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Burglary Lawyers - Arson Lawyers

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The two common law felonies of arson and burglary are crimes against property, but they also often involve physical danger to the victim, and so they may be classified separately from other property crimes. The common law definitions limited these crimes to dwelling houses-that is, buildings in which people lived. Modern statutes generally extend their coverage to other buildings, such as barns, warehouses, churches, stores, and garages, as well as some nonbuildings such as railroad cars and boats. Some arson statutes cover all forms of personal property.

Arson: The common law definition of arson is the malicious and voluntary burning of the dwelling house of another. The phrase of another means in the possession of another. Therefore, a landlord can be guilty of arson of his or her own house that is leased to a tenant. A dwelling house is a house where people customarily sleep, although no person need be in the house at the time of the burning. The term may include outbuildings associated with the house, such as barns and stables, especially where they are enclosed with the house by a common hedge, fence, or wall.

Malicious and voluntary means that the arsonist must intentionally, or perhaps recklessly, burn the house. No malice in the literal sense of ill will is required. The house need not be entirely or even largely destroyed. The burning of a small portion of the house, such as a part of the floor, wall, or door is sufficient. However, more than a blackening by smoke or scorching of the wood is necessary to constitute arson.

Modern statutes have generally altered the common law definition of arson in two ways. They provide that the burning of property other than dwelling houses and the burning of one's own property to defraud an insurance company also constitute arson.

Burglary: The common law definition of burglary is breaking and entering the dwelling house of another in the nighttime with the intent to commit a felony therein. The requirement of breaking is satisfied by forcing open a locked door or window, by opening a closed but unlocked door or window, or even by opening wider a partly closed door or window to obtain entry. If the person had the resident's consent to enter, then the use of force to gain entry is not a breaking. Entering is satisfied by a person's passing entirely through the door, window, or other opening by putting any portion of the body through or even by holding a pole or other item through the opening while angling for some property inside.

A dwelling house includes outbuildings in the area surrounding a house. To be the subject of burglary, the structure must be the dwelling of someone other than the accused person. The intended felony is usually grand larceny, but it may be murder, rape, arson, or one of the other felonies. A person has the required intent to commit a felony if he or she intends to steal whatever can be found, even if in fact there is nothing of value in the dwelling. A person is guilty of burglary even if arrested before he or she can commit the felony, as burglary is complete upon breaking and entering with the requisite intent.

Modern statutes have enlarged the scope of the common law definition of burglary in various ways. They sometimes eliminate the requirement of a breaking, so that an entry without a breaking may still constitute burglary. Some statutes consider gaining entry by means of fraud, threat, or intimidation to be constructive breaking-that is, the legal equivalent of forceful breaking. Modern statutes also typically provide that breaking into certain nonbuildings-such as railroad cars, automobiles, and boats-constitutes burglary. Most modern statutes have abandoned the requirement that the breaking and entering occur at night. Finally, some statutes provide that a person commits burglary if he or she has an intention to commit a misdemeanor-rather than an intention to commit a felony-after breaking and entering.

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A "crime" is any act or omission (of an act) in violation of a public law forbidding or commanding it. Crimes include both felonies (more serious offenses -- like murder or rape) and misdemeanors (like petty theft, or jaywalking). No act is a crime if it has not been previously established as such either by statute or common law.

Historically, most crimes have been established by state law, with laws varying significantly state to state. There is, however, a Model Penal Code (MPC) which serves as a good starting place to gain an understanding of the basic structure of criminal liability.

In recent years the list of Federal crimes has grown.

All statutes describing criminal behavior can be broken down into its various elements. Most crimes (with the exception of strict-liability crimes) consist of two elements: an act, or "actus reus" and a mental state, or "mens rea." Prosecutors have to prove each and every element of the crime to yield a conviction.


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Learn more about Criminal Law

Criminal Law, branch of law that defines crimes, establishes punishments, and regulates the investigation and prosecution of people accused of committing crimes. Criminal law includes both substantive law, which is addressed in this article, and criminal procedure, which regulates the implementation and enforcement of substantive criminal law.

Substantive criminal law defines crime and punishment-for example, what act constitutes murder or what punishment a murderer should receive. On the other hand, criminal procedure is concerned with the legal rules followed and the steps taken to investigate, apprehend, charge, prosecute, convict, and sentence to punishment individuals who violate substantive criminal law. For example, criminal procedure describes how a murder trial must be conducted.

This article discusses criminal law in the context of the common law system, which is found in countries such as England, Canada, and the United States. In the common law system, judges decide cases by referring to principles set forth in previous judicial decisions. Common law systems are typically contrasted with civil law systems, which are found in most Western European countries, much of Latin America and Africa, and parts of Asia. In civil law systems, judges decide cases by referring to statutes, which are enacted by legislatures and compiled in comprehensive books called codes.

