what constitutes a valid consent is covered by the definition of "consent" in section 111, and is generally intended to mean a consent both voluntarily and intelligently given.

Under this provision, a landlord and a tenant, as well as persons holding any legally enforceable security interests in property, would have to approve the conduct before the defense could be successfully asserted. The phrase "legal interest" is meant to incorporate interests recognized under Federal or State law.

In addition to the above showing, it is also necessary that the actor establish his substantial compliance with all laws regulating the conduct. Thus, for example, local fire laws must be complied with. The qualifying word "substantial" was included because it was felt that a mere technical failure to comply (e.g., where a fire permit was obtained but contained an insignificant defect) ought not to defeat the defense where all other requirements were met.

The defense is made "affirmative" (i.e., the defendant has the burden of proving the elements thereof by a preponderance of the evidence),32 since the actor would be much more likely to possess or have access to the relevant information, and since the defense essentially concedes the commission of all the elements of the offense but pleads the consent by way of justification.

Subsection (c) provides that in establishing that property constitutes or is part of an interstate or foreign shipment under sections 1701, 1702, or 1703, proof of the designation in a way bill or other shipping document of the places from which and to which a shipment was made creates a presumption that the property was shipped as indicated by such document.

This provision is derived from 15 U.S.C. 1281(c). A similar proof provision, applicable to the theft and receipt of stolen property offenses (sections 1731-1733) and derived from 18 U.S.C. 659, is contained in section 1738. The consequences of a "presumption" are explained in Rule 25.1 of the Federal Rules of Criminal Procedure, set forth in section 102 of S. 1, as reported.

SUBCHAPTER B.-BURGLARY AND OTHER CRIMINAL INTRUSION OFFENSES

(Sections 1711-1716)

The offenses included within this subchapter are: burglary (1711); criminal entry (1712); criminal trespass (1713); stowing away (1714); and possession of burglar's tools (1715). In addition, section 1716 sets forth the definition for certain terms used throughout the subchapter. With the possible exception of the stowing away offense, these offenses have traditionally been grouped together. Although stowing away technically involves a theft of services, it is included in this subchapter because it is, in essence, a special form of criminal trespass which the Committee feels should be treated in a separate section.

32 See the definition of "affirmative defense" in section 111.

With the exception of the possession of burglar's tools offense, the basic element common to these offenses is the unauthorized entry or remaining on the "property of another." The burglary, criminal entry, and criminal trespass offenses are set forth in the subchapter in descending order of severity depending on the presence or absence of additional factors. For burglary to be committed, the entry must take place at "night," must occur in relation to a "dwelling," and must be accompanied by an intent to engage in conduct constituting another offense. The lesser included offense of criminal entry retains the intent requirement but drops the limitations as to time of day and dwelling. The still lesser offense of criminal trespass eliminates further the element of an intent to engage in other criminal activity.

The offense of possession of burglar's tools is included within this series because it prohibits the possession of tools designed and commonly used for facilitation of a forcible entry to commit one of the other crimes under this subchapter.

1. In General

SECTION 1711. BURGLARY

At early common law, burglary was defined as the breaking and entering of a dwelling house of another in the night, with intent to commit some felony within the same.1 It thus initially consisted of five elements: (1) a breaking; (2) an entering; (3) a dwelling house of another; (4) in the night; and (5) an intent to commit some felony. By its definition, burglary was a limited offense designed not to protect property in general but to safeguard a person's habitation. As the common law evolved, however, the different elements of the offense of burglary were construed in such a way that the offense was broadened. The element of breaking was expanded to include such conduct as the opening of a closed window or an unlatched door. Furthermore, the concept of "constructive breaking" developed covering situations where the offender gained entry by fraud, through persuasion of a child or innocent agent, by conspiracy with someone within, or through threats. The element of entering was satisfied if any part of the offender's body or tool penetrated the space within the dwelling. Similarly, the concept of "dwelling house of another" was extended to cover all outbuildings within the curtilage of the dwelling provided they were enclosed with the dwelling by a common fence.

Today all States have some sort of burglary statutes, although they are widely divergent. Some States have retained the common law definition of burglary in their statutes but, in addition, make it an offense if the breaking and entering was in premises other than dwellings, or in the daytime. Other States have enacted statutes which establish different degrees of burglary. In such States typically the highest degree of burglary occurs if the offender unlawfully enters a building at night with the requisite intent and is armed with a dangerous weapon, or if during the commission of the offense he injures or threatens to injure any person. Lesser degrees of the crime are prescribed for burglaries of unoccupied dwellings and other structures, unaggravated burglaries, and burglaries in the daytime. Still other States have only one provision and one penalty for all types of burglary.

