wisconsin laws & defense
A burglary occurs when a person intentionally enters property held by another without the consent of the person in lawful possession of that property and with intent to steal or commit a felony in the place. Under Wisconsin laws, Statute 943, Burglary is a Class F Felony offense.
If the burglar is armed with a dangerous weapon, a device or container that can be used as a dangerous weapon, is unarmed upon entry but takes up a dangerous weapon, device or container that can be used as a dangerous weapon, or while within the trespassed premises opens or attempts to open any depository by use of an explosive, the charge is a Class E Felony offense.
If the burglar commits a battery upon a person lawfully within the trespassed premises or structure, the charge is a Class E Felony offense.
If the premises is a dwelling, boat or motor home, and another person is lawfully resident therein during the burglary, the charge is a Class E Felony offense.
common law & Wisconsin law burglary
Under common law, burglary was the breaking and entering into a dwelling of another at night, without permission, and with an intent to commit a felony therein. Wisconsin abolished common law, but held to its form as the state developed an evolving body of legislature often referred to as the Wisconsin Criminal Code.
Under Wisconsin law, any device, container or firearm possessed by the burglar upon entry or taken up by the burglar after entry constitutes a dangerous weapon for the purposes of elevating the crime to a greater felony offense. A firearm with a trigger lock on it, or a firearm that is unloaded will not prevent the prosecution from seeking the greater felony charge.
Burglary involves two forms of intent: the intent to trespass upon the property of another, and the intent to commit a felony or misdemeanor after the trespass. While Wisconsin law requires that there existed an intent to trespass, it need not be proven that the burglar knew that his or her entry was without consent.
Under the "self help" defense, the defendant must show that the property previously stolen from the defendant is the exact same property reclaimed by the defendant. If the property involves money, it must be the exact same dollar bills and coins.
Under common law, "breaking into" required force, such as breaking a door. Current Wisconsin law proscribes entering into a building, dwelling, enclosed railroad car, enclosed portion of any ship or vessel, a locked enclosed cargo portion of a truck or trailer, or a motor home or other motorized type of home or a trailer home, whether or not any person is living in such place, and any room within any of these structures.
Likewise, in most jurisdictions, statutory law has expanded the crime of burglary, and the breaking element now includes enlarging an opening and constructive breaking - by threat of force, by
deception, or by fraud, and in some jurisdictions, the element has been
Entry has been expanded to include any type of
entry, any part of the defendant, or any tool belonging to the defendant.
As well, the acts of breaking and entering can occur at different times,
so long as they are related to the same crime.
the dwelling of another
The "dwelling house"
has been extended to other structures, regardless of whether the structure
has a roof or attachment. Wisconsin laws prohibit illegal breaking and entering into of private homes, commercial businesses, motor homes, trailer homes, tractor trailers, railroad cars and boats and water vessels.
trespass upon property - commercial or private
As under common law principles, under statutory law, burglary
involves a trespass, and the burglar becomes a trespasser when he is
in the building at a time when he is not invited. There is a division
amongst U. S. jurisdictions on the issue of businesses
and the trespasser nature of a burglar's right to be in the establishment.
As noted, the trespass occurs when the right to access ends, hence the
majority of jurisdictions find that a business, which by its very nature is open to and
invites people into its establishment, does so with the expectation that
the invitation is open during normal business hours, but ends when the
business closes for the day. In a minority of jurisdictions, if the burglar
enters a business with the intent to steal, his intent bars consent and
therefore he is uninvited and his presence is a trespass.
Wisconsin statutory law recognizes the right of people to enter a business during the times that the business is open to the public. Entry at those times is considered to be with consent of the person who is lawfully in possession of the establishment.
at night or during the day
The time of day (night) has been expanded in
most jurisdictions to include any time of day, while in other jurisdictions,
the time of day serves as a qualifier for sentencing purposes resulting
in more sever sentences for burglaries committed at night.
intent to commit a felony or misdemeanor
to commit a felony has been expanded to include an intent to commit a
misdemeanor, too, however intent must still exist before the burglar enters
the structure. Even so, a jury need to specify which offense was intended.
A felon in possession of a firearm is committing a felony offense that can be used as the underlying intended felony offense in the process of a burglary. Here, it is a continuation of a felony, which is allowed under Wisconsin law; the intended crime need not be constructed in the mind before entry, nor physically during or after entry.
A burglary occurs the moment that the burglar makes even one substantial act towards entering the
structure, regardless of whether he actually enters or completes the intended crime within;
however, the intent to complete a crime within must have existed before
he attempt or entered the structure. Because burglary does not merge with
another offense, a defendant can be charged with the burglary and the intended crime or an attempt of the intended crime.
Intent to steal and intent to commit a felony are two different crimes. A person can be charged with both an intent to steal or an intent to commit a felony; a conviction may rest on the fact of whether it can be shown that both intents existed.
Under Wisconsin law, a person is assumed to have permission to enter a business during normal business hours; that permission ends when the business closes.
A person is never assumed to have permission to enter a private dwelling without permission. In a burglary prosecution, once proof of entry into a private dwelling is established, it is ordinarily the defendant's burden to show that consent existed.
Theft crimes cannot be mitigated to lesser crimes. As well, an attempted robbery is a separate and distinct crime from burglary; both may be charged.
Wagner & Wood