Criminal Law 2 Flashcards
1
Q
Generally: to establish a criminal case, Prosecutor MUST prove:
A
- Actus Reus (Guilty Act)
- Mens Rea (Guilty Mind)
- Concurrence
- Causation of Harmful Result (only some crimes, e.g. Homicide)
2
Q
Actus Reus: Criminally Liable Person MUST have done what?
A
- Performed a Voluntary, Physical Act
OR - Failed to Act under circumstances imposing a Legal Duty to Act
NOTE: Act = Speech/Bodily Movement; Thoughts are NOT acts!
3
Q
Actus Reus: Voluntary, Physical Acts are Person’s
A
Conscious Exercise of Personal Will.
4
Q
Actus Reus: Involuntary Acts CANNOT cause criminal liability because . . .
A
involuntary acts cannot be deterred by punishment.
5
Q
Actus Reus: Habitual Acts are ________ EVEN IF Defendant was ____________________________.
A
Voluntary EVEN IF Defendant was UNAWARE he was acting.
6
Q
Actus Reus: Acts committed while Unconscious or Asleep are VOLUNTARY IF
A
Defendant Knew he Might
1. Fall Asleep OR Become Unconscious
AND
2. Engage in the Dangerous Behavior
7
Q
Actus Reus: Failure to Act results in Criminal Liability IF
A
- Person has Legal Duty to Act under the circumstances AND
- Person is Aware of the Facts creating the duty to act OR
Law Imposes a Duty to Learn the Facts AND - It’s Reasonably Possible for Person to Perform the Duty OR
Obtain Assistance
8
Q
Actus Reus: A Legal Duty to Act arises from:
A
- Statutes
- Contracts
- Relationships
- Voluntary Assumption of Care (reasonable standard of care)
- Creation of Peril
9
Q
Actus Reus: 3 Types of Involuntary Acts
A
- Conduct that is NOT the product of Actor’s determination
- Reflexive or Convulsive Acts
- Movements while Unconscious, Asleep, or Hypnotized
10
Q
Actus Reus: Criminal Statutes penalizing possession of contraband generally only require that Defendant have control of the item . . .
A
for a Long Enough Period to have an Opportunity to Terminate the Possession.
12
Q
When is Mens Rea not required?
A
Strict Liability Crimes
13
Q
Mens Rea: Specific Intent Crimes
A
Crime’s Definition requires that an act be performed with a specific intent or objective
14
Q
Mens Rea: Why is it necessary to identify specific intent crimes?
A
- The manner in which an act was done may provide circumstantial evidence
- Some defenses apply only to specific intent crimes, I.e., voluntary intoxication and unreasonable mistake of fact
15
Q
Mens Rea: The 10 Major Specific Intent Crimes
A
- Solicitation (solicited-person commit crime)
- Attempt (complete crime)
- Conspiracy (complete crime)
- First Degree Premeditated Murder (premeditated intent to kill)
- Assault (commit a battery)
- Larceny and Robbery (permanently deprive Another of his property interest)
- Burglary (commit a felony within a dwelling, at the time of entry)
- Forgery (defraud)
- False Pretenses (defraud)
- Embezzlement (defraud)
16
Q
Mens Rea: Common Law created the special mental state of malice to . . .
A
Deny the specific intent defenses to murders and arsonists.
17
Q
Mens Rea: To establish Malice, Prosector MUST show . . .
A
Defendant Recklessly Disregarded an Obvious OR High Risk that the particular harmful result would occur.
18
Q
Mens Rea: General Intent
A
An awareness of the likely existence of all factors constituting the crime.
Generally, all crimes require specific intent
19
Q
Mens Rea: Jury may infer . . .
A
general intent from mere action.
It is not necessary that evidence specifically proving the general intent be offered by the prosecution
20
Q
Mens Rea: Intent Transfers from Intended person OR object to Another person or object IF
A
- Person Intended to Cause a harmful result to a Particular person or object AND
- Person Caused a Similar harmful result to Another person or object,
Most Commonly Applies to homicide, battery, and arson
Does NOT apply to Attempt!
22
Q
Mens Rea: What is Motive, and what is its legal significance?
A
Reason or Explanation underlying an Offense.
Generally immaterial to substantive criminal law: a good motive will not excuse a criminal act, and a lawful act with a bad motive will not be punished.
23
Q
Mens Rea: Strict Liability Offenses require
A
awareness of at least one element of a crime BUT NOT ALL
Certain Defenses, such as mistake of fact are not available
24
Q
Strict Liability Offenses are also known as . . .
