CJ230 – Criminal Law
Burglary, Trespass, Arson, and Mischief
CJ230 Criminal Law – Unit 8

Unit Goals:
• Define common law burglary and its distinction from modern day
• Outline the elements of common law and statutory arson
• Discuss criminal trespass and mischief

Unit Goals:
• Define common law burglary and its distinction from modern day
• Outline the elements of common law and statutory arson
• Discuss criminal trespass and mischief

Burglary at common law—breaking and entering of the dwelling of another at night with the intent to commit a felony
The crime of burglary protects several interests:
Home
Safety
Escalation

§ 14-51. First and second degree burglary.
There shall be two degrees in the crime of burglary as defined at the common law. If the crime be committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the commission of such crime, it shall be burglary in the first degree. If such crime be committed in a dwelling house or sleeping apartment not actually occupied by anyone at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling house or in any building not a dwelling house, but in which is a room used as a sleeping apartment and not actually occupied as such at the time of the commission of the crime, it shall be burglary in the second degree. For the purposes of defining the crime of burglary, larceny shall be deemed a felony without regard to the value of the property in question. (1889, c. 434, s. 1; Rev., s.
3331; C.S., s. 4232; 1969, c. 543, s. 1.)

Common law requires a “breaking” to enter the home by a trespasser (individual who enters not given owner’s consent).
Most state statutes no longer require a breaking; typically defined as an unlawful or uninvited entry.

Breaking must be the means of entering.
The entry for a burglary must be trespassory, without consent.
The essence of burglary is the unlawful interference with the right to habitation of another.

Common law limited burglary to a dwelling house.
A dwelling at common law included the curtilage— the land & buildings surrounding the dwelling.
Most statutes no longer limit burglaries to dwelling houses & typically categorize the burglary of a dwelling as an aggravated burglary.

Who resides in the home rather than who owns it indicates whether the dwelling is “of another.”
Generally, one cannot burglarize a dwelling that he/she shares with another.

Central requirement of common law burglary is that the crime is committed at night (6pm until 9am).
Some state statutes no longer require nighttime burglary..
Nighttime is typically defined in state statutes as sunset to sunrise.

Typically, courts will take judicial notice of the hours of sunset and sunrise as shown in the naval observatory
It is very specific, as an example:
U.S. Naval Observatory
Astronomical Applications Department
Sun and Moon Data for One Day
The following information is provided for Hickory, Catawba County, North Carolina (longitude W81.3, latitude
N35.7):
Sunday 8 November 2009 Eastern Standard Time SUN Begin civil twilight 6:28 a.m. Sunrise 6:55 a.m. Sun transit 12:09 p.m. Sunset 5:23 p.m. End civil twilight 5:50 p.m. MOON Moonrise 10:03 p.m. on preceding day Moon transit 5:23 a.m. Moonset 12:33 p.m. Moonrise 11:14 p.m. Moonset 1:09 p.m. on following day
Phase of the Moon on 8 November: waning gibbous with 61% of the Moon's visible disk illuminated.
Last quarter Moon on 9 November 2009 at 10:56 a.m. Eastern Standard Time.

http://aa.usno.navy.mil/data/ http://aa.usno.navy.mil/data/docs/RS_OneDay.php

Common law required that individuals possess an intent to commit a felony within the dwelling at the time that they enter the building; intent must be concurrent with the entry.
Statutes have adopted various approaches to the intent requirement (e.g., intent to commit a crime; intent to commit any felony or misdemeanor theft).

Common law requires a burning– the “consuming of the material” of the house or the “burning of any part of the house.”
State statutes & courts broadly interpret arson statutes
& find that smoke damage & soot are sufficient
(need not be an actual burning).

Common law limited arson to dwellings.
The definition of dwelling extends to all structures within the curtilage.
Statutes no longer limit arson to dwellings—can include real property, personal property.
Aggravated arson is directed against injury to individuals resulting from the arson.
So, arson is no longer an offense that only protects the home.

Common law required a burned dwelling occupied by another individual.
Central issue again is occupancy rather than ownership.
Modern statutes eliminate the requirement that arson must be directed at the dwelling “of another.”

The mens rea of common law arson is malice.
Malice entails either a purpose to burn or a knowledge that the structure would burn or the creation of an obvious fire hazard that, without justification or excuse, damages a dwelling.
Statutes typically retain the common law intent standard & separate statutes punish a reckless burning.
Additional statutes directed at burning by an individual with the specific intent to defraud an insurance company.

is the unauthorized entry or remaining on the land or premises of another.
Actus reus: entering or remaining on another person’s property without his/her permission.
occurs when an individual knowingly enters or remains on the premises after receiving a clear notice that he/she is trespassing.

State statutes differ on the mens rea requirement:
Knowingly
Purpose
Strict liability
First-degree: entering/remaining in the dwelling of another (minor felony).
SOME STATES HAVE SPECIFIC BREAKING AND ENTERING STATUTE which varies with nighttime requirement and which varies with intent to commit felony requirement.
Second-degree: entering/remaining in enclosed buildings or fenced in property (misdemeanor)
Third-degree: entering/remaining on enclosed land (petty misdemeanor)

Computer trespassing occurs when one
“intentionally & without authorization” accesses a computer, computer system, or network with the intent to delete, damage, destroy or disrupt a computer, computer system, or network.”
North Carolina’s statute, for instance, is entitled “accessing computers” and the level of the crime depends on the harm and the intent.

§ 14-454. Accessing computers.
(a) It is unlawful to willfully, directly or indirectly, access or cause to be accessed any computer, computer program, computer system, computer network, or any part thereof, for the purpose of:
(1) Devising or executing any scheme or artifice to defraud, unless the object of the scheme or artifice is to obtain educational testing material, a false educational testing score, or a false academic or vocational grade, or
(2) Obtaining property or services other than educational testing material, a false educational testing score, or a false academic or vocational grade for a person, by means of false or fraudulent pretenses, representations or promises.
A violation of this subsection is a Class G felony if the fraudulent scheme or artifice results in damage of more than one thousand dollars ($1,000), or if the property or services obtained are worth more than one thousand dollars ($1,000).
Any other violation of this subsection is a Class 1 misdemeanor.
(b) Any person who willfully and without authorization, directly or indirectly, accesses or causes to be accessed any computer, computer program, computer system, or computer network for any purpose other than those set forth in subsection (a) above, is guilty of a Class 1 misdemeanor.
(c) For the purpose of this section, the phrase "access or cause to be accessed" includes introducing, directly or indirectly, a computer program (including a self-replicating or a self-propagating computer program) into a computer, computer program, computer system, or computer network. (1979, c. 831, s. 1; 1979, 2nd Sess., c. 1316, s. 19; 1981, cc. 63, 179;
1993, c. 539, s. 293; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 764, s. 1; 2000-125, s. 4.)