CORE CRIMINAL LAW SUBJECTS: Crimes: Article 129 - Burglary

2010 (September Term)


United States v. Arriaga, 70 M.J. 51 (the elements of burglary are (1) that the accused unlawfully broke and entered the dwelling house of another, (2) that both the breaking and entering were done in the nighttime, and (3) that the breaking and entering were done with the intent to commit an offense punishable under Article 118 through 128, except Article 123a).

(regardless of whether one looks strictly to the statutory elements or to the elements as charged, housebreaking is a lesser included offense of burglary; comparing the statutory elements, it is impossible to prove a burglary without also proving a housebreaking; furthermore, the offense as charged in this case clearly alleges the elements of both offenses; here, the “intent” element of burglary was charged as the intent to commit an offense under Article 120, UCMJ; that charging language also satisfies the “intent” element of housebreaking (intent to commit a criminal offense); while in another case it may be possible to prove a housebreaking offense by proving the intent to commit a criminal offense not designated in the third element of burglary, that is not the offense charged in this case; the offense as charged included all of the elements of housebreaking and all of those elements are also elements of burglary; housebreaking is therefore a lesser included offense of burglary). 

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