Criminal Law Prima Facie Case A.

Four elements: All crimes have several basic common elements: (1) a voluntary act (actus reus); (2) a culpable intent (mens rea); (3) concurrence between the mens rea and the actus reus; and (4) causation of harm. [1] -act Actus Reus Look for an actus reus problem anytime you have one of the following situations: (1) D has not committed physical acts, but has guilty thoughts, words, states of possession or status; (2) D does an involuntary act; and (3) D has an omission, or failure to actgeneral intent implied: Involuntary volunatary manslaughter, Battery, Arson, Rape, Kidnapping (IBARK) 1.voluntary movement 2.not involuntary (reflex, convulsion, sleeping, unconscious, pushed, falliing0 Failure to act (holds one responsible: where you must act and you dont act and if you dont it COUNTS AS THE ACT FOR PRIMA FACIE CASE. One must have the ability to act and know about the facts) 3.d mst have the legal duty to act -statute -tax return or reporting accident -contract -nurse, lifeguard, home health aid Relationship -spouse-spouse, parent child Voluntary assumption of care -d starts to help victim and stops and victim is worse off Creation of peril. -d creates a danger and he must try to minimize it -mental state The term mens rea symbolizes the requirement that there be a culpable state of mind. -distinguishes bad person from innocent accident -Common law 1. specific intent: defendant desires out come/result (just outcome) Example of specific intent crime: For common-law burglary, on the other hand, it must be shown that D not only intended to break and enter the dwelling of another, but that he also intended to commit a felony once inside the dwelling. This latter intent is a specific intent it is an intent other than the one associated with the actus reus (the breaking and entering). determining mental state specific intent: Solicitatioin, Conspiracy, Robbery, Attmempts, Embezzlement, Forgery, Larceny, Assault, Burglary (SCRAPE FLAB) -in addition everything that is attempt is specific intent.

2.general intent: defendant desires the act not necessarily outcome (just act) Example of general intent crime: Battery is usually a general intent crime. The actus reus is a physical injury to or offensive touching of another. So long as D intends to touch another in an offensive way, he has the general intent that is all that is needed for battery. (Thus if D touches V with a knife, intending merely to graze his skin and frighten him, this will be all the (general) intent needed for battery, since D 3 malice: in between specific and general reckless disregard for obvious danger or high risk of harm (dont have to want result to happen, but engage in an obvious danger) ONLY MALICE CRME IS ARSON 4 strict liability: no mental state, if event happens D is liable Ex: stautory rape, and sale of alcohol to minors S/L ACCEPTED BY C/L, MDRN TREND, AND MPC Examples of strict liability crimes: The following are often defined as strict liability offenses: Statutory rape (D is generally guilty if he has intercourse with a girl below the prescribed age, regardless of whether he knew or should have known her true age); mislabeling of drugs; polluting of water or air; concealment of a dangerous weapon while boarding an aircraft.

3. Significance: The general/specific intent distinction usually matters in two situations: (1) where D is intoxicated; and (2) where D makes a mistake of law or fact. [13] a. Intoxication: Intoxication rarely negates a crime of general intent, but may sometimes negate the specific intent for a particular crime. (Example: D breaks and enters, but is too drunk to have any intent to commit larceny or any other felony inside; D probably is not guilty of burglary.) [13] b. Mistake: Similarly, a mistake of fact is more likely to be enough to negate the required specific intent. [13] Example: D breaks and enters, in an attempt to carry away something which he mistakenly thinks belongs to him; D will probably be acquitted of burglary, where mistake will generally not negate a general intent (e.g., the intent to commit the breaking and entering by itself). MPC
1.

purposeful: d consciously desires outcome Motive: Ds motive will usually be irrelevant in determining whether he acted purposely or intentionally. [16 - 16] Example D, in an act of euthanasia, kills V, his wife, who has terminal cancer. D will be held to have purposely or intentionally killed V, even though he did it for ostensibly good motives.

2.

knowingly:d is conscious that outcome is probably certain knowingly take an act or produce a result. The biggest distinction between purposely and knowingly relates to Ds awareness of the consequences of his act: if the crime is defined with respect to a certain result of Ds conduct, D has acted knowingly (but not purposely) if he was aware that it is practically certain that his conduct will cause that result. On the facts of our earlier bomb on the airplane example, D will have knowingly killed B, but not purposely killed B, because he was aware that it was practically certain that his conduct would cause Bs death. 1. Presumption of knowledge: A statutory or judge-made presumption may be used to help prove that D acted knowingly. (Example: In many statutes governing receipt of stolen property, Ds unexplained possession of property which is in fact stolen gives rise to a presumption that D knew the property was stolen.) [18] 2. Knowledge of attendant circumstances: Where a statute specifies that D must act knowingly, and the statute then specifies various attendant circumstances which the definition of the crime makes important, usually the requirement of knowledge is held applicable to all these attendant circumstances. [18] Example: A statute provides that any dealer in used merchandise must file a report with the police if the dealer knowingly purchases a used item from one who is not in the business of selling such items, at a price less than half of the fair market value of the item. The statutes purpose is to cut down on the fencing of stolen goods. D, a used merchandise dealer, buys a vase for $500 that is really worth $2,000. Most courts would require the prosecution to show that D knew not only that he was purchasing the vase, but that he knew he was paying less than half of the vases fair market value. In other words, D must be shown to have acted knowingly with respect to all of the attendant circumstances, including the circumstance that the purchase price was much less than the value.

3. reckless: d consciously ignores high degree of risk (knowing of the high risk but continuing w/activity anyways A person acts recklessly if he consciously disregards a substantial and unjustifiable risk.... MPC 2.02(2). The idea is that D has behaved in a way that represents a gross deviation from the conduct of a law-abiding person. [19 - 20] 1. Must be aware of risk: Most courts, and the Model Penal Code, hold that D is reckless only if he was aware of the high risk of harm stemming from his conduct. This is a subjective standard for recklessness. But a substantial minority of courts and statutes hold that D can be reckless if he behaves extremely unreasonably even though he was unaware of the risk. [19] Example: D runs a nightclub with inadequate fire exits. A fire breaks out, killing hundreds. Under the majority subjective standard for recklessness, D was reckless only if he actually knew of the high risk of harm posed by inadequate fire exits. Under the minority objective standard, it would be

enough that D was extremely careless and that a reasonable person would have known of the great danger, even though D did not.
4.

negligence: purely objective. (any reasonable person shld have known better) d shld have been aware of high degree of risk (rushing, I wasnt thinking) Some statutes make it a crime to behave negligently if certain results follow. For instance, the crime of vehicular homicide is sometimes defined to require a mens rea of criminal negligence. [20 - 21] 1. Awareness not required: Most modern statutes, and the Model Penal Code, allow a finding of criminal negligence even if D was not aware of the risk imposed by his conduct (as in the above night-club fire example). [20] 2. Gross negligence required: Usually, criminal negligence is gross negligence. That is, the deviation from ordinary care must be greater than that which would be required for civil negligence. [21]

