Recently questions came to me and my SOG criminal law colleagues about the crime of burglary in North Carolina that made it clear some readers would benefit from a discussion of statutory versus common law definitions of criminal offenses, as well as how to research legislative history. I will address these two issues using one scenario across a couple of blog posts. I hope these posts will help in interpreting and understanding statutes.
The inquiry we received pointed to North Carolina General Statute Section 14-51, reproduced below.
Based on reading this statute, the inquirer said something like this: “The statute doesn’t include the element of ‘at night’ that I thought was an element of burglary. Aren’t all the elements of the offenses of first and second degree burglary listed in this statute? Since that element isn’t listed here, when did the legislature remove the element of ‘at night’ from the offense of burglary? I’ve searched the session laws and the NC Criminal Law blog and can’t find it. Please help.”
First, good reader, let’s be clear, the General Assembly has NOT—I repeat—has NOT removed the element of “at night” from proof of first or second degree burglary.
I will address the issue of the elements of this crime and where to find them in this blog post. In a follow-up post, I’ll discuss how to research when the legislature has amended a criminal statute.
What’s an “element?” Criminal law scholars and practitioners have come to call the various facts that must be proven to show a crime occurred “elements.” For some offenses, elements have been laid out by a statute, an appellate court, or in the North Carolina Pattern Jury Instructions (what exactly these are is a topic for a future post). There isn’t always a single right way to list elements, but for offenses that have been around for a while, there is wide agreement about what the elements are.
The elements of burglary and many other common North Carolina criminal offenses can be found easily in North Carolina Crimes: A Guidebook on the Elements of Crime, Jessica Smith (Seventh Edition, 2012). First Professor Smith and now Professor Jamie Markham have created a cumulative supplement to that book each year since 2012. Currently a 2019 Cumulative Supplement is available. The Institute of Government, now School of Government, has continuously created versions of this reference book since 1977 to help law enforcement officers, lawyers, and court officials who must interpret and apply the criminal law in North Carolina.
First degree burglary and its elements specifically are discussed at NC Crimes, page 391 and the Cumulative Supplement, page 137. Elements that must be proven to show that a person is guilty of first degree burglary in North Carolina are:
- Breaks and
- Without consent
- The dwelling house or sleeping apartment
- Of another
- While it is actually occupied
- At night
- With the intent to commit any felony or larceny therein.
Wow, those are a lot of words that aren’t in the burglary statute. Where do all those elements come from? The tip-off for the reader of this statute that they need to look elsewhere for elements is the phrase “as defined at the common law” at the end of the first sentence. If you see that phrase in a statute, you can be pretty confident you won’t find all the elements listed in the statute. This particular statute mentions some of the other elements, but that’s in reference to designating the seriousness and punishment of the offense—first degree being the most serious, and second degree being a step below.
If element (6) listed above is missing in the facts, the crime is second degree burglary. That is the defining difference between first and second degree burglary. See NC Crimes, page 398.
The common law is significant to defining law in North Carolina. What is it? Google’s online dictionary defines the common law as: “the part of law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law.” For a more general discussion of various kinds of law and their interplay, see An Introduction to Law for North Carolinians.
As early as 1715, our legislature defined the common law as in force in the land. See G.S. 4-1 reproduced below.
It’s easy, and not completely right, to think of common law as old law handed down from England. In truth, court opinions have modified original common law and statutes over the years, and continue to do so today. Again, this makes research sources beyond statutes, like North Carolina Crimes, really important in trying to fully understand criminal offenses.
The basic elements of many North Carolina criminal offenses are defined by common law—arson, kidnapping, murder, and assault, to name some. Statutes may add elements for more specialized variations of an offense and to define punishments.
For example, N.C. G.S. 14-58 uses the phrase “arson as defined at the common law” to describe the offense of arson and sets out degrees based on the presence of different elements.
Confusingly, not all statutes have signals as clear as “as defined by common law.” The statute outlining degrees of first and second degree murder is an example of this (G.S. 14-17). As in the burglary provision, the statute distinguishes degrees, but doesn’t lay out the elements that must be proven to convict someone of murder offenses. Common law lays out those elements. Unfortunately, the statute does not contain the signaling phrase mentioned above.
Kidnapping (see G.S. 14-39) is an example of a criminal offense whose elements are fully defined by statute. In fact, that statute includes the language “as defined by” a previous subsection of the statute. Again, this is a pretty clear signal about where to find the elements.
Because of the interaction between common law and statutes, secondary research resources that describe applicable case law, like North Carolina Crimes, can be very helpful to understanding crimes and what must be proven to show guilt. Such resources layout the basics of the offense and point you to cases and issues for further research.
In my next blog post, I’ll address the inquirer’s questions about if and when the legislature amended the burglary statute and legislative history more generally. Stay tuned.