Criminal Law Barbri Lecture

JX: a state acquires jx over a crime if:

- either the conduct or the result happened in the state.

Jay, standing in California, shoots a high-powered

rifle across state lines into Arizona and kills someone.

Which state has jurisdiction over the crime?

Both have Jx

Merger of Crimes refers to:

when you commit two crimes, do they merge or are you charged with both?

Merger of Crimes: Which ones merges?

There are only 2

Only solicitation and attempt merge into substantive offense.

No merger for conspiracy - separate crime.

So, with Merger, if you you attempt or solicit but then end up committing the crime then:

you can be convicted for the crime, but not attempting it.

But, can you be charged with conspiracy + the offense?

Yes, conspiracy does not merge.

Rick asks Carl to break into Negan's house to steal

an expensive bat and some hats. Carl agrees,

and they set out to put their plan in place. With

what crimes can Rick be properly charged and

convicted?

A. Solicitation only.

B. Conspiracy only.

C. Both solicitation and conspiracy.

D. Neither solicitation nor conspiracy.

What is the best answer?

- once the other party agrees, solicitation is gone.

- only conspiracy is left

Answer: B w/ conspiracy only

Elements of a crime

- Act (actus reas)

- Mental State (mens reas)

- concurrence: (act and mental state exist at same time)

- causation (harmful result caused by D's act)

- Harmful Result

Physical Act: an act can be -

- any bodily movement

- that is voluntary

Examples of bodily movements that do not qualify for criminal liability:

1. conduct that is not the product of your own volition

-reflexive/convulsive

2. An act performed while you are unconscious or asleep.

These are NOT voluntary and are thus do not qualify for criminal liability.

You are standing waiting for a bus when someone

pushes you into a third person, who then falls in

front of the bus, is run over and killed. Would you be held criminally liable?

No, act was not voluntary act by you.

Omission as an act: generally there is no legal duty to rescue But sometimes there is a legal duty to act.

It can arise in these situations:

- by statute (ex. required to file taxes)

- By K (Ex. a lifeguard or nurse has a legal duty to act)

- By relationship (parent's duty to protect kid)

- By voluntary assumption of a duty of care and then failure to adequately perform it.

- where your conduct created the peril

Shaq has a party on the lake at his lake lot.

Everyone suddenly notices a man flailing in the

lake, as if he is about to drown. Shaq tells everyone that he'll save the man, and he dives into the lake.

Shaq swims out to the man and sees that the

drowning man is Kobe. Kobe says, "Help all of my

championship rings are weighing me down, and

I'm drowning." Shaq says, "That's terrible - hasta la

vista, baby," and then swims back. If Kobe drowns,

does Shaq have any criminal liability?

yes, because he voluntarily assumed a duty of care by swimming out there

and then he failed to adequately perform.

Dr. Evil has a pool party and is showing off his fancy new laser pointer. He flashes the laser pointer into Austin's eyes, and Austin falls into the pool. Austin cannot swim, and Dr. Evil decides to laugh, rather than do anything to save Austin.

Will Dr. Evil face any criminal liability in this situation?

Yes, he created the peril and then he did not act to help.

The four CL mental states of a Crime

1. specific intent crimes

2. malice crimes

3. general intent crimes

4. strict liability crimes

Specific Intent Crimes are particularly important because they will qualify ----

for 2 additional defenses not available for other types of crimes.

1. voluntary Intoxication

2. unreasonable mistake of fact

The specific intent crimes (that qualify for 2 extra defenses) are:

Mnemonic

- solicitation

- conspiracy

- attempt

- first degree murder

- assault

- larceny

- embezzlement

- false pretense

- robbery

- burglary

- forgery

Students Can Always Fake A Laugh Even For Ridiculous Bar Facts

Malice Crimes

On the Bar, there are only 2

Murder

Arson

Key phrase: reckless indifference < intent needed

General Intent Crimes: Biggest Catch-All Category

- means the D has a general awareness that she is acting in a manner that would be prohibited by law.

I want to kill the woman wearing the Barney the

Dinosaur shirt. I pull out my gun, fire it at the woman in the Barney shirt, but the shot misses her and instead hits and kills the woman in the Dora the Explorer shirt sitting behind her. Am I guilty of any degree of murder?

Why or why not?

What crimes can I be convicted for?