Current Federal law contains no general offense of burglary appli

1 See Perkins, Criminal Law, p. 149 (1969).

cable uniformly to Federal property or to Federal enclaves. Section 1711 proposes for the first time to create such a general offense. It should be noted that conceptually such a decision is not inevitable, even assuming a judgment that the conduct involved in burglary should be penally proscribed. Because an entry into a dwelling plus an intent to commit a crime must be proved for a burglary conviction, proof of the same elements would also suffice for a conviction for attempt to commit the intended offense. The Committee believes, however, that separate retention of the burglary offense is warranted. Entry into another's dwelling, with intent to commit a crime, constitutes in itself an invasion of secured property and privacy which endangers and frightens any person properly within the premises. These interests. are entirely apart from the interests protected by the criminal statutes the violation of which is attempted. Furthermore, enactment of a general burglary offense will facilitate the prosecution of those cases in which it is clear that the culprit intended to commit some crime, but it is unclear what offense was contemplated.3

2. Present Federal Law

As previously noted, Federal law contains no general offense of burglary. With respect to enclaves, Federal law relies, mainly through the Assimilative Crimes Act, 18 U.S.C. 13, on the definition and punishment of burglary in the law of the State in which the enclave is situated. A special statute, the Major Crimes Act, 18 U.S.C. 1153, similarily provides that State law shall supply the definition and punishment of burglary when committed by an Indian within Indian Country. Only in the District of Columbia Code has Congress enacted a general burglary statute. That provision departs from the common law definition in punishing an entry alone, without a breaking, and in providing that the entry need only be accompanied by intent to commit any crime, not necessarily a felony. If, however, the intent is formed after the entry, the statute does not punish the act as burglary."

3. The Offense

A. Elements

5

There are four basic elements in the offense under section 1711. To obtain a conviction, the prosecution must prove that a person (1) at night; (2) entered or remained surreptitiously within; (3) a dwelling which is the property of another; (4) with intent to engage in conduct constituting a crime.

The first element is that the offense must occur at night. The term "night" is defined in section 1716 as the period between thirty minutes after sunset and thirty minutes before sunrise. A principal reason why burglary was considered a serious crime at common law was the natural fear and apprehension which might be caused in the minds of the inhabitants of a dwelling by an intruder in the night. The Code continues this policy, reserving the burglary label and the most severe grading for the nighttime intrusion into a dwelling. Because of the

2 Compare section 1121(a)(3) of the Code, punishing as espionage the entering of a restricted area with intent to obtain or collect national defense information for a foreign power. Although such conduct conceivably can be considered as an attempt to commit espionage, it has traditionally been treated as a completed offense.

See Working Papers, pp. 892-893.

4 See, e.g., Bayless v. United States, 381 F. 2d 67, 75-76 (9th Cir. 1967); Dunaway v. United States, 170 F. 2d 11 (10th Cir. 1948).

522 D.C. Code 1801.

See United States v. Cooper, 473 F. 2d 95 (D.C. Cir. 1972) and cases cited therein. 7 Cf. Fed. R. Crim. P. 41(c), requiring an additional showing of reasonable cause to authorize nighttime execution of a search warrant.

proposed extension of the burglary offense to situations in which a person "remains surreptitiously" within a dwelling (discussed infra), an offense is committed under this section even though an offender entered during the day provided he remains at night. Thus, a would-be rapist who enters an apartment during the day and secretes himself in the bedroom closet waiting for the occupant to return for the night, at which time he intends to assault her, would be guilty of burglary. Likewise, a person is guilty of an offense under this section if, with the requisite intent, he enters a dwelling at night but is not discovered until the daytime.

The second element of the offense is that the would-be burglar must enter or remain surreptitiously within the dwelling. The formulation dispenses with the common law requirement of a "breaking" or forcible entry. In so doing the provision is in accord with other modern criminal law revisions. The Committee considers that the elimination of this element is justified on the ground that the mode of entry is irrelevant to the basic interest in protecting the security and privacy of a habitation."

