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The unlawful killing of a human being with malice aforethought
- 1. Intent to Kill
- 2. Intent to Inflict Great Bodily Injury
- 3. Awareness of an unjustifiably high risk to human life.
- 4. Felony-murder rule.
Determined by a two part test
- 1. Was the felony assault based? If no, merger does not apply. If yes, then ask the next question
- 2. Was there an independent felony purpose? If yes, the merger applies and the felony murder rule cannot be used to determine murder.
Degrees of Murder
- First Degree Murder- murder by destructive device or explosion, poison, lying in wait, torture;
- A willful, premeditated and deliberate killing;
- Committed during the course of certain listed felonies (arson, burglary, rape, robbery, mayhem, sex acts upon a child).
a. Only express malice aforethought applies for attempted murder.
b. One may be guilty of attempted murder if he or she takes a substantial step in committing the crime, but does not accomplish the intent.
c. Preparing to commit the crime is not a crime.
An intentional killing with adequate provocation.
Rule of Provocation
- 1. There must be adequate provocation
- 2. The killing must be done in the heat of passion
- 3. It must be a sudden killing (no cooling off period)
- 4. There must be a casual connection between the provocation, passion and fatal act.
When provocation is adequate
- 1. When one is being subjected to serious battery or a threat of deadly force.
- 2. Discovering one’s spouse in bed with another person
When provocation is not adequate
Mere words are not adequate provocation.
An unintentional, unlawful killing.
- a. By criminal negligence
- i. Requires a greater deviation from the reasonable person standard.
- b. During an unlawful act
- I. Misdemeanor/Manslaughter Rule.
- II. During a non-dangerous felony.
a. an attempted battery
b. an unlawful act which places another in reasonable apprehension of receiving an immediate battery.
- The unlawful application of force upon another person
- a. Intent not required.
- b. Indirect application of force is sufficient.
- c. Some statutes define certain acts as aggravated batteries and punish them as felonies.
- d. EVERY battery includes an assault.
At common law, requires either dismemberment or disablement of a body part.
modern statutes have expanded the scope of mayhem to include permanent disfigurement.
The unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.
- a. Penetration Sufficient
- b. Absence of Marital Relationship
- i. The woman must not have been married to the man who committed the act.
- c. Lack of Effective Consent. Consent is ineffective if:
- i. Accomplished by force
- ii. Accomplished by threats
- iii.Woman is incapable of consenting
- iv. Consent obtained by fraud
- d.Statutory Rape
- i. Victim is below the age of consent, even if the female willingly participated.
- ii. The defendant’s reasonable mistake as to the victim’s age is not a defense.
Unlawful confinement of a person without his valid consent.
Confinement requires that the victim be compelled to either go where he does not wish to go or to remain where he does not with to remain
- At common law, the misdemeanor of kidnapping was the forcible abduction or stealing away of a person from his own country and sending him into another.
- Modern statutes expand the definition and it usually remains a form of aggravated false imprisonment.
- a. Kidnapping involves either:
- i. Some movement of the victim; or
- ii. Concealment of the victim in a secret place.
- Aggravated Kidnapping: Modern statutes often contain a separate offense of aggravated kidnapping which usually includes:
- i. Kidnapping for ransom
- ii. Kidnapping for purpose of commission of other crimes
- iii. Kidnapping for offensive purposes
- iv. Child stealing
- Required movement
- i. Most modern statutes require only some movement of the person. Other statutes require no movement, making confinement sufficient.
- i. Some statutes require secrecy when the kidnapping is based on confinement rather than movement of the victim.
Common Law- The trespassory breaking and entering of the dwelling of another in the nighttime with the intent to commit a felony or petty theft.
Modern Law- Entering any type of structure with the intent to commit a felony or petty theft.
- i. There must be an actual or constructive entry.