Modern trend: uses the same four levels but w/the following changes in language -intetnional not purposeful -uses wanton instead of reckless IF NOT TOLD ANY OTHER MENTAL STATE USE RECKLESS AS DEFAULT -TO CONVICT WHEN STATUTE SAYS CERTAIN LANGUAGE: CAN CONVICT THE RECKLESS MENTAL STATE W/PURPOSEFUL, BUT NOT RECKLESS W/NEGLIGENCE -concurrence, causation -d mst have mental state at the same moment of the act (ex: if one lookin for shelter and breaks in only for heat, and gets intent to commit rape once inside then only glty for rape. But if sees woman and breaks in and rapes then RAPE AND BURGLARY intent at moment of act to do both crimes) A. Two types of concurrence required: There are two ways in which there must be concurrence involving the mens rea: (1) there must be concurrence between Ds mental state and the act; and (2) there must be concurrence between Ds mental state and the harmful result, if the crime is one defined in terms of bad results. [35] B. Concurrence between mind and act: There must be concurrence between the mental state and the act Concurrence between mind and result: There must also be concurrence between the mental state and the harmful result, if the crime is one defined in terms of bad results (such as homicide, rape, larceny, etc.) Basically this aspect of concurrence means that if what actually occurred is too far removed from what was intended, there will be no concurrence

and thus no liability. -Cause. Two aspects of causation: Causation in criminal law relates to the link between the act and the harmful result. The prosecution must show that the defendants actus reus caused the harmful result, in two different senses: (1) that the act was the cause in fact of the harm; and (2) that the act was the proximate cause (or the legal cause) of the harm Two ways: There are two ways in which an act can be the cause in fact of harm: (1) by being the but for cause of the harm; and (2) by being a substantial factor in creating the harm. These categories overlap, but not completely. [44] 1. D has to be the actual cause of victims injury B. The but for rule: Most often, the act will be the cause in fact of the harm by being the but for cause of that harm. To put the idea negatively, if the result would have happened anyway, even had the act not occurred, the act is not a cause in fact of that result. [44] Example: D shoots at V, but only grazes him, leaving V with a slightly bleeding flesh wound. X, who has always wanted to kill V, finds V (in the same place V would have been in had D not shot at V), and shoots V through the heart, killing him instantly. Ds act is not a cause in fact of Vs death, under the but for test since V would have died, in just the manner and at the same time he did, even if D had not shot him, Ds act was not the but for cause of Vs death. Unless Ds act is found to have been a substantial factor in Vs death (the other test for causation in fact), which it probably would not, Ds act is not the cause in fact of Vs death, and D therefore cannot be punished for that death. C. Substantial factor test: Ds act will be found to be the cause in fact of harm, even if the act is not the but for cause, if the act was a substantial factor in bringing about the result. [44] Example: At a time of widespread riots, D sets fire to a house at 99 Main Street, and X simultaneously sets fire to one at 103 Main Street. A house at 101 Main Street is consumed by the blaze from the two fires. D is charged with arson. He shows that even had he not torched 99, the flames from 103 would have been enough to burn down 101 at the same time it actually did burn. (Thus Ds act was not the but for cause of the burning of 101.) However, since Ds conduct was a (though not the sole) substantial factor in burning down 101, he was a cause in fact of the fire and will therefore be liable for arson. 1. Ds act shortened Vs life: In a homicide case, if Ds act shortened the victims life, this will strongly suggest that Ds conduct was a substantial factor in producing the victims death. [45] Example: X poisons D, in such a way that despite all medical efforts, V will definitely die within one day. One hour after V drinks the poison, D shoots V, killing him instantly. Since V would have died shortly anyway, it can be argued that Ds shooting was not the but for cause of Vs death. But since D shortened Vs life, a court would certainly find that D was a substantial factor in causing Vs death, and would find him guilty of murder.

a. Intervening act shortens Vs life: Where the first person to do harm is charged, and defends on the grounds that the second persons intervening act should relieve him of liability, its a closer question, but many courts will find the first person to be guilty here as well. [45] Example: Same facts as above example, except now X, rather than D, is charged with murder. Assuming that V would inevitably have died from the poison had D not come along to shoot him, courts are split about whether D is relieved from liability by the intervening shooting. 2. Conspiracy: The above discussion of the substantial factor rule assumes that the two concurring acts occurred independently of each other. If the two occurred as part of a joint enterprise, such as a conspiracy, the act of each person will be attributed to the other, and there will be no need to determine whether each act was a substantial factor in leading to the harm. [46] Example: X and D each shoot V, as part of a successful conspiracy to kill V. Even if Ds shot only caused a small flesh wound and did not really contribute to Vs death, D is guilty of murder, because his co-conspirators fatal shot will be attributable to D under the law of conspiracy. . PROXIMATE CAUSE GENERALLY A. Definition of proximate cause: It is not enough that Ds act was a cause in fact of the harm. The prosecution must also show that the act and harm are sufficiently closely related that the act is a proximate or legal cause of that harm. This is a policy question: Is the connection between the act and the harm so stretched that it is unfair to hold D liable for that harm? [46] . D must be the proximate cause (d should have forseen his act would cause such circumstance or expected or anticipated) Ex: man shoots at victim and has to go to hospital for injuries, d shld anticipate vctm to go to hospital for injuries and gets trtmetnt from negligent doctor and dies d responsible. Shld forseen that act wld cause one to go to hospital. D shld expect that doctor cld give bad trmnt -medical negligence is foreseeable B. Model Penal Code formulation: Under the MPC, in most cases Ds act will be the proximate cause of the harmful result if the result is not too remote or accidental in its occurrence to have a [just] bearing on the actors liability or on the gravity of his offense. MPC 2.03(2)(b). [46]

3.Intentional acts, criminal acts, acts of God not foreseeable generally not foreseeable so not responsible for second act (thunderstorms etc) C/L VICTIM HAD TO DIE WITHIN A YEAR AND A DAY OF ACT MDRN if a series of two acts if second act is proximate then guilty for both

I. HOMICIDE taking of anothers life due to act or omission of another At common law- It was divided into 3 categories. Murder, Involuntary and Voluntary Mans. A. Different grades of homicide: Any unlawful taking of the life of another falls within the generic class homicide. The two principal kinds of homicide are murder and manslaughter. [230] 1. Degrees of murder: . First-degree murder:express malice Most states recognize at least two degrees of murder. First-degree murder in most states is a killing that is premeditated and deliberate. In many jurisdictions, murder is divided into first-degree and second-degree murder. Generally, first-degree murder consists of murders committed with premeditation and deliberation, and killings committed during the course of certain felonies. [230] First degree-premeditated Only short time required for premeditation: Courts do not require a long period of premeditation. Traditionally, no substantial amount of time has needed to elapse between formation of the intent to kill and execution of the killing. Most modern courts require a reasonable period of time during which deliberation exists, but even this is not a very stringent requirement five minutes, for example, would suffice in most courts even today. [248] Planning, motive or careful manner of killing: Like any other form of intent, premeditation and deliberation can be shown by circumstantial evidence. Typical ways of showing that D premeditated are: (1) planning activity occurring prior to the killing (e.g., purchase of a weapon just before the crime); (2) evidence of a motive in contrast to a sudden impulse; and (3) a manner of killing so precise that it suggests D must have a preconceived design. [249] . Intoxication as negating deliberation: If D is so intoxicated that he lost the ability to deliberate or premeditate, this may be a defense to first-degree murder (though not a defense to murder generally, such as second-degree murder). [249] Certain felony murders: Statutes in some states make some or all felonymurders (typically, those involving rape, robbery, arson and burglary) firstdegree. [250] Model Penal Code: The Model Penal Code does not divide murder into first- and second-degree, and attaches no significance to the fact that D did or did not premeditate/deliberate. [249] Second-degree murder:implied malice from specific intent crime Murders that are not first-degree are second-degree. These typically include the following classes: [250] No premeditation: Cases in which there is no premeditation. [250]

