Page 32 Flashcards
How does the MPC treat burglary?
- no breaking
- can be a building or occupied structure
- any purpose to commit a crime counts
What are the structure crimes?
Burglary and arson
What is burglary at modern law?
Any trespassory entry to any structure at any time with intent to commit a felony or larceny therein
Is burglary considered an inherently dangerous felony?
Yes, so felony murder applies
Murders that happen during a burglary are usually considered what?
First degree, because of the inherently dangerous nature of a burglary, so felony murder applies
What type of intent crime is a burglary?
Specific intent, so you must prove defendant entered the structure intending to commit a felony inside
When you’re discussing burglary on an exam, what should the focus be?
Common-law burglary, and if it doesn’t fit under there, and then discuss modern burglary
What are the elements of common-law burglary?
- trespassory
- breaking
- and entering
- of the dwelling
- of another
- at nighttime
- with intent to commit a felony therein
What does the trespassory element of burglary mean?
Entry without consent
If you are an invited guest or roommate, and you have the authority to enter a house, can a burglary be committed?
No
What are the three different types of consent that are applicable to the trespassory element of burglary?
- implied consent
- express consent
- fraudulent consent
What is implied consent for burglary?
Permission to enter a structure can be implied, like retail stores have implied permission to enter for customers
Is there implied consent to enter a store that is not open for business?
No
Is there implied consent to go into areas of stores that say employees only?
No
What is express consent for burglary?
If there is an open sign in the window
How can permission to enter a structure be revoked?
As long as it is actually received by the defendant
What is fraudulent consent for burglary?
You have permission to enter the structure, but you got it with intent to commit a felony therein, so because it is fraudulent it is not valid, so you have committed a trespassory breaking
What is the common law breaking element of burglary?
Opening something that was closed but not necessarily locked in order to enter
Is walking through an open door enough for burglary?
No
If you only have authority to use certain portions of a property, or be in certain places at certain times, is it a breaking to violate those rules for burglary?
Yes
Why can there not be a breaking for burglary for houses that are open to the public?
Because everyone is invited in
What is a constructive breaking for burglary?
When entry is gotten by fraud, deception, or threat of force
What are some other ways to accomplish a breaking for burglary?
Enlarging an opening, raising a shade, pushing back the curtain
If you trick someone into getting them to let you into their house by pretending to be someone else, have you committed a breaking for burglary?
Yes
If you shoot through the open window of the house with intent to kill someone, have you committed a common law breaking?
No, because the window was already open
If you shoot through an open window and kill someone, have you done a constructive breaking for burglary?
No, because the window wasn’t opened because of threat, trick, or co-conspirator aid
If you shoot through an open window and kill someone, have you committed a modern burglary?
Yes, because there was a trespassory entry when you shot through the window that would be a constructive breaking
How can a single act be both a breaking and entry?
Shooting through a closed window. Breaking was breaking the window, and the entry was the bullet that shot through and killed someone
If there is only a breaking and no entry, what has been committed?
Attempted burglary
What is required at common law for entering for burglary?
Any entry of the defendant’s person, no matter how slight, across the plane of the house
What is the example of an entry for burglary?
Opening a closed window and reaching inside to steal something
What are the two different kinds of entry that can happen for a burglary?
- constructive entry
- instrumental entry
What is a constructive entry for burglary?
When defendant sends another that is incapable of committing an offense, or someone under his control to do the felonious act, so that person became a tool that was used by the defendant
What is an example of a constructive entry for burglary?
Sending a child inside to do the stealing
What is an instrumental entry for burglary?
An instrument is used to directly carry out the felonious intent
What is an example of an instrumental entry for burglary?
Opening a window, and using a pole to reach a purse inside on the table and grab the purse
If you use an instrument to open a structure can that be an instrumental entry?
No because the instrument wasn’t directly used to carry out the felonious intent
At common-law, what is considered the dwelling house of another for burglary?
Any structure ordinarily used for sleeping or within the curtilage of the home
Could breaking into a convenience store be a burglary?
- CL: no, because it isn’t the dwelling
- MPC: yes, because any structure counts
How is the dwelling house of another element of burglary treated under modern law?
Any structure counts
What are some examples of structures at modern law that can count for burglary?
Hotels, offices, cabins, automobiles, railway cars, vessels, stores
If the residents of the dwelling are away, can a burglary still happen?
Yes
What is the situation where a burglary cannot happen when the residents are away?
If they haven’t moved into the house yet
Can a D burglarize his own house?
No, because it must be the dwelling house of another. If defendant rents out his house then it becomes that of another
What does the dwelling house “of another” requirement mean for burglary?
Whoever has actual possession of the house, so that could be a renter
Are hotels considered the dwelling house of another?
- CL: they are not the dwelling of the guest, but if the hotel manager lives at the hotel, then his space is his dwelling and all other rooms are his curtilage
What does the “night time” requirement for burglary mean?
At common-law it was anytime in the day when you couldn’t make out the defendant’s features through natural light (dusk to dawn)
What has happened to the nighttime requirement for burglary at common law?
It is been removed and can now happen anytime of day or night
Do the acts of breaking and entering have to happen on the same night for a burglary?
- CL: no, they just both have to happen at night
- Modernly: no, you can break one day and enter the next
What does intent to commit a felony inside mean for burglary?
When the breaking happens, the defendant must have a felonious purpose for going inside
If a felony doesn’t actually get committed once the defendant is inside, has a burglary occurred?
Yes, because it doesn’t matter if the felony gets committed, only that the purpose to commit one was present at the time of the breaking and entry
Modernly what is the intent to commit a felony inside element for burglary?
Intent to commit a misdemeanor is enough
What are the common law felonies?
Mr. & Mrs. Lamb
- murder
- rape
- manslaughter
- robbery
- sodomy
- larceny
- arson
- mayhem
- burglary
What is the mnemonic to help remember the common-law felonies?
Mr. & Mrs. Lamb
How do actions imply intentions for burglary?
If defendant commits a felony right after entering the structure, that implies that he intended to do it when he entered
If a person is taking back their own property, or taking property with an honest mistaken belief it belongs to someone that authorized them to take it, has a burglary occurred?
No, because there was no intent to steal
