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Murder (Murder 1)
Common Law: The killing of another with malice aforethought.
Modern Law: The unlawful killing of another human being with malice, premeditation, and deliberation.
4 Types of Malice
- 1. Intent to kill
- 2. Intent to inflict serious bodily injury (SBI)
- 3. Depraved heart and mind - reckless indifference to human life
- 4. Felony murder - intent to commit a felony
Deadly Weapon Rule
Intentional use of a deadly weapon authorizes a permissive inference of intent to kill
Any instrument used in a manner calculated or likely to produce death or SBI
Modern Law Only
The unlawful killing of another human being without malice in the heat of passion caused by adequate provocation without reasonable cooling time.
Common Law: Must be an assault and batter upon a person, mutual combat, illegal arrest, injury or abuse to close relative, or sudden discovery of a spouse's adultery or infidelity. Must be in the presence. (Objective)
Modern Law: Arouse a reasonable and ordinary person to kill someone. The question is whether a reasonable person would be provoked? Doesn't have to be in the presence. (Subjective)
Felony Murder (in most jurisdictions just murder 1 and murder 2)
Modern Law Only
The unlawful killing of another with intent to commit a felony.
Murder 2 (Unintentional)
Modern Law Only
The unintentional killing of another with knowledge that the act will probably cause death.
The unintentional killing of another without malice but with reckless behavior.
Modern Law Only
Dominion and control over an item with intent to exercise control.
- Actual Possession is on or about one's person.
- Constructive Possession is not on or about one's person but intent to control and exercise control is present.
Common Law: The trespassory taking and carrying away (asportation) the personal property of another with intent to permanently deprive.
Modern Law: Wrongful obtainment of the valuable property of another with intent to permanently deprive.
The fraudulent conversion of the property of another by a person in lawful possession of the property during the course of employment.
Note: When employer does not have possession, but employee does.
Trespassory taking and carrying away (asportation) of the personal property of another from their person with intent to permanently deprive by force, threat of force, or stealthy seizure.
Note: Stealthy seizure = some jurisdictions
Larceny by Trick
False statement or promise to do something in order to gain possession, but not title of something of value to another.
Acquisition of title and possession of valuable property by making a false statement of past or present fact with intent to defraud.
The making of a false document or alteration of a document with intent to defraud.
The negotiating (passing) of a false document with intent to defraud.
i.e. Cashing a forged check at the bank.
Receiving Stolen Property
Receiving possession of the personal property of another knowing or believing it was stolen with the intent to permanently deprive.
Common Law: The breaking and entering the dwelling of another at night with intent to commit a felony therein.
Modern Law: The entering of any structure at any time with intent to commit any crime.
- Intent to commit a specific crime and an overt act of furtherance of that crime.
- Tests of Furtherance
- Substantial Step Test
- Dangerous Proximity Test
- Last Step Test
- Equivocality Test
Substantial Step Test
Looks backward from how far you've come from the beginning
Dangerous Proximity Test
Looks forward at how close you've come to the end
Last Step Test
Must do the last act just before completion of crime
If upon looking at actor it can be said that person is unequivocally about to do the crime.
Common Law: Not a defense
Modern Law: Not a defense
Note: When you attempt to commit a crime, and there is a fact that makes it impossible, then it is factual.
Common Law: Defense
Modern Law: Not a defense
Note: The crucial distinction is if you do what you set out to do and it is not a crime, it is legal.
Common Law: Agreement between two or more real conspirators to establish an unlawful objective
Modern Law: Agreement between two or more conspirators plus an overt act to establish the unlawful objective.
- Pinkerton Rule - No presence
- NY Rule - Presence
Common Law: P1 - absolute perpetrator of crime; P2 - present, but only aids and abets
Before- not a scene, helps beforehand
Modern Law: All accessories; all charged w/substantive crime
Accessory After the Fact
Common Law Only
Person knows felony was committed and was helped
Sexual intercourse by force or threat of force without consent with any criminal/culpable state of mind.
Common Law: Resistance needed
Modern Law: No resistance needed "no means no"
Rape by Statute
- Strict Liability
- No mens rea needed
i.e. statutory rape
Forcible Rape without Consent
Rape by Fraud
Fraud in Factum - false facts about the act itself is rape. Not a defense. i.e. Doctor says sexual intercourse is treatment for a disease.
Fraud in the inducement - is all in the external. False facts about the environment is not rape. Can be used as a defense. i.e. Man says he's a millionaire. No rape.
*No common law/modern law distinction.
Common Law: Testimony will suffice.
Modern Law: No American state requires corroboration now.
Mistake of Law
A mistake about the legal effect of a known fact or situation.
- Three Exceptions
- 1. specific court decree
- 2. Official opinion from state's attorney general
- 3. Where statute has recently been appealed
Advice of a private attorney is not a defense
Mistake of Fact
Common Law: General intent - honest and reasonable
Modern Law: Specific Intent - honest (reasonable or unreasonable)
*Defense when it negates mental state needed for the crime
Common Law: The right to use reasonable force to defend self against/property imminent battery.
Modern Law: Self-defense begins and ends with necessity.
*No deadly force unless SBI or threat of SBI
Defense of Others
Common Law: Good faith - minority
Modern Law: Same shoes (m) - no mistake
Defense of Property
Reasonable force to protect property
No deadly force allowed
Common Law: Choice of lesser of 2 evils, must arise natural imminent danger no alternative. D cannot create peril.
Modern Law: Specific threat to death and no time to explore other alternatives
Common Law: Where gov't entices one to commit the crime they wouldn't otherwise commit (subjective)
Modern Law: The gov't behavior exceeds the fairness and due process (minority)
Human force threatening imminent bodily harm to self or others and there is a reasonable belief
The intentional taking without duress of a substance known to be intoxicating is a partial defense to specific intent crimes.
The UNINTENTIONAL or TAKING WITH DURESS is a defense of all crimes and strict liability
- M'Naghten Rule
- Mad Dog Test
- Durham Test
- Irresistible Impulse
M'Naghten Rule for Insanity
a disease of the mind caused by defect of reason such that D lacked the ability at the time of his actions to either:
- 1. know the wrongful nature of his actions or
- 2. understand
Mad Dog Test of Insanity
- Not used anymore
- only insane if acting like a rabid dog and foaming at the mouth
- act of nature
Durham Test for Insanity
said other tests are too one dimensional
D is entitled to acquittal if the proof establishes that his crime was the product of a mental disease or defect
A crime is the product of illness if it would not have been committed but for the disease
Irresistible Impulse (Insanity)
A person commits a crime that he knows is wrong b/c of of an irresistible impulse to commit the crime