1. Intent to seriously injure: Cases where D may have premeditated, but his intent was not to kill, but to do serious bodily injury (a mens rea sufficient for murder). [250] 2. Reckless indifference: Cases in which D did not intend to kill, but was recklessly indifferent to the value of human life. [250] 3. Felony-murders: Killings committed during the course of felonies other than those specified in the first-degree murder statute (i.e., typically felonies other than rape, robbery, arson and burglary). [250] second no premeditation. If there is act that leads to murder, not a direct proximate cause second degree murder not always implied. It is the inherently dangerous activity to human life that makes such second degree murder conviction sustained. So therefore in its absence intent of doing act no inherent danger to human life making conviction reduced from murder to manslaughter. (drug overdose-if person in past frequently participated in act, it is not dangerous activity not 1st degree b/c man stayed until paramedics came test is not inherently dangerous to human life-Patterson) -second degree murder it is rare that motor vehicle accidents will sustain the convictio of murder because the malice is missing (not seeing vehicle on road negates intent of malice-maclaughlin)

2. Two kinds of manslaughter: Similarly, manslaughter is usually divided into: (1) voluntary manslaughter (in most cases, a killing occurring the heat of passion); and (2) involuntary manslaughter (an unintentional killing committed recklessly, grossly negligently, or during commission of an unlawful act.) [230] 3. Other statutory forms of homicide: Additional forms of homicide exist by statute in some states. Many states have created the crime of vehicular homicide (an unintentional death caused by the driver of a motor vehicle). Similarly, some states, and the MPC, have created the crime of negligent homicide. Murder: It is the intentional unlawful killing of a human being with malice aforethought express or implied. (Elements to prove: 1. act 2. that results in death 3. that is a proximate cause of 4.actors malice aforethought/state of mind) Act and cause relate by malium in se or malium prohibitum types of murder Malice Aforethought- Exists if the defendant had any of the following states of mind: a. Intent- Premeditated and deliberate (not intent for a joke-fire kills:Errington) b. Intent to inflict great bodily injury- death results from injury. (robbery-kill old lady: Vickers) C. Reckless indifference to an unjustifiable high risk to human life '''Important Note: reckless indifference is an objective look at the subjective state of mind of the actor. Examples of depraved heart murder (reckless indifference); -(shoot at car-no premeditation and offense of shooting at

dwelling=inherently dangerous to human life: Hansen) (clubbing-under circumst he took unjustifiable risk to human life: King) 1. Firing a bullet into a room, as defendant knows is occupied by several people. 2. Shooting into a caboose of a passenger train or into a moving automobile, occupied by human beings. 3. Driving a car at a very high speed along a main street. 4. Throwing stones from the roof of a tall building onto the busy street below 5. Piloting a speedboat through a group of swimmers 6. Swooping an airplane as to risk the decapitation of a motorist 7. Throwing a beer bottle at a pledge carrying a light oil lamp. 8. Firing a pistol near, but not at, a person, and the bullet ricochets off the wall and strikes the person. Examples of differenes btw depraved heart murder and involuntary manslaughter 1. Driving fast down a busy downtown street at 12 noon v. driving down a deserted country road and killing someone at 2 a.m. 2. Shooting a gun into an occupied passenger train and killing someone v. shooting into a freight car and killing a hobo. 3. Shooting into a room that you know is occupied v. shooting into a room that you reasonably believe to be unoccupied and someone is unexpectedly inside. An unintentional killing that results from defendant's conduct that is reckless. Must distinguish between depraved heart murder and involuntary manslaughter. Depraved heart involves recklessness; involuntary manslaughter involves grossly or wantonly negligence. d. Intent to commit felony- (defined later in outline) (drugstore bomb-any act that voluntarily sets in motion that carries high probability of great harm arrest not relieve liability: Hockenson) (mcdonalds-continuous act whether escape or moving onto another crime not at safe house yet is still one continuous act:Mayle)

. *To constitute involuntary manslaughter, the homicide must have from the Defendant's failure to exercise due caution and circumspection, which has been held to be the equivalent of criminal negligence or culpable negligence. Involuntary Manslaughter no malice aforethought no intention to commit SBH/GBI or criminal negligence (hit family-no wanton conduct was negligent: Macglaughlin) (Misdemeanor-involuntary manslaug liability whenever killing occurs in commission of misdemeanor that is not inherently dangerous yet if misdemeanor inherently dangerous then felony involuntary manslaughter) How crime gets reduced reckless gen intent, negligently gen intent or

misdemeanor manslaughter Misdemeanor-Manslaughter Rule- However, under the MPC, the fact that an act is unlawful may be evidence that the act was reckless (the Codes mens rea for manslaughter). [261] The misdemeanor-manslaughter rule: Just as the felony-murder rule permits a murder conviction when a death occurs during the course of certain felonies, so the misdemeanor-manslaughter rule permits a conviction for involuntary manslaughter when a death occurs accidentally during the commission of a misdemeanor or other unlawful act. [259 - 261] The theory behind the rule is that the unlawful act is treated as a substitute for criminal negligence (by analogy to the negligence per se doctrine in tort law). [259] A killing in the course of commission of a misdemeanor is manslaughter, although most courts would require either that the misdemeanor be malum in se (i.e., an inherently wrongful act), or if malum prohibitum, that the death be the foreseeable or natural consequence of the unlawful conduct. Example: D gets into an argument with V, and gives him a light tap on the chin with his fist. D intends only to stun V. Unbeknownst to D, V is a hemophiliac and bleeds to death. Since D has committed the misdemeanor of simple battery, and a death has resulted, he is guilty of manslaughter under the misdemeanor-manslaughter rule. The same result would occur if as the result of the light tap, V fell and fatally hit his head on the sidewalk. Example: D fails to stop at a stop sign, and hits V, a pedestrian crossing at a crosswalk. V dies. Even if D does not have the gross negligence typically required for ordinary voluntary manslaughter, Ds violation of the traffic rule requiring that one stop at stop signs will be enough to make him guilty of manslaughter under the misdemeanor-manslaughter rule.

Voluntary Manslaughter A. Two types of manslaughter: In most states, there are two types of manslaughter: (1) voluntary manslaughter, in which there is generally an intent to kill; and (2) involuntary manslaughter, in which the death is accidental. [250] negates mens rea due to heat of passion or while committing a felony w/o a weapon. 1. sufficient provocation 2. no time to cool off 3. didnt cool off 4. proximate act that results in death -Voluntary manslaughter: 1. intent to kill or

2. do SBI or 3. or w/conscious disregard of death or 4 SBI 5. where the presence of mitigating factors precludes the definiotn that the killing was malicious. Other kinds of voluntary manslaughter: In addition to manslaughter based upon a heat of passion killing, there are a number of other situations in which voluntary manslaughter may be found. [255 - 256] 1. Imperfect defenses: Mostly, these other kinds of voluntary manslaughter are situations in which what would otherwise be a complete defense or justification does not exist due to Ds unreasonable mistake or for some other reason: [255] a. Imperfect self-defense: Thus some states give D a manslaughter verdict for imperfect self-defense, where D killed to defend himself but is not entitled to an acquittal because: (1) he was unreasonably mistaken about the existence of danger; or (2) he was unreasonably mistaken about the need for deadly force; or (3) he was the aggressor. [255] b. Imperfect defense of others: Similarly, if D uses deadly force in defense of another, but does not meet all of the requirements for exculpation, some courts give him the lesser charge of voluntary manslaughter. (Example: If D witnesses a fight between V and X, and honestly but unreasonably concludes that X was the aggressor, D may be entitled to manslaughter for killing V.) [255] c. Other situations: If D comes close to qualifying for the defense of prevention of crime, or necessity or coercion, he may be similarly entitled to reduction to manslaughter. [255] Imperfect Self-Defense Rule: example-two people in a fight and kill in the process Murder will be reduced to manslaughter when: Defendant was at fault in starting the altercation Defendant was unreasonably but honestly believed in the necessity of responding with deadly force An assailant who commits an unlawful assault and battery on another without malice; resulting in death is guilty of manslaughter although the death was not intended and the assault was not a character likely to result fatally 2. Mercy killings: Some courts and many juries frequently give D a lesser verdict of voluntary manslaughter when he commits a mercy killing, i.e., a killing to terminate the life of one suffering from a painful or incurable disease. [256] 3. Intoxication rarely suffices: Most states do not permit Ds voluntary intoxication to reduce murder to manslaughter. [256]

FELONY MURDER.