A
Public Welfare Offenses
25
Q
Strict Liability/Public Welfare Offenses generally . . .
A
- are Insignificantly immoral
- are regulatory offenses that implicate public health or safety
- have relatively low penalties
26
Q
IF Statute is silent regarding mens rea, Courts may . . .
A
Interpret Statute as Requiring Some Mens Rea, especially IF
1. statute appears to be codification of traditional common law OR 2. the statute imposes a severe penalty.
27
Majority State: Constitutionality of Strict liability crimes
Constitutional
EXCEPTION: Statutes criminalizing Felon's failure to register as a Felon--UNconstitutional
28
M.P.C.: 4 Categories of Mens Rea (instead of general v. Specific intent)
1. Purposely
2. Knowingly
3. Recklessly
4. Negligently
29
M.P.C.: Purposely
Subjective Standard
Person consciously intends to
1. Engage in certain conduct
2. Cause a certain result
30
M.P.C.: Knowingly (or Willfully)
Subjective Standard
1. Person is aware that his conduct is of a prohibited nature OR
2. Person knows, believes, or is substantially certain that his act will bring about a prohibited result
IF willful ignorance, the Court will generally find that Pesron acted knowingly
31
M.P.C.: Recklessly
Subjective (awareness) and Objective (unjustifiable)
Person consciously disregards a substantial, unjustifiable risk that circumstances exist or that a prohibited result will follow AND the disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.
Person MUST KNOW that injury
32
An act performed Recklessly is also performed
Wantonly
33
M.P.C.: Negligently
Objective Standard
Person fails to become aware of a substantial and justifiable risk that circumstances exist, or that a result will follow, AND such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances.
Person MUST have taken a very unreasonable risk in light of the usefulness of his conduct, his knowledge of the facts, and the nature and extent of the harm that may be caused.
34
Common Law: 3 classifications of Mens Rea
1. General Intent Crimes
2. Specific Intent Crimes
3. Strict Liability Crimes
35
Violations of State Statutes, Municipal Ordinances, and Administrative Regulations MAY
Be evidence of liability re: negligence
36
IF a statue establishes a culpable state of mind without indicating whether it is required for all material elements of the offense, then
The specified state of mind applies to all material elements of the offense UNLESS a contrary purpose appears in the statute
37
IF a criminal statute does NOT include a state of mind requirement
Defendant MUST have acted with AT LEAST recklessness re: each material element of the offense
38
M.P.C.: the showing of a higher state of mind . . .
Automatically satisfies a lower mental state requirement of a statute.
39
IF a lower standard of negligence, or a higher standard of knowledge or purpose is required, then . . .
The standard MUST be indicated in the language of the statute
40
Vicarious Liability Offenses
Person without fault is vicariously liable for Another's criminal conduct (usually an employee)
Employee MUST possess mens rea
Analogous to the tort doctrine of Respondeat Superior
41
Minority State: Imprisonment for vicarious liability crimes . . .
Violates the due process guarantees of the constitution
42
Current Legislative Trend: Limit Vicarious Liability
Crime: Regulatory
Punishment: Fines
43
Majority State: the mere fact that the underlying offense is clearly a strict liability offense . . .
Should NOT imply a legislative intent to impose vicarious liability
I.e., criminal statute: no one can serve alcoholic beverages to a minor--bar owner not vicariously liable if bartender serves underage person if the owner was not present and didn't authorize bartender's actions
44
Actus Reus: IF Criminal Statute penalizes possession of contraband but lacks a state of mind requirement . . .
Defendant must be aware of his possession of the contraband BUT need not be aware of the item's illegality or true nature
45
Actus Reus: Possession as an Act under the M.P.C. and Many States add a knowingly state of mind requirement, so
Defendant MUST know the identity or nature of the item possessed BUT CANNOT consciously avoid learning the true nature of the item possessed.
Knowledge may be inferred from a combination of suspicion and indifference to the truth
46
Common Law: Enterprise Liability
Corporations could NOT commit crimes because they were unable to form the necessary criminal intent
47
Majority State: Enterprise Liability: Corporations (and sometimes unincorporated associations) are vicariously liable IF
The conduct giving rise to corporate liability was performed by corporation's Agent, acting on Corporation's behalf and within the scope of his office or employment UNLESS the law specifically provides otherwise
48
Minority State: Enterprise Liability is limited to . . .
Conduct performed by, or participated in by, Agents sufficiently hugging the corporate hierarchy to presume that their acts reflect corporate policy.
