Class 4: Felony Murder, Battery, Assault, Kidnapping, Theft Crimes, Robbery, Burglary, Arson.

Question 1

What does the felony murder rule need to actually connect it all?

Answer 1

A casual connection.

Cannot be completely unrelated.

Question 2

What is felony murder?

What is the basic formula?

Provide an example:

Answer 2

Felony murder rule allows a court to convict a defendant who commits a felony that results in someone’s death. i.e., an armed robbery gone wrong where someone dies

Basic formula is a qualifying felony + death=Felony murder. Essentially, the mens rea requirement for the murder itself is not important. This creates a strict liability rule to a degree, as once you have a felony and a death results, now you are guilty of the felony and murder.

AKA I steal a car and accidentally run someone over and kill them

OR I rape a girl but I kill her accidentally

Question 3

Does the MPC recognize the felony murder rule?

Answer 3

Answer is unclear.

Professor said “kind of” “not explicitly”

Question 4

What happens if you have an accidental killing while committing a felony?

Answer 4

It becomes felony murder IF there is a casual connection.

Question 5

At common law, what is the definition of felony murder?

Answer 5

At common law, commission or attempted commission of an underlying felony resulting in death was a murder. This was sufficient to establish malice

Question 6

Does Michigan recognize the felony murder rule?

Is there anything special about Michigan?

Answer 6

Michigan does recognize the felony murder rule.

HOWEVER still requires proof of a mens rea to the killing

Question 7

Why is the FMR controversial?

Answer 7

It treats the crime similar to a strict liability crime as you do not have to prove the mens rea of the crime.

Question 8

Are there limits on the felony murder rule?

Can you give an example?

Answer 8

Yes there are limits on the felony murder rule.

A limit is the inherently dangerous felony rule. If the felony is not inherently dangerous it would not work. AKA I steal 5m from a bank through a wire transfer.

Question 9

What is the independant felony/merger rule for Felony murder?

Answer 9

The Independent Felony (or Merger) Rule: The idea behind this rule is that the felony merges into the killing, it therefore disappears from the formula, and you cannot use the felony murder rule.

Dumbed down, a felony that is assaultive in nature cannot serve as a basis for a felony-murder

One way to determine whether the underlying felony is independent is by asking whether the felony would merge into the more serious offense of murder

Question 10

What is the general reason there is limitations of the felony murder rule?

Answer 10

Without limitations you would achieve absurd results and prosecute people with crimes undeserving.

Question 11

Rose v State

Facts: Rose was convicted of second-degree murder for shooting his girl in the head. Police found Rose and took him into custody. Rose admitted he didn’t know gun was loaded and accidentally shot his girl.

Issue:
1) Explain the merger rule for FMR

2) Apply to this case

Answer 11

Holding/Analysis

Assaultive-type felonies that involve a threat of immediate violent injury merge with homicide for the purpose of second-degree felony murder and thus cannot be used as a basis for second-degree felony murder conviction.

Ratio: If a felony merges away into the death, then there is no underlying felony to trigger the felony murder rule using this doctrine.

Question 12

What is the inherently dangerous felony limitation for felony murder?

Provide an example.

Answer 12

To qualify for a felony murder, the triggering felony must be inherently dangers to human life.

If you do a felony that is not dangerous to human life it would not apply.

It is a felony to steal 100k from a wire transfer. This is not inherently dangerous to human life.

Question 13

State v. Stewart

Facts: Defendants died of neglect while mother binged on cocaine. Stewart was charged with second degree felony murder. The court said for the underlying felony to qualify to second degree felony murder it must be inherently dangerous to human life.

Issue:

1) What is the “inherently dangerous” felony limitation for felony murder?
2) Would it apply here?

Answer 13

Holding/Analysis

Court contends to question the wording of inherently dangerous, the court should consider the facts and circumstances of the case to determine if such felony was inherently dangerous in the manner and circumstances in which it was committed. It is case specific; it is not a broad rule but treated sui generis.

It was inherently dangerous; it was good she was convicted of the second-degree murder charge/rule

Ratio: Allowing a child to go without food is inherently dangerous to human life and thus was a qualifying felony for the FMR.

