Crimes Against the Person & Property Flashcards
Assault
Two theories of assult at common law:
- Assault as a threat
- Assault as an attempted battery
Assault
Assault as a threat
General intent crime:
- Intentional creation of victim’s reasonable apprehension of imminent bodily harm.
- Words alone are usually insufficient
Assault
Assault as an attempted battery
Specific intent crime:
- Specific intent crime because it involves attempt.
Battery
An unlawful application of force to the person of another resulting in bodily injury or offensive touching.
- i.e. completed assault
- General intent crime
Under modern statutes, both assault ans battery has “aggravated” counterparts, which usually arise when the assault of battery is carried out with the use of a ____
Weapon
Rape
Common Law
Unlawful carnal knowledge of a woman by a man other than her husband, without effective consent.
Rape
Modern Statutes
- The slightest penetration is sufficient to complete the crime
- Marital status is insignificant.
Rape
Modern Statutes
Lack of Effective Consent
Exists if:
- Penetrtion is accompished by force of threat or immediate bodily harm;
- Victim is incapable of consenting due to lack of capacity (e.g. unconscious, intoxicated, etc.); or
- Victim is fraudulently caused to believe the act is not intercourse.
Fraud or trickery along does not constitute rape. There must be ____ without contemporaneous consent or capacity to consent.
Penetration.
e.g. convincing someone you plan on marrying them to have intercourse is not rape.
False Imprisonment
The unlawful confinement of a person without their consent
- Consent cannot be obtained through coercison, threat or deception.
Kidnapping
The unlawful confinement of a person that involves either:
- Some movement of the victim; or
- Concealment of the victim in an unknown, hidden, or secret location.
False imprisonment can become kidnapping if the victim is:
Moved and/or concealed.
Murder Definition
The unlawful killing of another human with malice aforethought.
Malice Aforethought
Arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states.
Malice Aforethought
Intent to Kill
The D has the intent to kill.
Malice aforethought
Intent to inflict great bodily injury
The D has the intent to commit great bodily harm
Malice Aforethought
Depraved Heart
A killing committed with reckless indifference to an unjustifiable risk to human life.
Malice Aforethought
Felony Murder
A killing caused during the attempt or commission of an inherently dangerous ir statutorily enumerated felony.
- Intent required = the intent necessary to commit the underlying felony.
- Statutorily enumerated felony = statute dicitates that a killing resulting fom the crime constitutes felony murder.
Murder
Casusation
D’s act must be both the actual and proximate cause of the victim’s death.
- Any act by D hastening the victim’s death, even if already inevitable, is considered a cause.
Statutory Modifications to Common Law Murder
Most jurisdictions classify murder crimes into various degrees by statute.
First Degree Murder
Arises if a killing is either:
- Deliberate & premeditated
- D must have killed in a dispassionante manner and must have considered or reflected on his killing, even if only momentarily.
- Specific intent Crime
- Voluntarily intoxication and mistake of face are valid defenses
- Specific intent Crime
- D must have killed in a dispassionante manner and must have considered or reflected on his killing, even if only momentarily.
- Felony Murder
- Killing during an enumerated felony
- Many states list felonies that may serve as the basis for felony murder.
- Killing during an enumerated felony
Second Degree Murder
A homicide not arising to first-degree murder.
If first degree murder is not mentioned as a possibility in MBE question or answer choices, assume the question involves second degree murder, which is often the default on the MBE
True
Felony Murder
A killing that occurs during the attempt or commission of certain enumerated felonies.
- Intent to commit felony murder = the intent necessary to commit the underlying felony.
Felonies allowing for felony murder
- Inherently dangerous felonies
- Statutorily enumerated felonies
- i.e. criminal statute states that a killing uccirring during its commission constitutes felony murder.
Limitations on liability for felony murder
- D must be guilty of the underlying felony
- Valid defenses to the underlying felony are also defenses to felony murder.
- The underlying felony cannot itself be a killing
- e.g. involuntary manslaughter cannot be felony murder
- Victim’s death must be foreseeable result of felony
- Victim’s death must be caused before D reaches a place of temporary safety
- D is not liable for the death of a co-felon killed by police or the original victim.
Voluntary Manslaughter
A killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense.
Voluntary Mansalughter
Adequate Provocation
Required Elements:
- Provocation would cause a sudden and intense passion in an ordinarly person, causing him to lose self-control.
- D was in face provoked (D actually lost control)
- There was insufficient time for an ordinarly person to cool off between the provocation and the killing
- Very subjective and fact based
- D did not cool off between the provocation and the killing.
Adeqaute provocation is not a defense to murder, but it can be a mitigating factor that reduces a murder change to _____
Voluntary manslaughter.
Imperfect Self-Defense
If D murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either:
- D initiated the altercation that required self-defense, or
- D unreasonably believed deadly force was necessary.