Felony 1.felony or attempt 2. Ds participation 3. death of person during commission or attempt An unintentional killing that results during the commission or attempted commission of an underlying and independent felony. Felony must be inherently dangerous; BARRK- Burglary, Arson, Rape, Robbery, Kidnapping will result in a First Degree Murder. Any felony other than the one listed would constitute at least a second degree felony. Death must have resulted from the committing of the felony Deaths that result before the Defendant had reached a place of temporary safety are included in scope of felony murder- "look for one continuous transaction" Defendant must be guilty of underlying felony

If the killing was caused during the commission of a felony that does not qualify as a felony murder case the killing will be involuntary manslaughter. Merger Doctrine- Refers to the concept that only felonies independent of the homicide can support a felony-murder instruction; felonies that arc an integral part of the homicide are merged in the homicide. II. ASSAULT & BATTERY A. Assault At common law, it is an attempt to commit a battery or the intentional creation- other than by mere words of a reasonable apprehension in the mind of the victim of imminent bodily harm. Simple assault is a misdemeanor. Present ability to succeed Defendant must have a present ability to succeed or else liability is precluded (MFC) If there has been an actual touching the crime can only be battery. Every battery includes .an assault. With a dangerous or deadly weapon With the intent to rape, maim, or murder To prosecute for assault with an intent to kill, the Defendant must have the intent to kill Aiming an unloaded gun at a person with intent to only cause fear in a jurisdiction with statute with an intent to frighten requirement will only result in simple assault. B. Battery The unlawful application of force to the person of another resulting in either bodily injury or offensive touching. Simple battery is a misdemeanor. Intent is not required; need not be intentional, it is sufficient that the application of force is caused by Defendant's criminal negligence. Force need not be directly applied (ex. Getting your dog to bite someone) Sufficient is defendant set force in motion. Aggravated Battery- Felony; ex. With a deadly weapon with intent to cause harm. or committed upon a woman, child or police officer.

III. RAPE The unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. Any sexual penetration, however slight, is sufficient to complete the crime if the other elements are present. Done by force and against her will; or woman's resistance overcome by force or fear At c/1 a man could not rape his wife; however, if he aids another in having sexual intercourse with his wife without her consent then both he and the actual penetrator can be convicted of rape. Consent will be ineffective: by force, threat, inability or fraud. Mistake as to victim's age is no defense. If defendant believed, reasonable and in good faith, that the woman consented to go to his apartment and have sexual intercourse with him, he was not guilty of rape. Vaginal penetration is not necessary, any penetration of the female genitalia by the penis is sufficient. Statutory rape- Provided by statue making the unlawful carnal knowledge of a girl under a certain age a crime even if she consents. She is presumed by law incapable of a valid consent. IV. FALSE IMPRISONMENT The unlawful confinement of a person without his valid consent. May be accomplished by physical barriers or force, or it may be by threat of force or assertion of authority which results in submission. If there is consent then no false imprisonment. MINOR CANNOT CONSENT V. KIDNAPPING Forcible abduction or stealing away of a man, woman or child from his own country and sending him into another. VI.ARSON The malicious burning of the dwelling of another. Need not be intentional; only need to prove malice and reckless Cannot commit arson when you burn down your own house Mere charring or slight burning is sufficient damage to structure for arson If any fiber of the wood is actually consumed by fire, this is a burning even if it does not actually burn into flames.

There must be: 1. Some actual burning 2. Burning must be malicious 3. Object burned must be a dwelling house 4. House burned must be house of another *Important Definitions Blackened or smoke discoloration by heat is not sufficient

 Damage must be caused by fire not an explosion HOUSE BURNING (at C/L)- Is the malicious burning of one's own dwelling. (Misdemeanor at C/L). Structure is located in the city or town, close enough to create danger to other homes. VII. BURGLARY The breaking and entering of the dwelling of another at nighttime with the intent to commit a felony therein, without the consent of the owner. Definition of elementa. BreakingMust be a breaking: Actual or Constructive Cannot be a breaking if defendant entered through an open door or window Any opening by defendant, however slight, is sufficient for the breaking element. If the door is partly open, but insufficient for entrance the further opening of the door constitutes a breaking. Constructive Breaking- By fraud, threat, intimidation, or through the use of a chimney. Where victim was awakened by loud pounding on his door and was confronted by the A who was armed and forced the victim into the home, is constructive breaking. One who enters a store while it is open for business, secretes himself therein and is apprehended after closing hours under circumstances which indicate an intent to steal, can be .convicted of storehouse breaking Requirement of trespass Must have gained entry without consent If there is consent there is no burglary even if he actually commits a felony therein Any use of force coupled with consent will negate a criminal charge. University policeman's entry into a building for which he had been given a key did not preclude conviction for burglary where the policeman's duties did not require entry and he did not enter for the purpose for performing his duty. Since each spouse had a legal right to be on the premises so long as the marriage existed, entry onto the premise could not be a burglary. However, where the wife got a court order that gave her the house any entry by the ex-husband will be a breaking and entering. b. EntryEntry is made by placing any portion of the body inside the structure, even momentarily. Insertion of a tool or inanimate object into the structure is entry if it is inserted for the purpose of accomplishing the felony. It is not sufficient if it is inserted for purposes of gaining entry. Shooting a bullet to .open a locked door to go in to kill homeowner v. shooting through the window intending to kill a person. Boring a hole through the door, near the bolt, is not an entry in the law of burglary even if the point of the bit penetrates into the interior of the building. The instrument must be inserted not merely for the purpose of breaking, but for the purpose of committing the contemplated felony.

A burglary conviction may be sustained on a theory of entry with intent to steal even though on entry the defendant took nothing and left. Defendant trespass entry coupled with circumstances corroborating an intent to steal is enough.

Defendant broke into one building to gain access to another place where he intended to commit larceny. If the entry was an integral part of a plan to commit larceny in the immediate vicinity of the place entered, it was not necessary that the intent be to commit it "therein". Defendant broke into one building with intent to commit the felony of lascivious acts with a child, ill was no defense to charge a burglary that his intent was to commit the offense on the roof rather than in the building. Defendant committed burglary when he opened the hood of the car, reached inside and removed a battery. C. Dwelling Any place if human habitation; a structure used with regularity for sleeping purposes. Temporary absence of inhabitants will not derive of character of dwelling, but if no one has moved in nor after everyone has moved out with no intent to return, then there is no dwelling. A dwelling house has been defined as a place where a man lives with his family. Thus it is possible for a mobile home to be dwelling house. Although the dweller had not lived in the building for a year and half, during which time it had been used for storage, as he still regarded it as his home it had not lost its character as a "dwelling". Remember "part and parcel of dwelling. Other structures part of the dwelling still satisfy the dwelling requirement. The other building as to be near the actual dwelling and does not need to be fenced in. D. Of Another Must be a dwelling of someone other than the A. An owner can commit burglary of his own structure if it is rented out and used as a dwelling by others. E. Nighttime One hour after the setting of the sun and one hour before rising of the sun F. Intent to commit a felony at the time of entry Defendant must have this intention at the time of entry. It is not necessary that he carry it out, only that he have it If the intent is formed after entry, then there is not burglary. VII. LARCENY A taking and carrying away (asportation) of tangible personal property of another by trespass with intent to permanently or for an unreasonable amount of time deprive the person of his interest in the property. Definitions of each element-

