SUBSTANTIVE CRIMINAL LAW

Professor Coker – Spring ‘00

I. INTRODUCTION: LEGALITY & PUNISHMENT

**SOURCES OF CRIMINAL LAW
- most criminal crimes are statutory enactments of the common law
- Model Penal Code was developed in the 60’s as a rational model to the irrational
common law crimes

**LEGALITY
- principle that the accused must have known/ intended for his act to be criminal
Keeler v. Superior Court
FACTS: Keeler, defendant, beats pregnant woman and kills her unborn fetus.
CHARGE: Murder for the death of the fetus.
ISSUE: Whether an unborn but viable fetus is a “human being” within the meaning of the CA
statute defining murder so as to allow Keeler to be charged with murder
Holding: Because the defendant was not on notice of the possible expansion of the law nor is
such an expansion within the Court’s power, the defendant cannot be charged with murder
because fetus cannot be included within the definition of “human being” even if it would have
been viable.
REASONS:
- Separation of powers - Court lacks the jurisdiction to rewrite the statute as that is the
legislature’s job
- Due Process (Notice) – defendant did not necessarily know he was in violation of the
murder statute
- Ex Post Facto – can’t rewrite a law and then make it retroactively applicable
State v. Spencer – a defendant can be convicted for murder for assaulting a fetus if the child is
born alive but later dies afterwards as a result of the injuries caused by the assault.
People v. Van Alstyne – sale of marijuana; even though the statute only specified a certain type
of marijuana, it was within the legislative intent and the public was on notice that the statute was
meant to include all types of the drug.
Weishaupt v. Commonwealth – marital rape; a woman has the right to refuse her husband sex
and he can be charged for not obeying her wishes even though there’s a statute that says a
husband cannot be accused of raping his wife.

**SPECIFICITY
- principle that the accused must be on notice that the action is illegal (statute is written as such)
City of Chicago v. Jesus Morales
FACTS: Chicago City Council studied gang violence in the City and recommended an ordinance
that imposed criminal penalties for loitering (which was defined as remaining in one place with
no apparent purpose) and if the officer ordered the persons to disperse and if this was not
complied with then the penalties were imposed. Additional internal guidelines were set up as to
where the ordinance should be strictly enforced, who was to be in charge of enforcement, etc.
ISSUE: Whether the Chicago Gang Congregation Ordinance violates a citizen’s due process
rights and is therefore unconstitutional

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Holding: Because it does not give citizens adequate notice of its scope, prevents innocent
loitering which is a deprivation of a legal right, is vague in its definitions, and can be arbitrarily
enforced, the Chicago ordinance is unconstitutional.
REASONS:
- breakdown of the ordinance:
police officer observes person
+ reasonably believed to be a criminal street gang member
+ loitering
+ public place
+ with at least one other person
+ shall
+ order to disperse/ remove
+ failure to disperse/ remove
= VIOLATION
(Affirmative defense: no person was in fact a gang member and the burden is then on the
prosecution to show why the person was thought to be a gang member)
- definitions:
Gang – ongoing… group including at least two people and one of the group’s substantial
activities is the commission of crimes and at least one member has engaged in a pattern
of criminal activity
Loitering – remaining in one place with no apparent purpose
Public place – public way and any location open to the public – privately or publicly
owned
- while parts of the ordinance are defined, there is still a question as to what even the
definitions mean
- also problem as to what is an “apparent purpose” – what the officer at the scene thought
or what a “reasonable officer” would think
- SUPREME COURT ARGUMENTS:
- vague because there’s no notice (PART IV)
- vague because it gives the officers too much discretion (PART V)
- one has the freedom to loiter (infringement on liberty) (PART III)
- no mens rea requirement so the statute is vague (PART III)
- OTHER ARGUMENTS NOT BROUGHT UP BY THE COURT:
- criminalizes status rather than conduct (being a gang member)
- overbroad (captures too much behavior)
- First Amendment infringement
- search and seizure
SCALIA’S Dissent: There is no right to loiter. All the statute does is criminalize the failure to
disperse. Criticizes the majority’s assertion that loitering should be protected by due process as
something that is a inherent right
Papachristou v. Jacksonville – vagrancy law that punished many classes of “street persons”;
struck down because it was held to be extremely vague as it criminalized many seemingly
innocent behaviors (nightwalking) and cast an extremely large net which was then left to the
police to arbitrarily enforce.

**THEORIES OF PUNISHMENT

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-Seek to answer:
- Why to punish?
- What acts should be punished? How?
- How particular should the punishment be?
RETRIBUVIST
- making sure someone gets what they deserve
- look only at the crime for which they are convicted
- should only be punished for what they did and no more
UTILITARIANISM
- punishment to deter
- try to balance the advantages of the crime so as to make it no longer desirable
- goal is an efficient means of social order (supposed to maximize the greatest good for
society)
- 2 types of deterrence:
1. specific – to deter that particular actor from doing it again
2. general – to deter others in the same situation from doing it
- still must have some proportionality so that people will maintain trust and faith in the
system
- CRITICISM: using people to an end (would be okay to punish the innocent if it’s going
to deter)
2 CASE STUDIES:
- JONES – killed his father who was an alcoholic who abused his mother
Usual Punishment: 13 years in jail (8 years served and then parole)
- GREEN – career criminal who broke into a house and stole $100 of jewelry and a small
TV set
Usual Punishment: 11 months in jail
DIFFERENT THEORIES/ THEORISTS:
Morris  we have an agreement for our mutual benefit that asks us to refrain from doing things
that harm each other and if one does harm, there must be redistribution so that person who has
violated pays back for his unjust enrichment (efficiency concerns)
Murphy  social contract doesn’t work because most of those being punished for taking too
many benefits are the poor and thus haven’t been able to take advantage of the benefits to start
Social Contract  doesn’t work as an explanation because there’s such a disparity in:
- resources (economic)
- police enforcement
Wilson/ Incapacitation  taking people off the streets reduces the crime and overall harm
(PROBLEMS: assumes that offenders taken off the street won’t be replaced, post-release crimes
aren’t increased by time in prison, and prison crimes don’t count
FACTORS IMPACTING DETERRENCE:
- probability of being caught
- severity of punishment
(America is known for low likelihood of being caught and harsh punishment)

**PROPORTIONALITY
- 8th Amendment prevents “cruel and unusual punishment”

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Solem v. Helm
FACTS: Helm, defendant, had been convicted of 6 nonviolent felonies. He uttered a “no
account” check for $100. He is also an alcoholic and this has contributed to many of his crimes
including the most recent.
CHARGE: Uttering a “no account” check for $100 and faces life without parole under the South
Dakota recidivist statute (which imposes such sentences for the 7th felony conviction)
ISSUE: Whether the 8th Amendment prohibits a life sentence without parole for a 7th nonviolent
felony
Holding: Because Helm received the most severe sentence for relatively minor conduct and this
penalty is worse then in other jurisdictions and worse than that imposed for comparably more
severe crimes, it is a violation of the 8th Amendment.
REASONS:
- there are 3 objective criteria for judging proportionality:
1. gravity/ harshness
2. how other crimes in the same jurisdiction are punished
3. how same kind of crimes in other jurisdictions are punished
- uses Weems, the leading proportionality case, to set out the need for proportionality
- distinguished from Rummel (another Supreme Court case where the defendant was
sentenced to life but had the chance of parole after 12 years) because of the fact that
Rummel was eligible for parole
- also considers whether the punishment is “grossly disproportionate” as in Harmelin –
which is a more subjective criteria in looking at the gravity and harshness

II. CULPABILITY
A. THE REQUIREMENT OF AN “ACT”
- need arises from notice requirement
- statute needs to be read and understood as a reasonable person would understand it

**THE NEED FOR AN ACTUS REAS

Proctor v. State
FACTS: Defendant bought a building and it was believed he was going to use it to store
alcohol. There is an Oklahoma statute which prohibits the “keeping of a place… with the
intent and for the purpose of unlawfully selling, bartering, and giving away malt
liquors…”
CHARGE: Violating the statute which prohibits keeping a place with the intent to use it
for an unlawful purpose
ISSUE: Whether a statute which requires only an unlawful intent but no real unlawful
action is unconstitutional
Holding: Because there is only the requirement of intent and it is not coupled with an
unlawful overt act, the statute is overturned since it lacks the essential act element and
cannot be a real crime.
REASONS:
- must have an act to make something a crime
- an unexecuted criminal intent is not punishable as a crime

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- while intent to act unlawfully is usually the essence of the act, there must be some
evidence of this intent to punish

**OMISSIONS
- the failure to act can be equated with an action itself
- usually have to establish that there was some duty to act to be charged with the failure
to do so
- “duty” can be established through status, contract, or by seclusion from one would
normally assume the duty
Jones v. United States
FACTS: Woman was taking care of a child who she did not feed and the child died.
CHARGE: Involuntary manslaughter
ISSUE: Whether someone who is taking care of a child, who is not fed, can be charged
with involuntary manslaughter for the child’s death
Holding: Because there was no evidence that there was a legal duty of care for the
defendant to carry out, the defendant cannot be guilty of the failure to carry out such a
duty – the failure to carry out such duty which resulted in the child’s death

