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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Wednesday, May 12, 2010

5 – Theft Crimes (Burglary)

5 – Theft Crimes (Burglary)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

Last time in crimes, we looked at false pretenses. Now we try burglary, technically merely a crime against property, but we’ll keep it here under theft crimes. Burglary, at common law, is the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein.

What constitutes a breaking? Technically, having to remove anything that blocks entry is a breaking. So opening a door or a window that was closed would be a breaking, but opening an already partially-opened door or window would not. There was a split of authority regarding whether entry was not gained by entry, but the exit was made through a barrier. Also, even if the front door was open when entry was made (not a breaking), if the defendant, once inside, opened another closed door inside to take something, that would be a breaking.

What constitutes an “entering?” There must be some sort of an entry. If the defendant kicked the door down, that would be a breaking, but then if the defendant did not come inside, there was no entering. It would be an entry if only part of the defendant crossed the threshold of the point of entry.

What is a dwelling house of another? Burglary was a crime against another’s home – thus “dwelling house.” Modern statutes have generally removed the dwelling house requirement and instead require the entry to be to a building of another.

What is “nighttime?” Generally, at common law, this meant from sun up to sun down, though modern statutes have removed this element altogether.

What is “with intent to commit a felony therein?” At common law that meant that coupled with the breaking and entering, the defendant had to have the intent to commit a felony inside the dwelling house. If the intent was to commit a misdemeanor, that would not suffice. If the intent was developed after the breaking and entering, there would not be burglary. Modern statutes say “with the intent to commit a crime therein.”

So that’s it for burglary. Next, we’ll try robbery.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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