49
M.P.C.: Enterprise Liability: A Corporation may be guilty of a criminal offense provided the offense:
1. Consists of Corporation's failure to discharge a specific duty imposed by law OR
2. Is defined by a statute with a plain legislative purpose to impose liability on corporations OR
3. Was authorized, requested, commanded, performed, or recklessly tolerated by the board of directors or by a high managerial agent acting on behalf of the corporation within the scope of his office or employment
50
The person who, in the name of the corporation, performs (or causes performance of) conduct that is an element of a criminal, offense
Is legally accountable and subject to punishment to the same extent as if the conduct were performed in his name or on his own behalf
51
The fact that a Corporation is criminally liable does NOT
Prevent the conviction of the individual who committed the offense
52
Concurrence of Mens Rea and Actus Reus
Person MUST have necessary intent for the crime at the time he committed the act constituting the crime
Intent MUST prompt action
53
Common Law: Conspiracy
A combination or agreement between two or more persons to
1. accomplish some criminal or unlawful purpose OR
2. Accomplish a lawful purpose through unlawful means
Go back to page 21
54
Common Law/State Minority: Merger of Conspiracy
IF conspirators committed a substantive offense, the crime of conspiracy merges into the completed crime, and the members of the conspiracy can only be convicted of the substantive offense.
55
Majority State: Merger of Conspiracy: IF conspirators complete the substantive offense,
The conspirators may be convicted of BOTH the criminal conspiracy AND the substantive offense
56
Battery
Misdemeanor
The unlawful application of force upon Another, resulting in
1. Bodily injury, or
2. Offensive touching
57
Battery: intent
A battery can be BUT need NOT be intentional.
It is sufficient that Defendant caused the application of force with general intent, interpreted in most jurisdictions today as requiring no more than criminal negligence
58
Battery: Force need NOT be applied directly; therefore, it is sufficient IF
The force is applied by a force or substance put in motion by Defendant. I.e., causing a dog to attack or causing ingestion of poison
59
Majority State: Aggravated Battery is most commonly:
Felony
1. A deadly weapon is used (an ordinary object may become a deadly weapon depending upon how it is used), or
2. Serious Bodily Injury is caused, or
3. Victim is a Child, Woman, or Police Officer
60
Minority State: Victim's Consent as a Defense to Battery
E.g., medical operations or reasonable injuries incurred in consensual athletic contests.
61
Majority State: Assault
Misdemeanor
1. An attempt to commit a battery, or
2. The intentional creation of Victim's reasonable apprehension of imminent bodily harm
62
Minority State: Assault
Only Attempt to commit a battery.
63
Some statutes define assault as an unlawful attempt to commit battery PLUS
A present ability to succeed.
Lack of ability to succeed precludes liability under such statutes
I.e., unloaded guns
64
Aggravated Assault
All jurisdictions treat certain aggravated assaults more severely tha simple assault. Such aggravated assault includes but is not limited to
1. Assault with a dangerous or deadly weapon
2. Assault with the intent to rape, maim, or murder
65
Common Law/Majority State: Mayhem
Dismemberment or disablement if a bodily part.
Modern Statutes expand the scope of mayhem to include permanent disfigurement.
66
Mayhem: Recent Trend
Abolish mayhem as a separate offense.
It's treated as a form of aggravated battery.
67
Minority State: Mayhem: Intent
Specific Intent to Maim or Disfigure
68
3 Common Law Classifications of Homicide
1. Justifiable (authorized by law)
2. Excusable (defense to criminal liability)
3. Criminal
69
Common Law: 3 Criminal Homicides
1. Murder
2. Voluntary Manslaughter
3. Involuntary Manslaughter
70
Common Law: Murder
The unlawful killing of another human being with, express or implied, malice afterthought.
71
Common Law: Murder: In athe absence of facts excusing a homicide or reducing it to voluntary manslaughter, MALICE AFORETHOUGHT exists IF Defendant:
1. Intended to Kill (express)
2. Intended to inflict great bodily injury (implied)
3. Held a reckless indifference to an unjustifiably high risk to human life ("abandoned and malignant heart") (implied)
4. Intended to commit a felony (felony murder) (implied)
72
Common Law Murder: Intentional use of a deadly weapon authorizes
A permissive inference of intent to kill.
73
Common Law Murder: A deadly weapon is . . .
Any instrument (or perhaps a part of the body) used in a manner calculated or likely to produce death or serious bodily injury.
I.e., speedboat crashes into people, person fires bullet in crowded room, professional fighter
74
Common Law: Voluntary Manslaughter
A killing that would otherwise be murder BUT
It's distinguished by the existence of adequate provocation
I.e., killing in the heat of passion.
