CrimLaw-S05-Legomsky-Wollensack

8/7/2019 CrimLaw-S05-Legomsky-Wollensack

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I. Theories of punishmenta. Prevention/Intimidation/Particular Deterrence/Punishment

i. Aims to deter the specific criminalii. Give criminal unpleasant experience, so he wont repeat offend

iii. Pro: dont know what the rate of recidivism would be without thisiv.

Cons:1. Is this effective given the high rate of recidivism?

2. May produce feelings of revenge against society in the prisonerb. Restrain/Incapacitation/Isolation/Disablement

i. Pro:1. Society must protect itself from offenders2. Used to justify death penalty and life without parole

ii. Con:1. Those who present a danger of continuing criminality can rarely be identified2. Most prisoners will eventually be returned to society anyway

c. Rehabilitation/Correction/Reformationi.

Pro:1. Return offender to society reformed so that he will not commit crimes2. Focus on making offenders life better3. Rests on the theory that human behavior is the product of antecedent causes.

ii. Con:1. Sees offenders as lacking dignity and capable of manipulation2. Uncertainty as to ability to reform offenders3. Injustice done to offenders who are treated differently on the presumption that

they are somehow different, increased by the uncertainty as to the effectiveness of

the reformationd. Deterrence/General Prevention

i. Pro: to prevent others, aside from the criminal, from committing future crimeii. Con:

1. Difficult to measure effectiveness2. Expert criminals and those who commit emotional crimes unlikely to be deterred.3. Probability of discovery may be more influential

e. Educationi. Pro

1. Educates the public as to the distinctions between good and bad conduct2. Especially helpful with malum prohibitum offenses

f. Retribution/Revenge/Retaliationi. It is only fitting that one who has caused harm should have to suffer harm; society needs

revengeii. Con: morally indefensible

II. Classification of Crimesa. Felony vs. Misdemeanor

i. Statutory distinctionii. Felonyusually a crime that is punished by death, imprisonment for more than a year

(sometime in the state penitentiary)Melton v. Oleson (course handout); determined bythe possible rather than actual punishment imposed


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iii. Misdemeanorany crime that is not a felony (punishable by imprisonment of less thanone year and in a local jail)

iv. Melton v. OlesonThe character of the offense, i.e. whether felony or misdemeanor,must be determined by the laws of the jurisdiction where the crime was committed.

b. Malum in se and malum prohibitumc.

Infamous Crimes (US v. Moreland)i. US Constitution requires that these crimes be charged by grand jury indictment

ii. Defined by the possible (not actual) punishment rather than the crimeiii. Punishments that result in imprisonment in a penitentiary or hard labor.iv. State and federal definitions may differ--

III. Elements of a crimea. Actus reus

i. Bad thoughts alone can not constitute a crime, must be commission or omissionii. Act must be voluntary

b. Mens reac. Causationd.

HarmIV. Homicide Generally

a. Definedthe killing of a human being by another human beingb. Felonious homicide

i. Corpus delicti andii. the identity of the accused as the other who caused the death

c. Corpus delictii. Definedthe body of the crime

ii. Essential element of felonious homicideiii. Elements

a. Deathb. The criminal agency of another as the cause of death

iv. Established by:a. Direct orb. Circumstantial evidence

v. Casesa. Downey v. Peoplecorpus delicti established by circumstantial evidence.

Competent evidence tending to establish the facts of the case is sufficient

to establish the corpus delicti of the crime of murder

b. Hicks v. Sheriff, Clark CountyConfessions of criminal agency causingdeath require independent corroboration of the evidence. At the very least

there must be established, independent of an confession or admission by

the accused, the fact of death and that it resulted from the criminal agencyof another and not from natural causes, accident or suicide.

c. Warmke v. Commonwealtha body need not be recovered to establishcorpus delicti. For the purposes of establishing corpus delicti, death maybe shown by circumstantial evidence in the form of proof of criminal

violence adequate to produce death and which accounts for the

disappearance of the body.d. What qualifies as life


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i. Beginninga. Majoritybirth (People v. Guthrie)b. Minority

i. Viable fetusii. Fetus, even nonviable

c.

MPC 210.0(1)human being means a person who has been born and isalive. (CB 216)d. Michigan Assaultive Abortion Statutewillful killing of an unborn quick

child by injury to the mother of such child, which would be murder if it

resulted in death of such other, shall be deemed manslaughter.

e. Manslaughter by Abortion Statuteadminister to any woman pregnantwith quick child any medicine, drug, or substance whatever, or shall

employ any instrument by any other means, with the intent thereby to

destroy such a child, unless the same shall have been necessary to preservethe life of the mother, shall, in the case of death of such child or of such

mother be thereby produced, be guilty of manslaughter.

ii.

