Friday, August 14, 2009
Breaking and entering, in and of itself, is a misdemeanor crime when unaccompanied by more serious offenses. Broken down individually, breaking does not require that anything be "broken" in terms of physical damage occurring. It can be either actual, such as by forcing open a door, or constructive, such as by fraud or threats. Entering can involve either physical entry by a person or the insertion of an instrument with which to remove property. Insertion of a tool to gain entry may not constitute entering by itself. It is generally required at common law that entry occurs as a consequence of the breaking. For instance, if a malfeasor opened a window partially by using a pry bar and then noticed an open door through which he subsequently entered the building, there is no burglary per se at common law.
Breaking and entering can have serious consequences if the perpetrator, whose intent may be innocent in some cases, e.g. just to see if a neighbor, acquaintance, pet, etc. has entered onto said property, goes unawares of property owners' rights to defend themselves and their property, or unawares of the punishment involved. In most cases "B & E" is a precursor to another, more serious crime, such as burglary, larceny, arson, kidnapping, rape, assault, battery, murder, etc., and thus is taken very seriously.
The elements of battery that must be present in order to pursue adjudication against a defendant include: an act by a defendant; an intent to cause harmful or offensive contact on the part of the defendant; and harmful or offensive contact to the plaintiff. The only question in determining the act of battery is the action taken. If someone hit you, but no bruise or visible result of the crime existed, there would still be a battery. A secondary type of contact constituting battery is when no actual physical harm takes place. This involves the interfering with or removal of something the plaintiff was possessing, wearing, or in close contact with.
As in assault, intent is also key in a battery case. Although contact must be intended, no intent to harm an individual need be established for it to be considered battery. There is specific and general intent when discerning the defendant's mindset with regards to battery. Specific intent means the defendant's contact was specifically intended. General intent means the defendant was substantially certain his act would cause the contact intended. Intent to contact is not exempt if it was intended as a joke, in tort law. Consent to contact, however, is a defense, just as a person in a crowded area assumes a certain amount of personal risk and implied consent to "incidental contact".
Indirect offensive or harmful conduct results when a defendant sets in motion a chain of events that harms an individual or individuals, or fails to reasonably warn an individual of impending harm that he or she may have knowledge of.
Aggravated battery, like aggravated assault, occurs when great intent to do bodily harm, or murder - such as with a deadly weapon - is present. It is punishable as a felony in all states, and generally garners a heavy sentence. In civil action it is punishable by damages, either compensatory, nominal or punitive, as in assault cases.
Intent is an essential element of assault. This can be specific intent, e.g. if the assailant intends to cause the apprehension of harmful or offensive contact in the victim, or general intent, wherein he or she intends to do the act that causes such apprehension. Additionally, the element of intent is fulfilled if it is substantially certain, to a reasonable person, that the act will cause the result. The victim must generally be aware of the danger of physical violence for it to be considered assault. A person who starts beating a sleeping individual bypasses the element of assault and goes right to battery.
There can be no crime of assault if the act does not produce a true apprehension of harm in the victim. There must be a reasonable fear of injury.
Aggravated assault is committed when a person intends to go beyond the violence enough to scare an individual, or merely rough them up. Aggravated assault occurs during rape, robbery, or when there is a clear intent to kill.
A person convicted of civil assault is liable for damages. These consist of either compensatory - as for hospital bill reimbursement, loss of wages, etc., nominal - usually a small sum, in cases where a minor amount of damage has been done; and punitive, which are designed as rightful punishment befitting the crime.
Modern legislation has now extended the legal definition of arson to include "the burning or exploding of commercial and public buildings". Many of the elements of legal definition of arson are such because they pertain to insurance coverage standards. Many arson cases are perpetrated by owners of property looking to garner a big - and fraudulent - payoff, and due to these cases, the insurance industry has greatly tightened their indemnity regulations.
Malice plays a prominent role in determining the truth in an instance of destructive fire. There is a tricky area here, where, as a rule in the past, a person who dwelled in a residence that was burned could not be held accountable for the crime of arson. But, as more and more insurance fraud cases came to pass, the courts as well as insurance adjusters put increasingly more scrutiny and burden of proof upon those most suspect of the crime of arson. Modern arson in legal terms involves degrees, which is used in many states in order to determine exactly the level of criminal intent involved in an arson case. Motive, contrarily, is not an essential element in determining arson.
Vacant homes, abandon or condemned properties, if burned, cannot be called a scene of arson.
Wednesday, August 12, 2009
Reckless Driving is driving a vehicle in a dangerous manner without paying attention to circumstances prevailing there and in disregard of the traffic rules in force while totally disregarding the possible consequences of such driving with or without the full presence of mind.
Reckless driving includes but not limited to operation of an vehicle in a dangerous manner, speeding (or going too fast for the conditions, even though within the posted speed limit), driving after drinking (but not drunk), having too many passengers in the car, weaving in and out of traffic, failing to yield to other vehicles.
Reckless Driving is a misdemeanor crime. A "wet reckless" is a plea in a drunk driving prosecution allowed to lessen the penalty when the blood alcohol level is close to the minimum allowed by law.