This section, as noted above, also expands the common law definition to include persons who remain surreptitiously within a dwelling. This too accords with modern treatment of the offense. 10 The qualifying term "surreptitiously" is used in order to prevent the statute from applying to the type of situation where an individual invited to one's home is subsequently asked to leave, but refuses and threatens to punch his host in the nose. Since the dwelling occupants, in the posited hypothetical, are aware of the person's presence, his stay on the premises in violation of his privilege does not pose the kind of threat caused by remaining on the premises in a clandestine manner. Similarly it is not intended that persons who enter a dwelling with the consent, express or implied, of the occupant be deemed guilty of burglary even though they intend to commit a crime. On the other hand, the would-be thief who by fraud or deceit obtains the consent of an occupant to enter his dwelling would, as at common law, be guilty of burglary under this section. In such case, although the occupant authorized the offender's entry, his consent was invalidly procured.

The third element of the offense is that the entry must occur in a dwelling which is the property of another. "Dwelling" is defined in section 111 as "an immovable or movable structure, that is at least partially enclosed, or a separate part of such a structure, that is designed for use, or used, in whole or in part as an individual's permanent or temporary home or place of lodging." Such things as mobile homes, houseboats, tents, and campers would fall within the definition but a passenger car would not. There is no requirement that the dwelling must be occupied, or even intended to be occupied.12 at the time of the entry but the entry must be into that part of the structure which is designed for use, or used, in whole or in part as a person's home

s See Working Papers, p. 892.

As stated by the senior counsel to the National Commission:

With the concept of burglary limited to those enclosed premises in which protection of the sanctity of persons and property is of prime consideration, there is no need to retain, as an element of the offense, the traditional requirement that the property be broken into to constitute burglary. The culprit who enters an open window or uses a key he has improperly obtained is just as dangerous. . . . Id. at 894.

19 See id. at 895.

11 See id. at 894.

12 Compare James v. United States, 238 F. 2d 681 (9th Cir. 1956), dealing with a restrictive definition of "dwelling house" in the Alaska Criminal Code.

or place of lodging. Thus, a person who at night and with the requisite criminal intent enters a building which contains a business establishment as well as apartments would not be guilty of an offense under this section if he only enters the business establishment. If, however, part of a business establishment is also used as a place for lodging, entry into the business establishment would constitute burglary under this section.

The second part of this element is that the dwelling must be the "property of another." This term is defined as "property in which a person or government has an interest upon which the actor is not privileged to infringe without consent, whether or not the actor also has an interest in the property." 13 Thus, under this definition, a person who enters his own home with intent to engage in conduct constituting a crime would not be guilty of burglary. However, a landlord who without the consent of his tenants enters their apartment with the requisite criminal intent would be guilty of burglary even though he owns the apartment.

The fourth element of this offense is that the offender must have an intent to engage in conduct constituting a crime. The important point about this element is that the offender does not have to intend to commit a crime but only to engage in conduct which constitutes a crime in fact. Furthermore, unlike at common law, the intended conduct need not amount to a felony; it is sufficient if it would constitute any offense. This enlargement of the definition of burglary is consistent with recent criminal code revisions and with the District of Columbia Code.14 The treatment of burglary as an entry with intent to engage in acts which, if performed, would only constitute a misdemeanor (e.g., petty larceny or criminal mischief) is warranted because the entry is an intrusion into the privacy of a dwelling.15 There is, however, no intent to reach situations where the conduct intended is an offense under this subchapter (criminal entry, criminal trespass, stowing away, or possession of burglar's tools).

B. Culpability

No state of mind is specifically assigned to the offender's conduct, i.e., entering or remaining surreptitiously. Consequently, by operation of section 303 (b) (1), the government must prove at a minimum that the conduct was "knowing" in other words, that the offender was aware of his entering or remaining surreptitiously, 16 The elements of "at night" and that the premises in question was a "dwelling which is the property of another" are existing circumstances. Accordingly, because no specific culpability standard is supplied, the requisite state of mind with respect to each circumstance is "reckless." 17 That is, it must be proved that the defendant was aware of but disregarded a risk that he was entering or remaining surreptitiously within a dwelling which is the property of another, and that the time he was engaging in such conduct was at night. The purposive element of an intent to engage in conduct constituting a crime carries its own culpability standard and is self-explanatory. As noted above, the intent that must be proved extends only to the conduct itself and not that the conduct in fact constitutes a crime.18

13 See section 111.

14 See 22 D.C. Code 1801: United States v. Cooper, supra note 6, at 97.

15 See Working Papers, p. 893.

16 See section 302(b) (1).

17 See section 303(b) (2).

18 See section 303 (c) (1).