Leet v. Florida
FACTS: Leet, defendant, was taking care of his girlfriend’s children and he noticed some
evidence of abuse on the children but the girlfriend always had explanations and so he
didn’t do anything. While under the defendant’s care, the child, Joshua, died as a result
of his injuries.
CHARGE: Child abuse and 3rd degree felony murder
ISSUE: Whether an adult member of a household owes a duty to an unrelated child who
lives in the household to prevent child abuse
Holding: Because the jury found that Leet owed a duty to the child, he could be guilty of
both child abuse and felony murder for his failure to take action on behalf of the child to
stop the abuse.
REASONS:
- established a duty by saying he assumed a family-like relationship with the children and
assumed responsibility for certain caretaking responsibilities
- did not charge him with abuse for the day the child died because of a causation problem
– even if he had brought Josh to the hospital that day, there is no proof that it would have
saved him but they showed that his negligence earlier in the week in not bringing him in
was what lead to the death

**VOLUNTARINESS
People v. Newton
FACTS: Defendant was on a flight from the Bahamas to Luxembourg. While on board,
he became somewhat unruly and the captain thought he might have a concealed weapon
so the plane, though not planning to stop anywhere in America, was landed at Kennedy
Airport in Queens, NY. There, NY officers boarded and the defendant turned over his
gun.
CHARGE: Possession of an unlicensed fire arm

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ISSUE: Whether a defendant is subject to criminal liability for his voluntary act of
getting on a plane with an unlicensed weapon in violation of the NY Penal Code when he
is involuntarily brought into NY
Holding: The defendant did not subject himself to criminal liability by his voluntary act
since the interruption of the flight was not attributable to a voluntary act by the defendant
and therefore an essential element of the crime, being in New York, was not voluntary.
REASONS:
- his intention does not matter
- whether or not it was foreseeable does not effect volition – all the essential elements of
the act had to be voluntary

Martin v. State
FACTS: Defendant, who was intoxicated, was arrested and taken by the police onto the
highway. While there, he used loud and profane language.
CHARGE: Being drunk on a public highway (which also requires some manifestation of
the drunken condition including the use of loud or profane language)
ISSUE: Whether a defendant can be charged with the violation of a statute when he was
not voluntarily in the setting that the statute requires
Holding: Because the statute assumes a voluntary appearance in the public place and the
defendant was taken involuntarily to a public place and then accused of being drunk and
disorderly in that place, the charges cannot be sustained.
REASONS:
- the rule was predicated on a voluntary state and the defendant was taken involuntarily
so he cannot be in violation of the rule

People v. Grant
FACTS: Defendant assaulted a police officer as a few officers were trying to arrest
someone who had been in a bar fight. While under arrest at the station, the defendant
suffered what was thought to be a seizure. He has a history of psychomotor epilepsy and
contends that he does not remember anything from the time while inside the bar until 3
days later.
CHARGE: Aggravated battery and obstructing a police officer
ISSUE: Whether the jury instruction needs to distinguish between behavior that is done
by someone who lacks capacity to appreciate the criminality of his conduct or to conform
his conduct to the requirement of the law (insanity) with automatic behavior by an
individual who possesses the requisite capacity (automatism)
Holding: It is for the jury to decide whether a person’s actions during a seizure are the
actions of an insane person or merely the automatic behavior of a sane person.
REASONS:
- Insanity – lack the capacity to appreciate/ know criminality and unable to conform his
conduct
- Automatism – normally can appreciate criminality/ conform his conduct but during this
“fit” is only acting unconsciously
- need to distinguish between the 2 kinds of behavior because it determines voluntariness
as well as punishment

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**STATUS
Robinson v. California
FACTS: Defendant was arrested after he was observed with track marks and was heard
admitting to occasional use of narcotics.
CHARGE: Addiction to narcotics
ISSUE: Whether a statute which makes the addiction of narcotics illegal is
unconstitutional
Holding: Because this is cruel and unusual punishment for a status, the statute is
unconstitutional.
REASONS:
- doesn’t criminalize act but the propensity to act
- punishes an illness (narcotic addiction) which is cruel and unusual punishment
- a jurisdiction problem because there’s no proof he did anything in California
- being punished for the involuntary act of being an addict
WHITE’S Dissent: Can’t understand how you can make punishment this “involuntary”
act unconstitutional when you can penalize possession which is just an outreach of his
involuntary act.

Powell v. Texas
FACTS: Defendant was found drunk in a public place
CHARGE: Being found in a state of intoxication in a public place
ISSUE: Whether a defendant can be charged for being drunk in public
Holding: While the defendant’s addiction to alcohol may not be voluntary, because of
the public interest in keeping those intoxicated off the streets and the fact that the
addiction must be manifested in a public place, the statute and its punishment are legal.
REASONS:
- while the defendant tries to use Robinson to argue that his behavior is involuntary (can’t
help being drunk because he’s an alcoholic), his being in a public place is a voluntary
decision
- White sees the statute as being saved by the “being in public” requirement
- there is a substantial public interest for health and safety reasons as well as moral and
esthetic sensibilities that public intoxication be outlawed

Pottinger v. City of Miami

FACTS: About 6,000 homeless in Miami brought the action because of alleged
harassment and arrests by the City of homeless people there for engaging in basic
activities of daily life in the public places where they are forced to live.
ISSUE: Whether a statute which criminalizes much of the behavior of the homeless is
constitutional
Holding: Because arresting the homeless for harmless, involuntary, and life-sustaining
acts like sleeping, eating, or sitting in public is cruel and unusual punishment, the statute
and its enforcement are unconstitutional.
REASONS:
- the homeless are involuntarily doing these things in public and are being punished for
such involuntary behavior

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- because the acts directly flow from the status (the acts are what define the status) then
punishment for the act is punishment for the status
(Does this push the line of what is an act vs. status and what’s voluntary vs. involuntary?)

Johnson v. State
FACTS: Mother, who’s a cocaine addict and who used cocaine drugs just before
delivering, gives birth to her baby. She has a history of drug use, including overdoses
while pregnant.
CHARGE: Delivery of a controlled substance to another person
ISSUE: Whether a mother who ingested a controlled substance prior to giving birth can
be charged with the delivery of a controlled substance to the infant during the 30-90
seconds following the infant’s birth but before the umbilical cord is severed
Holding: Because the legislative intent was not for the statute to be applied to a mother
delivering her child and transferring the drug through the umbilical cord just after birth,
the mother cannot be charged with such delivery.
REASONS:
- Johnson argues that:
- the district court interpretation (that it was meant to include mothers) violates
legislative intent
- plain language should be read
- violates her due process/ privacy (was not on notice of such a meaning)
- insufficient evidence that she intentionally delivered the drug
- the statute could be said to be ambiguous and ambiguities must be read in favor of the
defendant

B. MENS REA – THE GUILTY MIND

- usually read in because one should have a guilty mind to be found guilty
- must show or prove the mental state:
1. MALUM IN SE – “evil in itself”; inherently immoral (ex. – rape, murder)
2. MALUM PROHIBITUM – “prohibited evil”; only considered illegal because
it’s against the law (ex. – not filing your taxes, failing to follow EPA
regulations)

**STRICT LIABILITY
- public welfare crimes (malum prohibitum) are usually those for which one can be
strictly liable in order to make those with the power to prevent them take all steps to do
so (while malum in se crimes usually have a mens rea read into them)
United States v. Balint
FACTS: Defendants were caught with opium and derivative of cocoa leaves.
CHARGE: Violation of the Narcotic Act
ISSUE: Whether the Narcotic Act statute required that the defendants knowingly sold the
drugs
Holding: The statute was intended to be a strict liability crime as it was to catch anyone
who was selling and trafficking in drugs so knowledge is irrelevant.
REASONS:

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- to require proof of a mens rea in these types of crimes would be extremely difficult
(usually would be negligence which is hard to show)
- public policy requires that one does acts like these at his own peril
- the legislature/ court would rather risk punishing an innocent person rather than risk
exposing innocent purchasers to the danger of the drug

Beran v. State – fishing in closed waters; defendants could be prosecuted without proof
of mens rea (held strictly liable) but only if the convictions did not lead to imprisonment.

United States v. Dotterweich

FACTS: Defendants were the President and General Manager of Buffalo Pharmaceutical
Co. There was a problem with their company’s drugs.
CHARGE: 3 counts of violations of the Federal Food, Drug, and Cosmetic Act (2 for
misbranding and 1 for shipping)
ISSUE: Whether the defendants could be charged with violating the act when they were
not aware of the misbranding and shipping
Holding: Because of the public interest in preventing mislabeled drugs, the responsible
person who is otherwise innocent can be held liable for the hazards and penalties of such
mislabeling.
REASONS:
- in the interest of the greater good, the burden of acting can be put on the person
responsible in relation to public danger
- the president and manager were the type of person that the act was intended to reach
(best able to take steps to prevent problem)
- Congress preferred to burden those who have the opportunity to inform themselves of
the existence of the illicit commerce rather than imposing the hazard on the innocent
public

United States v. Park – contaminated food; it is in the interest of the larger good to
burden the otherwise innocent person who is responsible for preventing public danger
and the Act requires a duty to implement measures to insure that violations will not
occur. (almost going towards negligence)

Morisette v. United States – taking bomb casings and selling them; could not convict
because while there are some crimes which require no intent and for which one can be
strictly liable, the mere omission of a listed intent does not mean that there is no required
intent for the crimes – Congress didn’t seem to want to make this a strict liability crime
and traditionally larceny has had a mens rea read into it.

US v. X-Citement Video Inc. – child pornography; the statute was read to mean that
“knowingly” modifies the transport of the tapes as well as the fact that there are minors
so all the state has to show is that the defendant knew they were children (still not strict
liability though because it requires some knowledge/ mens rea)

People v. Dillard – bike riding with a gun; the statute was for “public safety” and was a
regulatory offense for which the legislature could impose strict liability.

