Crimes Against the Person & Property

Question 1

Assault

Two theories of assult at common law:

Answer 1

1. Assault as a threat
2. Assault as an attempted battery

Question 2

Assault

Assault as a threat

Answer 2

General intent crime:

• Intentional creation of victim’s reasonable apprehension of imminent bodily harm.
• Words alone are usually insufficient

Question 3

Assault

Assault as an attempted battery

Answer 3

Specific intent crime:

• Specific intent crime because it involves attempt.

Question 4

Battery

Answer 4

An unlawful application of force to the person of another resulting in bodily injury or offensive touching.

• i.e. completed assault
• General intent crime

Question 5

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 ____

Answer 5

Weapon

Question 6

Rape

Common Law

Answer 6

Unlawful carnal knowledge of a woman by a man other than her husband, without effective consent.

Question 7

Rape

Modern Statutes

Answer 7

• The slightest penetration is sufficient to complete the crime
• Marital status is insignificant.

Question 8

Rape

Modern Statutes

Lack of Effective Consent

Answer 8

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.

Question 9

Fraud or trickery along does not constitute rape. There must be ____ without contemporaneous consent or capacity to consent.

Answer 9

Penetration.

e.g. convincing someone you plan on marrying them to have intercourse is not rape.

Question 10

False Imprisonment

Answer 10

The unlawful confinement of a person without their consent

• Consent cannot be obtained through coercison, threat or deception.

Question 11

Kidnapping

Answer 11

The unlawful confinement of a person that involves either:

1. Some movement of the victim; or
2. Concealment of the victim in an unknown, hidden, or secret location.

Question 12

False imprisonment can become kidnapping if the victim is:

Answer 12

Moved and/or concealed.

Question 13

Murder Definition

Answer 13

The unlawful killing of another human with malice aforethought.

Question 14

Malice Aforethought

Answer 14

Arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with one of the following mental states.

Question 15

Malice Aforethought

Intent to Kill

Answer 15

The D has the intent to kill.

Question 16

Malice aforethought

Intent to inflict great bodily injury

Answer 16

The D has the intent to commit great bodily harm

Question 17

Malice Aforethought

Depraved Heart

Answer 17

A killing committed with reckless indifference to an unjustifiable risk to human life.

Question 18

Malice Aforethought

Felony Murder

Answer 18

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.

Question 19

Murder

Casusation

Answer 19

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.

Question 20

Statutory Modifications to Common Law Murder

Answer 20

Most jurisdictions classify murder crimes into various degrees by statute.

Question 21

First Degree Murder

Answer 21

Arises if a killing is either:

1. Deliberate & premeditated
   
   1. D must have killed in a dispassionante manner and must have considered or reflected on his killing, even if only momentarily.
      
      1. Specific intent Crime
         
         1. Voluntarily intoxication and mistake of face are valid defenses
2. Felony Murder
   
   1. Killing during an enumerated felony
      
      1. Many states list felonies that may serve as the basis for felony murder.

Question 22

Second Degree Murder

Answer 22

A homicide not arising to first-degree murder.

Question 23

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

Answer 23

True

Question 24

Felony Murder

Answer 24

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.

Question 25

Felonies allowing for felony murder

Answer 25

• Inherently dangerous felonies
• Statutorily enumerated felonies
  
  • i.e. criminal statute states that a killing uccirring during its commission constitutes felony murder.

Question 26

Limitations on liability for felony murder

Answer 26

• 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.

Question 27

Voluntary Manslaughter

Answer 27

A killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense.

Question 28

Voluntary Mansalughter

Adequate Provocation

Answer 28

Required Elements:

1. Provocation would cause a sudden and intense passion in an ordinarly person, causing him to lose self-control.
2. D was in face provoked (D actually lost control)
3. There was insufficient time for an ordinarly person to cool off between the provocation and the killing
   
   1. Very subjective and fact based
4. D did not cool off between the provocation and the killing.

Question 29

Adeqaute provocation is not a defense to murder, but it can be a mitigating factor that reduces a murder change to _____

Answer 29

Voluntary manslaughter.