Yes, doctrine of transferred intent

1. Murder of the woman you killed

2. attempted murder of the woman you missed

Strict Liability Crimes

The No Intent Crimes

How to tell if a crime statute is strict liability

- If the crime is in the administrative, regulatory, or morality areas, and

- you don't see any adverbs in the statute such as "knowingly, willfully or intentionally"

then the statute is meant to be a no intent crime of strict liability.

The importance of Strict Liability crimes on the bar exam is that -

any defense that negates intention cannot be a defense to the no intent crimes of strict liability.

because they are NO INTENT crimes anyway.

Linda was 15 years old, but she appeared and acted older. When asked, she always said she was 22, and she carried false identification saying she was that old. She frequented taverns and drank heavily. One evening in a bar she became acquainted with Duke.

He believed her when she told him her claimed age. They had several drinks and became inebriated. Later, they drove in Duke's car to a secluded spot. After they necked for a while, Duke propositioned Linda and she consented. Before Duke achieved penetration, Linda changed her mind, saying, "Stop! Don't touch me! I don't want to do it." When Duke did not desist, Linda started to cry and said, "I am

only 15." Duke immediately jumped from the car

and ran away. Duke was indicted for, among other crimes, contributing to the delinquency of a minor. The age of consent in the jurisdiction is 16. If the indictment above were based on a statute reading, "Whoever shall commit an act affecting the morals of a minor under 16 years of age shall be deemed guilty of contributing to the delinquency of a minor and shall be punished by imprisonment in a state penitentiary for a period not to exceed five years," Duke's best legal defense would be that:

(A) The statute is unconstitutionally vague.

(B) Linda, the woman in question, consented to his actions.

(C) He was reasonable in his mistaken belief that

she was not a minor.

(D) He did not intend to contribute to her

delinquency.

What is the best answer?

This is a SL crime because its a morality area + there are no adverbs to show a level of intent required.

A. is the best answer

none of other answers would help him with a SL crime.

With respect to the contributing charge under the statute set out above, proof by Duke that he was so inebriated that he could not have formed a criminal intent would be a:

(A) Good defense, because the charge requires a specific intent.

(B) Good defense, because at least a general

criminal intent is required for every offense.

(C) Poor defense, because intoxication can never be a defense to any crime.

(D) Poor defense, because the state of mind of the defendant is irrelevant to this offense, so long as he was legally sane.

What is the best answer?

D

Mental States and the Model Penal Code (MPC)

- purposely: conscious objective to engage in

the act or cause result.

- Knowingly: aware conduct will likely cause

result

- Recklessly: conscious disregard for substantial

and unjustifiable risk.

- Negligently: Fails to be aware of a substantial

and unjustifiable risk

Trying to fit in with her new peers, Leslie Knope goes to her weekly class "bar review" where she consumed several beers during a three-hour period. During the night, Leslie lost several bets with her classmates (forgetting things such as the holding in Pennoyer), and she had to drink six shots of tequila. Leslie didn't plan on drinking so much, but she has a fear of Uber and taxis. "Whatever," she thinks to herself, "I only live

two miles from here, so I can probably make it home okay. I'll just drive very slowly on the backroads." She gets in her car and within four blocks, she crashes into someone else's car. With what MPC mental state did she act with respect to hitting the other car?

Recklessly (if she did not perceive a risk, then why did she take the backroads and drive slowly?

Concurrence Element of a crime:

Concurrence - D must have had the intent necessary for the crime at the time he committed the act constituting the crime

Causation element of crime

Some crimes (e.g., homicide) require a

harmful result and causation.

Thus, when a crime is defined to require not merely conduct, but also a specified result (e.g., death),

- the defendant's conduct must be both the cause-in-fact and the proximate cause of the specified result.

Parties to a crime, Common Law Approach

COMMON LAW distinguishes 4 types of parties to a felony:

(1) Principals in the first degree:

- actually engage in the crim act

(2) Principals in the second degree:

- aid, advise, or encourage the principal and

- are present at the crime;

(3) Accessories before the fact:

- persons who aid, advise, or encourage

- but are not present at the crime

(4) Accessories after the fact:

- persons who assist the principal

- after the crime

Parties to a crime

Most Jxs have abolished the Difference Between

Principals in the 1st degree, principles in the 2nd degree, and accessories before the fact.

Accessories after the fact are still treated separately.

