OUJI-CR 5-13

BURGLARY IN THE SECOND DEGREE - ELEMENTS

No person may be convicted of burglary in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, breaking;

Second, entering;

Third, a/an (dwelling house where no human being was present at the time)/(commercial building)/(any part of a building)/room/booth/tent/ (railroad car)/structure/erection;

Fourth, of another;

Fifth, in which property is kept;

Sixth, with the intent to steal/(commit any felony).

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Statutory Authority: 21 O.S. Supp. 2019, § 1435 (A).

Committee Comments

The elements of second-degree burglary are presented clearly by the statute. The statute also seems to indicate that two mental states, intent to steal and intent to commit any felony, are appropriate mens rea elements for conviction. Hence, the Commission has included the mental states alternatively to permit the trial judge to charge with respect to the appropriate mental state under the facts of the case. Please realize that facts may indicate that one or the other, or both, mental states might have existed, and the court may need to give both mens rea elements in this instruction.

In contrast to section 1431, the second-degree burglary statute does not specify that ownership or possession of the structure, upon which a breaking and entering is perpetrated must be vested in another. The Commission has concluded, however, that since at common law the proscription of burglary was intended to safeguard possessory rights, R. Perkins, Criminal Law 206 (2d ed. 1969), a right of entry negates the possibility of prosecution for burglary. Although no Oklahoma cases have addressed this question, the Supreme Court of California, in construing a statute defining as burglary the entering into any dwelling, held that a right of entry to an apartment dispels the possibility of prosecution for burglary when one cotenant forcibly entered the apartment for the purpose of feloniously assaulting another cotenant. In reversing the defendant's conviction of burglary, the court observed:

To hold otherwise could lead to potentially absurd results. If a person can be convicted for burglarizing his own home, he could violate [the burglary statute] by calmly entering his own house with intent to forge a check. A narcotics addict could be convicted of burglary by walking into his house to administer a dose of heroin to himself. Since a burglary is committed upon entry, both could be convicted even if they changed their minds and did not commit the intended crimes.

People v. Gauze, 125 Cal. Rptr. 773, 777, 542 P.2d 1365, 1369 (1975).

(2019 Supp.)