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Order 183281 DETERMINING WHETHER A SUSPECT OF BURGLARY IS GUILTY Burglary is typically defined as the unlawful entry into almost any structure (notnecessarily a home or business) with the intention to commit any crime inside the premise (not just theft/larceny). ( essence of the offence is the breaking and entering of a building with the intent to commit a felony therein.Unlike house-breaking which is similar to burglary, an offence of burglary is committed during the night (between 6:30 pm- 6:30 am)Breaking and entering is separate acts. Breaking can be actual or constructive, but entry must be physical. Breaking involves the use of force to gain access to the building while constructive entry is opportunistic where the suspect sees the available opportunity to enter a house where a window is left open or using any other means available to enter into a house.Burglary can be committed in any building, tent or vessel used as a human dwelling. The words human dwelling must be noted as it connotes a wider meaning than the term dwelling house. (Tudor Jackson, The Law of Crimes, 3rd Edition).Once it is established that there has been a breaking and entering, it must still be proved that there was intent to commit a felony therein. Usually a felony has been committed on the premises e.g. theft, otherwise the intent to commit a felony must be established. This is the mens rea in the offence. The intent must exist at the time of breaking and entering.Therefore to determine that the suspect of burglary is guilty, the courts must establish the guilty mind or intention (mens rea) of the accused which shall be followed by the actual act committed i.e. breaking and entering into the house. To constitute burglary, it is not necessarily that the suspect must after breaking into or entering the house has to steal something. Having the intention of stealing even if he/she did not find what she intended to steal and left without taking anything is itself an offence of burglary committed.In Benton v. Maryland, 395 U.S 784 (1969), the petitioner was tried in a Maryland state Court for burglary and larceny. He was acquitted of larceny but convicted of burglary and sentenced to 10 years in prison. On retrial the petitioner was found guilty of both offences and concurrently sentenced to 15 years for burglary and 5 years for larceny. The appellate court ruled against petitioner on the double jeopardy issue. ( Tudor Jackson, 2002, the law of crimes. 2.