"License or privilege" language was adopted in New York for the specific purpose of legislatively overruling a case which held that a burglary can be premised upon a nontrespassory entry. The New York courts hold that the "license or privilege" language included in N.Y. Penal Law § 140.00(5) requires a trespassory entry.The court holds that the "license or privilege" language in Maine's Me. Rev. Stat. Ann. tit. 17-A, § 401 requires a like construction. The statute provides in part that a person is guilty of burglary if he enters a structure, knowing that he is not licensed to do so, with the intent to commit a crime therein. Breaking the statute down to its constituent parts, the court discerns four elements: (1) entry (2) of a structure (3) with the knowledge that the entry is not licensed and (4) with the intent to commit a crime within the structure. Obviously, the "license" referred to in the statute means the license to enter a particular structure. The "do so" clearly refers back to "enters." Accordingly, the prosecution must, as an independent proposition, prove beyond reasonable doubt that the accused knew that he was not "licensed" to enter the structure.
Convicted of burglary in violation of Me. Rev. Stat. Ann. tit. 17-A, § 401, defendant argued that the trial court's jury instruction as to the elements of the offense was so erroneous as to affect the outcome of the case. The trial court's instruction informed the jury that defendant's entry into the victim's home was consensual; therefore, the jury had to determine whether or not defendant knew that he was not licensed to enter with the intent to commit a theft. In other words, the jury had to determine if the victim's consent to enter was qualified. Defendant argued that under the common law and § 401, consent to enter was a complete defense to the crime of burglary. On review the court agreed, holding that burglary under § 401, like under the common law, required a finding of trespass. If the entry onto the property was with the consent of the owner or occupant, there could be no burglary no matter what defendant's intent was at the time.
Could there be burglary absent a finding of trespass?
The court held that there could be no "qualified" license to enter; it was either all or none, and that the trial court's instruction could have misled the jury. The court sustained defendant's appeal and set aside the judgment of the trial court that convicted him of burglary. The case was remanded for a new trial.