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Old May 14, 2009, 06:47 AM   #26
Bartholomew Roberts
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Quote:
Originally Posted by Outcast
This might clear it up a bit, Actually Ken is correct. The crime would be Criminal Trespass.
Actually, intent can be inferred by external evidence (he is dressed head to toe in black, wearing a mask and carrying a crowbar and sack of silverware from other houses). Based on the facts we have, we know we have at least Criminal Trespass; but we might have Aggravated Burglary as well.

Quote:
Originally Posted by WA
The better definition of burglary is as set forth in modern penalk codes as opposed to the common law style:

Enter or remain unlawfully...with intent to commit a crime therein.
Makes it better from the prosectuor's point of view since you don't have to deal with the Defendant claiming he had broken in to use the phone or wrap the toilet in ClingWrap.
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Old May 14, 2009, 09:07 AM   #27
KingEdward
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injustice....

here in TN, you may have heard about the preacher's wife (Mary Winkler)

She shot her husband while he was in bed. She shot him in the back with a shotgun. Then she fled the scene with the kids and they found/arrested her at the beach in alabama.

Her defense team claimed years of physical abuse. I watched every minute of the trial. Not one piece of evidence of physical abuse was presented. Not one photo, not one doctor's report, not one women's shelter photo, nothing.
It was all "emotionally based" testimony.

The jury gave her voluntary manslaughter with time served. She was locked up for about 7 months total.

Sorry to side rail from the OP and thanks all for the responses.
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Old May 14, 2009, 09:49 AM   #28
David Armstrong
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No offense to what you said, but have you actually watched an actual criminal trial lately? There are more theatrics going on than 'business'.
No offense taken, Capt, and I watch (and participate in) criminal trials regularly. The court has always been a place for theatrics, but that is part of the business and does not mean we don't get a good trial.
Quote:
Like I said, The punks childhood, backround, ect. should have no meaning. Only the facts.
But those are part of the facts. That sort of stuff has always been part of the judicial system we use.
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Lawyers have turned our judicial system into a joke. They all try to get reduced charges, less time, ect. And they use every trick they can get.
It is not a joke, far from it. And that is the defense attorney's job, to try to get their clients charges reduced, less time, etc. And those "tricks" happen to be a little thing known as "due process."
Quote:
As far as punks or their families suing, there have been plenty of cases where this has happened. The punk was committing a crime, and as a result, got injured or killed. What right does he or his family have to recover damages? NONE!
There have been a few cases of it happening. They are rare, and it is even rarer for them to win unless the victim has done something fairly outrageous. As for what right they have? It is called the law, and they have the same right to sue as you have. No difference.
Quote:
It is past time our country gets as tough as they can on criminals.
We are already one of the toughest in the world, with a higher incarceration rate than virtually any other modern country. We are tougher now than we have been in the past. FWIW, states with the highest incarceration rates (toughest on criminals) also tend to have some of the highest crime rates.
Quote:
Like I said, make crime so unappealing, that noone wants to commit it due to the consequinces.
How would you do that? Societies have tried pretty much everything, including the death penalty for things like stealing a loaf of bread, and crime never went away.
Quote:
the law abiding citizen the power to unconditionally defend themselves, loved ones and property and watch how many punks think twice about committing a crime.
Unconditionally? So I should get to blow away my neighbor's six year old girl because she keeps coming over here trespassing on my property? Might want to think a little bit about that one.
Quote:
Make prisons hell instead of a place where a criminal can become a better criminal.
Haven't been in many prisons lately, I would assume. Of course, we can look at history and see where such an idea doesn't work. Crime rates in France did not go down when they were sending folks to Devils Island, for example.
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Stop all of the lawyers from using loopholes and trickery to get punks off the hook.
As mentioned, those loopholes and trickery are what we call due process, and are designed to keep the government from running roughshod over you. Am I to understand that if you were accused of a crime, rightly or wrongly, you DON'T want your attorney to look for every loophole he can find, or use every legal trick he can, to help you?
Quote:
It sounds tough, but like I said, Irradicate crime, and irradicate the criminal if it has to be.
It sounds a whole lot like the old Soviet Union and a host of Third World dictatorships. Which still have a lot of crime, BTW.
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Old May 14, 2009, 10:49 AM   #29
OldMarksman
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Excellent post, David!