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**CATEGORIES OF CULPABILITY
- Model Penal Code requires a mens rea for every element and only allows strict liability
for violations with fines
-“intentional” – groups together knowledge and purpose
- if a defendant is “slow” then recklessness may not apply to him because he may not be
able to “consciously disregard the circumstances known to him” but he could still be
negligent

CATEGORIES OF MENS REA (under the Model Penal Code)

MENS REA CIRCUMSTANCE RESULT SUMMARY
Purposely He is aware of the It is his conscious Wants to do it
circumstances or hopes objective to cause such
they exist a result
Knowingly He is aware that such He is aware that it is Doesn’t intend to,
circumstances exist practically certain that but is practically
his conduct will cause certain it will
such a result
Recklessly He consciously He consciously Doesn’t intend to or
disregards a substantial disregards a substantial know for sure that
and unjustifiable risk and unjustifiable right it’s going to happen
that the material that the material but thinks it might
element exists element will result (substantial
from his conduct probability)
Negligently He should be aware of He should be aware of Doesn’t realize that
a substantial and a substantial and it’s going to happen
unjustifiable risk that unjustifiable risk that or might happen
the material element the material element even though a
exists will result from his reasonable person
conduct would

Regina v. Faulkner
FACTS: Defendant, a ship hand went into cargo hold to steal rum and when the rum
started running out he tried to plug the hole. However, he had a lit match in his hand and
the rum caught fire – burning the defendant and destroying the ship.
CHARGE: Feloniously, unlawfully, and maliciously setting fire to a ship
ISSUE: Whether the defendant’s intent in stealing the rum can be used as his intent in
setting fire to the ship
Holding: Although the prosecution tried to satisfy the “maliciously” requirement by
using his transferred intent from intending to steal the rum to intending to burn the ship, it
must be interpreted as he meant to burn the ship.
REASONS:
- while the defendant was intentionally committing another felony, the fire was not
intended nor was it a necessary consequence of the felony he was attempting

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- can’t transfer the intent of one crime to another if the second is not an obvious extension
of the first

United States v. Jewell – marijuana in a secret compartment; “willful blindness” is the

equivalent to knowledge and therefore the defendant “knowingly” brought marijuana into
the United States.

Screws v. United States – beating a handcuffed prisoner; it was not sufficient that the
defendant had a generally bad purpose, but the defendant must have purposely deprived
the prisoner of a constitutional right.

**MENS REA & MISTAKE

Regina v. Prince
FACTS: Defendant took Anne Phillips, a 14 year-old, unmarried girl, out of the
possession and against the will of her father. He thought she was 18.
CHARGE: Taking an unmarried girl under the age of 16 out of the possession and
against the will of her father
ISSUE: Whether the defendant’s intent must have included knowledge of the girl’s age
(an attendant circumstance)
Holding: Because the defendant would have been guilty of taking her against her father’s
will, this is a strict liability statute designed to protect girls so he takes her at his own
peril and can be charged even if he wasn’t aware of her real age.
REASONS:
- legislature was trying to protect girls (can be seen when looking at this and other
statutes together) and to allow knowledge as to age as a defense would be to render the
statute moot
- this is a moral wrong and so there should be strict liability (you’re operating at your
own risk when you do something morally wrong that it is also criminally wrong)
- the simple fact that she was taken from her father makes his behavior wrong
BRETT’S Dissent: There should not be an automatic strict liability requirement as there
should be some sort of reasonableness defense. However, reasonableness should not
apply to the differing degrees of the crime (can use “I thought she was 16” – which is still
a crime – to a defense of the crime of taking a girl who is 12)

WHEN THERE SEEMS TO BE A LACK OF MENS REA

Under the Model Penal Code:
If there’s already a mens rea in the statute then…
2.02(4) – Prescribed Culpability Requirement Applies to All Material Elements –
apply the same mens rea unless otherwise stated or doing so would be contrary to
the purpose of the statute
If there’s no mens rea to be found…
2.02(3) – Culpability Required Unless Otherwise Provided – assume purpose,
knowledge, or reckless if no other mens rea is provided (usually going to go with
reckless since it’s the minimum one to be proven and therefore) usually the
easiest

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People v. Ryan
FACTS: Defendant accepted a package that he knew contained a lot of mushrooms but
not the specific amount. (although it had actually been substituted with a different
package as part of a police set-up)
CHARGE: Attempted criminal possession of a controlled substance in the second-degree
ISSUE: Whether “knowingly” in the statute requires that the defendant also know the
weight of the controlled substance
Holding: Knowledge applies to both the possession as well as the weight of the
substance and because the prosecution failed to show that the defendant knew the amount
of the drug he had, he cannot be convicted.
REASONS:
- the legislature has outlined how to read culpability requirements and they require that if
one of the terms appears then it should be read to apply to all the elements
- additionally, there is a colon in the statute which leads to the implication that the mens
rea applies to what follows
- the way the grades of possession are differentiated is through weight so there must be
some knowledge as to weight
- evidence of knowledge as to the weight is easy to show through discussions or
experience with the drug

United States v. Nofziger – a former Reagan employee is charged under the “revolving
door” statute, which prevents federal employees for working for interest groups within a
year of their employment, after he went to work with lobbyists; this is not a strict liability
statute and the prosecution must prove knowledge as to all the elements including
knowing that the agency has a substantial interest in the subject for which the person is
lobbying.

**MISTAKE OF LAW
1. IGNORANCE IS NO EXCUSE
- not knowing the law is almost never an excuse (can’t just claim ignorance)
United States v. Baker
FACTS: Defendant was caught dealing in counterfeit Rolex watches but says he
didn’t know it was against the law to traffic in counterfeit goods.
CHARGE: Trafficking in counterfeit goods
ISSUE: Whether the statute requires knowledge that the conduct is criminal
Holding: While this is not a strict liability statute because it does require some
mens rea, it does not require knowledge that the act was criminal – not an
element.
REASONS:
- to hold otherwise would mean that for all statutes there would be a requirement
of knowledge of criminality
- there is strict liability for knowledge as to whether an act is criminal 
“ignorance of the law is no excuse”

Hopkins v. State – charged with maintaining a sign that was intended to aid in
the solicitation or performance of marriages; even though he had been advised of

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the legality of such a sign, advice of counsel does not excuse a person for
violating the law and cannot be a defense to the violation.

2. MISTAKE OF NON-GOVERNING LAW

- a mistake of non-governing law may negate the mental element
People v. Bray
FACTS: Bray, defendant, plead guilty to being an accessory after the fact to being
in possession of a concealable firearm. Because he had no prior record, he got
probation. Over the years he always disclosed his record but when he filled out
his gun permits he didn’t include that information because he didn’t think his
record made him a felon. He was arrested for his .38 and .22 pistol.
CHARGE: 2 counts of being a felon in possession of a concealable firearm
ISSUE: Whether it must be shown that Bray knew he was a felon and if it need
not be proven, then can he use the fact that he didn’t know as a defense
Holding: Because even the State Attorney had difficulty determining whether
Bray was a felon, he should be allowed to use his lack of knowledge of his felony
status as a defense.
REASONS:
- there was a lot of confusion over Bray’s status – when he registered to vote, he
was told he was not
- this was a mistake of non-governing law which can sometimes be a defense

Regina v. Smith – installation of wiring and ceiling panels to rented apartment;

because the defendant honestly believed that the damage he did was to his own
property (mistake of non-governing law), the court dismissed the charges as they
couldn’t even show a reckless mens rea.

Richardson v. United States – held up man at gunpoint to collect a gambling

debt; court allowed evidence that the defendant believed he had a claim of right to
the money since an element of the crime was that he had the specific intent to take
the property of another.

3. MISTAKE OF GOVERNING LAW

- a mistake of governing law may be an excuse from responsibility
Commonwealth v. Twitchell
FACTS: Defendants’ daughter died from consequences of perinotis caused by the
perforation of his bowel. Defendants were practicing Christian Scientists who
believed that they couldn’t be responsible for neglect if they were using spiritual
healing.
CHARGE: Involuntary manslaughter
ISSUE: Whether the defendants can present, as a defense, their understanding that
they were excused from being accused of neglect because they were pursuing
spiritual beliefs
Holding: Because there was an official interpretation of the law that later proved
to be wrong on which the defendants relied, the defendants are entitled to present
it as a defense because it will help prove their mens rea.

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 REASONS:
- the neglect and lack of proper care might require a knowledge or purpose mens
rea and the Attorney General interpretation speaks to a negligence mens rea as
well as a purposeful mens rea but the parents are charged with a reckless mens rea
but if they didn’t even think they could be charged then they couldn’t have been
reckless

Lambert v. California
FACTS: Defendant had been living in Los Angeles for 7 years and during that
time she had been convicted for forgery, a felony in California. She did not
register her conviction under the Municipal Code which required all convicted
felons in the Los Angeles to register if staying more than 5 days or face criminal
penalties.
CHARGE: Failure to register as a convicted felon in the City of Los Angeles
ISSUE: Whether a act requiring registration of felons in the City of Los Angeles
violates due process when it is applied to a person who had no knowledge of his
duty to register and where no showing is made of the probability of knowledge
Holding: While ignorance is no excuse, actual knowledge of the duty or proof of
the probability of such knowledge and then the subsequent failure to comply are
necessary before a conviction under the ordinance can stand.
REASONS:
- due process requires notice and defendant had no notice of her duty
- unlike the crime in Baker, Lambert was only present and not doing what is
clearly a criminal act
- this statute may have been more about police duties than public safety

