The fact pattern is familiar by now: an elderly adult man with a beard and a red suit performs hundreds of thousands of counts of breaking and entering into family residences in one single night. (We’ll leave out the flying reindeer.) His entry point to each residence varies: perhaps he enters through the chimney, or an unlocked front door. To add confusion, the children of the families are looking forward to this B&E event: instead of stealing items from the homes, instead the man leaves behind wrapped gifts, then departs, likely after taking a sip of milk and a bite of cookie from the plate left out anticipating his arrival. 

Would he still be guilty of breaking and entering under Wisconsin law? That’s a good question. 

It’s not even the first time this man has been on trial: just see the plot of the 1934 film “Miracle on 34th Street” to check out that case (this time not about breaking and entering- see a lawyer’s take on the legal arguments in that movie here

Wisconsin’s statutes surrounding breaking and entering fall under Wis. Stat. 943. 10, Burglary

From the statutory language itself, it sounds like Santa might be in the clear, since he did not intend to steal or commit a felony inside the dwellings. However, as we all know, we need to go to the caselaw to see how Wisconsin judges have interpreted and applied the statute. There’s plenty of caselaw linked at the Wisconsin Legislature’s site above, some that might help Santa’s case. 

For instance, State v. Barclay, 54 Wis. 2d 651 (1972) states that “while intent to steal will not be inferred from the fact of entry alone, additional circumstances such as time, nature of place entered, method of entry, identity of the accused, conduct at the time of arrest… without proof of actual losses, can be sufficient to permit a reasonable person to conclude that the defendant entered with an intent to steal.” Again, the facts in our pattern are both good and bad for Santa: he entered in the middle of the night, dressed strangely, identified himself as a mythical character, and was placing gifts under a family’s Christmas tree. He also ate cookies from the family’s house, but supposedly they were left out there for him. The case remains unclear. 

Another point that seems iffy for Santa’s case: Hanson v. State, 52 Wis. 2d 396 (1971) states that “the state need not prove that the defendant knew that his or her entry was without consent.” My question there is whether the state would need to prove that Santa’s entry was with consent, and whether the milk and cookies (and even a note addressed to him!) left out for Santa would be enough evidence that he had consent to enter. 

Whether Santa is guilty of a crime or not is a bit unclear according to the law, but one thing is for sure: he’d definitely need a good lawyer! 

Happy Holidays from the UW Law Library!

Submitted by Emma E Babler on December 21, 2021

This article appears in the categories: Law Library