Parties to a Crime

MODERN VIEW

1. Principal

- one who,

- with the requisite mental state,

- actually engages in

- the act or omission

- that caused the criminal result.

2. Accomplice

- one who aids, advises, or encourages

- the principal

- in the commission of the crime charged

3. Accessory After the Fact

- One who receives, comforts, or assists another

- knowing that he has committed a felony

- in order to help the felon escape arrest, trial, or conviction.

Newman is standing outside of a bank chatting on his cell phone. He sees a van screech to a halt, and five masked men jump out and run past Newman into the bank. Newman ends his phone call, pulls out a bag of popcorn, and watches as one of the masked men shoots a gun into the air and yells, "This is a robbery, everybody get down!" Newman laughs as he watches the robbery take place, and then later waves to the men as they leave the bank and speed away in the van. Newman never called the police. Does Newman have any criminal liability as an accomplice?

No, not enough for aiding, encouraging, or advising

Mental State Required

In order to be convicted of a substantive crime as an accomplice, the accomplice must have:

1. The intent to assist the Principal in the commission of the crime, and

2. The intent that the principal commit the crime.

Scope of Liability of an Accomplice?

an accomplice is responsible for:

- the crimes she committed/aided/advised/encouraged,

AND

- for any other crimes committed in the course of committing the main crime

as long as these other crimes are probable and foreseeable.

a accomplice is liable for not only the crime that she committed/aided/advised/encouraged, but also:

- any other crime that is committed in the course of the crime contemplated

- if the other crimes are probable and foreseeable

to Withdraw, a person who encourages a crime must:

repudiate the encouragement

- Neutralizing his assistance - By trying to take away the "materials" he gave, OR

- Contacting police

Inchoate Offenses

Incomplete crimes

1. Solicitation

2. Conspiracy

3. Attempt

conspiracy

- an agreement (can be inferred from conduct)

- with intent to agree, and

- an intent to pursue an unlawful objective

- Majority View: overt act required

Kramer buys a new "Super Spy Set" and wants to try it out. He and George agree to break into Kramer's house at midnight with their new tools, grab some silverware and go pawn it. They dress in black clothes and black ski masks, get a ladder, pop the latch on a second floor window with a tool from the super spy set, and enter the house. They then grab some of Kramer's silverware from the kitchen and pawn it at an

all-night pawn shop. Can Kramer and George be properly convicted of conspiracy?

- there is an agreement

- intent to agree + to pursue,

- BUT - no unlawful purpose because it's his own house.

Conspiracy and Merger

Conspiracy does not merge with the substantive offense

On the Bar, you can be convicted of a crime and conspiracy to commit that crime.

the agreement to conspire can be:

inferred from conduct

it does not have to be express

Common Law Bilateral Approach to Conspiracy

1. - if one person is faking agreement

- the other cannot be convicted of

conspiracy

2. - If all persons with whom a D was alleged to

have conspired with are acquitted,

- the conviction of the remaining D is

precluded

Unilateral Approach to Conspiracy Under the MPC and Modern Approach

Only requires that one person have a genuine criminal intent to agree.

Overt Act Requirement for Conspiracy: Majority Rule VS Minority rule

Majority: In order to ground liability for conspiracy there must be:

- an agreement + overt act in furtherance of the conspiracy (any little act will do - mere preparation included).

Minority + CL: all that was needed to ground liability for a conspiracy is the agreement itself.

Overt Act Includes

- even mere preparation

- any little act will do if its in furtherance of conspiracy

On the MBE, if it does not say, which one do you apply?

Always apply the majority

unless told otherwise

Factual Impossibility. Is it a defense?

No. the fact that what they are trying to do is impossible is not a defense to conspiracy

What is the result of a withdrawal?

- even if it is adequate,

- can never relieve the D from liability for the conspiracy itself.

- The D can withdraw from liability for the other conspirators' subsequent crimes

- BUT, he cannot withdrawal from the conspiracy

Solicitation is:

- asking someone to commit a crime.

- it ends when you ask them

- Under CL, they don't have to agree

- If they do agree, it becomes a conspiracy and the solicitation merges and the only crime left when the other person agrees to do it is conspiracy.

