Wednesday, April 17, 2013

MBE Fast Fact: Burglary Elements

Burglary under the common law had some interesting elements. The breaking and entering of the dwelling (and it had to be a dwelling) of another had to take place in the nighttime (strange) with an intent to commit a felony therein. A very commonly tested element is the requirement that there be an intent to commit a felony prior to, or at the time of, the breaking and entering. Watch carefully for those questions where "x" breaks into another's home (or often the garage) in an attempt to take back something that x believes to be his own. If you are attempting to retrieve your own property, you do not intend to commit a felony, and there can be no burglary. Of course, once x is in the dwelling, he'll see something that he likes and decide to take it along with whatever it is he originally entered to retrieve. That is still not burglary, because the intent to commit the felony cannot be formed after the breaking and entering has already taken place.

But be careful; don't forget about larceny.



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