End a. Common law: The cessation of life; the ceasing to exist; defined byphysicians as a total stoppage of the circulation of the blood and a

cessation of the animal and vital functions consequent thereon, such as

respiration, pulsation, etc.b. Brain death (majority of states)

i. Unresponsiveness to normally painful stimuliii. The absence of spontaneous movements or breathing

iii. The absence of reflexesc. People v. Fierro

e. MPC 210.1 Criminal Homicide (CB 216)i. A person is guilty of criminal homicide if he purposely, knowingly, recklessly or

negligently cases the death of another human being.ii. Criminal homicide is murder, manslaughter, or negligent homicide.

V. Murdera. Defined:

i. Common lawThe unlawful killing of another living human being with maliceaforethought

ii. MPC 210.2 Murder (CB 216)Criminal homicide constitutes murder when:1. It is committed purposely or knowingly2. It is committed recklessly under circumstances manifesting extreme indifference

to the value of human life. Such recklessness or indifference is presumed if the

actor is engaged or is an accomplice in the commission of, or an attempt tocommit, or flight after committing or attempting to commit robbery, rape, deviate

sexual intercourse by force or threat of force, arson, burglary, kidnapping or

felonious escape.3. Murder is a felony of the first degree.

b. Malice aforethought for murder (mens rea)i. Intent to kill murder

ii. Intent to do serious bodily injury murder


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iii. Depraved heart murder (Banks v. State)1. One who deliberately uses a deadly weapon in such a reckless manner as to

evince a heart reckless of social duty and fatally bent on mischief, as is shown by

firing into a moving railroad train upon which human beings necessarily are,cannot shield himself from the consequences of his acts by disclaiming malice.

2.

The intentional doing of any wrongful act in such a manner and under suchcircumstances as that the death of a human being may result there from is malice.iv. Felony murder

1. incorporated under the MPC as mens rea (see above MPC 210.2 CB p. 216)2. At common law:

a. People v. Phillips (handout)i. Felony must be inherently dangerous to human life

ii. In assessing the peril, look at the felony in the abstract and not onthe particular facts of the case.

iii. Should not withdraw the issue of malice when looking at thefelony murder rule. Still must find malice express or implied

manifest with an intent with conscious disregard for life to commitacts likely to kill

iv. The commission of felony may be enough to get to murdercontrast with MPC approach where felony only substitutes for

mens rea.c. MPC--A person is guilty of criminal homicide under the Model Code if he unjustifiably and

inexcusably takes the life of another human being [MPC 210.0(1)] purposely, knowingly,

recklessly, or negligently. [MPC 210.1(1)] The Code recognizes three forms of criminalhomicide: murder, manslaughter, and (unlike the common law) negligent homicide. At

common law negligent homicide is included in manslaughter. The Model Penal Coderejects thedegrees-of-murder approach.

VI. Manslaughtera. MPC 210.3 Manslaughter (CB 217)

i. Criminal homicide constitutes manslaughter when:1. It is committed recklessly; or2. A homicide which would otherwise be murder is committed under the influence

of extreme mental or emotional disturbance for which there is a reasonable

explanation or excuse. The reasonableness of such explanation or excuse shall

be determined from the viewpoint of a person in the actors situation under

the circumstances as he believes them to be. (Note: this belief does NOT haveto be reasonable; also note that this is an excuse for the mental state, but not for

the killing).

3. Manslaughter is a felony of the second degree.b. Common law

i. Top down approach (Voluntary)1. Mitigation from Murder2. Elements of Voluntary Manslaughter (State v. Farris)

a. Defendant was sufficiently provokedb. By conduct which aroused rage, fear, sudden resentment, terror or some

other extreme emotion


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c. And the provocation was such that an ordinary person of averagedisposition would have lost self-control and not yet cooled

(CONTRAST: Common law ordinary person standard with the MPC

approach which does not have an ordinary person standard).d. The defendant is guilty of manslaughter rather than murder

3.

Factors that contribute to provocation (State v. Farris)a. Prior bad acts of the victim directed at the defendant and the members ofthe defendants family

b. Prior threats of killing both defendant and a member of his familyc. A motion towards defendant at the time of the killing which could have

been an attempt to strike the defendant or move for a weapon.d. Words alone will not furnish adequate provocation for this purpose.

CONTRAST with State v. Grugin: informational words may constitute

provocation (Im having an affair); an assault, too slight in itself to besufficient provocation, to reduce murder to manslaughter, may become

sufficient for that purpose, when coupled with words of great insult.