Once again, factual impossibility is not a defense

Derek and Hansel agreed to break into Matilda's house in order to get money for their School for Kids Who Can't Read Good. They were arrested shortly after they pried open Matilda's back door and entered the house. Both were charged with conspiracy to commit larceny, among other crimes. Derek testified that

he had long suspected Hansel of being a thief, and that he agreed to the plan in order to catch Hansel, and that he had made an anonymous telephone call

to the police alerting them to the crime, enabling the police to arrest them "in the act." Derek also testified that he did not intend to keep the money. Hansel did

not testify.

The jurisdiction follows common law conspiracy rules.

As to the charge of conspiracy to commit larceny, if the jury believes Derek, it should find him:

(A) Not guilty, because he did not intend to steal.

(B) Not guilty, because he prevented the theft from occurring.

(C) Guilty, because there was an agreement, and the prying open of the back door was sufficient for the overt act.

(D) Guilty, because he is not a police officer, and thus cannot claim any privilege of apprehending criminals.

What is the best answer?

A is the best answer

- agreement?

- intent to agree?

- intent to pursue an unlawful objective? < NO

Attempt

1. specific Intent +

2. Overt Act in furtherance of the crime (substantial step)

For the purposes of attempt, the overt act must be MORE than mere preparation, it must be:

A substantial Step in furtherance of the commission of the crime

The majority rule is that an Attempt to commit a crime cannot be abandoned once:

a substantial step has been taken

The MPC allows for abandonment only if it is:

- fully voluntary, and

- a complete renunciation of criminal purpose

Legal Impossibility and Factual Impossibility.

Defenses to Attempt?

Legal Impossibility: what defendant intended to do is not illegal.

- IS A DEFENSE TO AN ATTEMPT CHARGE

Factual impossibility

- IS NOT a defense to an attempt charge

Snooki and J-Wow agree to rob an armored car to pay off their tanning salon debt. They purchase the necessary equipment and weapons, and rush the armored car when it comes to a stop in front of a bank. However, after throwing the guards out of the

armored car, they discover that there is no money in the armored car. Can Snooki and J-Wow be convicted of attempted armed robbery?

Yes. there was a factual impossibility because the truck had no cash, and

Fact Imposs is NOT a defense to ANY inchoate crimes

Homicide Categories

- Common Law: Murder

- First Degree Murder

- Second Degree Murder

- Felony Murder

- Voluntary manslaughter

- Involuntary manslaughter

Common Law Murder

- the unlawful killing

- of another human being

- with malice aforethought, which includes:

~ intent to kill, or

~ intent to commit a felony

~ intent to inflict great bodily harm

~Reckless indifference to an unjustifiable risk to a

human life.

Malice Aforethough is the state of mind required in CL Murder. Such a state of mind exists if there is:

- intent to kill

- intent to commit a felony

- intent to inflict great bodily harm

- reckless indifference to an unjustifiably high risk to human life.

First Degree Murder

1. Premeditated Killing

- Vic must be human

- D must have acted with intent or knowledge that his

conduct would cause death.

2. Felony Murder (during course of Felony)

3. Homicide of a police officer

- D must know that V is an officer, and

- V must be acting in the line of duty

Second Degree Murder

"depraved heart Killing" (some states)

- a killing done with reckless indifference to an

unjustifiably high risk to human life;

or

- murders that are not classified as 1st degree.

(e.g., premeditated killings or first-degree felony

murders or homicide of a police officer).

Felony Murder (which is a first degree murder) is:

Any killing - even an accidental killing - committed during the course of a felony.

Defense to Felony Murder

1. If D has defense to the underlying felony, then she has a defense to the felony murder.

2. The felony they are committing must be a felony other than the killing.

3. The deaths must be foreseeable

4. Deaths caused while fleeing from a felony are felony murders.

- But, once the D reaches a point of temporary safety,

deaths caused thereafter are NOT felony murders.

5. At CL, D is not liable for the death of a co-felon as a result of resistance by the V or the police.

Angelina and Brad hold up a convenience store. Angelina is drunk. During the hold up, Brad accidentally

shoots and kills the convenience store owner.

Is Angelina guilty of felony murder?

no.

the underlying offense is a specific intent crime, because of this, she is able to use the defense of voluntary intoxication.

Because she has a defense to the underlying crime, she has a defense to the felony murder.

Simon and Paula go in to rob a convenience store

with guns drawn. The store owner shoots at Simon

and hits and kills a bystander.

Would Simon and Paula be guilty of felony murder?

Yes. the death was foreseeable

In desperate need of money for more plastic

surgery, Heidi and Spencer hold up a convenience

store with guns drawn. The store owner pulls out a

gun and shoots and kills Spencer.