Question 14

What is the res gestate rule for felony murder?

Can you provide an example?

What would make it so a killing wouldn’t count?

Answer 14

Basically, the killing must take place during the furtherance of the felony. “Whether the killing was committed in furtherance of the underlying felony or perpetration of. “ (must be a casual connection)

However, the killing cannot be too remote from the triggering felony as the killing must be performed in furtherance of or in the perpetration of the felony

There are casual limits such as time and distance limits and identity of the killer (Agency Approach vs. Proximate Cause Approach)

Example 2: robs store, drives away and is in another part of the state 3 hours away and kills a pedestrian. The felony murder rule would not apply in the matter of time and space, as the killing was done so long ago, the underlying felony is no longer on going and has ended. Thus, the felony murder rule does not apply.

Question 15

Hypothetical:

Defendant who robs store and runs away. He begins to drive away from store with the money he has and strikes and kills a pedestrian.

Does the felony murder rule apply?

Answer 15

The felony murder rule will apply in those circumstances, as the defendant was in flight from the felony and the doctrine says if the felony is in flight from the felony, the felony murder rule still applies.

Question 16

Hypothetical:

A guy robs store and he didn’t know that when he did the robbery a customer died of a heart attack.

Does the felony murder rule apply?

Answer 16

The guy did not die because of the robbery.

Under those circumstances, defendant not guilty of felony murder rule as just coincidence

Question 17

Hypothetical:

A guy is driving a car and has an unlicensed fire arm in his car (which is a felony). Then he strikes and kills a pedestrian. He has committed a killing WHILE he was committing a felony. Is this felony murder?

Answer 17

FMR? NO. There is no nexus or connection between these things, so the FMR would not apply

Question 18

Hypothetical:

Imagine guy goes and robs a store and as he is fleeing from the store, cashier pulls a gun from counter and fires it and kills an innocent bystander. Is the defendant guilty of felony murder for that killing during the perpetration of the felony?

apply proximate cause approach

apply agency approach

Answer 18

Proximate= reasonabiy forseeability. It is reasonable for them to defend themselves

Agency= Who actually did the killing? If felon then he is guilty, if not, he is not guilty. Here, he didnt do the killing.

Question 19

What is the agency approach for a limit on the felony murder rule?

Answer 19

If the killing was perpetrated by someone other then the felon or co felon, there is no felony murder.

Question 20

What is the proximate cause approach for a limit on the felony murder rule?

Answer 20

The courts ask whether the defendant set in motion the chain of events that led to the killing regardless of who the killer was.

Question 21

People v. Hernandez

Facts: Defendants conspired to ambush and rob a man, and cop was killed by being shot accidentally by another cop in the chase of the defendants. Both defendants charged with felony murder and other charges too.

Issue:

1) Explain the proximate cause approach

2) Answer using the proximate cause approach to felony murder

3) Would this change if the agency approach was used?

Answer 21

Holding/Analysis

Yes, they are guilty. Under our statute, we think that the proper approach is the proximate cause approach. Jury must find that the fatal result would be foreseeable from Hernandez and the evidence establishes that he refused to surrender and moved towards officer with gun drawn, and thus he was a proximate cause.

If Agency approach, not liable as he wasn’t the one doing the killing (shooting)

Question 22

What is larceny?

Answer 22

Larceny; taking and carrying away the property of another with the intent to steal

Question 23

State v. Sophophone

Facts: Broke into house, police responded, and police ordered them to stop. Defendant was apprehended and in car. Another officer captured the second felon and killed him. Defendant was charged with felony murder of his co-felon who died from the police officer.

Issue:
1) Explain the agency approach

2) Use the Agency Approach to the felony murder limitation

Answer 23

Holding/Analysis

Court says defendant not guilty of felony murder using the agency approach, he did not kill his co-felon.

Ratio: Under the agency approach, death must be done by felon or co-felon.

Question 24

What is battery under common law?

Does the physical touch have to be direct?

Does it need to cause injury?

