Christmas is coming soon and children across the United States are looking forward to receiving gifts from Santa Claus when he comes down the chimney on Christmas Eve. But could someone be charged with breaking and entering for entering a home through the chimney? The short answer is yes, even though entering through an open chimney would not require “breaking” anything (assuming the entrant was small enough to fit through a chimney). Yet breaking and entering normally requires the entrant to physically open or enlarge the space through which they enter the house. Entering through a chimney is only breaking and entering because of an exception to this requirement. This blog post will explain the law surrounding breaking and entering, and why entering through a chimney counts as breaking and entering even if the entrant does not “break” anything.
Previously, breaking and entering was a necessary element of burglary in every state, but this is no longer the case. At common law, burglary was defined as “the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.”1 Some states today define burglary to no longer require “breaking,” and instead merely require entry into the house or building of another person. But breaking and entering is still an element of burglary in most states.
Entering through a chimney is breaking and entering in every state where breaking and entering is a necessary element of burglary. But this is an exception to the normal rule concerning breaking and entering. “Breaking and entering” normally requires using force to enter the building of another person: entering through an open door or window does not constitute a breaking and entering because the entrant did not use force to enter.
But all states recognize an exception for entering through a chimney. Doing this constitutes breaking and entering because chimneys do not invite entry the way open doors and windows do, and because chimneys are designed to be as closed off as they can be while still performing their function of letting smoke out of the house. Courts have recognized this exception since the 19th century, and still refuse to allow burglars to evade punishment by using a chimney as their vehicle of entry into a house.
Concerned that your holiday festivities could be ruined by chimney breaking and entering? Call the experienced Indiana criminal attorneys of McNeelyLaw today at 317-825-5110.
This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.