Crim Law 7

BREAKING¹ and ENTERING² the DWELLING³ of another at night, with the intent to commit a FELONY⁴ inside

1) BREAKING—means creating or enlarging an opening by FORCE (even minimal force)

• Includes—breaking a window, opening a window, opening a door
• Does NOT include—climbing through an already open window, entering with permission

2) ENTRY—some part of ∆'s body must enter the dwelling

3) DWELLING—structure where someone regularly sleeps (i.e., not an office building)

4) INTENT TO COMMIT A FELONY INSIDE—Specific intent crime (intent to STEAL, ROB, RAPE, KILL, ASSAULT, etc.)

Many states have ELIMINATED the technical requirements of common law burglary, especially

• "breaking"
• "at night"
• "dwelling"

• ENTERING or REMAINING
• UNLAWFULLY
• in a "BUILDING"
• with the intent to commit a "CRIME" inside

3RD DEGREE burglary, PLUS any one of the following

• building is a DWELLING
• a non-participant is INJURED
• ∆ carries a WEAPON

∆ KNOWS he is burglarizing a DWELLING, plus any one of the following

• a non-participant is INJURED
• ∆ carries a WEAPON

• 1. Defined: the malicious burning of a building
• a. Applies to all buildings, not just dwellings
• b. ∆ can commit arson to his own building

• 2. Burning: requires the material wasting of the structure
• a. mere blackening by smoke or discoloration by heat ("scorching") is not enough
• b. but mere charring is sufficient

3. Malice is required mental state (i.e., intent, super recklessness)

1) 4TH DEGREE—RECKLESS burning of a building

2) 3RD DEGREE—INTENTIONAL burning of a building

3) 2ND DEGREE—3rd degree arson, plus ∆ KNOWS or SHOULD HAVE KNOWN that someone was inside the building

4) 1ST DEGREE—2nd degree arson, plus ∆ uses an EXPLOSIVE DEVICE