CHAPTER 468

RELATING TO BREAKING AND ENTERING

AN ACT TO AMEND CHAPTER 3, TITLE 11, SUBCHAPTERS IX AND X, DELAWARE CODE, BY PROVIDING THAT BREAKING AND ENTERING THE DWELLING HOUSE OR OTHER BUILDINGS OF ANOTHER WITH INTENT TO COMMIT A CRIME IS BURGLARY, OR BREAKING OUT OF ANY BUILDING AFTER COMMITTING A CRIME THEREIN IS BURGLARY; DEFINING AND PROVIDING FOR THE PUNISHMENT OF THE CRIMES OF BURGLARY IN THE FIRST, SECOND, THIRD AND FOURTH DEGREES; DEFINING AND PROVIDING FOR THE PUNISHMENT OF THE CRIME OF UNLAWFUL ENTRY OF A BUILDING WITH INTENT TO COMMIT A CRIME; DEFINING AND PROVIDING FOR THE PUNISHMENT OF THE CRIME OF SIMPLE BREAKING AND ENTERING OF A BUILDING; PROVIDING FOR THE PUNISHMENT AND MANNER OF PROSECUTION FOR SEPARATE CRIME COMMITTED IN BUILDING BY BURGLAR; AND PROVIDING THAT NO ACT COMMITTED OR CRIMINAL PROCEEDING COMMENCED PRIOR TO THE APPROVAL OF THIS ACT SHALL BE AFFECTED HEREBY.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Chapter 3, Title 11, Delaware Code, be and the same is hereby amended by striking out and repealing Sections 391, 392, 393, 394, 401, 402 and 403, being Subchapters IX and X of said title and chapter, and substituting in lieu thereof the following:

Subchapter IX. Burglary and Breaking and Entering § 391. Definitions

Break. The word "break" as used in this subchapter means and includes:

2. Opening, for the purpose of entering therein, by any means whatever, any outer door of a building, or of any apartment or set of apartments therein separately used or occupied, or any window, shutter, scuttle, or other thing, used for covering or closing an opening thereto or therein, or which gives passage from one part thereof to another; or,

3. Obtaining an entrance into such a building or apartment, by any threat or artifice used for that purpose, or by collusion with any person therein ; or,

4. Entering such a building or apartment by or through any pipe, chimney, or other opening, or by excavating, digging, or breaking through or under the building, or the walls or foundation thereof, or by climbing over any of the walls thereof.

Building. The term "building", as used in this section, includes a railway car, vessel, house trailer, booth, tent, shop, inclosed garden, warehouse, store, office, outhouse, or other erection or inclosure.

Dwelling house. If a building is so constructed as to consist of two or more parts, intended to be occupied by different tenants usually lodging therein at night, each part is deemed the separate dwelling house of a tenant occupying the same. If a building is so constructed as to consist of two or more parts occupied by different tenants separately for any purpose, each part or apartment is considered a separate building within the meaning of this section.

Enter. The word "enter", as used in this section, includes the entrance of the offender into such building or apartment, or the insertion therein of any part of his body or of any instrument or weapon held in his hand, and used, or intended to be used, to threaten or intimidate the inmates, or to detach or remove property.

§ 392. Burglary in the first degree

Whoever, in the nighttime, breaks and enters into the dwelling house of another person with intent to commit murder or rape, whether such intent is executed or not, is guilty of burglary in the first degree and a felony, and shall be imprisoned not less than 25 years nor more than 40 years.

§ 393. Burglary in the second degree

Whoever, in the nighttime, breaks and enters into the dwelling house of another person in which there is at the time a, human being, with the intent to commit any crime other than that of murder or rape, whether such intent is executed or not:

1. Being armed with a dangerous weapon or nitroglycerin, dynamite, gunpowder or any other high explosive ; or,

2. Arming himself therein with such a weapon or explosive; or,

3. Being assisted by a confederate actually present; or,

0. Who, while engaged in the nighttime in effecting such entrance, or in committing any crime in such a building, or in escaping therefrom, assaults any person, is guilty of burglary in the second degree and a felony and shall be imprisoned not less than 5 nor more than 20 years.

§ 394. Burglary in the third degree

Whoever breaks and enters the dwelling house of another, under circumstances not amounting to burglary in the first or second degrees, with intent to commit any crime therein, whether such intent be executed or not, is guilty of burglary in the third degree and a felony, and shall be imprisoned not more than 15 years.

§ 395. Burglary in the fourth degree Whoever,

1. With intent to commit a crime therein, whether such intent be executed or not, breaks and enters a building, or a room, or any part of the building; or,

2. Being in any building, commits a crime therein and breaks out of the same, is guilty of burglary in the fourth degree and a felony, and shall be imprisoned not more than 5 years.

§ 396. Unlawfully entering building

Whoever, under circumstances or in a manner not amounting to a burglary, enters a building, or any part thereof, with intent to commit a crime, shall be fined not less than $100, nor more than $500, or imprisoned not more than 3 years, or both.

§ 0. Unlawful and wilful breaking and entering, no intent being charged; penalty

Whoever, unlawfully and wilfully breaks and enters the dwelling house or other building of another, or in the nighttime unlawfully and wilfully enters the dwelling house of another, shall be fined not more than $300, or imprisoned not more than 3 years, or both.

§ 1. Punishment for separate crime committed in building by burglar

A person who, having entered a building under such circumstances as to constitute burglary in any degree or unlawful entry of a building, commits any crime therein, is punish-. able therefor as well as for the burglary, and may be prosecuted for each crime, separately or in the same indictment.

§ 2. Conviction of lesser offense

Whoever is charged with or indicted for any degree of burglary may be found guilty of that degree or of a lesser degree if the evidence warrants such a finding.

Section 2. No act committed or criminal proceeding commenced, prior to the date of the approval of this Act, shall be in any manner affected hereby but shall be governed by the law in force immediately prior to the approval hereof.

Approved July 18, 1955.