Crimes against the Habitation: Burglary & Arson

Question 1

What are the elements of common law burglary (6)?

Answer 1

At common law, burglary requires:

1. breaking
   - creating or enlarging opening by at least minimal force, fraud or intimidation
   - If D had consent to enter, there is no breaking
2. entry
   - any body part or instrument used to commit crime
3. of a dwelling
4. of another
   - ownership is irrelevant. must be occupied by someone other than D
5. at nighttime
6. with INTENT to commit felony inside
   - felony need not be carried out.

NOTE –> modern statues often eliminate the “technicalities” such as breaking, dwelling, occur at night time, intent to commit felony (sometimes misd. is enough)

Question 2

With regards to burglary when must intent to commit felony exist?

Answer 2

• intent to commit felony must exist AT THE TIME of entry

- if intent happens later, it’s not sufficient

Question 3

What are the elements of common law arson (4) ?

Answer 3

At common law –>

1. MALICIOUS (intentional or with reckless disregard of obvious risk)
2. BURNING (requiring some damage to structure by fire)
3. of DWELLING
4. of another

NOTE –> modern arson statutes (including MPC) have expanded rules for arson to include damage caused by explosion, to expand to different structures or cars/trains etc

NOTE –> on MBE, you can assume dwelling includes other types of dwellings

Question 4

With regards to “arson” what is the rule re: “damage”?

Answer 4

• COMPLETE Destruction IS NOT required, but there must be some damage

NOT SUFFICIENT –> mere blackening by smoke or discoloration by heat (scorching)

SUFFICIENT –> charring