DWELLING AFTER A BREAKING, THEN THERE IS AN ENTRY. THEREFORE, IF A WINDOW
IS OPEN SIX INCHES, SO THAT THE CRIMINAL CANNOT CRAWL INSIDE THE HOUSE, IT IS
AN ENTRY IF HE OPENS THE WINDOW FAR ENOUGH TO LEAN INSIDE AND GRAB A
PURSE. IF HE ONLY INSERTS HIS ARM INTO THE WINDOW OPENING AND GRABS THE
PURSE WITHOUT NEEDING TO OPEN THE WINDOW FURTHER, THERE IS AN ENTRY BUT
NO BREAKING, SO NO BURGLARY.
Both the breaking and the entering must take place in the nighttime, which means that period
between sunset and sunrise when there is not sufficient daylight to discern the features of a person's face.
Part IV, MCM 1984, PARA 55 (c) (4).
Under this Article, the term dwelling house of another includes outbuildings within the common
enclosure, farmyard, or cluster of buildings used as a residence. Normally, a store is not considered a
dwelling unless it is part of a dwelling house or when the store is habitually slept in by family members
or employees. The house must be used as a dwelling at the time of the breaking and entering. It is not
necessary that anyone actually be in it at the time of the breaking or entering. However, if the house has
never been occupied at all or has been abandoned, it is not a dwelling house. Separate dwellings within
the same building, such as a barracks room, apartment, or a room in a hotel are "dwellings" for burglary.
QUESTION: CAN ANYTHING CONSTITUTE A DWELLING AS LONG AS SOMEBODY LIVES
THERE?
ANSWER: NO. FOR EXAMPLE, A TENT IS NOT A DWELLING. PART IV, MCM 1984, PARA
55(c) (5).
To convict the accused of either housebreaking or burglary it is not necessary for him to commit a
separate crime once inside. IF HE DOES, it is a separate crime for which he can be convicted and
sentenced in addition to housebreaking or burglary as the case may be.
G. Arson (Article 126, UCMJ). The offense of arson is either aggravated or simple.
Aggravated arson can be committed on an inhabited dwelling or any other structure. To be
convicted of aggravated arson of an inhabited dwelling, the accused must willfully and maliciously set
on fire or burn an inhabited dwelling which belongs to a certain person and is of a certain value. An
inhabited dwelling includes the outbuildings that form part of the cluster of buildings used as a
residence. A shop or store is not an inhabited dwelling, unless occupied as such, nor is a house that has
never been occupied or which has been temporarily abandoned. An accused may be convicted of
aggravated arson of his own inhabited dwelling whether he is the owner or tenant.
Also, the accused can be convicted of aggravated arson if he willfully and maliciously burns
or sets on fire a certain structure which belonged to a certain person and which was of a certain value.
Also, at the time there must be a human being in the building, and the accused must know there was a
human
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