**CAPACITY TO FORM THE MENS REA

People v. Wetmore
FACTS: The defendant, who had had at least 10 psychiatric episodes which required
hospitalization, was found in someone else’s apartment. He apparently had believed that
he owned the property and had been “directed” there and was embarrassed when found
there. Only when caught did he finally understand that he did not own the apartment.
CHARGE: Burglary
ISSUE: Whether there must be proof of the defendant’s mens rea if he didn’t have the
capacity to form it
Holding: Rather than proving that the defendant didn’t form the mens rea, the defendant
can instead show that he didn’t have the capacity to form it in order to negate the
prosecution’s mens rea and put on an affirmative defense to his crime.
REASONS:
- tried to say that the defendant could not have committed larceny (no crime therein)
because he thought he was in his own home and so he couldn’t have taken someone
else’s property
- usually with insanity, the prosecution proves the elements and then the defense uses
insanity as an affirmative defense to show that he didn’t form the necessary mens rea but
instead here the insanity allows them to show that he couldn’t have formed it

14
State v. Cameron
FACTS: Defendant, who was drunk, assaulted 4 men who were playing cards and hit one
man with a bottle so that he required 36 stitches. Then when the police came, she threw a
bottle at their car and shouted obscenities. She was carrying a quart of wine and a quart
of it was gone but it was unknown how much of that she drank and over what time
period.
CHARGE: Second-degree aggravated assault, possession of a weapon to use it
unlawfully, and fourth-degree resisting arrest
ISSUE: Whether there was sufficient evidence to introduce the defendant’s intoxication
to the jury at the trial
Holding: While voluntary intoxication can be a defense to a criminal charge because it
may prevent the defendant from forming the mens rea, the defendant did not demonstrate
sufficient evidence of her intoxication to render her incapable of purposeful or knowing
conduct.
REASONS:
- in order to use voluntary intoxication, the defendant must have been so intoxicated so as
to render her incapable of purposeful or knowing conduct

People v. Guillet – assault with the intent to rape; while the lower court instructed the
jury that a man that a man who puts himself in the position to have no control over his
actions must be held to the consequences, the Michigan Supreme Court found that
evidence of intoxication could possibly negate the requisite intent..

Montana v. Egelhoff – defendant was charged with deliberate homicide but tried to use
his .36 BAC to show that he did not act “knowingly or purposely”; Court upheld his
conviction claiming that the rule which limits the intoxication defense does not shift the
burdens but only redefines the elements of homicide but simply bars the use of a specific
form of evidence to disprove the required mental state and the decision served a deterrent
purpose as well as staying consistent with the emotions of fairness under the 14th
Amendment.
(MPC does not distinguish between general and specific intent but it does allow
intoxication to negate the mens rea at time)

**SPECIFIC AND GENERAL INTENT

Frey v. State
FACTS: Defendant was seen acting suspiciously and when confronted, it turns out that
there was an outstanding arrest warrant. When the officer tried to handcuff the
defendant, he said “I’m not going to jail” and began choking the officer. The two fought
and this resulted in both being treated at the hospital for their injuries. Frey had a BAC
of .388 at the time of his arrest.
CHARGE: Aggravated battery on a law enforcement officer and resisting arrest with
violence
ISSUE: Whether the defendant’s crimes are specific intent crimes to which the defense of
voluntary intoxication applies
Holding: While the defendant tries to assert that aggravated battery is a specific intent
crime because it requires the heightened standard that the battery be on an officer, there is

15
 no heightened or particularized intent required and Frey could not use his intoxication as
a defense to such a charge.

III. HOMICIDE
- murder is usually defined as an unjustifiable killing manifesting:
1. purpose to cause death, or
2. intent to inflict serious bodily harm, or
3. extreme recklessness with respect to a serious risk of harm to another’s life, when the
risky actions manifests so unworthy or immoral a purpose as to suggest callous
indifference to human life, or
4. a willingness to undertake even a very small risk of death where the risky conduct is
so unworthy as to establish guilt of a serious felony (Felony Murder Rule)
- categories of murder:
- deliberation and premeditation (1st degree)
- depraved heart
- intent to commit grievous bodily harm
- felony murder
- categories of manslaughter
- voluntary (intentional killing in the heat of passion)
- involuntary (criminal negligence or recklessness – as under the MPC)

A. INTENTIONAL HOMICIDE
- usually distinguish in statute as well as penalty those crimes when the murder is
purposely committed against those where it was an accident or not intended

**INTENTIONAL MURDER
Francis v. Franklin
FACTS: Defendant was in custody when he was brought to the dentist. He escaped,
taking a dentist assistant as a hostage. After trying to break into a number of cars, he
went to the home of Collie who slammed the door on Franklin. As the door was
slammed, the gun went off and one shot hit Collie in the chest and killed him.
CHARGE: Malice murder and kidnapping
ISSUE: Whether an instruction that seems to presume the intent as long as the
prosecution had proven the predicate act was legal and could be properly understood by a
reasonable jury
Holding: The 14th Amendment requires that the state must prove all the elements before
the burden shifts to the defendant and because the instruction made finding the intent
more mandatory than permissive, the defendant was entitled to another trial to have the
jury determine his mental state.
REASONS:
- there was enough evidence to charge with intentional murder
- use of the word “presumption” in the instruction made it seem like the state’s burden
was automatically satisfied when it still had to prove the defendant’s mental state

**PREMEDITATED MURDER

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- MPC did away with the “premeditation” requirement and instead requires knowledge or
purpose
United States v. Watson
FACTS: Officers spotted a stolen car they were searching for and when they stopped it,
the defendant jumped out and a chase ensued. The defendant ended up at an apartment
where he made a phone call and sat at a table with 3 girls when the officer walked in.
The two struggled and when the defendant had the gun pointed at the officer’s chest, he
told him twice “It wasn’t worth it.” He shot and killed the officer.
CHARGE: First-degree murder
ISSUE: Whether the defendant could be said to have deliberated and premeditated his
crime and be subsequently charged with first-degree murder
Holding: Because the circumstances surrounding the shooting could have allowed a
reasonable juror to conclude that the defendant did not act in a panic but with deliberation
(wanted to escape) and had time to reflect on his decision before pulling the trigger, there
was sufficient evidence to charge the defendant with first-degree murder.
REASONS:
- deliberation can be as quick as a few seconds (could have been while on the phone, at
the table, while on top of the officer)
- there is a question of whether he had the capacity to deliberate/ premeditate since he
was in a flight/ fight situation
- it did not seem as if he shot in the heat of passion or a frenzy (which may have meant a
second-degree charge)

Austin v. United States – the time for deliberation need not be long and seconds might
suffice, as long as there was a choice to kill or not to kill – intentional murder in the first
degree is committed in cold blood while second degree murder is committed on impulse
or in the heat of passion.

Mercy Killer – a 71-year-old woman strangled her husband who was ill and was only
sentenced to a $10,000 fine and 1000 hours of community service because the judge felt
she had worked hard to help him and was carrying out his wishes; his illness may have
been an excuse and the manner that she killed him as well as her long period of suffering
could work for her (she couldn’t take it anymore) or against her (she had been planning
and wanted to be rid of him)

Commonwealth v. Scott – during a brief encounter with the defendant the victim asks
for “moonshine” and ends up getting shot and killed; it was for the jury to determine
whether during the brief conversation the defendant had developed in hid mind the
decision to take the life and then chose the instrument of death and because they found he
did, their decision cannot be disturbed. (convictions where the defendant deliberated for
even shorter periods of time have been upheld and it the formed purpose, not the time it
takes to do so, which constitutes the higher degree.

Commonwealth v. Gould – killed an old girlfriend while in a delusion; the defendant

could not win a verdict of not guilty by insanity because he could not establish, as the law
requires, that at the time of the killing he was unable to appreciate the wrongfulness of

17
his act or exercise self-restraint however, the jury could consider that even if he was
guilty of intentionally killing, he might not be able to premeditate one.

**VOLUNTARY MANSLAUGHTER
- manslaughter usually requires:
1. provocation (thought of as an excuse/ justification mix)
2. acted in the heat of passion
3. had not yet had sufficient time to cool down from the heat of passion (and a
reasonable person would not have cooled down either)
- Model Penal Code has two prongs of provocation: adequacy (objective) and whether
there was provocation (subjective)
- instances considered provocation:
1. physical attack
2. unlawful arrest
3. witnessing adultery
4. violent or sexual assault of a close relative
(NOT WORDS – however, hearing about something that may have been sufficient
provocation had it been witnessed may suffice)

1. MITIGATION
People v. Walker
FACTS: After a few encounters where the victim threatened the defendant and 2
others with a knife, the defendant threw a brick at the victim and knocked him
down. He stood over him and took the victim’s hand with the knife in it and used
it to cut the defendant’s throat.
CHARGE: Murder
ISSUE: Whether the defendant acted out of fear and in the heat of passion at that
moment making him guilty of manslaughter or whether his killing of the deceased
was premeditated making it a murder
Holding: Because the defendant was responding to the threat posed by the victim
and in the passion remaining from the fight, the defendant was guilty of
manslaughter and not murder.
REASONS:
- not a self-defense claim (victim was dazed on the ground)
- the defendant had been both provoked and had not yet had cooling time from the
heat of passion
- though it was not self-defense, the victim had instigated the fight

2. PROVOCATION & REASONABLENESS

- move towards loosening the doctrine so that one need not even see the event to
have been provoked
- there seems to be a move from justification to excuse or a shift from the victim’s
behavior to the defendant’s mental state
- usually both moral and criminal wrongs serve as justification
Rowland v. State

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FACTS: Defendant’s wife was staying at someone else’s house and when he
came to visit, she was in bed with another man. As the couple fled the room, the
defendant shot her.
CHARGE: Murder
ISSUE: Whether the defendant was provoked by what he witnessed making his
killing manslaughter rather than murder
Holding: If a man catches an offender in the act of adultery and kills her, his
killing is extenuated to manslaughter because the provocation was legally
sufficient to produce a fervor, which at that moment unsettles reason.
REASONS:
- a man catching his wife with someone else is thought to be sufficient
provocation
- there is nothing to show that the defendant deliberately planned to kill his wife

Price v. State – adultery is an excuse when the defendant “catches them in the
act” but it does not mean that he must be an actual eyewitness as the adultery can
be established by circumstantial evidence – therefore if a husband doesn’t actually
see the cheating but knows it’s going on and kills in an overpowering passion, the
offense is reduced to manslaughter.