Is Heidi guilty of felony murder?

Under CL, No

Under MPC, Yes i think

Voluntary Manslaughter

1. killing in the heat of passion resulting from an adequate provocation by the V.

2. Provocation must be one that would arose sudden and intense passion in the mind of an ordinary person such to cause him to lose self control.

3. there must not have been enough time between the provocation and the killing for the passions of a reasonable person to cool, and

4. The D in fact did not cool off between the provocation and the killing.

Jordan takes his girlfriend JoJo out to dinner. At

dinner, another patron, Emily, comes over and

says hello to Jordan, whom she recognizes from

a previous date. In a fit of passionate rage and

jealousy, JoJo takes out a gun and kills Emily.

Should JoJo be convicted of the lesser charge of

voluntary manslaughter?

no, this would not be sufficient provocation to arouse sudden and intense passion in the mind of an ordinary person such to cause him to lose self control

Imperfect Self-Defense

- D has an honest but unreasonable belief that his life was in imminent danger, this defense will reduce a murder to manslaughter.

ONLY Recognized in some states

Involuntary Manslaughter

(1) Killing of criminal negligence, or

(2) Misdemeanor manslaughter. (killing someone while committing a misdemeanor or an unenumerated felony.)

Homicide Causation: Cause in Fact + Proximate Cause

Cause in Fact

- D's conduct must be the CAUSE IN FACT of the V's death.

- death would not have occurred BUT FOR the D's conduct.

Proximate Cause

- D is responsible for all results that occur as a natural and probable

consequence of his conduct

- even if he did not anticipate the exact manner in which they would

occur.

Proximate cause =

the natural and proximate consequence

even if the exact manner not anticipated

Other crimes against the person

battery

assault

aggravated assault

false imprisonment

kidnapping

rape

Statutory rape

Battery

- unlawful application of force

- to the person

- resulting in either bodily injury or offensive touching

*need not be intentional

*force need not be applied directly

*General Intent Crime

Assault

1. an attempt to commit a battery, or

2.

- the intentional creation - other than by mere words -

- of a reasonable apprehension

- of imminent bodily harm.

* if there has been an actual touching, the crime is battery

Aggravated Assault

Assault + one of the following:

- use of a deadly or dangerous weapon; or

- with the intent to rape, maim, or murder

False Imprisonment

- unlawful confinement of a person without his valid consent

* If a known alternate route is available, no confinement.

* One's consent to the confinement precludes it from constituting false imprisonment.

kidnapping

- The seizing, confining, abducting, or carrying away of a person

- by force,

*including transporting a competent adult for medical treatment without his or her consent.

Rape (sexual assault under most modern statutes)

BAR NOTE: the slightest penetration = complete crime

statutory rape

- unlawful sexual intercourse

- by an adult

- with someone under the age of consent

* Strict Liability

- consent is not a defense

- mistake of fact is not a defense

Offenses against property and the habitation

larceny

embezzlement

false pretenses

robbery

extortion

forgery

burglary

arson

larceny

Common law larceny requires

- a wrongful taking,

- a carrying away of property of another

- by trespass

- with intent to permanently deprive (at the time of the taking).

*slightest movement of the property is enough for purposes of the bar

*The intent to deprive the owner permanently must exist at the time of the taking or it is not common law larceny.

- BUT if a person takes property not intending to steal it, but then later decides to keep the property, she can be guilty of larceny under the theory of continuing trespass.

*Taking property in the belief that it is yours (or that you have some right to it) is NOT common law

larceny.

Continuing Trespass

If D wrongfully takes property, but without intent to steal: no larceny

BUT, if D later forms intent to steal, initial trespassory taking "continued" and guilty of larceny

Cersei and Daenerys are neighbors and best of

friends. Cersei decides that she wants to borrow

Daenerys's dress for a night, but she is afraid

Daenerys will say no. So Cersei sneaks into

Daenerys's closet, takes the dress, and plans to

return it to the closet the next day. After sneaking

into the house and grabbing the dress, Cersei is

stopped by a police officer upon leaving Daenerys's

house and she is arrested. Is Cersei guilty of

common law larceny?

No, because she did not have the intent to steal it and permanently deprive C of it.

Is taking property when you believe it is yours considered CL Larsony?

No

In which of the following situations would Defendant

be guilty of common law larceny?