Societies have been trying to irradicate crime since time immemorial. The Code of Ur-Nammu, which predated the Code of Hammurabi, specified death for robbery and adultery, among other things. Does anyone think it worked?

The problem with the simplistic approach ("Give the law abiding citizen the power to unconditionally defend themselves, loved ones and property and watch how many punks think twice about committing a crime...Stop all of the lawyers from using loopholes and trickery to get punks off the hook") is that in many cases it is not all that clear just who the criminal is.

John sees James in his house and shoots to kill. Was John justified? Well, it depends on the facts. Wrong house? Lawful entry due to an initation by John's wife? Was James a detective trying to arrest a home invader? Or had John broken in unlawfully? Well, maybe John was justified, but on the other hand, maybe John committed murder. The facts will be brought out by the judicial process.

That's why we have due process, and to make it work, we have a system of judicial advocacy. The state's attorney makes a case and the defendant's attorney makes his.

Some people in these discussions automatically presume that if they shoot someone, they will be automatically presumed to be the "good guy." Were that the case, all murders would go unpunished.

How about he fellow in Washington State whose wife came home to find a highly impaired man in the house and called her husband, who came home and killed the man. Murder charges were filed. By the way, case law establishes a castle doctrine in Washington State.

Anyone think the charge was inappropriate? Well, if so, would that person also think it wrong for the homeowner's attorney to try to defend him?

Capt_Vin hears a noise in the other room and is alarmed. He grabs a gun and goes to investigate. There's a man at arms' reach walking in his direction. Capt_Vin fires immediately, thinking his life to be in danger.

Scenario one: evidence shows that the man had entered forcibly and unlawfully. Justified shooting? I think so, and so, I think, will the authorities.

Scenario two: unknown to Capt_Vin, the man had entered the house lawfully. Justified shooting? Most likely, Capt_Vin will be prosecuted for murder in one degree or other; that he fired is not in question, and the evidence shows that the victim was not breaking the law. Do we not expect Capt_Vin's attorney to try bring about the most favorable trial outcome and sentence possible, or should he be prevented from vigorously defending the person now identified as the "punk"?

No, these things are not black and white.
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Old May 14, 2009, 01:34 PM   #30
skydiver3346
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So let's see now.....

Some bad guy pushes in your door when you open it and he knocks you down. He is now in your home and threatens you and/or demands money from you.... Uh, that is not a home invasion (felony) scenario?

I sure as heck don't won't to live in a state that says you can't respond to that kind of threat because it actually wasn't a real "break in" like knocking out your window or door. The results are still the same, he is in your home and the intimidation and threat is real.
Don't know what the rest of you plan to do about this situation but I know what I would do if that happened to me or my wife when we answered the door. By the time you tried to figure out what the "rules/regs" are in your particular state, this guy could have not only robbed you but worse! Just may be a little too late to do anything about it. Bottom line: "You tell the story"....
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Old May 14, 2009, 02:13 PM   #31
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What is the intent. No intent to committ a crime, no felony burglary. This is the problem here. The lawyer is going to say that the punk that broke into your house had no intent to committ a crime. My thoughts are, well then he shouldn't have broken into my house. If he broke in he has already commited a crime. The problem is that is not how the lawyers and courts see it all the time. We need to get it to where if you are in someones residence, illegally (you weren't invited) then you get what you get. Im my house that is either a Remington 870 with a 1oz slug or my Sig 229 - 40 Corbon Hollow points. Good luck getting out......alive.
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Old May 14, 2009, 03:17 PM   #32
David Armstrong
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We need to get it to where if you are in someones residence, illegally (you weren't invited) then you get what you get. Im my house that is either a Remington 870 with a 1oz slug or my Sig 229 - 40 Corbon Hollow points. Good luck getting out......alive.
I'm going to tell a little story here. Long ago, when I was 16 (before cell phones and all that neat stuff) and living in the country, while on my way to school one morning I came on a pretty bad wreck. One person dead on the scene, 3 with severe injuries. Right up the road was a house. I drove up there, jumped out of hte car, and ran up to the house. I knocked on the door (actually pounded on it) several times, got no answer. So I bum rushed the door, broke it in, and got on the phone to get some help. About the time I was finishing up the call an elderly man came out of the back room wondering what all the ruckus was about. Think I needed to "get" anything from his 870? Or his pistol?
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Old May 14, 2009, 03:39 PM   #33
KingEdward
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well, herein lies some of my dilemma with defending home and harth.