Regina v. Mawgridge – jealousy is the rage of a man and adultery is the highest
invasion of property. However, when you kill a man who’s trying to rob you, it’s
lawful to kill but when you kill an adulterer, it’s manslaughter – this is because
killing the man who’s with your wife is more about revenge than self-
preservation.

Commonwealth v. Whitler – defendant killed his wife’s lover with an axe when
he discovered the two in bed; while the instructions said that manslaughter was
the crime when a man kills another who he finds in bed with his wife, the jury still
found the defendant not guilty.

People v. Berry
FACTS: Defendant was married to the victim who went away and came home
bragging about her new lover. She taunted him for 2 weeks and he finally choked
her into unconsciousness. While she was in the hospital getting warrant for his
arrest, he went home to pack up his things. He returned to their apartment where
he stayed overnight and when she returned in the morning, he strangled her with a
phone cord.
CHARGE: Murder
ISSUE: Whether the defendant’s killing of his wife was provoked so as to require
a jury to get an instruction of voluntary manslaughter
Holding: The two-week provocatory period could have aroused passion of
jealousy, pain, and sexual rage that may cause an ordinary man to act rashly from
this passion so as to require an instruction for involuntary manslaughter.
REASONS:
- California does not require the passion element of manslaughter to be sudden

19
- the prior attack could be evidence of his building passion
- possible problems with the decision:
- what’s adequate provocation?
- what’s adequate cooling time? (20 hours in the apartment?)

State v. McCarthy – allowed evidence of prior attacks on the victim and others
to show that he did not kill out of passion.

Director of Public Prosecutions v. Camplin

FACTS: 15 year-old boy, who had been sexually assaulted by the victim, killed
him.
CHARGE: Murder
ISSUE: Whether the boy should be held to the standard of a reasonable person of
his age or the more abstracted “reasonable man”
Holding: The jury needs to consider what someone of the same age and sex as the
defendant would have done to take into account the provocation.
(Other justices argued that it should be someone of the same age, sex, and in that
situation as the standard.)

3. COOLING TIME
Ex Parte Fraley
FACTS: Defendant walked up to the deceased and shot him twice and then four
more times while chasing him. He even tried to shoot a few more times with his
empty gun while shouting “I told you I’d kill you! You killed my boy!” It was
alleged that the victim had killed the defendant’s son 9 or 10 months earlier.
CHARGE: Murder
ISSUE: Whether a homicide can be deemed manslaughter if after 9 or 10 months
a father confronts his son’s alleged killer and shoots him in a rage
Holding: Because the defendant had 9-10 months to cool off, the defendant
should be charged with murder rather than manslaughter because even if he had
killed in a rage, a reasonable person would have cooled off by then.
REASONS:
- he had 10 months to cool off
- becomes a big problem if the victim was not the one who killed the defendant’s
son

People v. Brooks – 2 hour delay between when the defendant found out his
brother had been killed and when he killed the victim during which time the
defendant collected information and ran around excitedly; he was entitled to a
voluntary manslaughter instruction.

State v. Gounagias – deceased humiliated the defendant by sodomizing him and

then bragging about it; the theory of cumulative effect of reminders of former
wrongs and not new acts of provocation by the deceased is contrary to the idea of
sudden anger since sudden anger cannot be cumulative.

20
 People v. Tapia – addict killing supplier in fear; while passion in anger tends to
be retrospective, passion in fear is prospective and can meet the necessary passion
element.

B. UNINTENTIONAL HOMICIDE
- usually where the mens rea is either reckless or negligent (did not want it to happen nor
expected it to)
- Model Penal Code differences:
- manslaughter – committed recklessly (conscious disregard)
- negligent homicide – committed negligently (should have known)

** INVOLUNTARY MANSLAUGHTER
Commonwealth v. Welansky
FACTS: Defendant owned a club which burned down. He was at the hospital at the time
but was under the understanding that it was being run and maintained in the manner he
had run it. Many people died in the fire because of inadequate and blocked exits.
CHARGE: Manslaughter
ISSUE: Whether the owner of a club, who is not present when it burns down but was
aware of the configuration of the blocked exits, can be accused of manslaughter for his
neglect in maintaining appropriate exits as mandated by statute
Holding: Because the owner was neglecting his duty to maintain a safe club (as
demonstrated by his violation of statutory safety standards), he can be convicted for
manslaughter for his wanton and reckless disregard for the safety of his patrons.
REASONS:
- while he didn’t do anything to cause the deaths directly, his was an act of omission
- because he didn’t act with knowledge or purpose, his mens rea could be established by
saying he should have known there was a likelihood of harm and disregarded it

State v. Williams
FACTS: Defendants’ son had a toothache, which they treated with aspirin, but he
developed an infection and it became gangrenous. This, coupled with malnutrition
because the baby couldn’t eat, lowered his resistance and he developed pneumonia. He
died as a result.
CHARGE: Manslaughter
ISSUE: Whether the defendants could be guilty of manslaughter for their failure to seek
medical care for their baby when they thought he only had a toothache
Holding: Using the reasonable person standard, there was sufficient notice concerning
the baby’s symptoms and his lack of improvement to require them to obtain medical care
for the child.
REASONS:
- under the Washington statute for murder, only ordinary negligence is required
- one is guilty of ordinary negligence if he fails to use “ordinary caution” and failing to
call a doctor after a number of days of a child’s illness could be such negligence

**RECKLESS MURDER
- 2 requirements:

21
1. illegal conduct or a high probability of causing death
2. conscious disregard for the risk
- the word “extreme” to modify a homicide charge distinguishes between reckless
homicide (a manslaughter charge) and extreme reckless murder (a murder charge) 
distinguishing between the two normally involves consideration of the probabilities (both
of it occurring or the death), the mental state of the defendant, and the social value of the
behavior

Mayes v. The People

FACTS: Defendant, who was intoxicated, came home and started to get angry with his
wife. After she denied him a fire, he threw a tin quart at his daughter. The wife, who
was carrying an oil lamp, and daughter then walked out of the room to go to bed but the
defendant threw a large beer glass at the wife. The glass struck the lamp, broke it, and
sent oil all over her, which was ignited and burned her. She died from her wounds.
CHARGE: Murder
ISSUE: Whether there was evidence of malicious intent to charge the defendant with
murder
Holding: Because the likelihood of harm was great and the defendant was clearly already
acting violently, there is evidence to sustain a charge of abandoned and malignant heart
murder since he had already illustrated his malicious intentions.
REASONS:
- “abandoned, malignant heart killing” – extreme reckless killing, malice aforethought
with no provocation
- there are many kinds of killings that are unintended but where the probability is still
high rendering it a sort of murder

Commonwealth v. Malone – Russian Roulette; because the acts that the defendant was
engaged in had no social value and were grossly reckless to the point that he must
reasonably anticipate death of another is likely to result, the defendant has demonstrated a
malicious state of mind. (should the probability of death come into play?)

People v. Protopappas – dentist who overdosed patients with anesthesia and didn’t take
precautions to prevent the deaths; even though the instruction sounded like a negligence
standard, because the prosecution had stressed that the dentist had consciously
disregarded the possibility of death, and not just lacked due care, the defendant’s murder
conviction can stand.

Berry v. Superior Court – defendant’s pit bull kills 2 year old neighbor; can be guilty of
second-degree murder because he met the two prerequisites for liability: extreme
indifference to the value of human life and awareness that the conduct was contrary to
law/ aware of the risks.

State v. Dufield – defendant killing and maiming his sister while he’s drunk; the second-
degree murder charge does not require a higher mental state than reckless manslaughter
but a greater divergence from normal law-abiding conduct.

22
Commonwealth v. Dorazio – heavyweight boxer who gets into a fight and one of his
victims ends up dying from a hemorrhage; while normally the intent to inflict serious
bodily harm requires use of a deadly weapon, the size of the defendant, his use of his
fists, and the ferocity/ duration of the attacks lead to a finding of malice so as to support a
second-degree murder conviction.

