07 March 2013

Bar Prep: Criminal Law #1

This is one in a series of posts designed to give you some insight into the questions that one might see on the bar exam, and how one might go about answering them. For similar posts, click here.

Question #1

Late one night, co-defendants broke into a warehouse and proceeded to load the large crates of appliances onto their truck. As they were leaving, one of the co-defendants inadvertently threw his cigarette butt into a refuse pile of old cardboard boxes and papers. Soon afterward, the refuse ignited into a small fire. Although the co-defendants had time to douse the fire without any danger to themselves, neither did so. Instead, they climbed into the truck and fled. Meanwhile, the fire quickly spread, engulfing the entire warehouse in flames.

At common law, the co-defendants should be found guilty of

(A) burglary and arson.
(B) larceny and arson.
(C) larceny only.
(D) burglary, larceny, and arson.

The explanation and answer are below the break.


Before reading the entire question, locate the call of the question. "At common law, the co-defendants should be found guilty of..." This tells us we're dealing with a Criminal Law question and we're using the common law. So knowing the common law elements of arson, burglary, and larceny is prerequisite knowledge for this question:

Arson: Malicious burning of the dwelling of another
Burglary: Breaking and entering of the dwelling of another (at night) with the intent to commit a felony therein
Larceny: Trespassory taking and carrying away with the intent to permanently deprive

Now let's go back through the question and identify each important part:

Late one night, co-defendants broke into a warehouse and proceeded to load the large crates of appliances onto their truck.

Here, we have a breaking and entering. But it's a warehouse, not a dwelling. This is why it's extremely important that we identified the common law requirement in the call of the question. Most modern burglary statutes would apply to commercial buildings. But not the common law. So no burglary here. This eliminates both (A) and (D).

On the other hand, they did take the appliances, move them into their truck, and intended to deprive the owner. Therefore, they're guilty of larceny. This eliminates (A) (again).

As they were leaving, one of the co-defendants inadvertently threw his cigarette butt into a refuse pile of old cardboard boxes and papers. Soon afterward, the refuse ignited into a small fire. Although the co-defendants had time to douse the fire without any danger to themselves, neither did so. Instead, they climbed into the truck and fled. Meanwhile, the fire quickly spread, engulfing the entire warehouse in flames.

The fire wasn't started intentionally, but once it did start and they could have put it out, they didn't. Knowing that the fire would spread, they left. That's certainly malicious. But here again, common law arson requires a dwelling. Most modern statutes would probably apply arson to commercial buildings, too. But not the common law. So no arson here, either. This eliminates (A), (B), and (D).

By both explanation and process of elimination, we've come to the answer: (C) larceny only. The key distinction for this question, which practically answers the question for you, is that both common law arson and burglary have a dwelling element. The warehouse isn't a dwelling.
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