Students' Page > Criminal Law > Unit 11

Crimes against Habitations

What is a habitation?

  • The term habitation generally refers to people’s houses.
  • The two most common crimes against habitations are burglary and arson.
  • Under the common law, burglary laws protected homes from nighttime intruders; arson protected them from "malicious and willful" burnings.
  • Modern statutes have grown far beyond these origins—burglary and arson statutes protect many different types of structures today.

Burglary

Sir Edward Coke defined common law burglary as follows:

"A felon, that in the night breaketh and entereth into the mansion house of another, with intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent is executed or not."

Common Law Elements of Burglary

    According to Coke’s Definition, common law burglary consists of the following elements:

  1. Breaking and Entering
  2. Of a dwelling
  3. At night
  4. And inside the dwelling
  5. The intent to commit a felony

Mere Invasion

  • Under the common law, merely invading someone’s home without the intent to commit a felony inside was considered as a trespass.
  • Trespass was only a misdemeanor, punished by fines.
  • Burglary, on the other hand, was a felony punishable by death.

Modern Burglary

While modern burglary statutes vary from jurisdiction to jurisdiction, most have the following elements:
  • Breaking and entering and also simply remaining
  • Homes and any structure with four walls and a roof and even most vehicles
  • During the night and during the day
  • With the intent to commit felonies and also most other crimes.

Burglary Actus Reus

The actus reus of burglary generally consists of two elements: breaking and entering.

At one point, breaking meant a violent entry, but very early on it came to include much more than knocking down doors and smashing windows.

By the eighteenth century, such things as picking locks, opening doors with keys, or lifting up a door latch counted—about the only thing that wasn’t breaking was walking through a wide open door.

Constructive Breaking

  • By 1900, the common-law element of breaking had become a mere technicality.
  • Entering structures in an unusual manner, such as through a chimney, was called constructive breaking.
  • So was opening a door for an accomplice.
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  • Several states have done away with the breaking requirement entirely by adopting the Model Penal Code’s unprivileged entry definition of burglary actus reus.

The MPC provides that:

A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licenses to enter.

Entering

  • Like breaking, entering has a broad meaning under burglary law.
  • From about 1650, partial entry was enough.
  • One court ruled that a burglar "entered" a house because his finger was inside the windowsill when he was caught.
  • A Texas court ruled that a bullet fired through a door constituted entry.
  • Several states have done away with the entry requirement by providing that remaining in a structure lawfully entered is enough.
  • Example: a burglar enters a store during business hours and hides in the bathroom until after the store closes with the intent to steal.
  • Some states don’t even require the burglar to get inside—they just have to try.

Surreptitious Remaining

Surreptitious remaining means that the perpetrator entered lawfully with the purpose to wait inside to commit a crime.

This requirement distinguishes between invited guests and potential criminals who enter lawfully but remain in order to commit a crime.

Circumstance Element: Structure

  • A material circumstance of burglary is what structures qualify.
  • Modern law goes far beyond the common-law restriction to dwellings.
  • Most modern burglary statutes cover an almost limitless array of structures.
  • Definitions such as "any structure" or "any building" are common.

The Steal the Whole Car Paradox

Some states making entering a vehicle with the intent to steal a burglary.

In these states, it is a less serious offense to steal the car than it is to steal something of value out of the car.

MPC Definition of Structure

The Model Penal Code definition limits burglary to occupied structures.

This limit covers "intrusions that are typically the most alarming and dangerous."

According to the MPC, occupied structure means "any structure, vehicle, or place adapted for overnight accommodations of persons, or for carrying on business therein, whether or not a person is actually present."

Circumstance Element: Of Another

  • Another common law requirement was the burglars have to break and enter the "dwelling of another."
  • Modern law has expanded the common law definition.
  • For example, landlords can burglarize their tenants’ apartments.

Circumstance Element: Nighttime

  • At common law, burglaries have to take place at night.
  • The requirement of the circumstance of nighttime was based on three considerations.
  • First, its easier to commit crimes at night.
  • Second, its harder to identify suspects you’ve seen at night.
  • Third, and probably most important, nighttime intrusions frighten victims more than daytime intrusions.
  • At least eighteen states have retained some form of the nighttime requirement.
  • Some do so by making nighttime and element of the crime, other by treating it as an aggravating circumstance.
  • Other states have eliminated it entirely.

