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Old 03-24-2013, 10:02 AM
Dikinalaska Dikinalaska is offline
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Quote:
Originally Posted by mc5aw View Post
This is incorrect, according to the following source's definition:

breaking and entering | LII / Legal Information Institute
Well I'd give you that the (even pushing open a door) being the gray area and up for interpretation. But you'd have a good argument in court either way with that one. Wikipedia has this to say:

Breaking can be either actual, such as by forcing open a door, or constructive, such as by fraud or threats.[4] Breaking does not require that anything be "broken" in terms of physical damage occurring. A person who has permission to enter part of a house, but not another part, commits a breaking and entering when they use any means to enter a room where they are not permitted, so long as the room was not open to enter.
Entering can involve either physical entry by a person or the insertion of an instrument with which to remove property. Insertion of a tool to gain entry may not constitute entering by itself.[4] Note that there must be a breaking and an entering for common law burglary. Breaking without entry or entry without breaking is not sufficient for common law burglary.

Although rarely listed as an element, the common law required that "entry occur as a consequence of the breaking".[7] For example, if a wrongdoer partially opened a window by using a pry bar and then noticed an open door through which he entered the dwelling, there is no burglary at common law.[7][Note 1] The use of the pry bar would not constitute an entry even if a portion of the prybar "entered" the residence. Under the instrumentality rule the use of an instrument to effect a breaking would not constitute an entry. However, if any part of the perpetrator's body entered the residence in an attempt to gain entry, the instrumentality rule did not apply. Thus, if the perpetrator uses the prybar to pry open the window and then used his hands to lift the partially opened window, an "entry" would have taken place when he grasped the bottom of the window with his hands

So they're definitely some gray area and I guess would fall to whoever's side had the better attorney. My thought is, I'm still going to know for sure who I'm about to pull the trigger on.
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