Answer 24

Battery under common law is an unlawful application of physical contract in an injurious or offensive manner.

The application of physical force can be direct or indirect. Example: can be punching someone in the face, or setting in motion the chain of events that made someone fall

The physical contract must cause injury or offence

Question 25

Hypothetical:

If you are riding the subway with people, and you accidentally bump into someone is that battery?

Answer 25

No. must cause injury or offence.

Question 26

People v. Peck

Facts: Peck was convicted of aggravated battery of officer. He became aggressive and spit on officer.

Issue: Did spitting on officer constitute battery?

Answer 26

Holding/Analysis

It did. You commit an aggravated battery if you make physical contact in provoking or insulting nature.

Ratio: Spitting can constitute battery.

Question 27

What are the two ways in common law you can prove an assault?

Answer 27

Attempted battery that is you intend to make harmful or offensive contact, but you fail to do so. So, an attempted battery is an assault. The threat of harm must be imminent, cannot be a future threat.

OR

Placing someone in reasonable apprehension of bodily harm is assault. Placing someone in reasonable fear is assault.

Question 28

Hypothetical:

Guy throws rock at victim whose back is turned, and the guy misses. The victim does not know it was thrown. What is the guy guilty of? Is this battery?

Answer 28

He is guilty of assault on the attempted battery theory, but not on reasonable apprehension as he didn’t even realize. If the guy showed the victim the rock, and threatened him with it, that is assault on the reasonable apprehension theory.

Question 29

What is the MPC definition of an assault?

Answer 29

MPC: An assault is either a harmful touching, an attempted harmful touching, or placing victim in reasonable apprehension of bodily harm.

Question 30

State v. Birthmark

Facts: Defendant threatening family and saying he will kill them. Police arrive and he stops making threats. He is charged with assault which requires reasonable apprehension of bodily injury.

Issue:

1) Is this battery? Assault?

Answer 30

Holding/Analysis

This is a threat and the second part of assault says if you place someone in reasonable apprehension of bodily harm.

It is an objective standard, and defendant intended to make threats.

Ratio: His actions constitute an assault

Question 31

State v. Boodoosingh

Facts: Defendant convicted of assault with a deadly weapon with an attempted battery. Her son and the victim fought, and he had a weapon.

Issue: Should he be guilty of assault?

1) Is attempted battery assault?

Answer 31

Holding/Analysis

He had an attempted battery towards someone, and this constitutes assault.

Ratio: Attempted battery is assault.

Question 32

What is kidnapping at common law?

Does kidnapping need specific intent?

What type of movement is required?

Answer 32

At common law, kidnapping is unlawfully confining or carrying away a person with force or with threat of force or by deception.

Yes, it is a specific intent.

Any movement of the victim is all that is needed.

Question 33

Goolsby v. State

Facts: Defendant convicted of 13 counts of home invasions where he raped multiple people. Every time he raped one of them, he had to move them and he was also charged with kidnapping

Issue: Did he kidnap the people he raped?

1) The movement needed for kidnapping, if you move someone while raping them is that enough?

Answer 33

Holding/Analysis

Court says that the movement for the kidnapping had to be sufficiently detached from the rape. If it is not sufficiently detached, no kidnapping.

Ratio: Movement that is sufficiently detached from the action will constitute kidnapping

Question 34

What are the typical 4 theft crimes?

Answer 34

Larcency

Embezzlement

False pre-tenses

Robbery

Question 35

Are theft crimes specific or general intent crimes?

Answer 35

They are specific intent crimes

Question 36

What is grand larceny?

Answer 36

A larceny that has a specific amount that changes it to a regular larceny to a grand larceny.

Question 37

If property is taken with the intent to return, it is larceny?

What about if you dont actually return it?

Answer 37

If you take the property with the intent to return it, then you technically haven’t committed the larceny.

If you don’t have the ability to return it, then it is a larceny.

Not larceny. Usually this requires return with a reasonable time and ability to do so, without condition

Question 38

What is the common law definition for larceny?

Answer 38

The trespassory taking and carrying away of the property of another, with the intent to permanently deprive the owner of the property.