**FELONY MURDER
- no intentional act is necessary to hold someone responsible under the felony murder
doctrine except the actual commission of the felony
- the doctrine presumes malice aforethought on the basis that the commission of the
felony is inherently dangerous to human life
- there is no requirement that the death be instantaneous or even be part of the felony as
long as a casual connection can be made
- there is no forseeability requirement
- rationales for the doctrine:
1. deterrence
2. retribution (but a true retribuvist would not want all those involved punished, only the
ones who actually caused it)
3. encourage “safer commission of felonies”

People v. Stamp
FACTS: Defendant and another man help up the General Amusement Company and
about 15-20 minutes later, Carl Honeyman, an employee at the company who suffered
from heart disease, died of a heart attack.
CHARGE: Robbery and first-degree murder
ISSUE: Whether the felony murder doctrine applies to the death of a robbery victim
where he dies of a heart attack just after the crime
Holding: Because the felony murder doctrine applies to all killings related to the felony
committed, there is no requirement of Foreseeability and defendants can be charged with
even those deaths that occur afterwards from a health condition brought on by the act.
REASONS:
- the heart attack came as a result of the defendant’s actions
- while they may not have been able to predict that someone would die as a result, they
took that risk when they decided to commit the robbery

1. THE REACH OF FELONY MURDER

- different approaches to the limits of the doctrine:
1. proximate cause – any killing, regardless of victim or shooter, as long as
related to the felony (Stamp)
2. protected person – focus on who the victim is, if innocent person or an officer
then felony murder (but not responsible for accomplice’s death)
3. agency theory – the killing has to happen by a co-felon so the focus in on the
actor as part of the felony
(Model Penal Code presumes recklessness and this is the mens rea that the
defendant must overcome)

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People v. Gladman
FACTS: Defendant robbed a deli and was near a bowling alley when a police
officer heard about the robbery and saw the defendant. When he encountered the
defendant, the defendant shot and killed him.
CHARGE: Felony murder
ISSUE: Whether the killing of the officer occurred in the immediate flight of the
deli robbery allowing the application of the felony murder doctrine
Holding: There was evidence that the defendant was still trying to escape the
robbery and get away with the goods when he shot the officer.
REASONS:
- there was a connection that could be made between the flight and the killing
allowing the application of the felony murder doctrine
- to make the connection the jury must have found:
- the locations of the felony and the murder
- the time interval between the felony and the murder
- whether the defendants had the fruits of criminal activity
- whether police were in close pursuit
- whether the criminals had reached a temporary place of safety

People v. Hickman
FACTS: Defendants were surprised as they emerged from a burglary. During
their escape there was confusion and one of the officers ended up shooting
another officer also chasing the defendants.
CHARGE: Felony murder
ISSUE: Whether the actual shooting which caused the death of an innocent victim
must have been performed by the defendants or someone acting in concert with
them in order to satisfy the felony murder doctrine
Holding: Because the defendants indirectly contributed to the officer’s death and
it could be expected that there would be defensive forces called into action as a
result of their crime which could be deadly, they can be held accountable under
the felony murder doctrine.
REASONS:
- there is a certain justice in holding a felon responsible for all the deaths caused
by his crime, even if the killing occurs at the hands of a third party
- the period of time right after the felony during flight becomes part of the crime
itself so as to allow the extension of the felony murder doctrine

People v. Washington
FACTS: Defendant and another man were robbing John Carpenter’s gas station.
Carpenter became aware that a robbery was in progress and when one of the men
came in with a gun, he shot and killed him. Carpenter then went into the station
where he saw the defendant. He shot and wounded the defendant.
CHARGE: Felony murder
ISSUE: Whether a surviving felon can be charged with murder under the felony
murder doctrine for the death of his accomplice when he is shot by the victims of
the felony

24
Holding: In order to hold a defendant liable for murder under the felony murder
doctrine, the act of killing must be committed by the defendant or his accomplice
in furtherance of their common design.
REASONS:
- the rationale of the felony murder doctrine is to deter felons from negligently
killing or acting in a way to cause the killing and here it was not the defendant’s
actions at issue
- malice aforethought cannot be attributed to the robber when the killing is not
committed by him or an accomplice
- it is not enough that such a death is foreseeable

People v. Cabaltero – 4 people go to rob a farm and one of them fires at 2

workers they come upon and another of the robbers kills the initial shooter for his
foolishness; any killing by one engaged in the commission of a felony falls within
the scope of the felony murder doctrine.

Commonwealth v. Almeida – officer killed by another officer when trying to

apprehend robbers; a robber is liable for any death proximately resulting from the
commission of a felony as one is liable for any risk of death that was foreseeable
when it occurs - considered an excusable killing for which one can be held
responsible.

Commonwealth v. Thomas – gun battle and one defendant is killed by the

robbery victim; the defendant is liable under Almeida because the shooting was
only excusable (responsible for all killings stemming from the crime).

Commonwealth v. Redline – defendant initiated a gun battle and his accomplice

is killed by a police bullet; cannot be held liable under felony murder because the
police were justified in shooting the victim/ accomplice and if we can’t hold the
shooter/ killer responsible, then we can’t hold the co-felon responsible. (uses a
distinction between justifiable and excusable shootings)

Commonwealth ex rel. Smith v. Meyers – rejected Redline’s distinction

between excusable and justifiable killings as well as rejecting Almeida’s
proximate cause approach.

Taylor v. Superior Court - threats during a robbery and later a gun battle in a
liquor store where one of the robbers is killed; because the defendant’s behavior
provoked the victims in a manner which could be inferred as malice, the
defendant could be charged as an “abandoned and malignant heart” murder (his
accomplices were acting with extreme recklessness and with vicarious/
accomplice liability he can be charged using their mens rea)  not felony murder

People v. Antick – decedent/ robber started a gun fight and was subsequently
killed; defendant’s criminal liability could not be predicated on the actions of the
officer and since the robber could not be responsible for his own murder, his

25
 accomplices cannot be vicariously responsible (would think that with accomplice
liability and abandoned, malignant heart (for having started the gun fight)m the
defendant could be charged under felony murder but there was a break in the
action)

2. MERGER
- felony must be distinct from the killing
- the purpose of the felony murder rule is to get felons to act more safely and you
can’t deter someone who’s going to kill (as their felony) from killing

People v. Huter – defendant shot and killed a police officer while resisting
arrest; when the offense is really is the assault which causes the death, the act
becomes a constituent part of the homicide and is merged but if the act that causes
the death has a collateral and independent felonious design, then it is sufficient for
a felony murder charge.

People v. Ireland – felony murder charge based on assault with a deadly weapon
against his wife; felonious assault could not be the basis for felony murder
because it is included in fact within the homicide charge.

People v. Caffero – felony child abuse was not inherently dangerous to human
life in the abstract so it can’t be the predicate offense to felony murder.

State v. Lucas – defendant, who was living with and taking care of 2 children
who also lived there, was giving the kids a bath and when she left them in the tub,
one of them drowned and she was charged with child abuse and felony murder;
because the death was too closely related to the underlying child abuse charge and
an integral part of that charge, the two merge and cannot form the basis for felony
murder. (but the legislature should create a rule so that child abuse causing death
can result in a first-degree murder charge)

People v. Burton – armed robber goes into a store and kills the store owner
while robbing them and tries to use as a defense the idea that armed robbery is
just assault with a deadly weapon coupled with larceny; there is an independent
felonious purpose (trying to acquire the money) that once embarked upon, comes
with a warning that if death results from the commission of that crime then a
felony murder charge will result.

IV. SELF-DEFENSE
**INTRODUCTION
- justifiable homicide means that the shooter wasn’t necessarily wrong and was acting in self-
defense
- self-defense requires:
reasonable (actor’s situation)
+ honest belief
+ danger of death or seriously bodily injury (imminent/ immediate)

26
 - retreat (exception is the castle doctrine but not if you’re a co-occupant)
(jurisdictions differ in subjectivity/ objectivity, how immediate the danger is, and the varying
degrees)
- the 2 parts of the self-defense claim requires a subjective element (what they honestly thought)
and an objective element (what the reasonable man would think of the situation)
- the imminent danger must be at that time and cannot be some fear of harm at a future point

People v. LaVoie
FACTS: Defendant was driving home from work when another car full of men started
threatening him on the road. They pushed him through a red light and then they all got out of
their cars. They were threatening the defendant and moving towards him in a threatening
manner when he shot one of them. The victim died.
CHARGE: Murder
ISSUE: Whether the defendant was justified in his shooting of the victim so as to make a not
guilty verdict proper
Holding: Because the defendant could have reasonably and honestly believed that he was in
danger of immediate harm, his killing was justified and he could use self-defense to get a not
guilty verdict.
REASONS:
- a reasonable person in La Voie’s position would likely have felt that he was in danger of
imminent harm
- La Voie honestly believed that he was in danger

Rowe v. Debruya – note ordering a prisoner to visit another and when he refused, he beat his
attacker with a hot plate; the state could legitimately deny the self-defense claim to a prisoner in
furtherance of the state interest in preventing violence in prisons but the circumstances may help
mitigate the crime.

State v. Leidholm
FACTS: Defendant and her husband, who had a history of alcohol abuse, were drunk after
attending a gun party. The two fought and the husband pushed the defendant a number of times.
When he had fallen asleep, the defendant got out of bed and stabbed her husband. He died from
blood loss and shock.
CHARGE: Murder
ISSUE: Whether in considering a self-defense claim, the jury should be instructed to use a
subjective or objective standard
Holding: Because the couple’s history shows that he has been a threat and a danger to the
defendant before, a subjective standard should be used to look at her mindset but even though
she was at home she still had a duty to retreat if she could safely escape.
REASONS:
- should be able to consider the prior abuse because it goes to show whether she honestly
believed she was in danger and whether a reasonable person in a similar situation would have
- in order to prevent all battered wives from killing their husbands without any other effort, there
is a duty to retreat even though she was at home – but her duty was only if she could retreat in
complete safety

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State v. Wanrow – battered woman jury instructions; defendant is entitled to instructions that
take into account her own perceptions of the situation, including those that are the product of the
nation’s history of sexual discrimination, the physical handicaps that are the result of the
discrimination – not the reasonable “man” standard.

Ibn-Tamas v. United States – exclusion of testimony about battered wife syndrome when a wife
shot her husband; should have allowed expert testimony about defendant’s battered wife
syndrome since it would have enhanced the defendant’s credibility and supported her testimony
about her state of fear which led her to believe she was in imminent danger when she shot her
husband.

State v. Hennum – expert testimony on battered wife syndrome should be limited to a

description of the general syndrome and the characteristics present in an individual suffering
from the syndrome, but not whether the individual defendant has the syndrome – as that is what
the jury should decide.