There are circumstances where words amount to a provocation in law.e. People v. Borchers (CB 188)The fundamental inquiry in determiningwhether homicide is a voluntary manslaughter is whether or not the

defendants reason was, at the time of his act so disturbed or obscured by

some passionnot necessarily fear and never, of course, the passion ofrevengeto such an extent as would render ordinary men of average

disposition liable to act rashly or without due deliberation and reflection,

and from this passion rather than from judgment.ii. Bottom up approach (Involuntary)the unlawful killing of a human being without

malice aforethought and without intent to kill1. People v. Williams: Unlawful killing occurs:

a. During the commission of a misdemeanor (which is inherently dangerousto human life). (Misdemeanor manslaughter)

b. In the commission of an act ordinarily lawful, which involves a high riskof death or great bodily harm. (Criminally negligent homicide)

c. In this case, the manslaughter occurred during the commission of a batteryand therefore was considered misdemeanor manslaughter.

2. Misdemeanor Manslaughter Rule3. Criminally negligent homicide (not separate offense as provided under the MPC)

a. People v. Rodriguez (CB 200)California Rule: mother left her childrenat home alone when the house caught fire and her infant died. Here no

evidence tending to suggest the knowledge that leaving children at home

alone might result in death. Involuntary manslaughter may occur in thecommission of an unlawful act, not amounting to a felony, or in the

commission of an unlawful act, which might produce death, in an

unlawful manner, or without due caution or circumspection. It isgenerally held that an act is criminally negligent when a man of

ordinary prudence would foresee that the act would cause a high

degree of risk of death or great bodily harm. The act must be onewhich has knowable and apparent potentialities for resulting in death.


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Mere inattention or mistake judgment resulting even in death of another isnot criminal unless the quality of the act makes it so.

VII. MPC 210.4 Negligent Homicide (MPC ONLY) (CB 217)a. Criminal homicide constitutes negligent homicide when it is committed negligentlyb. Negligent homicide is a felony of the third degreec.

MPC 2.02 (c) (CB 742) Recklesslyi. A person acts recklessly with respect to a material element of an offense when he

consciously disregards a substantial and unjustifiable risk that the material element exists

or will result from his conduct. The risk must be of such a nature and degree that,

considering the nature and purpose of the actors conduct and the circumstances known to

him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe from the actors situation.

d. MPC 2.02 (d) (CB 743) Negligentlyi. A person acts negligently with respect to a material element of an offense when he should

be aware of a substantial and unjustifiable risk that the material element exists or will

result from his conduct. The risk must be of such a nature or degree that the actors

failure to perceive it, considering the nature and purpose of his conduct and thecircumstances known to him, involves a gross deviation from the standard of care that a

reasonable person would observe in the actors situation.

e. State v. Bier (CB 202trailer park case)a person acts negligently with respect to a result or toa circumstance described by a statute defining an offense when he consciously disregards a riskthat the result will occur or that the circumstance exists or if he disregards a risk of which he

should be aware that the result will occur or that the circumstance exists. Gross deviation that is

a considerably greater than lack of ordinary care, is the applicable standard. Must be aforeseeable riskvictim foreseeably endangered.

f. Mitigation to negligent homicide: People v. Watkins (CB 205bar fight case)while a jurymight not believe that a reasonable man would be in fear of his life under the circumstances of

the case, they might in fact believe that the defendant held a good faith belief, though an

unreasonable one, that he feared for his life. Such a belief would entitle him to a verdict ofcriminally negligent homicide rather than murder.

g. Not all states have criminal negligence statutesthose that do usually limit to certain offensessuch as vehicular homicide.

VIII. Classification of Murdera. People v. Drum (CB 153)

i. All murder which shall be perpetrated by means of poison or by lying in wait or by anyother kind of willful, deliberate and premeditated killing, or in which shall be committedin the perpetration of, or attempt to perpetrate any arson, rape, robbery, or burglary, shall

be deemed murder of the first degree,

ii. All other kinds of murder shall be deemed murder of the second degree. Includes:1. Unlawful killing under circumstances of depravity of heart and a disposition of

mind regardless of social duty

2. If no intention to kill exists or can be inferred or collected from the circumstances.iii. Willfulif an intention to kill existsiv. Deliberateif this intention be accompanied by such circumstances as evidence a mind

fully conscious of its own purpose and design


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v. Premeditatedif sufficient time be afforded to enable the mind fully to frame the designto kill, and to select the instrument, or to frame the plan to carry this design to execution

vi. Manslaughterunlawful killing of another without malice express or implied;1. Voluntaryin a sudden heat2. Involuntaryin the commission of an unlawful act

b.

People v. Cornett (handout)i. To constitute deliberate and premeditated killing, the slayer must weigh and consider thequestion of killing and the reasons for and against such a choice and, having in mind the

consequences, decide to and commit the unlawful act causing death.

ii. The true test is not the duration of time, but rather the extent of the reflection.c. People v. Wilson (handout)independent felony rule: A felony is independent of the homicide

if the purpose of committing the felony is to kill, assault with a deadly weapon, or cause serious

bodily injury. This is the PURPOSE TEST.