A. TAKING Securing dominion and control over another's property Cannot be "taken" if it is chained, although it may be moved (leather coat chained to store's mannequin). One may "take" if he sells property of another as his own to an innocent third person (innocent agent rule) May be a "taking" even though defendant has not removed property from other's presence or premises (placing property in coat pocket to give appearance that it was goneexercising control that is wholly inconsistent with the owner's rights). Instrument of trespass can be by hand of another. Look for children (innocent agent). If the criminal intent exists at the time of the taking of the property, it is larceny: but, if the intent does not rise until after the defendant received possession, then it is embezzlement (when there is some sort of entrustment). For example, where shift supervisor at a detention facility took money from incoming prisoner accounts which had been "entrusted" to him, he was properly convicted of embezzlement.

B. CARRYING AWAY The distance "carried away" need not be substantial if entire property is moved at a slight distance; must be made in a way as signifying a carrying away. A may be convicted of the larceny of a CQW although the only asportation was after he killed the animal. He had been found dragging the carcass away. *Important Definitions One who wrongfully took and carried away another's property to pawn it, though he said it was his intent to redeem and return the property, was properly convicted of larceny because he was unemployed and had no reasonable expectation of being able to carry out the return. "Continuing Trespass"- If A wrongfully takes property without the intent to permanently deprive (ex. Without permission borrows an umbrella), an later decides to keep the property, he is guilty of larceny when he decides to keep it. However, if the original taking was not wrongful (ex. He took the umbrella thinking it was his) and he later decides to keep it, it is NOT larceny. C. TANGIBLE PROPERTY OF ANOTHER Under common law, the person last in possession of property retains constructive possession until he abandons it, gives it to another person, or until another person otherwise acquires actual possession. Abandoned, Lost, or Mislaid Property To commit larceny with Lost Property1, The finder of lost property must know or have reason to believe he can find out who the identity of the owner is AND; 2. The finder at that moment must take possession of the lost property, and have the intent necessary for larceny. Remember, look at type of item lost. If identifiable then it's lost (e.g. wallet). Ex. If you find a watch and do a diligent search, no larceny. To commit larceny with Misdelivercd Property

1. The recipient must, at the time of the misdelivery, realize the mistake that is being made and, 2. The recipient must, at the time he accepts the delivery, have the intent required for larceny. On the other hand, if, when he takes delivery, either (1) he does not realize the mistake and so cannot then have an intent to steal, or (2) he does realize the mistake but intends to return the property, he cannot be guilty of larceny even though he may later decide to steal, for 2 reasons: (a) as to the original taking of delivery, there is not trespass, for he took it with an innocent mind, and (b) as to Ihe later intent to Steal, it did not coincide with the taking. *Important Definitions When look at abandoned property you will probably see 2 things. 1) Found in some place like a dump yard. 2) Item has no value Abandoned property- No larceny Important Definitions In the situation of a bailment or a mechanic's lien, when the owner takes back his possession the value attached will be the value of the chattel, not the debt. Tangible property, not real property unless; there was a severance from the realty and a subsequent asportation (there are two acts and not one continuous activity- A left the premises or a substantial amount of time lapsed in between) then there could be a larceny. Remember, the apple tree example. If you pick if off the tree- No larceny. If the apple dropped on the ground and you were to take after. Larceny WHY. Written documents were considered, for purposes of larceny, to be merged into the things which they represented- so that a deed, representing real estate, or a contract, representing an intangible right to performance, could not be stolen. One who obtains money from the bank on a forged not is not guilty of larceny of that money and one who receives that money with knowledge of the facts is not guilty of larceny. No trespass, bank intended to give the money. Gas and electricity are commonly held to be things that can be the subject of larceny. Appropriation by spouse is not larceny. *It is no defense that the theft was from the actor's spouse, except that misappropriation of household and personal effects or other property normally accessible to both spouses is theft only if it involves the property of the other spouse and only if it occurs after the parties have ceased living together. D. INTENT TO PERMANTENTLY DEPRIVE Intent to create a substantial risk of loss test Intent to pledge goods or sell them to owner May be inferred Not satisfied Intent to borrow Intent to obtain repayment of debt Property taken from a thief can be larceny; property taken by a joint owner from the other owner can not be larceny. Custody v. Possession Possession involves a greater scope of authority to deal with the property than does custody. Ordinarily, low level employees have only custody of an employer's property and so are

guilty of larceny for taking it. A bailee, on the other hand, has a greater scope of authority over an owner's property and so is not guilty of larceny for taking it, but may by guilty of embezzlement. Look at how much authority or control the person has with the property; The more control the person has over the property the more likely he will have possession, the more likely he will not have committed larceny. The less control, and the more likely he will have custody, and the more likely he will have committed larceny. Low level employees normally have custody rather than possession. A bailee generally will have possession; however, if he opens closed containers in which the property has been placed by the bailor (breaks the bulk) the possession will turn into custody and the bailee may be guilty of larceny if he misappropriates the property after breaking the bulk. If the A had possession at the time of the taking the offensc is NOT larceny, if the A had custody the crime is larceny.

VIII. LARCENY BY TRICK A form of larceny whereby the A obtains possession of the personal property of another by means of fraud or promise which he knows is false at the time he takes possession. A only acquires possession to property; never title. Important Definitions Remember to look at owner's intent- ask yourself what did the owner intent to give? Was it merely possession or was he willing to give title? If title, it's False Pretenses. VIII. FALSE PRETENSES Obtaining title to personal property of another by an intentional false statement of past or existing fact; with intent to defraud the other. Important Definitions Ask yourself- what is being obtained by the defendant, Title (False pretenses) or Possession (L. by trick) The absence of an intent on the part of a cashier to knowingly and voluntarily transferring possession or title to any money in excess of that received place the A's conduct within the ambit of larceny rather than false pretenses. However, if the cashier asked you "did you give me a $10 (as you did), and you reply no I gave you a $20, and the cashier proceeds to give you change of a $20, that would be false pretenses. One who obtained title to property by false pretenses, but did not have possession and never succeeded in getting possessing away from the other, was not guilty of false pretenses. The victim must actually be deceived by, or act in reliance upon, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to the A. A misrepresentation as to what will occur in the future is not sufficient. A false promise, even if made without the present intent to perform, is also not sufficient. Ex. B telephones Bank for loan and to put jewels as collateral. A overhears conversation and dresses up as a bank employee and picks up jewels from B. B passed possession not title therefore it is Larceny by Trick. A gets title and commits False Pretenses only if the victim intends to convey title.(SO don't forget to look at the owner's intent to convey title!!)