75
Common Law: Adequate provocation reduces a killing to voluntary manslaughter IF
1. Provocation arose sudden and intense passion in the mind if an ordinary person, which caused him to lose self-control
2. Defendant was IN FACT provoked
3. NO sufficient time between provocation. And the killing for the passions of the reasonable person to cool (consider the nature of the circumstances and the attendant circumstances, including earlier altercations between defendant and victim)
4. Defendant IN FACT did NOT cool off between the provocation and the killing.
76
Common Law: Voluntary Manslaughter: Provocation most frequently recognized in cases of. . .
1. Being subjected to a serious battery or a threat of deadly force
2. Discovering one's spouse in bed with another person.
77
Common Law: Voluntary Manslaughter: the most significant INADEQUATE provocation as a matter of law
Mere words.
78
Modern Courts: Voluntary Manslaughter: Inadequate provocation as a matter of law is a question . . .
Submitted to the jury to determine wither mere words or similar matters constitute adequate provocation.
79
Minority States: Involuntary Manslaughter: Imperfect Self-defense
A murder may be reduced to manslaughter ENVEN THOUGH
1. Defendant was at fault in starting the altercation OR
2. Defendant unreasonably BUT HONESTLY believed in the necessity of responding with deadly force.
80
Common Law: 2 Types of Involuntary Manslaughter
1. Criminal Negligence
| 2. Unlawful Acts
81
Common Law: Involuntary Manslaughter: Criminal Negligence
IF a death is caused by criminal negligence, the killing is involuntary manslaughter.
Criminal Negligence requires a greater deviation from the reasonable person standard than is required for civil liability
Go back to pg 49
82
Common Law: Involuntary Manslaughter: 2 types of Unlawful Acts
1. A killing caused during the commission of a misdemeanor
| 2. A killing caused during the commission of a felony, which does NOT qualify as a felony murder.
83
Majority State: Involuntary Manslaughter: A killing during the commission of a misdemeanor requires that the misdemeanor was . . .
1. Malum in se
| 2. Malum prohibitum AND the death was a foreseeable or natural consequence of the unlawful conduct
84
Majority State: Involuntary Manslaughter: A killing during the commission of a felony, which doe NOT qualify as a felony murder requires that . . .
The death was a foreseeable consequence of the felony
85
Majority State: Degrees of Murder
1. Deliberate and Premeditated Killing
2. First Degree Felony Murder
3. Second Degree Felony Murder
4. Other State Variations
86
Majority State: All murders are __ degree murders UNLESS . . .
Second degree murders, UNLESS the prosecution can prove that the murder was first degree.
87
Majority State: Degrees of Murder: Deliberate and Premeditated Killing
1. Defendant made the decision to kill in a cool and dispassionate manner.
2. Defendant actually reflected on the idea of killing, EVEN IF only for a very brief period.
88
Majority State: Degrees of Murder: First Degree Felony Murder
IF a killing is committed during the commission of an enumerated felony murder the killing is usually first degree murder.
The prosecution does NOT need to show that the killing was either deliberate or premeditated
89
Many State Statutes list specific felonies that may serve as the basis for felony murder, the felonies most commonly listed are:
1. Burglary
2. Arson
3. Rape
4. Robbery
5. Kidnapping
6. Other felonies inherently dangerous to human life
90
Majority State: Degrees of Murder: Second Degree Felony Murder
A statute may provide criminal liability for killings committed during the course of felonies not specifically listed as felony murders
91
Minority State: Degrees of Murder: Other Variations
1. No felony murders are specifically listed
Perhaps, includes the requirement that
2. A felony (as committed) was intently dangerous to human life
92
Minority State: Degrees of Murder: Some statutes make killings performed in certain ways first degree murder; thus killing by . . .
1. Lying in wait
2. Poison
3. Torture
MAY be first degree murder
93
Felony Murder: Malice Aforethought is implied from . . .
The intent to commit the underlying felony
94
Felony Murder
A killing committed during the course of a felony.
EVEN IF the killing was accidental
Majority: Death must have been a foreseeable result of the commission if the felony (courts are very willing to find most deaths foreseeable)
Minority: felony must have been malum in se
95
IF in the course of a conspiracy to commit a felony, a death is caused, ALL members to the conspiracy are liable for Murder IF ALL members to the conspiracy are liable for Murder IF the death. . .
1. was caused in furtherance of the conspiracy AND
| 2. Was a foreseeable consequence of the conspiracy
96
To convict Defendant of Felony Murder, the Prosecution MUST prove . . .