IX. Assault and Batterya. Battery: unlawful application of force upon the person of another (in the absence of

PRIVILEGE, i.e. self-defense.) There is NO necessity of resultant bodily harm for criminal

battery at common law.b. US v. Bell (CB p. 230)There may be an attempt to commit a battery and hence an assaultunder circumstances where the intended victim is unaware of the danger. Apprehension on the

part of the victim is not an essential element of that type (attempted battery) of assault.

Defendants attempt to rape an insensitive victim was assault. Two definitions of assault:i. Attempted battery

ii. An act putting another in reasonable apprehension of bodily harmc. MPC 211.1 Assault (CB 248)

i. Simple Assault. A person is guilty of assault if he:1. Attempts to cause or purposely, knowingly or recklessly causes bodily injury to

another, or

2. Negligently causes bodily injury to another with a deadly weapon, or3. Attempts by physical menace to put another in fear of imminent serious bodily

injury.

Simple assault is a misdemeanor unless committed in a fight or scuffle entered into by

mutual consent, in which case it is a petty misdemeanor.ii. Aggravated Assault. A person is guilty of aggravated assault if he:

1. Attempts to cause serious bodily injury to another or causes such injurypurposely, knowingly, or recklessly under circumstances manifesting extreme

indifference to the value of human life (felony in the second degree); or2. Attempts to cause or purposely or knowingly causes bodily injury to another with

a deadly weapon (felony in the third degree)

d. MPC 211.2 Recklessly Endangering Another Person (CB 248)A person commits amisdemeanor if he recklessly engages in conduct which places or may place another person in

danger of death or serious bodily injury. Recklessness and danger shall be presumed where a

person knowingly points a firearm at or in the direction of another, whether or not the actorbelieved the firearm to be loaded.

e. Three views of assault:i. Minority view (1): To have a criminal assault you must have an attempted battery


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ii. Minority view (2): Criminal assault is an attempted battery and the present (actual notmerely reasonable belief) ability to complete the battery

iii. Majority view: criminal assault requires attempted battery or tort definition of assaultiv. Hypothetical: Defendant purposely points gun at victim. Defendant pulls the trigger.

The gun is not loaded.

1.

What do you need to know?2. Does the defendant know that the gun is not loaded?3. Does the victim know that the gun is not loaded?

f. Once you show a battery, there has been an assault. (US v. Jacobs, CB 232)X. Actus Reus

a. MPC 2.01 Requirement of a voluntary act. (CB 455)i. A person is not guilty of an offense unless his liability is based on conduct which

includes a voluntary act or the omission to perform an act of which he is physicallycapable.

ii. The following are not voluntary acts within the meaning of this section:1. a reflex or convulsion2. a bodily movement during unconsciousness or sleep3. conduct during hypnosis or resulting from hypnotic suggestion4. a bodily movement that otherwise is not a product of the effort or determination

of the actor, either conscious or habitual.

iii. Possession is an act, within the meaning of this section, if the possessor knowinglyprocured or received the thing possessed or was aware of his control thereof for asufficient period to have been able to terminate his possession.

b. Blackstoneintent can only be surmised by the commission of an overt act in furtherance of theintention.

D knows gun is notloaded, but the V

thinks the gun is

loaded

D thinks gun isloaded, but the V

knows the gun is

not loaded

Both D and V knowthat the gun is not

loaded

Both D and V thinkthat the gun is

loaded, though it is

unloaded

Minority 1 No assault becauseno attempted

batteryno intent

Yesattemptedbattery

Nono attempt tocommit battery

Yesattemptedbattery

Minority 2 No assault because

no attemptedbatteryno intent

Noattempted

battery withoutpresent ability

Nono attempt to

commit battery andno present ability

Noattempted

battery withoutpresent ability

Majority Assault under tort

definitionif thedefendant has intent

to cause

apprehension (doesthe defendant know

that the victim

thinks the gun isloaded)

Yesattempted

battery; No undertort definition

because the victim

can not be inapprehension if he

knows the battery

can not happen

Nofor the tort

claim the D musthave intent to cause

apprehension if the

D knows its notloaded knows the V

knows it is not

loaded. V has noapprehension

Yesattempted

battery; tortdefinition yes also

because the D

intends battery andthe V is in

apprehension.


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c. State v. Quick (CB 448)defendant convicted of unlawful manufacture of intoxicating liquor.The law dies not concern itself with mere guilty intention, unconnected with any overt act.

d. People v. Decina (CB 451)the conscious act was driving the car when the driver knew that hewas prone to seizures and thus he has committed the requisite actus reus for negligent homicide.The actus reus is not hitting the victims with the car.

e.