Question 39

For larceny, what amounts to a taking?

Answer 39

Asportion(taking) means any movement and means taking actual possession not custody

Question 40

If you give someone possession voluntarily and then they run away is this larceny?

Answer 40

THIS IS NOT LARCENY

Question 41

If you give someone custody voluntarily and then they run away. Is this larceny?

What if you give someone possession voluntarily and then they run away. Is this larceny?

Answer 41

Yes. Custody is temporary.

No. If you give possession it is not.

Question 42

State v. Carswell

Facts: Defendant went into room in motel. Found AC unit, took it off its stand and moved it 6 inches to the door and then walked away. Carswell argues no asportation.

Issue: Did he commit larceny? Is there asportation and sufficient control?

1) is 6 inches enough for asportation?
2) Did they exercise control?

Answer 42

Holding/Analysis

6 inches is sufficient for asportation, and that is the movement. Thus, that part of it is sufficient. However, there also needs to be a taking of the property. Did they exercise control over the AC?

Yes. Even for a very brief amount of time, they had control over the AC and severed connection from the motel and they moved it 6 inches which is enough.

Ratio: Larceny for asportation can be a very little amount of movement, and control can be brief.

Question 43

State v. Mafnas

Facts: Defendant worked for an armored car company that transported money of bags. Defendant stole money from the bags. Convicted of larceny.

He argues he was innocent as had custody of the bags and did not take them from the banks

Issue: Was he guilty of larceny?

Answer 43

Holding/Analysis

Yes, he was. He was given custody of the bags meaning he had very limited use of it and not unrestricted use. Because he was given limited use and he did more than that, that is sufficient for the taking.

If he was given possession, which means unrestricted use and he ran away with it, that would not be taking as permission was given.

Ratio: Custody gives limited use and running away after given custody is larceny.

Question 44

Penley v. Commonwealth

Facts: Appellant installed illegal utility meter in house and stole electrical services. He stole $82 worth. Lower court had also included the value of the fees and taxes which would make the theft greater then $200 which would make it grand larceny

Issue:

1) Are costs for a larceny at the time of the taking only, or can it include costs after the taking?

Answer 44

Holding/Analysis

COA says as a specifies of larceny, the value of the services must be at the time of the taking. The additional costs after cannot be included in the value taken. Thus, just regular larceny not grand larceny.

Ratio: Costs can only be included at the time of the taking not after.

Question 45

Marsh v. Commonwealth

Facts: Marsh took jewelry from GF and pawned it for money. He said he hoped to earn enough money from future pays cheques to regain jewelry from pawn shop. Marsh returned some of the items to the GF and was given more time to return the items. Marsh argued I always intended to return it.

Issue:

1) If he had an intent to return, could he negate the grand larceny?

Answer 45

Holding/Analysis

Yes, but in this case the intent to return must be unconditional. Court says he couldn’t have earned enough money to regain the money from the shop, he lacked the ability to get it back. So his intent to return was illusory, he desired to return but it but couldn’t and thus, he did not have a real intent to return.

Ratio: He had no real intent to return and thus he committed grand larceny.

Question 46

What is robbery?

Can you argue mistake of fact?

If you can, what type of intent is required?

Answer 46

Robbery is taking property and carrying it away by force or by the threat of force. It is a forcible larceny.

You can argue mistake of fact generally

Specific intent

Question 47

What is burglary?

Do you actually need to take something?

Answer 47

The breaking and entering of the dwelling of at nighttime another with the intent of committing a felony inside.

Do not actually need to take anything.

Many jurisdictions have loosened the rule, like it doesn’t have to be at nighttime, or a dwelling etc.

Burglary DOES NOT require someone there.

Question 48

What is a robbery?

What is a burglary?

Answer 48

Robbery requires a taking of the persons present by force or by a threat of force.

Burglary is a breaking and entering another with the intent to commit a felony wherein. You don’t have to take anything.

Question 49

What is an arson?

Answer 49

The malicious burning of the dwelling of another. Modern law has liberalized this to allow the prosecution such as burning your own dwelling can be arson