On the one hand, I see and kind of agree with "they get what they get"

Then I see David's story which brings to mind there can be (fairly rare I would guess) situations where there is a break in but either the person who is in is not a threat (or committing or attempting to commit a felony) or is trying to do something good.

In David's story, if the elderly person had shot David as he "did break in", that would have been an interesting court case.

Living on a very busy intersection near a major unversity, if someone needs the phone to call something in or to do something good. I sure hope they don't bum rush and get in my door. Hopefully I'll be asleep and I'll hear them
doing good deeds over the phone and we'll calm down after I lower my HD weapon and have a good story to tell. But something like that could turn ugly fast if I awake and someone crashes through a door.

I guess it all goes back to target ID, threat assessment, control, etc etc.
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Old May 14, 2009, 03:49 PM   #34
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Some bad guy pushes in your door when you open it and he knocks you down. He is now in your home and threatens you and/or demands money from you.... Uh, that is not a home invasion (felony) scenario?
I believe that would fall under aggravated burglary
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Old May 14, 2009, 04:15 PM   #35
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David

I see what your saying and maybe I should have gone into more detail in my post. I am not one that is just going to start shooting at someone right away if they break in my door. You were in probably a rare situation. I would hope that you would be telling the guy right quick what you were up to if he had a gun, well even if he didn't.

You are also going back to when there were no cell phones. That probably would be back far enough where we don't have the kind of things going on that we do now. When I was growing up we almost never locked our back door. That wasn't all that long ago as I am 33, but those were different times.
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Old May 14, 2009, 04:21 PM   #36
OldMarksman
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We need to get it to where if you are in someones residence, illegally (you weren't invited) then you get what you get. Im my house that is either a Remington 870 with a 1oz slug or my Sig 229 - 40 Corbon Hollow points.
When a castle law came up for consideration in the Missouri legislature, opponents, editorialists, and attorneys writing guest columns said it would "legalize murder." The bill was enacted in law, and what is says (in plain English) is, among other things, that "a person may not use deadly force upon another person ... unless ... such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person".

"Unlawful entry" is defined as entry "without license" (read: uninvited). There's no mention of forcible entry.

Does that mean that if someone is in my house uninvited for whatever reason, I am permitted to kill him? I do not know. I don't know the case law. I certainly wouldn't want to test it from either the moral nor the legal standpoint, unless the presence of the "uninvited" person appeared to constitute a likely danger.

The law in Tennessee reads a little differently: "any person using force intended or likely to cause death orserious bodily injury within their own residence is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to self, family or a member of the household whenthat force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

Is that reasonable, or should it read "uninvited"? Points to be made on both sides, I think. Guy comes in through an open window and endangers me, why should I be obligated to look for signs of force? But do we really want to shoot someone simply because he is uninvited? Wrong house, person with dementia...and see below for a discussion of situations in which a person enters by necessity.

Quote:
Good luck getting out......alive.
That ups the ante a lot more. It's one thing to defend against an intruder. To shoot him to prevent his egress is murder. In Missouri, the law reads that I can shoot if he remains after unlawfully entering, but it does not say I can shoot him to make sure that he remains after unlawfully entering. That's great publicity for the antigun movement. Keep it up.

But the original question had nothing to do with that. The question was about what kinds of entry constitute felonies.

Well, as it happens, there is in Tennessee such a thing as a necessity defense. A man trespasses to avoid death or serious injury (snowstorm, for example) and he will not be convicted of the crime of trespass. Goes back to the common law and my therefore apply in most places. Sounds reasonable to me. And shooting the man does not. David Armstrong's experience further illustrates the idea. Did he commit a crime?

But I'm not sure why one would really care at all about whether someone in one's house has committed a felony or a misdemeanor. The Tennessee self defense law does not hinge on that distinction--at all (lay interpretation). The issue isn't even mentioned in the statute.

By the way, did someone say that if "someone pushes in your door when you open it and he knocks you down" that the entry is not unlawful and forcible? Really?

Last edited by OldMarksman; May 14, 2009 at 04:23 PM. Reason: sp.
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Old May 14, 2009, 05:10 PM   #37
KingEdward
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Good points Old Marksmen.

I, like David (having read other posts) will try to assess the situation and believe it is extremely important that the BG leave the room / home however that can be accomplished.

Not going to get into all the "don't yell, or yell, but don't turn on light" discussions here.

