ARTICLE 130 HOUSEBREAKING
A person who has unlawfully entered the structure or building of another with the intention to commit a criminal offense is subject to Article 120 housebreaking, and shall receive punishment as pronounced by a court-martial. The scope of this offense is broader than burglary. Here, it is not necessary that the place entered be a dwelling house or there be a breaking. It is also not necessary that the entry be made only during nighttime. The accused need not have the intent to commit one of the offenses punishable under Articles 118 through Article 128 of the UCMJ.
ELEMENTS OF ARTICLE 130
The following elements govern Article 130:
- The accused unlawfully entered the structure or building of another person
- In this respect, the unlawful entry was made with the intention to commit a criminal offense
Building refers to a shop, store, room or apartment in a building. A structure includes enclosures similar to dwellings or buildings, such as a houseboat, tent, railroad freight car, an enclosed goods truck or an inhabitable trailer.
Entry refers to an act effected prior to the completion of the offense. The entry of any part of the body or insertion of an instrument or a tool is deemed to be sufficient entry.
Criminal offense is an act or omission that is punishable by a court-martial
Unlawfulness of entry is a key aspect the judge takes into account when examining the facts and circumstances of the case. The structure entered by the accused can be private, public or semi-private. Entry into public buildings will be lawful during hours when it is officially open to the public.
For semi-private structure such as tents or barracks, the unlawfulness of entry will be dependent on relevant circumstances. These are:
- The function of the building
- Status, duties and character of the accused
- The conditions governing the entry, such as method, time and accused's purpose, if any
- Whether or not there was a directive seeking to regulate or limit free entry
- Whether or not the accused was explicitly invited to enter
- The invitational authority of the claimed host
- Whether or not the accused had dealt with the structure or its residents, and the nature of this dealing
- Whether or not the accused intended to commit a criminal offense inside the building
The accused shall be deemed to have entered a private or semi-private structure unlawfully, if he/she does not have the permission/consent of the person authorized to allow such an entry, or the lawful authority to enter the structure in question.
It is not necessary to prove that the accused committed the offense or attempted to commit the offense. But the intent to commit a criminal offense is an essential element of this article and it must be proven to convict the accused of this offense.
It must be proved beyond a reasonable doubt that the accused intended to commit every element of the offense at the time of unlawful entry. 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.
SEPARATE AND LESSER INCLUDED OFFENSES
Based on the evidence, the intended offense under housebreaking shall be separately charged. The lesser included offenses under the Article are Article 80 Attempts and Article 134 Unlawful Entry.
A person found guilty under Article 130 burglary is subject to the following punitive action:
- Dishonorable Discharge
- Total forfeiture of pay and allowances
- Five years confinement
- Demotion to the lowest enlisted rank E-1