- ii. The slightest intrusion into the structure by the defendant or some part of the
- defendant’s body is sufficient
- iii. The use of an instrument to gain entry is sufficient only if the purpose of the
- intrusion is to commit the intended felony.
- i. There must be the use of actual or constructive force to create an opening of the
- structure by trespass. (without consent).
- ii. Even the slightest force constitutes a breaking (ie, the turning of a key, pushing
- a door open, slightly opening a closed window).
- iii. Constructive force includes, entry obtained by fraud, entry by threatening or
- the use of force, or entering by having a servant of some other co-conspirator
- within the structure open the door.
- i. The breaking must be trespassory, therefore, without the consent of the owner.
- ii. Entry gained by fraud or trick is trespassory.
- iii. Lawful entry may become unlawful by breaking and entering inner doors without consent
- i. The structure must be the regular place of sleep.
- ii. Other buildings within the curtilage of the main house is considered a dwelling.
- i. Sixty minutes after sunset and sixty minutes before sunrise on the next day.
- ii. The period when the countenance of a person cannot be discerned by natural
- i. There must be an intent to commit a felony or petty theft at the time of entry.
- ii. There is no burglary if the intent was formed after entry.
- iii. Actual commission of the felony is not required and abandonment of the felony is irrelevant
- Common Law- The malicious burning of the dwelling house of another.
- a. Dwelling
- i. The structure burned must be a dwelling.
- b. Of another
- i. The dwelling must be that of another person.
- ii. It is not arson to burn one’s own home (it is the right to possession rather than
- ownership that controls).
- c. Burning
- i. There must be an actual burning of some part of the structure.
- ii. There must be at least some charring. Heat discoloration or smoke
- damage is not sufficient.
- d. Mens rea- Malice
- i. The mens rea required for arson is malice.
- ii. Malice exists if the defendant intended to burn the structure, knew that
- it would burn, or intentionally and without justification or excuse created
- an obvious fire hazard to the structure.
- a. Negligence is not sufficient.
- e. Modern Statutes- the malicious burning of any structure.
- i. The burning may be of structures other than dwellings.
- ii. The burning may be of a structure which the defendant owns and occupies.
The trespassory taking and carrying away of tangible personal property of another with the intent to permanently deprive.
Property of another
- a. Larceny is a crime against possession, therefore, the property must be taken from someone with possessory interest in the property.
- b. Custody v Possession- if the defendant has possession of the property when her or she takes it, this is not larceny, but may be embezzlement. If the defendant has custody of the property, his or her misappropriation of the property is larceny.c. Larceny cannot be committed if the defendant misappropriates abandoned property, but may commit larceny when taking lost property
- a. The defendant must obtain possession and control of the property to be convicted of larceny.
- b. Sufficient if caused to occur by innocent agent.
a. There must be some form of movement of the property, which would be part of the carrying away process.
Taking Must be Trespassory
- a. Must be taken without the consent of the owner.
- **Larceny by Trick- taking by consent induced by misrepresentation
- i. If the victim consents to the defendant’s taking possession of the property but this consent has been induced by a misrepresentation, the consent is not valid.
- i. Larceny by trick differs from theft by false pretenses in the level of consent given. One consents to allow the defendant to take possession (such as borrowing a car, such as a rental car), rather than consenting to give up title AND possession.
- ii. Delivery by mistake is not a trespassory taking unless the defendant knows at the time of the taking that there was a mistake.
Possession v Custody
- Possession vs Custody
- i. There is no larceny if the defendant had possession of the property when he or
- she misappropriated it. If the defendant had merely custody when he or she
- misappropriated it, then this would be larceny.
- ii. Possession- if the defendant had significant authority over the property, then
- he or she had possession.
- iii. Custody- if the defendant had limited authority, then he or she had custody.
Intent to permanently Deprive
- a. At the time of the taking, the defendant must have the intent to permanently deprive the person of the property.
- b. Intent to borrow is INSUFFICENT intent.
