ARTICLE 129 BURGLARY
Burglary is an offense that threatens the security of tangible possessions in the dwelling and poses the risk of bodily harm to the inhabitants of the dwelling. Any person subject to the UCMJ, who breaks into and enters the dwelling of another in the nighttime with the intention to commit an offense under Articles 118 through to Article 128 (except Article 123a), is guilty of burglary and faces action as imposed by his/her court-martial. The person is guilty whether or not the intent is carried out.
ELEMENTS OF ARTICLE 129
The following elements govern Article 129:
- The accused broke into and entered the victim's dwelling house unlawfully
- The accused broke into and entered the dwelling during the nighttime
- The accused intended to commit an offense punishable under Article 118 through 128 (expect Article 123a), by breaking in and entering the victim's dwelling
Unlawfully means the breaking in and entering were done without any proper authority, or the permission of any person authorized and consent to such acts.
Dwelling house refers to the residence or structure where people live. It includes a cluster of buildings used as residence, a farmyard or outbuildings within the common enclosure.
Nighttime refers to the period of darkness between sunset and sunrise when inadequate daylight makes it difficult to see a person clearly
Establishing burglary: The offense of burglary can be established only if the person has entered into the dwelling house. Inserting any body part or a tool/device into the home is sufficient.
Proof of intention: It is not necessary to prove that the accused attempted the offense or actually committed the offense. But it must be proved beyond a reasonable doubt that the accused intended every element of the offense at the time of breaking and entering. The elements of the intended offense(s) will be examined to decide the verdict. For instance, the judge will examine elements of intent to kill if the intended offense was murder.
The structure as a residence: The structure must be a residence at the time of the breaking and entering. It not necessary to prove the presence of a person in the structure at the time of burglary.
ACTUAL AND CONSTRUCTIVE BREAKING
The breaking can be actual or constructive. The following acts constitute actual breaking
- If the person removes any barrier disallowing entry into the home, it constitutes 'breaking'. Opening a partially-open window or door wider, opening a closed window/door, or cutting the window glass or its netting to gain entry into the home constitutes sufficient breaking.
- If the person has broken the home's inner door even though he/she has gained entry into the house without actually breaking in or is lawfully within the house but not authorized to enter the room in question. However, in this case, burglary is said to be committed only if the person enters into the particular room with the requisite intent.
The person is not said to have broken in if he/she has entered the home through an open door or window.
Constructive breaking constitutes the following means of unlawfully gaining entry into the home:
- Using trickery such as hiding inside a box
- By posing as someone he/she is not, such as impersonating a telephone inspector or a utility worker
- Frightening occupants of the house through threats of violence
- By colluding with an ally who is the home's occupant
- Coming down the chimney
LESSER INCLUDED OFFENSES
The lesser included offenses under Article 129 are Article 80 Attempts, Article 130 Housebreaking and Article 134 Unlawful Entry
A person found guilty under Article 129 is subject to the following punitive action:
- Dishonorable Discharge
- Total forfeiture of pay and allowances
- Ten years confinement
- Demotion to the lowest enlisted rank E-1