State v. Janes – defendant shoots his father as he walks in the door; there is a scientific basis to
justify extending the battered woman syndrome to analogous situations affecting children.

Commonwealth v. Eberle – defendant stabbed victim and she could have gotten to the door but
there were many victims along the way; the prosecution must show not only that there was a
chance to retreat but a chance for a safe retreat.

TESTIMONY ON BATTERED WOMAN SYNDROME

- evidence on the syndrome goes to both the subjective “honest” element and the threat of
imminent danger as well as allowing a circumstance to be created for the “actor’s
situation” (in jurisdictions that allow a jury to consider the actor’s individual situation)
- testimony about how dangerous it can be for a woman to leave (statistics on deaths after
leaving, etc.) can be used to show that her situation is like other self-defense cases

1. DUTY TO RETREAT
- there is a duty to retreat but only when the defendant can escape in complete safety
- castle doctrine - when someone is at home, there is no duty to retreat
- some states have made an exception to the castle doctrine when the killer is a co-
habitant

State v. Weiand – fighting the exception to the castle doctrine; because the co-habitant
exception impacts mostly women, there is an equal protection argument because they are
being denied the defense that men can use.

2. AGRESSOR EXCEPTION
United States v. Peterson
FACTS: Defendant encountered men who were trying to steal from him in his yard. He
went into his house and the victim and others headed to leave, the defendant re-emerged
with a gun. While loading his gun, the victim picked up a wrench and advanced towards
the defendant. The defendant shot and killed him.

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 CHARGE: Second-degree manslaughter
ISSUE: Whether a defendant who claims to have killed in self-defense but where there
was a break in the aggression where he could have retreated can use a self-defense claim
Holding: Because the defendant took action that was reasonably calculated to produce
aggressive behavior and he had an opportunity to retreat, he cannot assert a right to self-
defense claim.
REASONS:
- once the defendant becomes the aggressor, he can no longer make a self-defense claim

V. ATTEMPT AND IMPOSSIBILITY

** MENS REA OF ATTEMPT
- in order to be convicted of attempt, a defendant must have the mens rea of the target crime
State v. Lyerla
FACTS: Lyerla was driving on the interstate when he was antagonized by a group of girls in a
truck. He got off the highway, loaded his gun and reentered the road. The next time the girls
tried to pass him, he fired 3 shots at the truck. One of the girls was killed and the other 2 injured.
CHARGE: Second-degree murder and 2 counts of attempted second-degree murder
ISSUE: Whether a defendant can be convicted of attempted second-degree murder
Holding: While the defendant most likely possessed a reckless mens rea, it is impossible to have
an attempt at recklessness as well as the fact that the Court seemed to require the mens rea of the
target crime plus an intent to commit that crime.
REASONS:
- you can mean to recklessly kill

People v. Castro – upheld extreme indifference murder,

People v. Markowski – tried to sell HIV positive blood; having established that the defendant
had not intended any harm to others, the trial court dismissed the assault and murder charges.
(other possible arguments: degrees of recklessness, an impossibility argument because the
chances were so small of transmitting AIDS, without showing intent to transmit it could make a
case for only extreme reckless murder)

United States v. Moore – assault with a deadly weapon for a bite; assault because there was
evidence that the bite could cause a serious infection.

Brock v. State – assault for biting when the defendant had HIV; no assault because the
defendant did not know HIV could be transmitted through a bite.

**ACTUS REAS OF ATTEMPT

- different measures of when attempt can be charged:
1. last step/ dangerous proximity (close to completion and usually understood as
completed)
2. “indispensable element” (one thing left to do for completion)
3. but for interruption test (would have committed the action but gets interrupted)
4. unequivocal test (not an attempt until you have shown through your conduct that you
intend to do it)

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 5. substantial step test (as defined under the Model Penal Code)
- abandonment under the Model Penal Code requires a voluntary renunciation of the anticipated
crime, but excludes abandonment because of:
- increase in likelihood of apprehension or detection
- circumstances that would make it harder to complete

People v. Murray
FACTS: Defendant made declarations about his intentions to marry his niece and asked someone
to get a magistrate to perform the ceremony.
CHARGE: Attempt to contract an incestuous marriage
ISSUE: Whether the defendant can be charged with attempt when he made preparations for the
crime but not make the attempt itself
Holding: The declarations, elopement, and request for the magistrate were only preparations for
the crime but until the marriage was engaged and the parties were about to take the vows, no
attempt was made.
REASONS:
- the attempt is the direct movement towards the commission of the act after the preparations
were made (only in preparation stages here)
*Possible the Court was wrong – how much more did he have to do?

McQuirter v. State
FACTS: Defendant followed the victim and her children as they were making their way home
from a diner. He had made statements to an officer when he had arrived in the town that he was
“getting him a white woman that night.”
CHARGE: Assault with the intent to commit rape (convicted of attempt)
ISSUE: Whether the defendant can be convicted of attempted assault to commit rape
Holding: Looking at the defendant’s actus reas in conjunction with the statements he made, the
jury could find that he intended to have intercourse with the victim by force or by putting her in
fear so he can be convicted of attempted assault with the intent to rape since he did try but his
actions did not rise to the assault itself.
REASONS:
- almost like an attempt at an attempt (he attempted assault someone so he could attempt to rape
her)
- while the defendant did something wrong, he didn’t come close enough to the rape or attempted
rape so this is a lesser crime that can be proven
- the victim felt threatened by the defendant’s behavior and assault is an attack/ movement that a
reasonable person would find threatening of imminent harm
*Possible that the Court would have convicted him without the statements because it seemed as
if they were out to get him because he was black

People v. Rizzo
FACTS: Defendant and 3 others drove around, with guns, looking for a man with a pay roll
valued at $1200. The defendant was supposed to be able to identify the man. 2 police officers
followed them and finally stopped and arrested them. There was noone out with the pay roll that
day.
CHARGE: Attempt to commit robbery in the first-degree

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ISSUE: Whether the driving around looking for a particular person to rob, who in reality is not
around, constitutes enough of an action to make the defendant guilty of attempted robbery
Holding: Defendants were not guilty of an attempt to commit robbery when they had not found
or reached the presence of the person they intended to rob.
REASONS:
- under 4 of the 5 tests for attempt, the defendants did not come close enough to have attempted
to rob
- because there was a key element missing here (the person with the pay roll) even if left alone,
these men would not have been able to rob that day

United States v. Jackson – casing a bank and arrested for attempt after a co-conspirator
confessed about the plan; the 2 counts of attempted robbery were affirmed, even though only one
of the men had gone inside to observe the surveillance system, because the reconnoitering and
possession of the paraphernalia were sufficient to constitute a substantial step when corroborated
with their criminal purpose (had the requisite mens rea for the target crime)

United States v. Buffington – defendants were about to rob a bank but then the power went out
however the defendants were arrested based on an informant tip and when the defendants were
arrested, they had guns on them; the government’s evidence, without the interpretative light of
the in formative’s disclosures, were insufficient as a matter of law to justify the convictions for
attempted federal bank robbery.

People v. Staples
FACTS: Defendant rented an office over a bank and brought in equipment to rob it. He began
drilling holes through the floor towards the bank and made efforts to cover the holes when he
wasn’t there. However, after a month he did not pay anymore rent and it is not clear when he
stopped going to the office.
CHARGE: Attempted burglary
ISSUE: Whether the defendant’s actions in renting the office and drilling the holes constitute
enough to make him guilty of attempt
Holding: Because the defendant had the mens rea for the burglary and took steps towards that
end, it is immaterial that he did not complete the act for some reason and he can be charged with
attempted burglary.
REASONS:
- the defendant made definite and calculated efforts to execute the target crime
- really like an attempt at attempt because burglary only requires entering and the mens rea for
the crime but no other action
- defendant should not be able to get away with it just because he didn’t get to finish his attempt

Bucklew v. State – fake car repair bill that was never turned in for reimbursement; the
defendant mayor could not be convicted of attempted embezzlement because he abandoned the
scheme before taking any overt action and had only confined himself to preparatory activity.

LeBarron v. State – only assaulted a woman and did not rape her because she was pregnant;
the court rejected an abandonment claim.

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State v. Andow – child snatching/ abandonment where a woman took a child for 12 days when
the statute allowed her to abandon her crime within 14 days without being charged; even though
the 14 day grace period had not ended, the attempt offense begins the first day and she can still
be charged with that even if the greater charge is dismissed when she returned the child within
14 days.