- c. Intent to obtain repayment of debt is INSUFFICENT intent.
- d. Special problem- Joyriding
- i. It is an offense to take or operate the vehicle of another without the consent of
- the owner.
- ii. No intent to deprive is required.
- a. Under certain circumstances, the wrongful intent need not exist at the time the property is first taken.
- b. If the defendant’s act of taking the property is wrongful and later, while in possession of the property, the defendant forms the requisite intent, the initial trespass is said to “continue” until the formulation of the intent, at which point the necessary concurrence is established and the actions constitute larceny.
c. The continuing trespass doctrine will not apply if the defendant’s initial possession was rightfully obtained.
Abandoned property (subject to larceny)
Abandoned property cannot be the subject of larceny because it is merely property which was “cast away” by the previous owner.
Lost or Mislaid property (subject to larceny)
- i. lost or mislaid property is regarded as being still in the constructive possession
- of the owner.
- ii. The defendant must have a clue to ownership of the property. In other words,
- the defendant must either know who the owner is or have reason to believe
- the owner can be located at the time he finds the property.
- iii. The defendant must make a reasonable effort to find the true owner.
- iv. Intent to steal must be formed at the time of finding.
- v. If the defendant innocently takes the property and forms his intent to steal
- later, he is not guilty of larceny.
The fraudulent conversion of the property of another by one already in lawful possession of it. Embezzelment is a crime against ownership.
- i. Serious act of interference with the owner’s rights.
- ii. Requires some use of the property that is materially inconsistent with the
- terms of the arrangement under which the defendant has possession of the
i. Includes real property as well as tangible property.
One who converts his or her own property cannot be guilty of embezzlement.
- The defendant must have lawful possession of the property at the time of the
- i. The defendant must have fraudulent intent at the time of conversion.
- ii. Intent to return- a conversion is not without fraudulent intent because
- the defendant intended to return the property or to make restitution.
- iii. If the defendant honestly believed that he or she was entitled to the property,
- his or her conversion is not embezzlement.
Obtaining title to property by means of a material false representation and with intent to defraud.
- Ex.) Title is usually obtained by defendant when he or she represents something
- to be his or hers and offers it in exchange for something (including title) which
- the victim owns.
- i. Unlike larceny, the property which can be the subject of false pretenses
- includes tangible and intangible property.
- i. Misrepresentation of a false or existing fact will suffice.
- ii. Cannot be premised on misrepresentations of future facts or false
- promises even if the defendant did not intend to keep the promise at
- the time it was made.
- iii. Some jurisdictions hold that false promises will suffice if the prosecution
- can prove that the defendant intended not to perform when he made the
- iv. The victim must have relied on the misrepresentation and it must have caused the victim to transfer the property to the defendant.
- v. The defendant must have knowledge that the representations were false.
An aggravated larceny. It requires proof of all of the elements of larceny plus; the property must be taken from the victim’s person or presence; and the taking of the property must be accomplished by means of violence or intimidation (force or fear).
Taking from victim's person or presence (robbery)
- The property is within the presence of the victim if it is close and in his or her
- control in the sense that he or she could have prevented its taking had it not
- been for the defendant’s use of violence or threats.
Taking by violence or intimidation (robbery)
- i. The taking is accomplished by violence if any force is used to obtain the
- ii. The taking of property is robbery if accomplished by means of intimidation,
- which requires the victim to be placed in fear. The victim’s fear must be
- iii. Future threats not sufficient.
- iv. The violent or intimidating acts need not always be committed for the very
- purpose of taking the victim’s property. Thus, a defendant who uses
- violence or intimidation for some other purpose commits robbery if he takes
- advantage of that situation to obtain property from the person or presence
- of another.
Taking under claim or right (robbery)
If the defendant honestly believes that he is entitled to the property taken, even if taken using violence or intimidation, he then lacks the intent to permanently deprive and thus cannot be guilty of robbery.
