FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 103
Go
to Volume
7 Table of Contents - Go to Chapter
103 Table of Contents
103.6 Possession Of Burglary Tools
103.6.3 Possession Of Burglary Tools: Defenses And Defense Theories
103.6.3.1 Possession Of Burglary Tools: Lack Of Intent To Enter A Building To Commit A Felony As Defense Theory
103.6.3.2 Possession Of Burglary Tools: Additional Defenses And Defense Theories
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 103
103.6.3.1 Possession Of Burglary Tools: Lack Of Intent To Enter A Building To Commit A Felony As Defense Theory
RATIONALE: Possession of burglary tools is normally criminal only if coupled with an intent to use the tools to commit a crime. As an element of the charge, such intent should be included in the instruction defining the offense.
POINTS AND AUTHORITIES: "Mere possession of burglar’s tools is not enough; it must also be shown that the defendant intended to use them in the commission of a crime...." (Wharton’s Criminal Law (West, 15th ed. 1993) § 333, p. 305.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
SAMPLE INSTRUCTION:
An essential element of the crime of unlawful possession of burglary tools is that the defendant intended to use the tool or device to break into a building with intent to steal. The prosecution must prove beyond a reasonable doubt that the defendant possessed the tool or device for the purpose of using it to break into a building with the intent to take and carry away the property of another without consent and with intent to permanently deprive the owner of possession of such property.
[See generally Wharton’s Criminal Law (West, 15th ed. 1993) § 333, p. 305; cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1431 [Possession Of Burglarious Tools] para. 5 (University of Wisconsin Law School, 1999).]
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 103
103.6.3.2 Possession Of Burglary Tools: Additional Defenses And Defense Theories
PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)