**IMPOSSIBILITY
- two types of impossibilities:
- factual impossibility – can be charged with the principal crime (right about the law,
wrong about the act), ex. – reach into someone’s pocket to rob them but the pocket is
empty
- legal impossibility – never can be charged with the principal crime (wrong about the law,
right about the act), ex. – trying to “smuggle” cigars from Hungary which is not against
the law
- under the MPC, someone can be charged with the crime when the circumstances were as they
believed them to be; ex. – if someone is trying to sell cocaine but it’s really baby powder (under
the common law a factual impossibility) can be charged because they believed it was cocaine
and that is against the law
- inherent legal impossibility – when someone believes something so outlandish that it would
never be possible, they cannot be charged (ex. – waving a magic wand believing it would kill
someone would not be attempted murder)

Booth v. State
FACTS: Defendant tried to buy a stolen coat, knowing it was stolen. However, the man he had
bought it from had already been caught and the coat had been identified by its owner so it was no
longer stolen.
CHARGE: Receiving stolen property
ISSUE: Whether a defendant can be charged with an attempt to buy stolen property when the
defendant believes the goods to be stolen but the goods had been identified and were no longer
stolen at the time of the attempted purchase
Holding: Because the goods were no longer stolen when the defendant tried to buy them, he
cannot be charged with the attempt to buy them.
REASONS:
- even though he had the mens rea and performed the actus reas, what he was trying to do was
not against the law so it was a legal impossibility
- under the Model Penal Code the defendant would have been guilty of attempt because if the
circumstances were as he believed them to be (the coat was still stolen) then it would have been
illegal  this is what the modern trend follows (principally concerned with mens rea and
criminal intent as the actor believed them to be)

People v. Dlugash
FACTS: Defendant shot a man in the head and face 5 times but this was 2-5 minutes after
another man had shot the victim 3 times.
CHARGE: Murder
ISSUE: Whether an individual should be liable for an attempt when, unknown to him, it was
impossible to successfully complete the crime

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Holding: The defendant may be held for attempted murder, a lesser included offense, because he
had the requisite mens rea but where the evidence is not legally sufficient to show that beyond a
reasonable doubt the victim was alive at the time of the shooting.
REASONS:
- if the jury found him guilty of murder, then they found he had the requisite attempt for the
target crime (although that is questionable)
- under the Model Penal Code, if he believed the man to be alive at the time of the shooting then
he would be guilty of murder but if he believed the man was dead then he couldn’t even be guilty
of attempt because shooting a dead body is never a crime
NOTE: On appeal, the court found that there was not sufficient evidence that the victim was
alive at the time of the shooting and the jury’s findings may have been based on an unwarranted
factual assumption.

VI. COMPLICITY
- used to be complicated with varying degrees of accomplices and principals
- NOW anyone who has any relation to the crime as an accomplice has the same liability as the
principal
- exception to equal liability for accomplices is the accessory after the fact (ex. – hiding the
criminal afterwards) which are dealt with in separate statutes
- mere presence is NEVER enough in trying to make someone an accomplice
- usually if the principals cannot be charged then the accomplices cannot either
- usually requires proof that the defendants KNEW what the principal was going to do and
AIDED in some way

**ACTUS REAS
State v. Ochoa
FACTS: Defendants were protesting outside a trial and when the defendant emerged, a riot
emerged. In the shuffle and fighting that ensued, a sheriff was shot.
CHARGE: Second-degree murder
ISSUE: Whether the defendants, who did not fire the fatal shot, were sufficiently involved in the
shooting to render them accomplices in the act and thus guilty of second-degree murder for their
involvement
Holding: Because the defendants continued to participate after the shots were fired and their
presence and action encouraged the shooter, they assisted in the killing and can be liable as
accomplices for second-degree murder.
REASONS:
- even if they didn’t know that shooting was involved in the plan, the fact that they maintained
involvement after the shooting began shows they had the requisite mens rea through vicarious
liability
- they helped in the shooting by insuring that assistance to the victim was held up
- their mere presence and participation at the shooting may have encouraged the shooter thus
increasing their liability

United States v. Davilia – most courts interpret a statute to punish misprison (aiding and
abetting after the fact) as only punishing affirmative conduct to conceal the crime or the principal
from the government.

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Gains v. State
FACTS: 3 men rob a bank and the defendant drives the getaway car. A police officer chases the
car, shots are fired, and the car is apprehended.
CHARGE: Aiding and abetting armed robbery
ISSUE: Whether the driver of a car that helps those who just committed armed robbery and then
cause a police chase can be charged with armed robbery for his role in aiding and abetting
Holding: Because there was not enough evidence to show that the defendant even knew what the
others were doing (mens rea problem) as well as the fact that it could not be shown that he
wasn’t really close and suggesting, aiding, or encouraging the robbers (actus reas problem), the
defendant cannot be charged with armed robbery as an accomplice.
REASONS:
- there was nothing to show that the defendant knew the others were robbing a bank which
creates a mens rea problem because he may not have had any criminal intent
- his presence was not necessarily encouraging or aiding the others when they were robbing so
there’s an actus reas problem because he may not have assisted
*Possible to get him as an accessory after the fact

State v. Tally
FACTS: The victim was being pursued by a group of men. He went to hide in another town and
when he returned, another man sent him a telegram to warn him that the group was coming after
him. The defendant sent another telegram to delay and prevent delivery of the first message.
The victim never received either, was confronted by the men, and was killed.
CHARGE: Murder
ISSUE: Whether the defendant’s sending the telegram and thus preventing the victim from
receiving the warning telegram constitutes enough to allow the defendant to be charged with
murder
Holding: Because the defendant was trying to prevent the victim from receiving notice and thus
aid those who killed him as well as the fact that his prevention of receipt of the telegram made
the victim’s situation infinitely more desperate, the defendant can be charged as an accomplice to
the murder.
REASONS:
- his actions did in fact help the gang kill the victim (actus rea)
- the defendant intended to help the group kill the victim (mens rea)

Mowery v. State
FACTS: The victim chased the defendant and a few other men to their car after they refused to
pay for their purchases at the victim’s business. While the defendant was talking to the victim
from the car, another man struck the victim on the side of the head and knocked him down. The
3 men then jumped on the victim and beat him to death.
CHARGE: Murder without malice
ISSUE: Whether the defendant’s involvement rises to the level of involvement to make him
culpable for murder
Holding: Because the fatal blow was struck by someone else and there was not evidence that the
defendant, knowing the attacker’s unlawful intent, aided, abetted, or encouraged the attacker in
any way, the defendant cannot be guilty of murder as an accomplice.

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REASONS:
- there was not enough evidence to show that the defendant knew of the attacker’s intent (mens
rea problem)
- there is also no link to show that the defendant’s behavior encouraged the attacker (actus rea
problem)

**MENS REA/ RELATION OF PARTIES

- under the common law if you attempt to help but your efforts are ineffective (and you haven’t
encouraged in any way) then you can’t be charged for aiding and abetting (requires some sort of
encouragement)
- under the Model Penal Code, if you attempt to assist then you are guilty of aiding and abetting
(ex. – you leave a window open for a robber but he goes through the front door) like under
Beeman which requires:
- knowledge of the principal’s criminal intent AND
- know/ have purpose that your action will facilitate a criminal result or want/ hope for a
criminal result

People v. Beeman
FACTS: Defendant provided 2 burglars information about his sister-in-law so they could rob her.
However, sometime before the robbery, the defendant informed the other two that he did not
want to be part of it. The other 2 still went and robbed the house taking jewelry in excess of
$100,000 and taping up the sister-in-law/ victim.
CHARGE: Robbery, burglary, false imprisonment, destruction of telephone equipment, and
assault with the intent to commit a felony
ISSUE: Whether the defendant could be charged with the crimes committed by two other men,
who he had provided information about the crime to, but at which he was not present and had
backed out of his involvement prior to the crime
Holding: In order to convict someone as an accomplice, they must not only know of the criminal
intent but also share a criminal intent to make it occur – because there was not sufficient
evidence of the defendant’s intent because of the jury instructions, the case must be remanded.
(However, because it seems as if the defendant knew what they were going to do and gave them
the information for that purpose, he will likely be charged.)
REASONS:
- the prosecution had to show both that he knew what they were going to do and that he intended
for them to do so
- while he tried to renunciate, you must take active steps to do so and all he did was back out
(didn’t try and stop them)

United States v. Peoni – sold counterfeit money to one person who sold it to another and the
first seller is charged with aiding the last sale; the complicity doctrine requires the defendant “in
some sort associate himself with the venture, that he participate in it as something he wishes to
bring about, that he seek by his action to make it succeed” so the involvement was not enough.

Backun v. United States – stolen silverware sold to a 3rd party; guilt as an accessory depends
on, not having a stake in the outcome of the crime, but on aiding and abetting the perpetrators
and because the defendant knew the goods were going to be sold, he is guilty.

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Wilson v. People
FACTS: Defendant and another man were at a bar drinking when the two agreed to go break into
a nearby drugstore. The defendant boosted the other up so he could break the window and climb
in. While he was inside, the defendant went to the police to report what was going on. The
defendant contends that he got involved so he could get the other men caught in order to get even
for having stolen the defendant’s watch.
CHARGE: 2 counts of aiding, abetting, and assisting burglary and larceny
ISSUE: Whether the defendant has the requisite mens rea for the crime since he contends he only
became involved to get even with the principal
Holding: If the defendant was only trying to entrap the principal then he may not be guilty since
he must not only know the principal’s criminal intent but also share in it.
REASONS:
- could likely be charged with assisting in the burglary because all that’s required is the intent to
do a crime therein and the defendant may not have wanted him to deprive of property but he did
want him to break in (so he could get the police)
- the defendant hoisted the principal up and so he purposely wants the principal to commit the
burglary
- in order to be guilty as an accomplice, the defendant must:
- know the principal’s criminal intent
- share the mens rea as to the result
(Rule differs from Beeman since regardless of whether he was trying to entrap the principal, the
defendant would have been guilty because he knew of the his criminal intent and wanted him to
break in)

State v. Etzweiler
FACTS: Defendant loaned his car to a man who he worked with who he knew to be intoxicated.
The man who borrowed the car collided with another car and 2 of the passengers were killed.
CHARGE: Negligent homicide
ISSUE: Whether one can be charged with aiding and abetting in a negligent homicide where the
principal must have been unaware of the risk of death from his action
Holding: Because the principal could not have been aware of the risk of death from his actions,
the accomplice cannot be charged as having known the risk and thus cannot be guilty of
negligent homicide.
REASONS:
- as a matter of law, you cannot be charged with assisting negligent homicide
- the principal didn’t have purpose/ knowledge so the accomplice couldn’t’ have had knowledge
of his intent

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