(A) Defendant took Sue's television set, with the intention

of returning it the next day. However, he dropped

it and damaged it beyond repair.

(B) Defendant went into Tom's house and took $100 in

the belief that Tom had damaged Defendant's car in

that amount.

(C) Mistakenly believing that larceny does not include

the taking of a dog, Defendant took his neighbor's dog

and sold it.

(D) Unreasonably mistaking George's car for his own,

Defendant got into George's car in a parking lot and

drove it home.

What is the best answer?

C. ignorance of the law is not a defense.

D is not the answer because Larceny IA a specific intent crime - which means that unreasonable mistake of fact and voluntary intoxication are defenses.

Embezzlement (Definition + Bar tips)

- fraudulent conversion of property of another.

BAR NOTES

* embezzler always starts out with lawful possession, followed by an illegal conversion.

* A Trustee is often the MBE Embezzler

* you dont have to carry it away - just being in unlawful possession is enough.

* the embezzler does not have to get the benefit

A trustee takes money from the trust for the

purpose of donating it to charity. The trust, however,

is not set up as a charitable trust. The trustee

donates all of the money to charity. Is the trustee

guilty of embezzlement?

yes, started with legal possession and made an illegal conversion

False Pretenses (def + bar tips)

D persuaded the owner of property to Convey title by false pretense (fraud)

bar tips

* conveyance of title is the center of false pretense

* the false representation could be as to a present OR a past act

* a false promise to do something in the future CANNOT ground liability for false pretenses

Larceny by trick vs. False pretenses

If only possession of the property is obtained, the offense is larceny by trick.

If title is obtained, the offense is false pretenses.

Robbery (Def + Bar Tips)

- the taking of personal property

- of another

- from the other person's presence

- by force or threat (imminent)

- with intent to permanently deprive him of it.

Bar Tips

* the presence requirement is broadly drawn - would even cover a farmer tied up in a barn while things are taken from his house

* Force or Threat: things like ripping necklace from neck is enough

* Threat - must be of imminent harm

Lumbergh goes into Milton's office and says, "Yeah

... I'm gonna need you to come into the office this

weekend to finish those reports." Milton replies by

saying, "Yes, but ... I want my stapler back. And also,

if you don't give me $500 by next Monday I will

beat you up and burn your office to the ground."

With what crimes can Milton be properly charged

and convicted?

(A) Robbery

(B) Attempted Robbery.

(C) Both Attempted Robbery and Robbery.

(D) Neither Attempted Robbery nor Robbery.

What is the best answer?

neither.

This is extortion

Chuckster needs money to support his gambling

habit. While riding the subway to the dog track,

Chuckster intentionally picks the pocket of Rex,

taking Rex's wallet. Chuckster later uses the money

in the wallet to bet on the dog races. Is Chuckster

guilty of robbery?

No, lacks force or threat

Carl is walking down the street with his hand in a

paper bag. As Lenny approaches from the opposite

direction, Carl stops Lenny and pushes the paper

bag into Lenny's ribs. "I've got a gun in here. Give

me all of your money or I'll shoot you." Carl grabs

the money and is arrested two blocks later by a

nearby officer, who discovers that Carl did not have

a gun in the paper sack, but was using his finger

to poke Lenny in the ribs. Is Carl guilty of armed

robbery?

Yes.

If you are simulating a deadly weapon, you are on the hook for armed robbery.

extortion

- knowlingly

- seeking to obtain property or services

- by means of a future threat

Extortion is different from robbery in that:

• You don't have to take anything from the person or his presence to be

extortion.

• The threats are of future harm—not imminent harm.

Forgery

- the making or altering of a false writing

- with intent to defraud

NOTE

*any writing that has apparent legal significance can be subject to the crime of forgery.

Burglary (def + Bar Tips)

- breaking and - entering (any body part crosses into house)

- of a dwelling of another (not a barn or commercial bldng)

- at night (CL)

- with intent to commit a felony therein (existed at time of breaking and entering)

Bar Tips

*Breaking - can be actual, which involves at least slight force, OR constructive

Actual and Constructive Breaking

(1) Actual breakings: It is not an actual breaking for someone to come uninvited through a wide open door or window. If wide open - there is no breaking. BUT if someone pushes open an interior door to the bedroom or living room then a breaking

exists.

(2) Constructive breakings: A breaking by fraud or threat.