- NOT RECOGNIZED IN ALL JX
Involuntary Manslaughter
A killing committed with criminal negligence or during the commission of an unlawful act not constituing felony murder.
Involuntary Manslaughter
Criminal Negligence
Arises if D is grossly negligent
e.g. D is texting whil driving and hits and kills a pedestrian in a crosswalk.
Involuntary Manslaughter
Commission of an unlawful act
The requisite unlawful act is any felony or misdemeanor not giving rise to liability for felony murder.
If MBE questions simply state manslaughter without distinguishing between voluntary and involuntary manslaughter both types must be considered.
True
Larceny Definition
The taking and carrying away of another’s tangible personal property withouth consent (i.e. trespassory) and with the intent to permanently deprive the person of the property.
Larceny Elements
Taking
Obtaining control or possession
- If D already has possession at the time of the taking, it is not larceny (but may give rise to embezzlement).
Larceny Elements
Carrying Away
The slightest movement will suffice
Larceny Elements
Without Consent
Agaisnt the victim’s free will (i.e. trespass)
- The use of fraud or duress negates consent
- This element distinguishes larceny from larceny by tric
Larceny Elements
Intent to permanently deprive
Must exist during taking
- Specific intent crime – not larceny if D takes property as security for a debt owed or believing it belongs to D
- Permanently = for an unreasonable period of time\
- Continuing Trespass – When one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property.
Larceny
Finding a lost Item
Larceny can arise if the true owner is known or ascertainable and D decides to keep the property ( must be lost or misplaced; larceny cannot arise from abandoned property).
Embezzlement Definition
Fraudlent conversion of another’s property by one in lawful possession.
Embezzlement Elements
- Fraudlent conversion – D uses another’s property beyond the scope of or inconsistnet with D’s possessory rights
- By one in lawful possession – D must have lawful possession at the time of conversion
Embezzlement distinhuished from larceny
Both involve obtaining property through misapproporation, but circumstances of the taking differ:
- Embezzlement = conversion of property in D’s rightful possession
- Larceny= taking property not in D’s possession.
Special isues refuting embezzlement
- Intent to restore – if D takes property with the intent to restore the exact property, no embezzlement has ocurred.
- Must be the exact same property not even different monetary bills of equal value will suffice.
- Claim of right – like larceny, embezzlement will not arize if the misappropriation is made under a laim of right to the property (i.e. D believes the property belongs to him)
False Pretenses
Obtaining title to another’s property using false statements of past or existing fact, with the intent to defraud.
False Pretense Elements
- Obtaining title
- Obtaining ownership, not mere possession
- By flase statements
- must be n intentional false statement
- Of past or existing fact
- Misrepresentation regarding a future event is not sufficient
- Intent to defraud
- Victim must be deeived or act in reliance on the false statement in passing title to D
Larceny by Trick
Obtaining possession of another’s personal property using false statements of past or existing facts
- Possession v. ownership is the distinguishing factor
Receipt of Stolen Property
Receiving possession and control of personal property known to have been illegally obtained, with the intent to permanently deprive the owner of her interest in it.
Receipt of Stolen Property
Elements
-
Receipt of possession and control
- Physical possession not required – D can have possession or control by designating the property’s location or arranging to sell it for the origional thief
-
Of stolen personal property
- Property must have been stolen when D received it.
-
Known to have been illegally obtained by another
- D must know or have reason to know property is stolen
- With intent to permanently deprive the owner of his interest
Beware of sting situations:
If police and the true property owner know of or arrange D’s receipt of property, it is not truly stolen (i.e. there can be no receipt of stolen property)
- D can be convicted to attempted receipt of stolen property if she intended to recieve property, believing it to be stolen.
Forgery
Creating or altering a written document with purported legal significance to be false, with the intent to defraud
Forgery Elements
- Creating or altering
- e.g. drafting, adding, or deleting from a document’s contents
- A document with purported legal significance
- A document that carries legal value (i.e. check or contract, but not a painting.)
- To be false
- Modifying the document into something it is not; changing its legal significance, not just changing it to be inaccurate.
- With intent to defraud
- Specific intent crime
- Actually defrauding somebody is not required; the mere intent to drfraud is sufficient.
Robbery
Wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent to permanently deprive.
Robbery = assault or battery + ____
Larceny
Robbery
Victim’s person or presence
Interpreted broadly
Robbery
Force or threat of injury
A small force or threat will suffice.
- Threat of injury must be to voctim, a member of her family, or a person in her prescence
- A victim must give up the property because she feels threatened or harmed.
- Threats of future harm are insufficient
Larceny vs. Robbery
Robbery requires force or threats to obtain victim’s property, whereas larcey does not
- e.g. a pickpocket commits larcey if victim did not notice his act, but commits robbery if victim notices.
Extortion
Obtaining property through threats of future harm or exposing information.
Extortion vs. Robbery
- Extortion does not require taking from the victim’s person or presence
- Extortion involves threats of future, rather than immediate, harm.
