A few weeks ago, the General Assembly passed, and the Governor signed into law, S.L. 2025-71. The bill makes quite a few changes to the criminal law. It creates new crimes, like a larceny offense specific to gift cards; enhances the penalties for existing crimes, including certain racing and reckless driving offenses; and creates sentencing enhancements when a gun is used in connection with specified drug crimes and offenses involving breaking or entering. Today’s post focuses on the bill’s amendment to G.S. 14-51, which addresses “first and second degree burglary.” Does the amendment quietly remove the element of burglary that requires the offense to be committed in the nighttime?
North Carolina law has long made “in the nighttime” an element of burglary. Before this month, the elements of burglary were not listed in any statute. Rather, G.S. 14-51 simply referred to burglary “as defined at the common law.” The statute divided the common law crime into degrees for purposes of punishment, depending on whether the premises were occupied at the time of the offense. Under the common law, as interpreted by the appellate courts, “[t]he elements of burglary in the first degree are the (1) breaking and (2) entering, (3) in the nighttime, (4) of a dwelling house, (5) of another, (6) which is actually occupied, (7) with the intent to commit a felony therein.” State v. Williams, 308 N.C. 47, 65 (1983). “Burglary in the second degree consists of all the elements of burglary in the first degree save the element of actual occupancy.” State v. Jolly, 297 N.C. 121, 127 (1979). (The statutory discussion of second degree burglary also included a reference to structures within the curtilage of a dwelling, but I’m not going to get into that in this post.)
That a burglary may only take place at night has been part of our law since the state’s earliest days. Going back to a time before any appellate courts existed in the state, in State v. Twitty, 2 N.C. (1 Hayw.) 102 (Super. Ct. Law & Eq. N.C. 1794), the court considered whether a defendant who broke into an outhouse in order to steal liquor had committed burglary. The court summarized the prosecution’s contention, which incorporated the elements of burglary, as follows: “that if the out-house be so near the dwelling-house, that it is used together with the dwelling-house as appurtenant to it, that it is burglary to break it in the night-time with intent to commit a felony.” Once the state supreme court was established, it expressed a similar understanding. In State v. Jesse, 20 N.C. 95, 103 (1838), the court wrote that burglary “is defined to be breaking and entering a dwelling house in the night time, and stealing goods therein, or breaking and entering a dwelling house in the night-time with intent to commit a felony.”
Over the years, a significant body of law has evolved concerning the nighttime requirement. There is no statutory definition of “nighttime.” Instead, “our courts adhere to the common law definition of nighttime as that time after sunset and before sunrise when it is so dark that a man’s face cannot be identified except by artificial light or moonlight.” State v. McKeithan, 140 N.C. App. 422, 432 (2000). That sounds somewhat subjective, but reviewing courts have added specificity by taking judicial notice of the beginning or ending of “civil twilight,” which is the time just before the sun rises or just after it sets when there is still light to see. See State v. Brown, 221 N.C. App. 383, 386 (2012) (taking judicial notice that civil twilight began at 5:47 a.m. on the date of the offense and reasoning that the crime took place before that time and therefore in the nighttime). As a total sidetrack, if you are interested in a deep dive on different definitions of “twilight” – civil, nautical, and astronomical – check out this page by the National Weather Service.
What S.L. 2025-71 did. Here’s the relevant portion of the session law:
In sum, the bill removes the reference to the common law and replaces it with what amounts to a list of elements for first and second degree burglary. The elements generally track the common law elements, with one major exception: the nighttime element.
So is the nighttime element gone? Yes. Under G.S. 4-1, the common law remains in force in North Carolina, but only if “has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete.” The replacement of the reference to the common law with a list of elements “otherwise provide[s] for” the crime of burglary and renders the common law offense obsolete. See generally State v. McLymore, 380 N.C. 185, 190 (2022) (noting that legislation concerning the subject matter of a common law rule supplants the common law).
Perhaps one could argue that the legislature did not intend to remove the nighttime element. The part of the bill in which the revision takes place is captioned “BURGLARY/B&E SENTENCE ENHANCEMENT.” The principal change wrought in that part of the bill is the addition of firearm enhancements to burglary, breaking or entering, and breaking out of a dwelling house. The caption doesn’t identify that part of the bill as making a major change to the underlying definition of burglary. Based on that, one could contend that the changes to G.S. 14-51 were merely an attempt to update or clean up the statute without changing its sweep, and the omission of the nighttime element was an inadvertent drafting error.
I see that argument as unlikely to prevail. First, the language of the revision is clear, and “[w]hen interpreting statutes, ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’” State v. Daw, 386 N.C. 468, 478 (2024) (quoting Conn. Nat. Bank v. Germain, 503 U.S. 249, 253–54 (1992)). Second, looking at the caption for the part of the bill in which the change appears opens the door to looking at the short title of the bill, which provides in part that the bill is “TO REVISE THE OFFENSES OF FIRST AND SECOND DEGREE BURGLARY.” Third, the bill also amends the offense of “breaking out of dwelling house burglary” in a way that is very clearly intended to remove the nighttime element, making it highly likely that the legislature intended to make a similar revision to first and second degree burglary. Here is the revision of the “breaking out” offense:
Discussion. The new law takes effect December 1, for “offenses committed on or after that date.” S.L. 2025-71 § 10.(e). It will be a significant change. Taken together, first and second degree burglary were charged over 1000 times last year. Removing the nighttime element may clear the path for many more burglary charges to be brought. Indeed, the vast majority of residential breaking or entering offenses (class H felonies under G.S. 14-54) probably will be eligible to be charged as burglaries (class D or G felonies, depending on whether the premises are occupied at the time).
Many other states have already removed the nighttime element from their burglary laws. Momentum grew after the Model Penal Code proposed eliminating the element in 1962, and these days North Carolina is, or was, a significant outlier. See Ira P. Robbins, Deconstructing Burglary, 57 U.C. Davis L. Rev. 1489, 1507 (2024) (“[N]early every state has eliminated the nighttime element.”); Jens David Ohlin, 3 Wharton’s Criminal Law § 32:12 (16th ed., Aug. 2024 update) (“Many jurisdictions have eliminated the nighttime requirement entirely for all degrees of burglary.”); Helen A. Anderson, From The Thief in the Night to the Guest Who Stayed too Long: The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L. Rev. 629 (2012) (tracing the history of the nighttime requirement and asserting that as of the writing of the article, only two states still retained the element).
Even with the demise of common law burglary, it is not yet “nighttime” for the common law. Arson remains “as defined at the common law,” G.S. 14-58, as does robbery, see G.S. 14-87.1. Other common law crimes include obstruction of justice and going armed to the terror of the public. But the number is dwindling, and the day may come when the common law of crimes is a matter of interest only to legal historians.