Attorney goes to bank to get a loan to purchase furniture and tells them his firm should be lucrative but is actually not. Fails to make payment of loan. A is not guilty b/c misrepresentation of a future fact is insufficient for false pretenses. A promise made without intention to perform is a misrepresentation of a state of mind, and thus a misrepresentation of existing fact, and is a false pretense. BEST DEFENSE- "I did not have the intent to defraud or gain title"

VIII. EMBEZZLEMENT The fraudulent conversion of personal property of another by a person in lawful possession of that property. Whether a bailee who converts property bailed to him is guilty of larceny or embezzlement depends upon the time of his intent. If (he criminal .intent exists at the time of the taking of the property, it is* larceny, but if. the intent does not-arise until after the A receives possession, then it is embezzlement.' If the & intends to restore (and had the ability to do so) the exact property taken, it is not embezzlement. However, if the A intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money- of identical value- that he intended to return. Must have a bailment or entrustment_ a bailee wrongfully takes property from the bailor. A bailee who obtains possession of property without fraudulent intent is not guilty where he subsequently converts it. With lawful possession, he cannot commit a trespass with respect to property. A bailee who intends to appropriate the chattel at the time he first receives it from the bailor is guilty of larceny. A loan of money can never give rise to embezzlement." VIII. ROBBERY A taking and carrying of personal property of another from the other's person or presence by force or threats of immediate death or physical injury to the victim (family member or some person in victim's presence) with the intent to permanently deprive him of it. Larceny is a lesser included crime of robbery; larceny and assault or larceny and battery merge into robbery. Robbery does not require that A's violence or intimidation be for the very purpose of taking the victim's property. It is sufficient if he takes advantage of a situation which he created for some other purpose. Thus A is guilty of robbery if he took advantage of the fear he created in order to obtain the victim's property, even if his primary purpose has been to commit rape. Where the act of force and the taking of the property are so connected as to form a continuous chain of events so that prior force make it possible for the A to take the property from the victim's body without resistance, that is sufficient for a conviction of the crime of robbery.

X. INCHOATE CRIMES A. CONSPIRACY At common law, conspiracy was defined as a combination or agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a

lawful purpose by unlawful means. If a A and an undercover cop or informer "agree" to commit a crime, there is no conspiracy at C/L because only one person, the A, intended that the crime be committed. You need 2 guilty minds. At C/L there is no requirement to do an overt act. The agreement in itself is a crime. The crime is a misdemeanor. It was not necessary that an agreement be one to commit a crime in order to be guilty. Only necessary that the object of the agreement be something "unlawful" or that the parties intended to accomplish something lawful by "unlawful" means. Husband and wife could not conspire together because the law viewed them as one person. At Common law conspiracy DOES NOT MERGE. At common law conspiracy does not require an overt act because the agreement itself is sufficient. At common law you cannot withdraw from conspiracy. At common law you cannot withdraw from solicitation (because the solicit happened as soon as you make that first step)

MPC Criminal Conspiracy- a person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more-of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime, or (b) agrees to aid such other person or persons in the planning or commission of such crime of an attempt or solicitation to commit such crime. Modern trend is to limit criminal conspiracies to agreements to commit crimes. Requires in overt act in furtherance of the agreement. *The act may be performed by any of the other conspirators. Conspiracy has to be with 2 or more persons At MPC conspiracy is a substantive crime and it does NOT MERGE into the completed crime. (You will be charged for both conspiracy and the other crime Wharton Rule-Where two or more people are necessary for the commission of the substantive offense (e.g. adultery, dueling, sale of contraband), the "Wharton Rule" states that there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime. Some courts hold that if the Wharton Rule applies, there can never be a conviction for conspiracy. Others hold that if the rule applies, it prohibits conviction for both conspiracy and the crime that the parties agreed to commit. Wharton Rule provides that if there is crime there must be at least 2 people to do it. Ex. A & B agree to meet a dawn to engage in a duel. They are apprehended before

daybreak, however, dueling is a crime in the juris, and A is charged with conspiracy to commit dueling. Wharton's Rule applies and prevents liability. A Substantive crime does not take 2 people to commit the crime If Wharton Rule applies then there will never be a case that you can be charged for conspiracy and substantive crime. Conspiracy to commit Murder is a specific intent crime, there is NO implied malice in conspiracy to commit a crime SPECIFIC INTENT IN CONSPIRACY- require 2 elements. (1) the intent to agree, or conspire, and (2) the intent to commit the offense which is the object of the conspiracy. -Must show that conspirators intended to agree but also that they intended to commit all the elements of the offense. The Mere knowledge from the seller, that the buyer intends to use illegal activity does not make a conspiracy nor an aider or abettor. HOWEVER, if the seller promotes the venture himself, then the seller will have a stake in the venture and he will be charged with aiding and abetting. Look for a cut price in a conspiracy. Having a stake in the outcome. Ex. Before Joe went to prison, he said that he was going to kill the judge. When he was getting out of prison he told the media that he was going to kill the Judge. The salesman at the gun store saw the newspaper and sold the gun at regular price. Is salesman guilty for conspiracy to kill the judge. YES Ex. C sold a gun to D under such circumstances that it was criminally negligent for him to do so because of the likelihood that D would use it to kill X, which he did. D was convicted of first degree murder and C was convicted of involuntary manslaughter. Ex. It was held defendants who supplied ordinary commercial food items to persons who used the items in the manufacture of illicit liquor could be convicted of aiding and abetting a conspiracy absent showing of a stake in the conspiracy. Ex. Where an employee conspired with an outsider to steal from the employer,'which was done, the employee could be convicted of embezzlement, the outsider convicted of larceny and both convicted of conspiracy to commit larceny. Rule Of Consistency -The rule insures that the jury will adhere to the conspiracy requirement of the occurrence of at least two guilty minds; and second, it prevents the jury from weighing the same pieces of evidence differently in regard to each of the alleged conspirators. Unilateral Approach- Conspiracy is established by showing that the defendant agreed with another to, commit a crime, thus acquittal of all others will not prevent the defendant's conviction. -Therefore You can be found GUILTY all by yourself of committing conspiracy. Ex. The fact that a conspiracy can be divided into distinct subgroups does not mean there is more than one conspiracy as long as the various subgroups are engaged in one overall plan. (ONE CONTINOUS TRANSACTION) Ex. A person can be a party to a conspiracy if all details are not known and even if he wasn't present. As long as conditions are met. He will also be liable for other crimes of all the other conspirators that are in the "Natural & Probable consequence" and committed in furtherance of the conspiracy. Ex. 3 conspirators and 1 is waiting in car, 1 is outside but the 3 had agreed no guns. 1 who is inside took in a gun without anyone's knowledge and shoots the owner. No meeting of minds about gun and therefore it was not a foreseeable consequence.

 Ex. 4 coconspirators go into a bank to rob, but I says she cannot go through with it and runs out the back door. Not successful withdrawal. Once the agreement is made and crime has started it is too late to withdraw. Even if she told police when she ran out the door it is too late!

Impossibility-No Defense- Impossibility is not a defense to a charge of conspiracy. Withdrawal-No Defense- Because the conspiracy is complete as soon as the agreement is made and an overt act is committed. The MFC recognizes voluntary withdrawal as a defense if the defendant thwarts the success of the conspiracy, (e.g. informing the police) 1. Must be communicated to the others 2. If supplied materials to others, you need to get them back 3. Notify police. Ex. A, B, and C decide to rob a store, C leaves to go steal a getaway car. While C is gone A decides she doesn't want to do it and tells B to tell C when he gets back. When C gets back B and C decide to rob the store anyway. All are guilty. Where an employee conspired with an outsider to steal from the employer, which was done, the employee could be convicted of embezzlement, the outsider convicted of larceny, and both convicted of conspiracy to commit larceny.

