Santa is Coming Down the Chimney… Is that a felony?

The stockings are hung, the tree is lit and many are finishing their lists for Santa. Mere days from now, some will put out cookies and milk, and likely a note the jolly ole elf. Most will then jump into bed and patiently wait for the sound of sleigh bells to signal the arrival of the big man from the North Pole. Will Santa climb down the chimney and fulfill our every wish!

But what if I told you that Santa COULD BE breaking the law every time he sets his sleigh down on a roof? Are those cookies and milk really for Santa? How does he know that? How does he differentiate between cookies for him and the leftover cookies Uncle Earl forgot to put away after ‘falling asleep’ before the fireplace?

What if I told you Santa was possibly committing a FELONY every time climbed down the chimney and ate a cookie? “Don’t be ridiculous,” you might say to me. But the law in North Carolina applies.

NCGS 14-51 defines First Degree Burglary as a person who breaks and enters without consent the dwelling house or sleeping apartment of another while it is actually occupied at night the with intent to commit any felony or larceny therein.

During the night of Christmas Eve, Santa enters through an open chimney. Entering through a chimney constitutes burglary without the requirement of “breaking.” State v. Boon, 35 N.C. 190 (1859). If you don’t have a chimney, Santa will have to open a door or window, which also constitutes a “breaking.”

Santa then enters the house, apartment or dwelling while everyone is asleep. Everyone knows you must be asleep in your bed or he won’t come at all. Therefore, he enters at night, into a dwelling while the dwelling is occupied.

Santa then delivers your presents and eats a cookie and/or drinks some milk. Is he stealing? Did he intend to come into your home for the purpose of committing a felony therein? He has taken something from you that he intends to permanently deprive you of. Could Santa be a felon???

Of course not. Leaving him a note is a big deal. It’s evidence that you consented to his entry. You’ve invited Mr. Kringle into your home. For his action to be a crime, the breaking or entering required under NCGS 14-51 must occur without the permission or consent of the owner or some other person entitled to possession of the premises. While occupants and juveniles do not always have authority to give permission, let’s be honest, everyone wants to get a peek at Santa.

Furthermore, as far as the cookies, I think we all recognize Jolly Ole St. Nick is not merely entering the home for the purpose of devouring some leftover Pepperidge Farm Mint Milanos.  He’s coming to bring good tidings and cheer! The is a case without intent.

Help Santa out this Christmas. Make sure you leave him a note authorizing his entrance. The note is really more important than the cookies. At the same time, have one of the homeowners co-sign the letter. It will help Santa’s case.

Nonetheless, you really shouldn’t worry about Santa. I doubt he is. At the end of the day, as skilled as some law enforcement may be, they’re never gonna catch the magical Mr. Claus.

Santa – if you’re reading this, please consult an attorney prior to December 24th!

Happy Holidays from all of us on the HLB Criminal Litigation Team!


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