Question 30

Imperfect Self-Defense

Answer 30

If D murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either:

1. D initiated the altercation that required self-defense, or
2. D unreasonably believed deadly force was necessary.
   
   1. NOT RECOGNIZED IN ALL JX

Question 31

Involuntary Manslaughter

Answer 31

A killing committed with criminal negligence or during the commission of an unlawful act not constituing felony murder.

Question 32

Involuntary Manslaughter

Criminal Negligence

Answer 32

Arises if D is grossly negligent

e.g. D is texting whil driving and hits and kills a pedestrian in a crosswalk.

Question 33

Involuntary Manslaughter

Commission of an unlawful act

Answer 33

The requisite unlawful act is any felony or misdemeanor not giving rise to liability for felony murder.

Question 34

If MBE questions simply state manslaughter without distinguishing between voluntary and involuntary manslaughter both types must be considered.

Answer 34

True

Question 35

Larceny Definition

Answer 35

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.

Question 36

Larceny Elements

Taking

Answer 36

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).

Question 37

Larceny Elements

Carrying Away

Answer 37

The slightest movement will suffice

Question 38

Larceny Elements

Without Consent

Answer 38

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

Question 39

Larceny Elements

Intent to permanently deprive

Answer 39

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.

Question 40

Larceny

Finding a lost Item

Answer 40

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).

Question 41

Embezzlement Definition

Answer 41

Fraudlent conversion of another’s property by one in lawful possession.

Question 42

Embezzlement Elements

Answer 42

1. Fraudlent conversion – D uses another’s property beyond the scope of or inconsistnet with D’s possessory rights
2. By one in lawful possession – D must have lawful possession at the time of conversion

Question 43

Embezzlement distinhuished from larceny

Answer 43

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.

Question 44

Special isues refuting embezzlement

Answer 44

• 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)

Question 45

False Pretenses

Answer 45

Obtaining title to another’s property using false statements of past or existing fact, with the intent to defraud.

Question 46

False Pretense Elements

Answer 46

1. Obtaining title
   
   1. Obtaining ownership, not mere possession
2. By flase statements
   
   1. must be n intentional false statement
3. Of past or existing fact
   
   1. Misrepresentation regarding a future event is not sufficient
4. Intent to defraud
   
   1. Victim must be deeived or act in reliance on the false statement in passing title to D

Question 47

Larceny by Trick

Answer 47

Obtaining possession of another’s personal property using false statements of past or existing facts

• Possession v. ownership is the distinguishing factor

Question 48

Receipt of Stolen Property

Answer 48

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.

Question 49

Receipt of Stolen Property

Elements

Answer 49

1. Receipt of possession and control
   
   1. 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
2. Of stolen personal property
   
   1. Property must have been stolen when D received it.
3. Known to have been illegally obtained by another
   
   1. D must know or have reason to know property is stolen
4. With intent to permanently deprive the owner of his interest

Question 50

Beware of sting situations:

Answer 50

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.

Question 51

Forgery

Answer 51

Creating or altering a written document with purported legal significance to be false, with the intent to defraud

Question 52

Forgery Elements

Answer 52

1. Creating or altering
   
   1. e.g. drafting, adding, or deleting from a document’s contents
2. A document with purported legal significance
   
   1. A document that carries legal value (i.e. check or contract, but not a painting.)
3. To be false
   
   1. Modifying the document into something it is not; changing its legal significance, not just changing it to be inaccurate.
4. With intent to defraud
   
   1. Specific intent crime
   2. Actually defrauding somebody is not required; the mere intent to drfraud is sufficient.

Question 53

Robbery

Answer 53

Wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent to permanently deprive.

Question 54

Robbery = assault or battery + ____

Answer 54

Larceny

Question 55

Robbery

Victim’s person or presence

Answer 55

Interpreted broadly

Question 56

Robbery

Force or threat of injury

Answer 56

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

Question 57

Larceny vs. Robbery

Answer 57

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.

Question 58

Extortion

Answer 58

Obtaining property through threats of future harm or exposing information.

Question 59

Extortion vs. Robbery

Answer 59

• Extortion does not require taking from the victim’s person or presence
  
  • Extortion involves threats of future, rather than immediate, harm.