Omission as actus reus:i. Common Law: Jones v. United States (CB 503)Omission of a duty to care resulting inthe death of the one whom the duty is owed is chargeable with manslaughter. Legal

duties:

1. statutorily imposed duty to care for another2. where once stands in certain status relationship to another3. where one has assumed a contractual duty to care for another4. where one has voluntarily assumed the care of another and so secluded the

helpless person as to prevent others from rendering aid.5. (from notes) where one has created the peril in the first place6. (from notes) where a parent has a legal duty to protect others from their child

ii.

MPC 2.01. Omission as Basis of Liability (CB 509)1. Liability for the commission of an offense may not be based on an omissionunaccompanied by action unless:

a. The omission is expressly made sufficient by the law defining the offense,or

b. A duty to perform the omitted act is otherwise imposed by law.XI. Mens Rea

a. Perkins on mens rea:i. Neither actus reus or mens rea is sufficient for conviction; it is the combination of the two

which constitutes criminal guilt.ii. On the negative side there must not be found any factor which is sufficient for

exculpation

iii. On the positive side there must be found an intent to do the deed which constitutes theactus reus of the offense charged.

iv. General mens rea is common to all true crimeb. State v. Chicago, Milwaukee & St. Paul Railway

i. Enforcement of statutes purely penal in nature serves no purpose where the violation wasunintentional or inadvertent

ii. Where a statute outside of the criminal code provides for imprisonment and thelegislature has not shown an intent to dispense with a culpable mental state, theprosecution must at least establish criminal negligence to convict.

c. State v. Peeryspecific intent crime: the evidence must be sufficient to sustain a finding thatthe misconduct complained of was committed with the deliberate intent of being indecent orlewd rather than the result of carelessness or thoughtlessness.

d. Intended consequences are those which:i. Represent the very purpose for which an act is done (regardless of the likelihood of

occurrence) or

ii. Are known to be substantially certain to result (regardless of desire)e. Specific intent: additional intent specifically required for the guilt of the particular offense.


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i. MPC rejects specific intent: MPC mens rea is purposely, knowingly, recklessly, andnegligently

ii. State v. May (forgery case, handout)It has been held in this state, and in others, that aperson possessing a recently forged document, or passing it, is presumed either to haveforged it or to have the necessary intent to defraud. This is a rebuttable presumption, but

it does shift the burden to the defendant to explain his incriminating conduct.iii. Dobbs Case (CB 659): Prisoner acquitted of killing horse when his intention was merelyto harm the horse and prevent it from running; no intent for burglary

iv. Thacker v. Commonwealth (CB 659):1. An attempt to commit a crime is composed of 2 elements:

a. The intent to commit it andb. A direct, ineffectual act done towards its commission.

2. To be guilty of an attempt (to murder) there must be specific intent (to kill)f. MPC Mens Rea2.02 General Requirements of Culpability

i. Minimum Requirements of Culpability. Except as provided in 2.05 a person is not guiltyof an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law

may require, with respect to a material element of the offense.ii. Kinds of Culpability Defined.1. Purposely. A person acts purposely with respect to a material element of an

offense when:

a. If the element involves the nature of his conduct or a result thereof, it ishis conscious object to engage in conduct of that nature or to cause such a

result; and

b. If the element involves the attendant circumstances, he is aware of theexistence of such circumstances or he believes or hopes that they exist.

g. Conditional Intenti. People v. Conners (union case, handout)the specific intent charged is the gist of the

offense and must be proven as charged in the indictment. The intent must be ACTUAL

not CONDITIONAL, especially not conditioned upon non compliance with a properdemand. If the threatened injury, coupled with the present ability to inflict it, is

conditioned upon the party assailed refusing to do something which the assailant has NO

RIGHT to require him to do, it will constitute an assault even though the conditions arecomplied with and therefore no violence is used.

ii. MPC 2.02(6)Requirement of Purpose Satisfied if the Purpose is Conditional.When a particular purpose is an element of an offense, the element is established

although the purpose is conditional, unless the condition negatives (eliminates) the harmor evil sought to be prevented by the law defining the offense. (CB 743)

h. State of Mindi. Common Law: State v. Beale (sale of stolen goods case, CB 683)

1. MajoritySUBJECTIVE TEST: the gist of the offense is the defendants state ofmindand not what, under like circumstances, might be the state of mind of

some other person. The statute does not punish one too dull to realize his offense.2. MinorityOBJECTIVE TEST: response to difficulty of ascertaining defendants

true state of mind. The circumstances must have that affect upon his mind, to

constitute knowledge by him.


