Is lack of consent an element of burglary? This post arises from a conversation I had with a colleague who asserted that the homeowner’s consent could legitimize an entry that would otherwise constitute a burglary. Insofar as a defendant might introduce evidence at trial to establish a lawful entry, that’s certainly correct. But does the State affirmatively have to allege and prove a lack of consent? One of the nine common law felonies, burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. 4 Bl. *224. North Carolina statute divides the crime into degrees – it’s first-degree if the home is occupied – but otherwise retains the common law definition. N.C.G.S. § 14-51. Whatever the State might now have to prove at trial to obtain a conviction, the common law elements did not explicitly include a lack of consent. This post explores the issue of consent in our criminal law and attempts to determine how consent operates to prove or disprove a burglary.
In a previous blog post, I wrote about an inquiry we received at the School of Government about North Carolina General Statute Section 14-51, reproduced below. In that post, I addressed how to find the elements (what must be proven) of burglary. In this post, I will talk about how to find the legislative history of this, and any, statute.
Recently questions came to me and my SOG criminal law colleagues about the crime of burglary in North Carolina that made it clear some readers would benefit from a discussion of statutory versus common law definitions of criminal offenses, as well as how to research legislative history. I will address these two issues using one scenario across a couple of blog posts. I hope these posts will help in interpreting and understanding statutes.
I’ll willing to bet that most of you sang these lyrics as a child: “You put your right hand in, You put your right hand out, You put your right hand in, And you shake it all about, . . .” But I’m also willing to bet that you never pondered this: What about putting … Read more