive Mr. Park of the coins. All robbery elements are satisfied. Under modern grading, this could constitute first-degree robbery because Dana appeared to be armed with a deadly weapon; jurisdictions vary on whether a replica gun qualifies, but many treat apparent armament as sufficient. Dana is liable for both burglary and robbery.

Question 5: CRITICAL THINKING

The common law required burglary to occur in the nighttime and to target a dwelling house. Modern statutes have largely abandoned both requirements. Critically evaluate whether these expansions have strengthened or weakened the coherence of burglary as a distinct offense. In your analysis, consider the argument that without the nighttime and dwelling-house requirements, burglary becomes redundant with attempt crimes and criminal trespass.

Show answer

The expansion of burglary beyond dwellings and nighttime has generated significant scholarly debate about the offense's doctrinal coherence. The traditional justification for burglary as a distinct offense rested on the heightened vulnerability of persons asleep in their homes at night—a rationale that naturally limited the offense to dwellings and nighttime. By removing these limitations, modern statutes arguably transform burglary into little more than criminal trespass plus intent to commit a crime, which in many instances could be separately charged as criminal trespass and attempt (or the completed underlying offense). On the other hand, defenders of the modern approach argue that the entry-plus-intent formulation captures a distinctive harm—the planning and deliberation inherent in entering a structure to commit a crime—that mere attempt doctrine does not adequately address, because attempt typically requires a substantial step closer to completion than entry alone. Moreover, the expanded definition allows prosecutors to address real-world scenarios such as commercial burglaries and daytime home invasions that were previously un-chargeable as burglary despite posing substantial danger. A balanced assessment recognizes that while the modern expansion serves legitimate prosecutorial needs, it risks over-criminalization when applied to circumstances far removed from the original protective purpose—such as charging shoplifters with burglary for entering a store open to the public. The MPC's open-to-the-public exception represents one attempt to preserve the offense's coherence while broadening its scope.

SUMMARY

Lesson Summary

Summary

Common law burglary requires a breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein. The offense is complete upon entry with the requisite intent—no further crime need be committed. Modern statutes and the MPC have broadened burglary to encompass any building or occupied structure, eliminated the nighttime and breaking requirements, and introduced graded offenses based on aggravating factors such as the presence of weapons or occupants.

Common law robbery is larceny elevated by two additional elements: the taking must be from the person or presence of the victim and must be accomplished by force or intimidation involving a threat of imminent bodily harm. Force used immediately after the taking to retain possession qualifies. Robbery is distinguished from extortion (which involves threats of future harm) and from simple larceny from the person (which lacks force). Both offenses serve as predicate felonies for the felony murder rule and may arise from the same transaction.