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3. The very essence of the criminal offense is the intentional wrongdoing of thedefendant so that the defendant himself must know that he is doing wrong.

ii. MPC 2.02(2)(b) Knowingly. A person acts knowingly with respect to a material elementof an offense when:

1. if the element involves the nature of his conduct or the attendant circumstances,he is aware that is conduct is of that nature or hat such circumstances exist, and2. The element involves a result of his conduct, he is aware that it is practicallycertain that his conduct will cause such a result.

iii. MPC 2.02(7) Requirement of Knowledge Satisfied by Knowledge of HighProbability. When knowledge of the existence of a particular fact is an element of an

offense, such knowledge is established if a person is aware of a high probability of itsexistence, unless he actually believes that it does not exist.

i. Strict Liabilityi. Malum prohibitum offenses are not true crimes and the normal mens rea requirement of

crime does not attach. They are enforced on the basis of strict liability unless the

particular statute or ordinance adds some limitation.

ii.

The Queen v. Stephens (rubbish in river case, handout)inasmuch as the object of theindictment is not to punish the defendant, but really to prevent the nuisance from being

continued, I think that the evidence which would support a civil action would be

sufficient to support an indictment.

iii. Commonwealth v. Olshefski (truck weight violation case, CB 707)in statutorycrimes, which are simply mala prohibita, the mental element is not necessary for the

commission of the crime, and one who does an act in violation of the statute and is

caught and prosecuted, is guilty of the crime irrespective of his intent or belief.

iv. Commonwealth v. Koczwara (employee violates liquor code case, CB 720)allowableto carry over strict liability to respondent superior cases where there is a light monetaryfine, however, criminal responsibility in cases involving true cries is unthinkable.

Liability for true crimes, wherein an offense carries a jail sentence, must be based

exclusively on personal causation.j. Ignorance or Mistake

i. Mistake of Law1. Presumption of knowledge of the law is rebuttable in a prosecution for an offense

requiring a specific intent.

2. General rule is that ignorance is only a defense in specific intent crimes3. State v. Cude (CB 835)It is fundamental that an essential element of larceny is

the intent to steal the property of another. Consequently, if there is anyreasonable basis in the evidence upon which the jury could believe that the

accused thought he had a right to take possession of is automobile, or if the

evidence in that regard is such that it might raise a reasonable doubt that he hadthe intent to steal, then the issue should be presented to the jury.

4. Commonwealth v. Benesch (handout)to constitute criminal intent necessary toestablish a conspiracy there must be both knowledge of the existence of the lawand knowledge of its actual or intended violation. Criminal intent, defendants

knowledge of the illegal element, is necessary for conspiracy to commit a malum

prohibitum offense.


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5. Lambert v. California (CB 843)A law which punished conduct which wouldnot be blameworthy in the average member of the community would be too

severe for the community to bear. Defendants failure to register was wholly

passive and she has had not received proper notice of the statutory requirement toregister.

ii.

MPC (CB 846). 2.04 Ignorance or Mistake.1. Ignorance or mistake as to a matter of fact or law is a defense if:a. The ignorance or mistake negatives the purpose, knowledge, belief,

recklessness, or negligence required to establish a material element of the

offense, or

b. The law provides that the state of mind established by such ignorance ormistake constitutes a defense.

2. Although ignorance or mistake would otherwise afford a defense to the offensecharged, the defense is not available if the defendant would have been guilty ofanother offense had the situation been as he supposed. In such cases, however,

ignorance or mistake of the defendant shall reduce the grade or degree of the

offense of which he may be convicted to those of the offense of which he wouldhave been guilty had the situation been as he supposed.

3. A belief that conduct does not legally constitute an offense is a defense to aprosecution for that offense based upon such conduct when:

a. The statute or other enactment defining the offense is not known to theactor and has not been published or otherwise reasonably made available

prior to the conduct alleged; or

b. He acts in reasonable reliance upon an official statement of the law,afterward determined to be invalid or erroneous, contained in (i) a statute

or other enactment; (ii) a judicial decision, judgment, or opinion, (iii) anadministrative order or grant of permission, or (iv) an official

interpretation of the public officer or body charged by law with

responsibility for interpretation, administration or enforcement of the lawdefining the offense.

