The Phillips & Associates Oklahoma Law Blog


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By Dustin Phillips on
September 24, 2013
February 5, 2020

What is the difference between assault and battery, and are the two always charged together? Is my friend accused of robbing a house or burglarizing a house? Is it indecent exposure or public indecency to urinate in public?There are a number of frequently confused criminal charges, and understanding why a person is charged with one particular crime over another often requires a simple explanation to clear up any confusion or misunderstanding. Sometimes, people interchangeably use the terms for two separate and distinct offenses. Sometimes, they think crimes which may be charged in conjunction with each other are always charged together.Two examples of such commonly confused crimes are burglary and breaking and entering.Generally, people think of burglary as breaking into a home or business and stealing what is inside. Oklahoma law, however, distinguishes between first degree burglary and second degree burglary, and it explicitly defines each offense.21 O.S. § 1431 - Burglary in the First DegreeEvery person who breaks into and enters the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either:

  1. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house or the lock or bolts of such door, or the fastening of such window or shutter; or
  2. By breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present; or
  3. By unlocking an outer door by means of false keys or by picking the lock thereof, or by lifting a latch or opening a window, is guilty of burglary in the first degree.

First degree burglary, then, is breaking into an occupied building with the intent to commit a crime. Although burglary typically involves theft, the law does not specify which type of crime the perpetrator intends to commit. First degree burglary could be unlawfully entering an occupied building with the intent to commit theft, rape, kidnapping, or any other criminal offense.First degree burglary is a felony punishable by a minimum term of seven years in prison and a maximum of 20 years.21 O.S. § 1435 - Burglary in Second Degree - Acts ConstitutingEvery person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection, in which any property is kept, or breaks into or forcibly opens, any coin operated or vending machine or device with intent to steal any property therein or to commit any felony, is guilty of burglary in the second degree.Second degree burglary involves breaking and entering any structure in which property is kept, including coin-operated machines and vending machines, with the intention of stealing or committing any other felony.State law makes it a separate misdemeanor offense to possess the implements of breaking and entering (crowbar, lock-pick, jimmy, etc.) with the intent to use those tools for breaking and entering or burglary.Second degree burglary is punishable by a minimum of two years in prison and a maximum term of seven years.21 O.S. § 1438 - Penalty for Entering with Intent to Commit a Felony, Larceny, or Malicious Mischief-Breaking and Entering Without PermissionA. Every person who, under circumstances not amounting to any burglary, enters any building or part of any building, booth, tent, warehouse, railroad car, vessel, or other structure or erection with intent to commit any felony, larceny, or malicious mischief, is guilty of a misdemeanor.B. Every person who, without the intention to commit any crime therein, shall willfully and intentionally break and enter into any building, trailer, vessel or other premises used as a dwelling without the permission of the owner or occupant thereof, except in the cases and manner allowed by law, shall be guilty of a misdemeanor.While burglary is a felony, breaking and entering is a misdemeanor. The offense includes instances of breaking and entering with the intent to commit a crime if those actions fall short of the legal definition of burglary, and it includes any unlawful entering of a residence without the permission of the owner, whether or not entry was gained through force or destruction of locks, windows, doors, etc.Find out more about different criminal charges and their penalties on our Oklahoma Criminal Defense website. view site


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