Receiving Stolen Property
Receiving stolen property knowing it to be stolen, and with the intent to deprive the owner of the property.
Stolen Property (receiving stolen property)
- i. It is essential that the property has been stolen.
- ii. If the owner or law enforcement, acting on the owners behalf, recover the
- property, it is no longer stolen and that person has not received stolen
- iii. A defendant may be convicted of an attempt to receive stolen property if the
- act is attempted but not accomplished.
- i. The property must be received by the defendant.
- ii. It is sufficient that he or she indirectly exercises dominion and control over the
Knowing goods to be stolen (receiving stolen property)
- i. The defendant must know the goods to be stolen at the time he or she receives
- ii. The knowledge need not have come from personal observation of the crime
- by which the goods were acquired but can be inferred from the circumstantial
- evidence, such as proof that the goods were acquired from a person of
- questionable character or that the defendant paid a disproportionately low
- price for them.
Intent to deprive owner (receiving stolen property)
- i. The defendant must intend to deprive the owner.
- ii. Some courts hold that the defendant must have a bad intent in addition to
- knowledge of the stolen nature of the goods.
- iii. Some statutes define the crime as the defendant not having the intent to
- restore the property to the rightful owner. If he does have the intent to
- restore, there is no crime.
Consolidation of acquisition offenses
In general, modern criminal codes consolidate some or nearly all of the property acquisition offenses into a single offense called “theft”.
Making of a false writing or material alterations of a document having apparent legal significance with the intent to defraud.
Faking a false writing (forgery)
- i. Unauthorized alteration of a writing in any material way.
- ii. Changes it from a genuine writing to one that is false
Intent to defraud (forgery)
intent to use a false writing to gain some advantage.
- Knowingly passing a forged document as valid (if successful with uttering, theft by false pretenses also occurs).
- a. Must be a writing which is the kind that may be the subject of forgery and must be false.
- b. It is not necessary that the instrument be actually passed or used.
- c. Mere offer of a false writing as genuine.
One who councils, incites, or solicits another to join in the commission of any offense.
- a. The common law crime of solicitation requires a showing that the defendant acted volitionally and with the intent or purpose of causing the person solicited to commit the crime.
- b. Solicitation is complete upon the performance of the act of counseling, inciting or inducing another person to commit an offense, It is not necessary that the person solicited respond.
- c. Uncommunicated Solicitation
- i. A solicitation is still criminal even if the defendant fails to effectively
- communicate it to the intended subject (an intermediary fails to pass on the
- d. Relationship to other crimes
- i. If the person being solicited commits the target crime, the solicitor is liable as a
- party to the crime.
- e. Merger of solicitation with attempt of conspiracy
- i. One who commits a solicitation, and goes on to engage in further conduct
- constituting attempt or conspiracy as well, cannot be convicted of both the
- solicitation and the attempt or conspiracy.
- The agreement between two or more people with specific intent to commit a crime.
- 1. Agreement
- 2. Two or more people
- 3. Specific intent to commit a crime.
- 4. Overt act (any steps in furtherance of the conspiracy)
- ***list all overt acts on the final
- i. Discussions of overt acts NOT sufficient.
- ii. One act of one member suffices.
- iii. One agreement= one criminal conspiracy regardless
- of how many crimes the conspirators plan to commit.
a. All co-conspirators are equally responsible in a crime.
b. Once an overt act occurs, one is guilty of conspiracy.
c. At modern law, defendants who conspire to commit a crime and who then commit it can be convicted of both the conspiracy and the crime committed.
Warton's Rule (conspiracy)
For crimes that take 2 people, there is no conspiracy or aiding and abetting if there are just two; three or more a required.
Pinkerton's Rule (conspiracy)
- a. Each conspirator is liable for the crimes of all other conspirators if:
- i. The crimes were committed in furtherance of the objectives of the conspiracy, and
- ii. The crimes were “a natural and probably consequence” of the conspiracy
Defenses to conspiracy
1.Impossibility is not usually a defense
- i. General rule- withdrawal is no defense.
