demark!

Anything I can do (Part 2)

In Uncategorized on February 12, 2010 at 4:53 pm

Next installment of “Are You Smarter than a DeMarkgrader?”
(And hey, if you think THAT is copyright infringement, check out the page on this site entitled “Holy Copyright Infringement, Batman!”)
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Criminal Law

(I was hoping I’d get this one wrong so I could post it)
The criminal law of the state uses the common law elements to define the crime of burglary (ed. note: burglary = the breaking and entering of another’s dwelling at night with the intent to commit a felony therein). The state also has a statute making “flashing” (exposing of sexual parts) a felony. One night, the defendant broke into the home of the victim, a young woman in the neighborhood. He entered her bedroom and opened his trenchcoat to “flash” her. The victim screamed and the defendant fled, taking nothing with him from her home. At the time of the “flashing,” the defendant was wearing long-john underwear, which was extremely difficult to remove and which he knew he wouldn’t have time to remove. Thus, he did not actually expose his sexual organs to the victim. The defendant knew about the “flashing” statute, but did not know that actual exposure of sexual organs is an element of the crime. Can he be convicted of burglary?

a) Yes, because he broke into the victim’s dwelling place in the nighttime with the intent to commit a felony
b) Yes, because the defendant’s mistake as to the flashing law is not a defense
c) No, because the defendant did not commit a felony
d) No, because the defendant could not have committed the felony while still wearing concealing underwear.

(answer in the comments section; good luck!)

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  1. Best answer: d

    Basically, the defendant lacked the intent to commit a felony (one of the elements of burglary), so he can’t be convicted. The key here is that what the defendant intended to do was not a crime. Yes, he intended to commit a crime in his own head, but he was mistaken as to the law since flashing your underwear at someone isn’t a felony in that jurisdiction. So in short: it’s the actions he intends to do that matter. If those actions are a felony, then he has the intent to commit a felony. If those actions are not a felony, he has the intent to be a weirdo.

  2. Yes! 2 for 2. Is it too late for me to sign up for the Illinois bar?

  3. having difficulty differentiate between c and d. please explain. and also, people can’t be burgled during the day?

    • Good questions, Gabe. And the reason you don’t play poker with me is because you know I cheat. I have the power that Nicholas Cage had in the movie “Next” where I can see my own future 2 minutes ahead. Thus, I know what you have and I always ask you (if you would have won) how I could have gotten you to fold. You always tell me, too. What a good guy.

      What makes “c” incorrect is that the crime of burglary only requires the INTENT to commit a felony inside. There’s no need to actually have committed a felony. Tricky, but that’s the kind of stuff they ask us on the bar.

      And technically, no, at common law (i.e. back when we were all servants of England), people couldn’t burgle during the day. That would probably be another crime, like larceny, but not burglary. Fortunately, most states in the U.S. have abolished the nighttime requirement. Basically because it’s stupid.

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