In legal systems based on common law, criminal law is distinguished from what is known as civil law. In this context, the term civil law refers to the rules regulating private relationships, such as marriage, contracts, and personal injuries. In contrast, criminal law governs actions and relationships that are deemed to harm society as a whole.

PURPOSE OF CRIMINAL LAW

Criminal law seeks to protect the public from harm by inflicting punishment upon those who have already done harm and by threatening with punishment those who are tempted to do harm. The harm that criminal law aims to prevent varies. It may be physical harm, death, or bodily injury to human beings; the loss of or damage to property; sexual immorality; danger to the government; disturbance of the public peace and order; or injury to the public health. Conduct that threatens to cause, but has not yet caused, a harmful result may be enough to constitute a crime. Thus, criminal law often strives to avoid harm by forbidding conduct that may lead to harmful results.

One purpose of both civil law and criminal law in the common law system is to respond to harmful acts committed by individuals. However, each type of law provides different responses. A person who is injured by the action of another may bring a civil lawsuit against the person who caused the harm. If the victim prevails, the civil law generally provides that the person who caused the injury must pay money damages to compensate for the harm suffered. A person who acts in a way that is considered harmful to society in general may be prosecuted by the government in a criminal case. If the individual is convicted (found guilty) of the crime, he or she will be punished under criminal law by either a fine, imprisonment, or death. In some cases, a person's wrongful and harmful act can invoke both criminal and civil law responses.

THEORIES OF CRIMINAL PUNISHMENT

Various theories have been advanced to justify or explain the goals of criminal punishment, including retribution, deterrence, restraint (or incapacitation), rehabilitation, and restoration. Sometimes punishment advances more than one of these goals. At other times, a punishment may promote one goal and conflict with another.

Retribution: The theory of retribution holds that punishment is imposed on the blameworthy party in order for society to vent its anger toward and exact vengeance upon the criminal. Supporters of this theory look upon punishment not as a tool to deter future crime but as a device for ensuring that offenders pay for past misconduct.

Deterrence: Those who support the deterrence theory believe that if punishment is imposed upon a person who has committed a crime, the pain inflicted will dissuade the offender (and others) from repeating the crime. When the theory refers to the specific offender who committed the crime, it is known as special deterrence. General deterrence describes the effect that punishment has when it serves as a public example or threat that deters people other than the initial offender from committing similar crimes.


Restraint: Some believe that the goal of punishment is restraint. If a criminal is confined, executed, or otherwise incapacitated, such punishment will deny the criminal the ability or opportunity to commit further crimes that harm society.

Rehabilitation: Another possible goal of criminal punishment is rehabilitation of the offender. Supporters of rehabilitation seek to prevent crime by providing offenders with the education and treatment necessary to eliminate criminal tendencies, as well as the skills to become productive members of society.

Restoration: The theory of restoration takes a victim-oriented approach to crime that emphasizes restitution (compensation) for victims. Rather than focus on the punishment of criminals, supporters of this theory advocate restoring the victim and creating constructive roles for victims in the criminal justice process. For example, relatives of a murder victim may be encouraged to testify about the impact of the death when the murderer is sentenced by the court. Promoters of this theory believe that such victim involvement in the process helps repair the harm caused by crime and facilitates community reconciliation.

Conflicts Among Goals: The various justifications for criminal punishment are not mutually exclusive. A particular punishment may advance several goals at the same time. A term of imprisonment, for example, may serve to incapacitate the offender, deter others in society from committing similar acts, and, at the same time, provide an opportunity for rehabilitative treatment for the offender. On the other hand, the goals of punishment may at times conflict. The retributive and deterrence theories call for the infliction of unpleasant experiences upon the criminal, including harsh prison treatment; but the prison environment may not be conducive to, or may even defeat, rehabilitation.

No one theory of punishment addresses all the goals of criminal law. A combination of theories and goals plays a part in the thinking of the legislators who establish the ranges of punishment for various crimes, the judges and jurors who sentence offenders within these ranges, and the parole authorities who have the power to release certain prisoners.

CLASSIFICATION OF CRIMES

Crimes are classified in many different ways: common law crimes versus statutory crimes, and crimes that are mala in se (evil in themselves) versus those that are mala prohibita (criminal only because the law says so). An important classification is the division of crimes into felonies or misdemeanors. This distinction is based on the severity of the crime and is rooted in common law.

In many jurisdictions in the United States, felonies are crimes punishable by death or imprisonment in a state prison or penitentiary and misdemeanors are those punishable by fine or imprisonment in a local jail. (The term jurisdiction refers to the authority of a political entity, such as a state or a county, or the territory over which that authority is exercised.) In other jurisdictions, crimes punishable by imprisonment for one year or more are felonies, and those punishable by fine or imprisonment for less than one year are misdemeanors. Since each jurisdiction determines the penalties for offenses it defines, a misdemeanor in one jurisdiction may constitute a felony in another. Some jurisdictions have an additional classification for petty offenses, also called infractions, which are usually punishable by a small fine.

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