Criminal Law for the Criminal Justice Professional Norman M. Garland Fourth Edition Chapter 10 ©McGraw-Hill Education. All rights reserved. Authorized only for instructor use in the classroom.  No reproduction or further distribution permitted without the prior written consent of McGraw-Hill Education.

Crimes against Habitation 10.1 Arson 10.2 Burglary Chapter 10 Crimes against Habitation

Chapter Objectives Understand the difference between common law and modern law arson Explain the difference between specific intent and general intent arson List the three elements of burglary Explain how a burglary can be committed without actual entry by the perpetrator

Chapter Objectives (continued) Understand the intent required to commit a burglary Explain the difference between simple and aggravated burglary State the difference between burglary and breaking and entering Name the elements of the crime of possession of burglar’s tools

10.1 Arson Common law arson Willfulness Curtilage The malicious and willful burning of another’s house Willfulness Curtilage The voluntary, intentional nature of a crime; required as a separate element of arson The land immediately surrounding and associated with the home, including such structures as a barn, outhouse, or milk house

10.1 Arson (continued) MPC drafters noted three legislative patterns in the U.S. Classifying the offense in relation to the types of property involved Classifying the offense in relation to the danger to persons involved Following the influence of the Model Arson Law proposed by the National Board of Fire Underwriters in 1953 Modern arson The malicious, willful burning of, or attempted burning of, one’s own or another person’s property

Intent Required for Arson A person can be culpable only if he or she: Voluntarily commits underlying the criminal act or acts without accident, mistake, or negligence Has the intent to achieve a particular result

Elements and Degrees of Arson Factors specified in statutes punishing higher levels of arson include: Type of property burned Previous conviction for arson Value of caused by the fire Attempt to commit arson while other people are present inside the building

Application Case 10.1 Poff v. State

Figure 10.1: Vermont Statutes Defining Arson 502. First degree arson. A person who wilfully and maliciously sets fire to or burns or causes to be burned, or who wilfully and maliciously aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging, or adjoining thereto, whether the property of himself or of another, shall be guilty of arson in the first degree, and shall be imprisoned not more than ten years nor less than two years or fined not more than $2,000.00, or both. 503. Second degree arson. A person who wilfully and maliciously sets fire to or burns or causes to be burned, or who wilfully and maliciously aids, counsels or procures the burning of any building or structure of whatsoever class or character, whether the property of himself or of another, not included or described in Section 502 of this title, shall be guilty of arson in the second degree, and shall be imprisoned not more than five years nor less than one year or fined not more than $1,000.00, or both. 504. Third degree arson. A person who wilfully and maliciously sets fire to or burns or causes to be burned, or who wilfully and maliciously aids, counsels or procures the burning of any personal property of whatsoever class or character, not less than $25.00 in value and the property of another person, shall be guilty of arson in the third degree, and shall be imprisoned not more than three years nor less than one year, or fined not more than $500.00, or both. 505. Fourth degree arson. A person who wilfully and maliciously attempts to set fire to or wilfully and maliciously attempts to burn or to aid, counsel or procure the burning of any of the buildings or property mentioned in Sections 502–504 of this title, or who wilfully and maliciously commits any act preliminary thereto, or in furtherance thereof, shall be guilty of arson in the fourth degree, and shall be imprisoned not more than two years nor less than one year or fined not more than $500.00, or both. SOURCE: 13 V.S.A. §§ 502–05 (West, Westlaw 2016).

10.2 Burglary Common law burglary Modern burglary Breaking and entering, in the nighttime, of the mansion or dwelling house or curtilage of another, with the intent to commit a felony Modern burglary Entering, whether in the daytime or at night, of any building, structure, or vehicle, with the intent to commit any criminal offense

Elements of Burglary Entry Some states require entry “at night” Many jurisdictions have eliminated the burglary requirement of a breaking Inner door A door inside a building that does not lead directly to the outside Constructive entry An entry effected by using an instrumentality, such as another person, an animal, or a physical object

Elements of Burglary (continued) Time of day requirements Dwelling or building requirements Intent Elements of burglary are complete when entry is made with requisite intent Night time At common law, the period between sunset and sunrise when there is not enough daylight to discern a man’s face Sleep test Whether the dwelling is used regularly as a place to sleep determines whether a dwelling is occupied

Breaking and Entering Breaking and entering Unlawful forced entry; similar to burglary, but without the specific intent to commit a theft or felony inside the structure

Degrees of Burglary Simple burglary Aggravated burglary The unauthorized entering of any dwelling, vehicle, watercraft, or other structure, with the intent to commit a felony or theft therein Aggravated burglary Simple burglary with the added elements of entering an inhabited dwelling, or any structure or vehicle, while armed with a dangerous weapon, or by committing a battery after or upon the entry

Degrees of Burglary (continued) Arizona divides burglary into three categories First-degree burglary - Person or accomplice commits burglary with a weapon Second-degree burglary - Person enters or stays in residential structure intending to commit theft or felony Third-degree burglary - Person enters or stays in a nonresidential structure intending to commit theft or felony

Possession of Burglar’s Tools A person does not have to own burglar’s tools to be criminally culpable Possessing such tools is just one part of this crime A person must have the requisite intent to commit burglary Burglar’s tools Tools and instruments that are designed, adapted, or commonly used to commit burglaries

Vehicular Burglary Basic burglary statute of many states creates the crime of vehicular burglary by defining vehicles as a structure that can be the subject of breaking and entering Motor vehicle Vehicle proceeding on land by means of its own power plant and free of rails, tracks, or overhead wires Joyriding Illegal driving of someone else’s automobile without permission, but with no intent to deprive the owner of it permanently

Application Cases (continued) 10.2 Youthful Burglars 10.3 State v. Cochran 10.4 People v. Czerminski 10.5 K.P.M. v. State