Burglary Mens Rea

  • Burglary is a specific intent crime. The prosecution has to prove two mens rea elements:
  • The intent to commit the actus reus of breaking and entering or remaining;
  • The intent to commit a crime once inside the structure broken into, entered, or remained in.
  • Notice that it is not necessary to complete or even attempt to complete the intended crime.
  • So if I break into my enemy’s house with the intent to murder him, change my mind just inside the front door, and return home without hurting anyone, I’ve committed burglary.
  • Since the mens rea of intent to kill was present when I entered, the burglary was completed at the moment I entered the house.
  • While completing the indented crime is not an element of the crime, it might well be evidence of mens rea.
  • For example, if I’m caught leaving a house with a big screen TV, jurors can infer from that that I entered the house with the intent to steal the TV.

Grading Burglary

Because burglary is defined so broadly, many states have divided it into several degrees.

Arson

  • Arson is a serious crime because it poses a threat to life and property.
  • Arson kills hundreds and injures thousands of people every year.
  • It damages and destroys more than a billion dollars in property and in lost taxes and jobs.
  • It has also increased insurance rates throughout the US.

Arson Actus Reus

  • At common law, burning had its obvious meaning, namely setting a building on fire.
  • Just setting the fire wasn’t enough; the fire had to reach the structure and burn it.
  • Burning didn’t mean burning to the ground.
  • Once the building caught on fire, the arson was complete, no matter how slight the burning was.

Modern Statutes

Modern statutes adopt the common-law rule, and the cases pour great effort into deciding whether the smoke from the fire only blackened or discolored buildings, whether the fire scorched them, or whether the fire burned only the outside wall or the wood under it.

The Model Penal Code

The Model Penal Code tries to clear up many of the technical questions in common law arson by providing that burning means starting a fire, even if the fire never touches the structure it was aimed at.

The drafters justify this expansion of the common-law burning on the grounds that there is no meaningful difference between a fire that has already started but hasn’t reached the structure and afire that has reached the structure but hasn’t done any real damage to it.

The term "burring" can also mean explosions.

Arson Mens Rea

  • Most arson statutes follow the common law mens rea requirement that arsonists "maliciously" and "willfully" burn or set fire to buildings.
  • Some courts cal the arson mens rea general intent.
  • According to the general intent standard, purpose refers to the act in arson (setting fire to a building), not the resulting harm.
  • The criminal intent in arson is to start a fire in general—even if there is no intent to burn a specific structure.
  • Burning property to defraud an insurer raises a special mens rea concern.
  • The Model Penal Code divides arson into two degrees, according to defendants’ blameworthiness.
  • Defendants who set fires to destroy buildings and not merely to burn them are most blameworthy—this is first degree arson.
  • Second-degree arsonists are defendants who set buildings on fire for other purposes.

Example: If I burn a wall with an acetylene torch because I want to steal valuable fixtures attached to the wall, I’m guilty of second-degree Arson for "recklessly" exposing the building to destruction even though I meant only to steal fixtures.

Property in Arson

  • Common law arson, like common law burglary, was aimed at the protection of dwellings.
  • Modern arson laws, like modern burglary laws, have vastly expanded the types of structures protected.
  • Sometimes, it goes as far as the protection of personal property.

Grading Arson

  • As the Arizona statute indicates, arson is usually divided into degrees.
  • Typically, there are three degrees of arson.
  • Most serious — first degree —arson is the burning of homes or other occupied structures where there is a possible danger to human life.
  • Second-degree arson includes setting fire to, or burning, unoccupied structures or vehicles such as boats and automobiles.
  • Third degree arson includes setting fire to or burning personal property
  • Modern arson, unlike under the common law, recognizes the idea of transferred right of occupancy.
  • Example: If I’m a landlord and I burn down my house to collect the insurance money, it’s still an arson because I’ve transferred my rights to my tenants.

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