Title: Kennedy v. State, 323 S. E. 2d 169 (Ga. App. 1984) Facts: A fire was evolved on September 23, 1981 in a log cabin due to a hot plate. The hot plate was left on with an accelerant and kerosene near by. The owner of the cabin, Henry Xavier Kennedy was convicted of Arson as he obtained an insurance policy for $40K on the cabin five days prior to this fire and police found evidence that the construction business owned by Mr. Kennedy was losing money, and Mr. Kennedy’s alibi was insufficient to eliminate him as a suspect.
Issues: Throughout the trail process on behalf of the court the inquiry for exceptions to the charge inaccuracy developed regarding instructions. The appellant was seeking a claim based of the defense of his alibi. Decisions: a. The court did not find any errors in the defense’s response to exceptions, as counsel did not state any exceptions when inquired. During this inquiry defense counsel stated, “I don’t believe… ” which can be interpreted as an attempt to find error in exceptions to charge. Yet Georgia law indicates error cannot be found when induced by the appellant.
Regardless, the court found no error in the charge of exception by the trial court. b. Appellant believes the court hindered his ability to provide a defense based on his alibi that he was not present at the scene of the crime when the fire occurred and that he claimed the fire resulted by way of accidentally leaving a hot plate on. The prosecution proved the appellant conspired to ignite the fire later when he was not present. Prosecution also proved that by pouring the accelerant around the hot plate with the power on, is not indicative of an accident.
The defense must prove “impossibility of the accused’s presence,” for which the court found no basis for error in the original trial. c. Appellant claims error regarding his defense of accident using the prosecution’s wording as a basis for the charge. The trial court indicated the reference of the fire as being a scene of a crime and/or offense is an unsuitable reference. The court found no error in the wording describing the fire. The reference does not damage the defense’s ability to provide the defense of accident.
Reasoning: The trial court referenced various cases to determine a basis for error regarding wavier of appeal or new trial, defense of alibi, or defense of accident. The trial court found that the defense counsel stated no exceptions when the trial court inquired; therefore, the court finds no error. An alibi indicates the impossibility of the accused’s presence and the appellant contends that prosecution violated this by using “possible” in the argument charged to the jury. The court did not agree with the appellant’s opinion of misleading the jury through its wording of the charge.
Appellant’s claim of error related to defense of accident did not apply due to the evidence collected by the police. The burn patterns indicating the use of an accelerant and the hot plate left in the on position. When classifying the fire as “incendiary,” one must conclude, the fire is a result of intent. The appellant has no grounds to base an appeal in this area because of a lack of evidence to support the claim of accident. Mr. Kennedy’s actions of renewing his $40,000 insurance policy almost immediately prior to the fire and the evidence regarding his failing construction business suggest motive.
The evidence suggests that someone left the hot plate on, poured kerosene around the hot plate to ignite at a future time. This evidence suggests that the only person to gain from the fire is Mr. Kennedy. Dissenting opinions: believe the jury convicted the defendant of arson because the evidence and information obtained during the investigation suggests he planned the fire, set up the device (hot plate) and established an alibi in order to receive the insurance benefits.
It is unlikely that one would pour or spill kerosene around a hot plate, leave it on and not clean up the spilled kerosene before leaving the house. Why was the defendant in Kennedy v. State convicted of arson? The defendant, Mr. Kennedy, was convicted of Arson due to a fire that was planned and executed on his cabin to file for an insurance claim and receive money. Compare and contrast the crimes of burglary, breaking and entering, and home invasion. Breaking and entering is the crime of entering a residence or other enclosed property without authorization and some element of force.
Without intent to commit a crime, breaking and entering by itself usually carries a charge similar to trespassing (USLegal. com Inc. , 2013). Burglary is the criminal offense of breaking and entering any dwelling or building illegally with the intent to commit a felony or crime. Under common law in order to constitute the offense the illegal entry should be into the dwelling of another at night. Under the New York statute law burglary can be defined in three degrees.
Burglary in the first degree is when the offender knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight there from, he or another participant in the crime is armed with explosives or a deadly weapon, causes physical injury to any person who is not a participant in the crime, uses or threatens the immediate use of a dangerous instrument and displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. Burglary in the first degree is a Class B felony.
Burglary in the second degree is when the offender knowingly enters or remains unlawfully in a building with intent to commit a crime and is armed with explosives or a deadly weapon, causes physical injury to any person who is not a participant in the crime, uses or threatens the immediate use of a dangerous instrument and displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. A burglary in the second degree is a class C felony. Burglary in the third degree is when a person knowingly enters or remains unlawfully in a building with intent to commit a crime therein.
Burglary in the third degree is a class D felony (USLegal. com Inc. , 2013). Home invasion is generally an unauthorized and forceful entry into a dwelling. For example, Michigan statute convicts a person guilty of a home invasion in three degrees. A person is guilty of home invasion in the first degree if the person is armed with a dangerous weapon and another person is lawfully present in the dwelling. Home invasion in the first degree is a felony punishable by imprisonment for not more than 20 years or a fine of not more than $5,000. 00, or both (USLegal. com Inc. , 2013).
A person is guilty of home invasion in the second degree if the person breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling. Home invasion in the second degree is a felony punishable by imprisonment for not more than 15 years or a fine of not more than $3,000. 00, or both. A person is guilty of home invasion in the third degree if the person breaks and enters a dwelling with intent to commit a misdemeanor in the dwelling, breaks and enters a dwelling or enters a dwelling without permission and violates probation, parole, personal protection order and a bond or bail of pretrial release.
Home invasion in the third degree is a felony punishable by imprisonment for not more than 5 years or a fine of not more than $2,000. 00, or both (USLegal. com Inc. , 2013). Breaking and entering, burglary and home invasion are similar as they all are criminal offenses that entail the offender to knowingly and illegally pursue into the dwelling without authorization. They differ as breaking and entering is classified as a misdemeanor in most cases and burglary is breaking and entering with intent to commit a crime while home invasion is a crime similar to burglary with forceful entry (USLegal. om Inc. , 2013). In common law, larceny was defined as the taking of another person’s property or the interest in another’s property. Although larceny is still used in many states today, it has been greatly expanded to include other theft expenses. Identify at least 3 related theft offenses that developed from the offense of larceny. Discuss your identified offenses, and provide examples to support your arguments.
Three related theft offenses that developed from the offense of larceny are pocket–picking, purse snatching and shoplifting. Pocket picking is defined as theft of articles from a person by stealth where the victim usually does not become immediately aware of the theft. Purse snatching is the grabbing or snatching of a purse, handbag, etc. , from the custody of an individual. Shoplifting is the theft by a person (other than an employee) of goods or merchandise exposed for sale (Justia. com , 2013).?
References: 172 Ga. App. 336, 323 S. E. 2d 169 Justia. com (2013). Larceny-theft. Retrieved from http://www. justia. com/criminal/docs/uniform-crime-reporting-handbook/larceny-theft. html USLegal. com Inc. (2013). Breaking and entering. Retrieved from http://definitions. uslegal. com/b/breaking-and-entering/ USLegal. com Inc. (2013). Burglary. Retrieved from http://definitions. uslegal. com/b/burglary/ USLegal. com Inc. (2013). Home invasion. Retrieved from http://definitions. uslegal. com/h/home-invasion/