- ii. Modern rule- extend a defense to a conspirator who proves that he or she
- thwarted the success (i.e. informing the police who arrive and prevent the
- crime) of the conspiracy under circumstances manifesting a
- complete and voluntary renunciation of the criminal purpose.
- iii. Defenses to crimes of co-conspirators- Withdrawal is sometimes a
- defense to charges against the defendant for crimes committed by other
- members of the conspiracy.
- iv. Withdrawal preventing liability for crimes thereafter committed by his
- former co-conspirators.
- 1. Communication to all others.
- a. A withdrawal only becomes effective when it is communicated
- to all members of the conspiracy.
- 2. Timeliness
- a. Some courts require that a withdrawal be timely. This means
- that it must take place in time for the remaining co-conspirators
- to follow the defendant’s example and stop the activity.
- 3. Prevention of target crime
- a. At least one court has required that a defendant seeking to
- withdraw from a conspiracy also affirmatively and successfully
- prevent the former co-conspirators from competing the
- A. Failure to act will constitute a breach of legal duty when (talk about this in Express malice; question whether the defendant knew that the person would die or not; Why does he have a duty and only reference the element that applies):
- 1. Where a statute imposes a legal duty to care for another
- 2. Where one stands in a certain status relationship to another
- 3. Where one has assumed a contractual duty to care for another
- 4. Where one had voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rending aid,
- 5. When one puts another in a position of helplessness or peril
- a. Nondeadly force
- i. As a general rule, a person who is without fault may use such force as
- reasonably Appears necessary to protect herself from the imminent
- use of unlawful force upon herself.
- ii. There is generally no duty to retreat.
- b. Deadly Force
- i. A person may use deadly force if she is without fault;
- ii. She is confronted with unlawful force; and
- iii. She is threatened with imminent death or great bodily harm.
- 1.The defendant must reasonably believe that she is faced with
- imminent death or great bodily harm if she does not respond with deadly force.
- 2.The majority rule is that a person does not have the duty to
Defense of Others
- a. Relationship with person aided
- i. The majority rule does not require a special relationship to exist between
- the defendant and the person in whose defense she acted.
- ii. One may use force in the defense of any other person if the other
- requirements of the defense are met..
- a. Status of Person Aided.
- i. A defendant has the defense of defense of others only if she reasonably
- believed that the person she assisted had the legal right to use force in
- his own defense.
- 1. All that is necessary for this defense is the reasonable
- appearance of the right to use force.
Defense of Dwelling
- a. Non-Deadly Force
- i. A person is justified to use nondeadly force in defense of her dwelling if
- she reasonably believes that such conduct will prevent another’s
- unlawful entry into or attack upon her dwelling.
- b. Deadly Force
- i. Justifiable where the entry was made or attempted
- in a riotous, violent, or tumultuous manner and the person reasonably
- believes that the use of force is necessary to prevent a personal attack
- upon herselfor another in the dwelling.
- ii.Justifiable where the person reasonably believes that such force is
- necessary to prevent the entry into the dwelling by a person who intends
- to commit a felony in the dwelling.
Defense of other property
- a. Non-Deadly Force
- i. May be used to defend property in one’s possession from unlawful
- ii. The need to use force must reasonably appear imminent.
- iii. Force cannot be used to regain possession of property wrongfully
- taken unless the person using it is in immediate pursuit of the taker.
- b. Deadly Force (May Not Be Used)
- i. Is NEVER justifiable.
- Conduct otherwise criminal is justifiable if, as a result of pressure from natural forces, the defendant reasonably believed that the conduct was necessary to avoid from some harm to society that would exceed the harm caused by the conduct
- i. The defense of necessity is not available if the defendant is at fault in creating
- a situation which requires that she chooses between two evils.
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