Where for me I think this gets very very complex is middle of the night, an "univited" person has forced entry (whether violently with tools / kicks or "quietly" via cutting the screen window out) and they are in the dining room and my dog knows it and what's next.

I have already planned (if time) to hunker down in BR and wait for the pros while guarding family.

But however it were to happen, if I do confront or come in close quarters with a person in my home in this situation, am I really going to be thinking of
all the things he/they could be (car accident victim / lost elderly person / teen who ran away and is cold seeking shelter).

Common sense would say I'm thinking just the opposite and it's me/family vs.
danger and home invader.
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Old May 14, 2009, 05:14 PM   #38
KingEdward
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a good friend thinking about all this and the law and loved ones always says,

"If one doesn't want to get harmed or shot at, then one doesn't need to break in to my home".
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Old May 14, 2009, 07:52 PM   #39
David Armstrong
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You are also going back to when there were no cell phones. That probably would be back far enough where we don't have the kind of things going on that we do now. When I was growing up we almost never locked our back door. That wasn't all that long ago as I am 33, but those were different times.
If you are 33, crime in the U.S. is now at one of the lowest points it has been in your entire life. But cell phones or not, my point is simple...people break into houses for a number of reasons that do not involve any criminal intent. Kids sneak into their friends homes at night, drunks get the wrong house, Alzheimer's sufferers go back to the house they lived in 20 years ago, and so on.
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Old May 14, 2009, 10:24 PM   #40
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Old May 15, 2009, 10:54 AM   #41
David Armstrong
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"A University of Arizona Police Department officer reported that he had finished working around 5 a.m. and headed home. After being there for approximately five minutes, he heard a knock at his door. The officer had not locked his door behind him, and when he looked to see who was there, he saw a girl with no shoes and unkempt hair.

She yelled at the officer to let her in because she had to use the bathroom. The officer said no, that he did not know her and she should use the public bathroom at the Circle K convenience store down the street. She replied, "No, I really have to pee, and this is where the party is at."

The woman attempted to make her way into the house. She pushed the door open and said, "I really need to use your bathroom," as she tried to push the officer aside so she could get past him."
***************************************************
OK, let's assume you are not an officer. What are you going to do? Do we have a felony?
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Old May 15, 2009, 11:01 AM   #42
csmsss
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"A University of Arizona Police Department officer reported that he had finished working around 5 a.m. and headed home. After being there for approximately five minutes, he heard a knock at his door. The officer had not locked his door behind him, and when he looked to see who was there, he saw a girl with no shoes and unkempt hair.

She yelled at the officer to let her in because she had to use the bathroom. The officer said no, that he did not know her and she should use the public bathroom at the Circle K convenience store down the street. She replied, "No, I really have to pee, and this is where the party is at."

The woman attempted to make her way into the house. She pushed the door open and said, "I really need to use your bathroom," as she tried to push the officer aside so she could get past him."
***************************************************
Quote:
OK, let's assume you are not an officer. What are you going to do? Do we have a felony?
That's certainly a trespass, and given that she attempted to forcibly enter, very likely a felony. That it didn't happen at night, and that she wasn't an obvious threat to the homeowner's life work in her favor, but it's still a crime and I believe the homeowner would be justified in drawing a firearm to prevent her entry. Not enough there to say he'd be justified in a shooting, however - what is presented is not enough to satisfy the reasonable person test.
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Old May 15, 2009, 01:10 PM   #43
OldMarksman
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The woman attempted to make her way into the house. She pushed the door open and said, "I really need to use your bathroom," as she tried to push the officer aside so she could get past him." OK, let's assume you are not an officer. ..... Do we have a felony?
A lay person cannot do any more than speculate, and I'm not sure that a prospective defense attorney would answer in writing. On the face of it, it sounds like Criminal Trespass in the First Degree, which as I understand it is a Class 6 Felony. But: is it conceivable that the person could successfully mount a necessity defense? Did she have no reasonable alternative to prevent injury greater than the damage she would cause (say, indecent exposure to someone under fifteen, also a felony)? I have absolutely no idea what the case law is in Arizona or what a court might decide.

However, I don't see how it matters to anyone but the girl.

Quote:
What are you going to do?
Sorry, I lock the door automatically--wouldn't happen.

If it did--how old, how big, does the behavior change...I'd stay wary and would be armed.

The only thing I know for sure is that I would not think "castle law" and shoot.
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