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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
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.
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
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
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
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
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
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
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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