nin137

Nick's Journal
2006-10-09 15:40:45 (UTC)

What's the difference?

9A.52.020BURGLARY IN THE FIRST DEGREE.

(1) A person is guilty of burglary in the first degree if,
with intent to commit a crime against a person or property
therein, he enters or remains unlawfully in a dwelling and
if, in entering or while in the dwelling or in immediate
flight therefrom, the actor or another participant in the crime

(a) is armed with a deadly weapon, or (b) assaults any
person therein.

9A.52.020BURGLARY IN THE FIRST DEGREE.

(1) A person is guilty of burglary in the first degree if
he enters or remains unlawfully in a dwelling and if, in
entering or while in the dwelling or in immediate flight
therefrom, the actor or another participant in the crime

(a) is armed with a deadly weapon, or (b) assaults any
person therein.

So what's the difference between the two? It's basically
the same crime right? Well except for one change, the one
has "intent to commit a crime" as an element in the crime
for you to be guilty. Now what does that mean? Well, one
is constitutional and one is unconstitutional
(theoretically), the first being constitution and the second
unconstitutional. the reasoning behind this is the simple
principle of "innocent until proven guilty." when you are
charged with a crime you shouldn't have to do any more than
just sit there in yoru defendant's chair. the only time
that you would have to open your mouth would be to maybe
offer an affirmative defense (but in that instance you are
essentially admitting to the crime, but saying that there
was a good reason for it, say self-defense or legal insanity).
so the deal is that a crime is segmented into its elements.
in this crime, the elements are
1) entering a dwelling unlawfully
2) with intent to commit a crime
3) armed with a deadly weapon or assaulting a person

the prosecution would have to prove all three for you to be
convicted. however, if you take out the second element,
then you being in someone's house wit a gun is enough to be
convicted. now you may say to yourself well...obviously if
someone is in someone's house with a gun he's up to no good,
but that is exactly the type of presumption taht the
constitution is supposed to protect us from. if you take
out the element of intent the burden falls upon you as the
defendant to prove that you had no intent to commit a crime;
but that flies in the face of your due process rights under
the constitution.

sorry i had to get this out of me, because it's so
fascinating to me how much of a difference mere wording can
make. you know it sort of shows how grammar and sentencing
sconstruction can make such a big difference in law, because
there's always some intent behind it :-).