C/L the crime does NOT merge. MFC- the crime does NOT merge. B. ATTEMPT Specific Intent to commit a crime is not a crime. An attempt to perpetrate it is necessary to constitute guilt of law. OVERT ACT- Something you put in motion indirectly or indirectly Mere preparation is insufficient Once you abandon the intent you can reclaim self-defense (St. v. Rider). Where A did not have a concurrence of the actus reus and mens rea of the crime. There must be an affirmative or positive act on the part of the A to move something (i.e. car). If the act is accidental it is not an act. Must be a voluntary act. ; Ex. Pushing a car while drunk is NOT considered moving the car. Must be in operative control. Constructive Possession is not enough for conviction of drug trafficking. Ex. A tells B to watch over these drugs. One must not actually have actual or physical possession. Mere presence in a vehicle while drugs are present; a passenger would NOT be liable for possession Ex. Putting poison on the under side of a mustache cup and leaving it where the owner was expected to drink from it and be killed, is an attempt to commit murder. Same as placing poison in lipstick. Two men planned to rob a payroll clerk of his payroll. They went to the bank where he was to receive the payroll stationed themselves to waylay him, but were arrested just

before the clerk arrived. This was held to be an attempt to rob. Two men planned to rob the persons in a saloon. They procured arms and masks. They went to the saloon, pushed open the door and started to enter, but withdrew hastily when they saw a large crowd inside. This was held to be an attempt to rob. Two men planned to rob a third. They made inquiries about him, procured masks, and hired a taxi to hunt for him. This was held to be preparation only. Ex. Look for a guy who is attempting to rob. He never found the person he wanted to rob, so he could never take an overt act toward that person. No attempt. Defendant was convicted for attempted bank robbery where he held surveillance on the bank, made a sketch of the bank, obtained instruments to assist in the robbery, identified the bank manager's car. The ct. found the conduct to be a substantial step and upheld the conviction on authority of the MPC. Ex. Man who meet 12 year old girl by internet, was not convicted of attempted rape. Held that A did not reach the level of an overt act leading to the commission of the rape. For Attempted Murder- You need specific intent. Remember SCRAPE FLAB Murder and Arson- No need for specific intent. Questions to ask yourself if defendant committed an Attempt? 1- Did defendant intend to commit the crime? 2- Was what he did wrongful in itself? 3- Was it impossible for the defendant to commit the crime? 4- Did the defendant use an appropriate method? 5- Was it in mere preparation of the crime? 6- Was defendant's act to remote to be considered? 7- Was defendant's conduct sufficiently blameworthy to blame punishment?

Factual Impossibility- Is NO defense to attempt (e.g. it is not a defense to say that the lady that you attempted to rob had no money or in an attempt to receive stolen goods that were no longer stolen because defendant purchased them from an undercover police officer). Legal Impossibility- Is a defense (i.e. that it is not a crime to do that which A intended to do. Es. A going fishing in a lake in which he erroneously believed fishing was prohibited cannot be convicted of attempted violation of fishing ordinance. Abandonment- Is NO defense. If the A had the intent and committed an over act, he is guilty of attempt despite the fact that he changed his mind and abandoned the plane before the intended crime was completed. *Distinguish Voluntary and Involuntary Abandonment-Voluntary Abandonment- is an affirmative defense for attempt. - Involuntary Abandonment- is when the A fails to complete the attempted crime because of unanticipated difficulties which increase the probability of detention or apprehension. MPC The MPC would permit a defendant to avoid liability by proving voluntary abandonment, subject to 2 conditions; The abandonment must not have been motivated in any way by circumstances not present or apparent earlier which increase the risk of detention or apprehension or which merely increase the difficulty of committing the crime; and The abandonment must not have been prompted by a decision to postpone the crime until

a better time or until a different victim or opportunity is found. 5.01(4) Attempt merges with the completed crime. Thus a A cannot be found guiity of both attempt and the completed crime.

C. SOLICITATION Consists of inciting, counseling/advising, inducing, urging, or commanding another to commit a felony with the specific intent that the person solicited commit the crime (general approval or agreement is insufficient). Mere Solicitation is not an attempt to commit the crime solicited. Specific Intent Crime. Even if the other person does not do the crime, the solicitor is guilty.

Impossibility No Defense- It is not a defense that the solicitation could not have been successful, as where the person was a police undercover agent. The culpability of the solicitor is measured by the circumstances as she believed them to be. Withdrawal or Renunciation No Defense- Once the solicitation has been made, it is generally no defense that the solicitor changed her mind or countermanded her advice or urging. Exemption form Intended Crime IS Defense-If the solicitor could not be guilty of the intended. crime because of a legislative intent to exempt her, she would have a defense.. ex. A minor female could not be found guilty of solicitation of statutory rape by urging a man to have intercourse with her, because she could not be guilty of the completed crime. Abandonment Note: you cannot withdrawal from solicitation because solicitation is a crime in and of itself. -at common law it was a misdemeanor -at MFC it is a felony Note: Once you begin to take steps you cannot abandon a crime, however in the MODERN TREND voluntary abandonment is ok. " . . . -Abandonment will be there at common law -Abandonment will be there if involuntary or voluntary at Modern Trend You can only be charged with murder if it has Malicious Omission. Solicitation merges with the crime. Cannot be held for both. Negative Acts & Legal Duty A driver of a vehicle who had an epileptic seizure while driving when he knew he was subject to a seizure was responsible for the resulting homicide when A's vehicle struck a child. A legal duty in Negative Acts may arise in 4 ways (1) By express permission of the law (2) Because a legal responsibility between the parties i.e. Mom/child, Dad/child (3) By Contract

(4) Factual situation, no legal duty, but a legal duty arises if defendant places victim in peril. Is there a legal duty between a Husband and a Wife? YES. Ex. Although the beating of the child was inflicted by another, the mother who did not seek aid could be convicted of abuse to such minor child Ex. Brother who assumed care of his disabled Down's Syndrome sister had assumed duty of care and was properly convicted of reckless homicide for the sister's death Orally addressing a crowd and urging them to kill and rob and commit other acts of violence, is an offense. Ex. A mother who was present when her child was assaulted and failed to take reasonable steps to prevent the assault, may be found guilty of aiding and abetting the assault. AGENCY A person cannot be held liable for the criminality act by his employee; if (i) The employer did not know or (ii) The employer never asked or demanded the employee to do the act, A corporation can be held liable(i) Must be within the scope of employment for the benefits of the corporation.

X. PARTIES TO A CRIME At C/L- There were 4 types of parties to a felony. 1. Principals in the 1s' Degree- Person who actually engage in the act or omission that constitutes the criminal offense. 2. Principals in the 2nd Degree- Person who aid, command or encourage the principal and are present at the crime. 3. Accessories Before the fact- Person who aid, abet or encourage the principal but are not present at the crime. 4. Accessories after the fact- Person assists after the crime is committed. An accessory could not be convicted unless the principal had already been convicted, although both could be convicted in a joint trial if the jury determined the principal's guilt first. Abandoned the requirement (above) and an accessory can be convicted even if the principal has evaded or has been tried and acquitted. Has done away with "parties to the crime" distinctions b/w principals. All parties can be found guilty of the criminal offense. Principal- engages in the act or omission that causes the criminal result. Also, anyone who acts through an innocent, irresponsible, or unwilling agent is classified as a principal.

