Common Law

Common Law Offenses Against the Habitation

Overview

• The two common law offenses discussed are burglary and arson.

• Both crimes have technical definitions that have evolved from common law to modern statutes.

• A detailed breakdown of the terminology and elements of these offenses is necessary to fully understand them, accompanied by illustrative examples.

Burglary

Definition

• Common law burglary is defined as:

  • Breaking and entering the dwelling of another at night with the intent to commit a felony within.

• Importance of each term is emphasized:

  • Breaking

  • Entering

  • Dwelling

  • Of another

  • At night

Elements of Burglary

1. Actus Reus (Physical Act)

   • Breaking

     • Common Law Definition: Any force used to gain entry counts as breaking.

     • Examples include:

       • Pushing open a door or pulling open a window.

       • Gaining entry through fraud (e.g., impersonating a police officer).

   • Entering

     • Entry is constituted by any body part entering the dwelling or an object intended to commit a felony.

     • Example: Sticking a foot in the door or throwing tools through a window counts as entering.

   • Dwelling

     • Defined as a place where someone sleeps.

     • Can include residences and businesses where a person sleeps.

   • Of Another

     • The dwelling must belong to someone other than the burglar.

   • At Night

     • Burglary can only occur during the nighttime as per common law definition; daytime occurs when the sun no longer provides visibility.

2. Mens Rea (Mental State)

   • The intent must be to commit a felony upon entry.

   • The requisite state of mind is crucial for the conviction of burglary.

Modern Statutory Changes

• Modern burglary statutes vary considerably from common law definitions:

  • Breaking: Some jurisdictions do not require breaking as a necessary element; merely entering suffices.

  • Dwelling: The scope has expanded to include any building (e.g., commercial buildings, cars, etc.) as relevant targets for burglary.

  • Night: Many jurisdictions have removed the nighttime requirement, allowing burglary at any time of the day.

  • Felony: Modern definitions include intent to commit any theft crime, even if not a felony under common law.

Examples of Burglary

1. Example 1: Bilbo Opens Door

   • Bilbo opens Smaug’s door at night intending to steal a goblet.

   • Common Law: Yes, he committed burglary (all elements met).

   • Modern Law: Yes, he also committed burglary under modern definitions.

   • Discussion on mens rea: Bilbo had intent concurrent with the actus reus upon entry.

2. Example 2: Bilbo Climbs Through Open Window

   • Bilbo enters through an open window.

   • Common Law: No burglary (no breaking).

   • Modern Law: Yes, if the jurisdiction only requires entering.

3. Example 3: Bilbo Throws Tools Inside

   • Bilbo throws tools into Smaug's home but does not enter.

   • Common Law: Yes (entered with tools).

   • Modern Law: Yes (liability expands).

4. Example 4: Bilbo Rings Doorbell

   • Bilbo uses fraud to gain entry for restroom use.

   • Common Law: Yes (fraud counts as breaking).

   • Modern Law: Yes (definitions expanded).

5. Example 5: Bilbo Forms Intent After Entry

   • Bilbo enters legitimately but later intends to steal.

   • Common Law: No burglary (no concurrent intent).

   • Modern Law: No burglary (same rationale applies).

Arson

Definition

• The actus reus of arson is defined as:

  • Burning down the dwelling of another.

• Breakdown of terms is similarly needed:

  • Burning

  • Dwelling

Elements of Arson

1. Actus Reus (Physical Act)

   • Burning: Burning has a technical definition:

     • Must involve actual flame damage.

     • Simply heat or smoke damage is insufficient; charred damage required.

2. Mens Rea (Mental State)

   • The mental state required is malice.

     • Common Law Meaning of Malice: Traditionally, malice indicated an evil or depraved mind.

     • Updated Definition: Now interpreted as recklessness or higher.

Modern Statutory Changes

• The modern definition of arson expands liability:

  • Dwelling: Can include commercial properties and vehicles.

  • Burning: Some jurisdictions also recognize heat, smoke damage, or explosions as sufficient for arson.

Examples of Arson

1. Example 1: Dolan Burns Down Law School

   • Burns law school down intentionally.

   • Common Law: No, not a dwelling.

   • Modern Law: Yes, could qualify if the structure is deemed a dwelling under modern statutes.

2. Example 2: Golem's Careless Cigarette

   • Golem carelessly tosses a lit cigarette, starting a fire.

   • Common Law: No, as it is not a dwelling.

   • Modern Law: Potential liability depends on recklessness.

3. Example 3: Goldman Burns His Own House

   • Goldman burns his house for insurance.

   • Common Law: Not arson (not another's dwelling).

   • Modern Law: Yes, many jurisdictions permit burning one’s own dwelling if done with the requisite mental state.