Houston, TX asked in Criminal Law for Mississippi

Q: If my friend was drunk and entered the wrong house and fell asleep in his neighbor home.is that breaking and entering

All the house looked the same he was up 24 and he was drunk

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1 Lawyer Answer
Ed Williams
Ed Williams
  • Criminal Law Lawyer
  • Cleveland, MS

A: The answer to this question is extremely fact intensive because it depends on the person's mens rea, or "state of mind." If the person was charged with burglary, the state must prove that the person broke in and intended to commit a felony therein. In this case, it sounds unlikely the person intended to commit a felony. Sleeping in someone else's house, with nothing further, probably would not rise to the level of felony conduct. However, this person could be charged with a misdemeanor under Miss. Code Ann. Section 97-17-87 for willful or malicious trespass: "(1) Any person who shall be guilty of a willful or malicious trespass upon the real or personal property of another, for which no other penalty is prescribed, shall, upon conviction, be fined not exceeding Five Hundred Dollars ($500.00), or imprisoned not longer than six (6) months in the county jail, or both."

Voluntary intoxication is an available defense to burglary under certain circumstances, but likely would only bolster the "malicious" aspect of the willful or malicious trespass.

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