Ex. A gives poisonous drink to B to give to C. B doesn't know anything. B gives to C. C then dies. A is the principal. The principal does not have to be present. Accomplice- Is one who aids, counsels or encourages the principal before or during the commission of the crime. Accessory after the fact- Aiding and assisting in order to help the felon escape, arrest, trial or conviction. The crime by the principal must be a felony and it must be completed at the time the aid is rendered. An accomplice is responsible for the crimes he did or counseled and for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were probable or foreseeable. Ex. A commands B to burn C's house, and B does so. The fire spreads to X's house, and it was foreseeable that it would do so. A is an accomplice to the burning of X's house. MENS REA& ACTUS REAS Criminal Intent Crimes generally require a mens rea or intent Defendant must have been aware of facts that constitute the crime and defendant need not have known anything about the law. Exceptions: Strict liability: Statutory Rape, Bigamy, Regulatory crimes. A. a. b. i. ii. iii. iv. v. Actus Reas Voluntary Act Omissions Statute Contract Relationship Voluntary assumption of care Creation of the peril Transferred Intent **lmportant Definitions- (Walker's words) Ex. A shoots at B, intending to kill him. B/c of bad aim A hits C, killing him. What is a guilty of? A is guilty of Attempt to commit murder to B, and Murder to C. Ex.2 A shoots at B, intending to kill him. A hits C, but only wounds him. A will be liable to B for attempt to commit murder and A will also be liable of battery to C-..NOT attempted murder (No transfer intent). B. Mens Rea MFC-Requirements of Culpability Purposely- If the element involves the nature of his conduct or result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result and if the element involves attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

 Knowingly- If the element involves that nature of his conduct or the attended circumstances, he is aware that his conduct is of that nature or that such circumstances exist. He is aware that it is practically certain that his conduct will cause such a result. Recklessly- He consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. Risk must be the nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to considering the nature and purpose of the actor's 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 in the actor's situation. Negligently- The risk must be such a nature and degree that the actor's failure to perceive it, considering that nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. Important Definitions Ex. A wrote bounced checks. & never knew that his checking account was overdrawn. Held not guilty. There is no presumption that a person knows the status of his checking account. . SPECIFIC INTENT CRIMES SCRAPE FLAB Solicitation Conspiracy Robbery Attempt Premeditated Murder, Embezzlement Forgery Larceny Assault Burglary STRICT LIABILITY A Strict Liability offense is one that does not require awareness of all of the factors constituting the crime. The major significance of an offense's being strict liability offense is that certain defenses, such as mistake of fact, are not available. Ex. Federal Legislation prohibits the transfer of firearms not registered under federal law. Is it a defense that the A was ignorant of the fact that a firearm was not registered? NO FINAL QUESTION (possible) Defendant was convicted for having an obscene book in his bookstore. The state interpreted the statute to read that knowledge that the book was obscene was imputed by possession of the book. Ct. ruled that a state's power to create strict liability crimes is limited by constitutional guarantees. Also, can be argued that the defendant never had any knowledge of the obscene material in the book. Ex. Liquor was sold to minors on a number of occasions by bartender. Owner knew nothing of the transactions. Although the bartender may be strictly liable under the statue regardless of his belief (why b/c as we know there are any mistake of defenses to strict liability). The owner will not be criminally liable, but liable in a civil court, therefore he will be fined.

Important Definitions Remember to look out for a Non-employee for the above fact pattern. Might be a trick question on the test. Of course, if it's a contractor, the owner will not be vicariously liable. VICARIOUS LIABILITY A person without fault may nevertheless be held vicariously liable for the criminal conduct of another (usually an employee). Unlike Strict Liability, which dispenses with the mens rea requirement, but retains the requirement that the A have personally engaged in the necessary acts or omissions, vicarious liability dispenses with the personal actus reus requirement but retains the need for mental fault on (he part of the employee. Malum in se and Malum Prohibitum A was attempting a suicide when someone tried to break it. The gun went off and hit the other person. A will be liable for manslaughter b/c the act of suicide is an unlawful act (malum in se). If the A were doing an act that was malum prohibitum, he shall not be punished for the act from misfortune or by chance (i.e. speeding 10 mph over speed limit). Ex. Ct. affirmed the holding that driving a car on the public roads or highways while in an intoxicated condition is an unlawful act; therefore, it was entirely proper for the court to give instruction defining manslaughter, (footnote). Ex. A ran into a boy and knocked him down while A was driving a sleigh inviolation of the speed law. This was held to NOT sufficient to be a guilt of assault and battery. Ex. If there is a traffic violation and an unintentional death is it manslaughter? The question remains was the & negligent or recklessness (mens rea needed for MPC is negligence)? If there is no mens rea, then the defendant can only be held liable in a civil case. An unlawful act inviolation of a malum prohibituni statute will create liability for involuntary manslaughter only if it is accompanied by a recklessness for the consequences of that act. (Sealy case) Ex. Speeding is malum prohibitum, but speeding over 50 miles over the speed limit in a school zone during recess or after school could be deemed to be an evil act that could result in criminal culpability. An unlawful act is therefore determined from the mental state of the actor and not just solely from the unlawful act theory. Ex. Where the A is charged with violation (assaulting a federal officer), he claims he was unaware that the victim was a fed. Officer, the question becomes: would the A have been justified, b/c of the agent's actions in using force against the agent had the agent in fact been a civilian. If the A made an honest mistake of fact with respect to the agent's status and the A's use of force would have been justified against a private citizen, then he cannot be held criminally liable. If, on the other hand, the A would not have been justified in using force against a private citizen or if the A used more force than the law permitted his mistake as to the agent's status would be no defense the charge. What will negate culpable mental state? A. Mistake of Fact- Ignorance or mistake as to a matter will affect criminal guilt only if it shows that the A did not have the state of mind required for the crime. Ex. A hunting in the woods shoots through the trees at a figure he believes to be a deer. In fact it is B, who is killed. A's mistake of fact establishes that he did not have the required state of mind for murder. Ex. A this time shoots through the trees at a figure he believes to be his enemy, B, intending to kill him. In fact, the figure is C who is killed. A is guilty for murder for C despite his mistake of fact as to C's identity, b/c A's mistake does not negate his intent to kill a person.

B. Voluntary Manslaughter- Is an intentional killing distinguishable from murder by the existence of adequate provocation. Important Definitions Adequate Provocation- Elements a. sudden and intense passion in the mind of an ordinary man. b. The defendant must have in fact been provoked c. There must not have been sufficient time to cool off d. Defendant in fact did not cool off When is Provocation adequatea. A being subjected to a serious battery or threat of deadly force. b. Discovering spouse in bed with another person c. Mere words are generally not sufficient provocation unless the words constitute informational words or words with a present ability to inflict harm.. Provocation based on evidence that the victim had at one time stolen A's television set, introduced A's son to heroin, assaulted A in the past, threatened A and his son and was arguing with A and made some motions towards A was sufficient for manslaughter. Heat of Passion- any intense or vehement emotional excitement of the kind prompting violent and aggressive action. Such as, rage anger, hatred, furious resentment, fright or terror. Such emotional state of mind must be of such a degree as would cause an ordinary man to act on impulse without reflection. An assault or battery resulting in a reasonable belief that the A is in imminent danger of losing his life or suffering great bodily harm may be of sufficient provocation to reduce the killing to voluntary manslaughter. A's belief, sincere though unreasonable, will negate malice. Murder reduced to manslaughter if A subjectively believed the circumstances justifying the killing existed, but objective reality negates that existence. Past affairs cannot constitute adequate provocation. If two persons engage in mutual combat, the blows given by each are adequate provocation to the other; thus, if one kills the other, the homicide may be reduced to voluntary manslaughter. C. Involuntary Manslaughter- Distinguished from voluntary mans. By lack of intent toJcill. 2 types. 1. Criminal NegligenceWhen death is cause by criminal negligence. Negligent act that is unjustifiable which can cause death or serious injury. Important Definitions It is criminal negligence to point and fire a gun (weapon) at another, even if the person

pointing the gun may have good reason to believe the weapon will cause no injury. Criminally negligent act must be the proximate cause of death-