4. The defendant must prove a defense arising under subsection 3 of this section bythe preponderance of the evidence.

iii. 2.02(9) Culpability as to Illegal Conduct (CB 846). Neither knowledge nor recklessnessor negligence as to whether conduct constitutes an offense or as to the existence, meaning

or application of the law determining the elements of an offense, unless the definition of

the offense or the Code so provides.iv. Ignorance or Mistake of Fact

1. Defense of mistake of fact is comprised of three elements:a. Mistake must be honest and reasonableb. Mistake must be about a matter of factc. The mistake must serve to negate he culpability required for the offense

2. The King v. EwartThree classes of required mens rea:a. Those in which either from the language or scope and object of the

enactment to be construed, it is made plain that the legislature intended to

prohibit the act absolutely, and the question of the existence of a guilty


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mind is only relevant for the purpose of determining the quantum of thepunishment for the offense (strict liability)

b. Those in which, following the common law rule, a guilty mind must eitherbe necessarily inferred from the nature of the act done or established byindependent evidence (independent proof of mens rea)

c.

Those is which, although from the omission from the statute of the wordsknowingly or willful is not necessary to aver in the indictment that theoffense charged was knowingly or willfully committed, or to prove a

guilty mind, and the commission of the act in itself prima facie imports an

offense, yet the person charged may still discharge himself by proving to

the satisfaction of the tribunal that he had not a guilty mind. (rebuttablepresumption)

3. When the act is proved to have been done by the accused, if it be an act in itselfunlawful, the law in the first instance presumes it to have been intended, and theproof of justification or excuse lies on the defendant to overcome this legal and

natural presumption (People v. Vogel, bigamy case, handout)

4.

Mistake of agea. Common Lawsometimes reasonable mistake valid defense (People v.Hernandez) but in the majority of states it is not (People v. Cash)

b. MPC 213.6 (CB 858). Provisions Generally Applicable to sexual offensesMistake as to age. Whenever in this article the criminality ofconduct depends on a childs being below the age of 10, it is no

defense that the actor did not know the childs age, or reasonably

believed the child to be older than 10. When the criminality dependson the childs being below a critical age other than 10, it is a defense

for the actor to prove by a preponderance of the evidence that hereasonably believed the child to be above the critical age.

c. MPC 230.1 (CB 859). Bigamy and Polygamy.XII. Concurrence of Act and State of Mind

a. Commonwealth v. Calieven though the fire was started accidentally, the insured formed theintent to defraud the insurance company after the fire had started and thus did not take steps to

extinguish the fire. This is sufficient concurrence between mens rea and actus reus.b. Jackson v. Commonwealththe mens rea led to the series of events that culminated in the death

of the victim. It does not matter that the defendants thought the victim was dead when the

decapitated her. They had previous intent to kill her.

XIII. Inchoate Crimesa. Conspiracy

i. US v. Figuredo: Whartons Rule. you can not charge conspiracy to commit a crime thatnecessarily involves the participation of two or more people. Redundant to charge themfor both. The punishment for conspiracy is already bundled into the elements of the

substantive crime. Charging them for conspiracy doubles the punishment in a way

unintended by the legislature. Exception to Whartons rule:1. When the offense could have been committed by one of the conspirators alone2. When the concerted action was not logically necessary, even though as a practical

matter the offense could not be committed without cooperation


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3. When those whose cooperation is necessary for the commission of the substantivecrime conspire with another person to commit the offense, are all guilty of

conspiracy. The defendants in the adultery case add someone who is playing a

logically unnecessary role in the crime, which is an added evil.ii. Where a statute provides that corroboration among a certain number of persons is

necessary to constitute guilt, and persons in excess of the statutory requisite number arecharged, application of Whartons rule shall be based on the nature of the excesscollaborators rather than the number of conspirators alonewere they necessary

conspirators?

iii. Gebardi v. US (CB 516)persons committing a crime in which one of them statutorilyexempted from committing can not be convicted of a conspiracy to commit that crime.

iv. US v. Falcone (handout)two views of sale of goods used in illegal manufacture: (1)seller is guilty if he had notice that the goods would be used for an illegal purpose. (2) In

order to be a conspirator, the seller must do an act in furtherance of the conspiracy, notmerely sell the goods with knowledge of how they might be used.

v. Pinkerton v. United States (CB 527-8): The unlawful agreement contemplated preciselywhat was done. It was formed for the purpose. The act was done in execution of theenterprise. The rule which holds responsible one who counsels, procures, or commands

another to commit a crime is founded on the same principle. That principle is recognized

in the law of conspiracy when the overt act of one partner in crime is attributable to all.

Act must be reasonably foreseeable.vi. MPC 5.03 Criminal Conspiracy. (CB 538-9)

1. Definition of Conspiracy. A person is guilty of conspiracy with another person orpersons to commit a crime if with the purpose of promoting or facilitating itscommission he:

a. Agrees with such other person or persons that they or one or more of themwill engage in conduct which constitutes such crime or attempt or

solicitation to commit such a crime; or

b. Agrees to aid such other person or persons in the planning or commissionof such crime or of an attempt or solicitation to commit such a crime.

2. (5) Overt Act. No person may be convicted of conspiracy to commit a crime,other than a felony of the first or second degree, unless an overt ct in pursuance ofsuch conspiracy is alleged and proved to have been done by him or by a person

with whom he conspired.

b. Attempti. Test: If the defendant had accomplished everything he had intended to do, would he

defendant have been guilty of a crime. If no, then not guilty of an attempt.

ii. Wilson v. State (forgery case, handout)in order to constitute the crime, there must notonly be the intent to commit it, but also an act of alteration done to a material part, so thatthe injury might result.

iii. People v. Paluch (handout, attempted barbery case)A person commits an attemptwhen, with the intent to commit a specific offense, he does any act which constitutes asubstantial step toward the commission of that offense. Two elements must be present to

constitute an attempt:

1. an intent to commit the specific offense and2. an act which is a substantial step towards its commission


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The distinction between preparation and the attempt is largely a matter of degree.

The crux of the determination of whether the acts are sufficient to constitute an

attempt really is whether, when given the specific intent to commit an offense,

the acts taken in furtherance thereof are such that there is a dangerous

proximity to success in carrying out the intent. Mere preparation to commit a

crime does not constitute an attempt to commit it. There must be acts whichconstitute substantial steps towards the commission of that offense.

The degree of proximity to the actual commission of the crime necessary for there to

be an attempt is, in part, determined by the apprehension which the particular crime is

calculated toe excite. The greater the apprehension, the greater the likelihood that awould be offender will not follow through with his intended plans.

iv. People v. Rizzo (CB 462)1. An act, in order to be a criminal attempt, must be immediately, and not remotely,

connected with and directly tending to the commission of an offense.

2. An act done with intent to commit a crime, and tending but failing to effect itscommission, is an attempt to commit that crime. Tending means to exert activityin a particular direction.

3. An overt act is one done to carry out the intention, and it must be such as wouldnaturally effect that result, unless prevented by some extraneous cause.

4. Test: If it had not been for the interference, how likely is it that the crimewould have been committed? If it was not very likely then they are not guilty of

attempt

v. People v. Mitchell (CB 741)the fact that it is not possible for the defendant to completethe crime is not a defense to the attempt to commit the crime. Neither allegation or proof

of the capability to commit the crime is necessary to constitute an attempt to commit thecrime. If the defendant had accomplished everything he had intended to do, would

he be guilty of the completed crime? If the answer is no, then no attempt. If yes,

examine the issue of dangerous proximity.

vi. People v. Rojas (CB 472)consider whether the defendants are guilty of an attemptbefore the intervening impossibility occurs.

vii. Preddy v. Commonwealth (CB 482)attempted rape when a man intends to rape afemale but finds himself impotent. Impotency may be a defense where statutorily made

so (VA law regarding boys under 14), but otherwise is not.

viii. Impossibility will not be a defense when the defendant had gone far enough in an attempteven prior to what rendered completion of the act impossible. CONSIDER LEGAL VS.FACTUAL IMPOSSIBILTY, however distinction may not be definitive.

ix. MPC 5.01 Criminal Attempt (CB 490)c. Solicitation

i. MPC 5.02 (p. 491)ii. State v. Blechman

1. Solicitation is a substantive crime in itself.2. Solicitation falls short of an attempt to commit the offense solicited3. One who counsels, incites, or solicits another to commit a felony, is indictable as

a principle or an accessory before the fact, if the designed felony is accomplished,


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depending upon his presence and participation or absence at the time of itscommission.

d. Abandonmenti. Stewart v. State (CB487)once an intent to commit a crime has been formed and overt

acts toward the commission of that crime have been committed b a defendant he is then

guilty of an attempt, whether he abandoned that attempt because of the approach of otherpersons or because of a change in his intentions due to a stricken conscience.ii. State v. Peterson (arson solicitation case, CB 488)One who has procured, counseled or

commanded another to commit a crime may withdraw before the act is done and avoid

criminal responsibility by communicating the fact of his withdrawal to the party who is to

commit the crimeiii. MPC 5.01(4), 5.02(3), 5.04, 5.05 (CB 490-492)iv. MPC 5.03(6) (CB 539) Renunciation of Criminal Purpose. It is an affirmative defense

that the actor, after conspiring to commit a crime, thwarted the success of the conspiracyunder circumstances manifesting a complete and voluntary (see CB 491) renunciation of

his criminal purpose.

XIV.

Parties to Crimea. State v. Williamsone cannot become an accessory after the fact to a felony until such a felonyhas become an accomplished fact.

b. MPC 2.06 Liability for the conduct of another; Complicity (CB 568)c. Commonwealth v. Lawd. The King v. Richardson

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CrimLaw-S05-Legomsky-Wollensack