Defendant committed or attempted to commit the under lying felony
97
Defenses to Felony Murder
Substantive defenses that negate an element of the underlying felony BUT usually NOT procedural defenses
98
Felony Murders are prosecuted ONLY IF
The underlying felony was independent of the killing.
CANNOT be felonies such as manslaughter or aggravated battery.
99
Felony Murder: The fact that a felony was technically completed before death was caused . . .
DOES NOT prevent the killing from being a felony murder.
100
Felony Murder: Deaths caused while fleeing the scene of a crime . . .
Are felony murders
101
Felony Murder: once a felon reaches a place of temporary safety . . .
The impact of the felony murder rule ceases AND
| Subsequent Deaths cause by Felon are NOT felony murder
102
Majority State: Felony Murder: Co-Felon's liability for another Co-Felon's death by resistance from Police or Victim
Co-Felon NOT liable
103
Majority State: Felony Murder: IF innocent victims are killed by someone other than a co-felon . . .
The Felons will be guilty of felony murder IF they caused the series of events, which caused the death of the innocent person (proximate cause)
i.e. bystander is accidentally killed by a police officer during a shootout at the crime scene
104
Minority State: a Felony is liable for Felony Murder ONLY IF
Felon or Felon's Agent committed the Murder
105
Majority State: Malum Prohibitum Misdemeanors: Deaths caused during the commission of the misdemeanor are manslaughter ONLY IF
The death was a foreseeable result of the commission of the misdemeanor
106
Minority State: Malum In Se Misdemeanors: Deaths caused during the commission of the misdemeanor are classified as
Manslaughter
107
When a crime is defined to require NOT merely conduct BUT ALSO a specified result of that conduct, Defendant's conduct MUST BE
1. Cause-in-fact
| 2. Proximate Cause of the Specified Result
108
Cause-in-fact
The result would not have occurred BUT FOR Defendant's Conduct
109
Common Law: To Prosecute person for homicide, Victim's Death MUST occur
Within one year and one day form the infliction of the injury/wound.
Majority State: abolish this rule
110
Homicide: Problems of proximate cause arise only when Victim's death occurs because of Defendant's Acts, BUT
In a manner NOT intended OR anticipated by Defendant
111
Proximate Cause
Dendant is responsible for all results that occur as a natural and probably consequence if his conduct EVEN IF he did NOT anticipate the precise manner in which they would occur
112
The chain of proximate causation is broken ONLY by
The intervention of a superseding factor
113
Causation: An act that hastens an inevitable result
Is a legal cause of the result
114
Causation: Simultaneous acts by two or more persons may be considered
Independently sufficient causes of a single result
115
Causation: Victim's Pre-existing Condition that makes him more susceptible to death
Does NOT break the chain of causation
116
Defendant is NOT liable IF an intervening act . . .
1. Was a mere coincidence OR
| 2. was outside the foreseeable sphere of risk created by Defendant's act
117
Intervening Acts may be
1. Acts of Nature
2. Acts of Third Persons (negligence of medical treatment BUT NOT gross negligence)
3. Acts by the Victim (refusal of medical treatment; suicide)
118
5 necessary steps of analyzing Homicide Questions
1. Sufficient State of Mind?
2. 1 yes, Raise Homicide to 1st Degree Murder?
3. 1 yes, Reduce Homicide to Voluntary Manslaughter?
4. 1 no, Involuntary Manslaughter
5. Adequate causation? Broken Chain of Causation?
119
Common Law: False Imprisonment
Misdemeanor
1. Unlawful
2. Confinement of Person
3. WITHOUT Person's Valid Consent
120
False Imprisonment: Confinement requires that . . .
Victim be compelled to
1. Go where he does NOT wish to go
2. Remain where he does NOT wish to remain
121
False Imprisonment: It is NOT confinement IF
Simply preventing Person from going where he desires to go, as long as alternative routes are available.
122
False Imprisonment: confinement may be accomplished by
1. Actual force
2. A show of force
3. Threats
123
M.P.C.: False Imprisonment: Confinement MUST
Substantially interfere with Victim's liberty
124
False Imprisonment: confinement is unlawful UNLESS
It is specifically authorized by
1. law OR
2. Person's consent
125
Consent to confinement precludes if from constituting false imprisonment BUT the consent MUST
1. Be freely given
| 2. By Person with capacity to give such consent
126
False Imprisonment: Consent is invalidated by
1. Coercion
2. Threat
3. Deception
4. Incapacity due to mental illness, substantial cognitive impairment, or youth
127
Common Law: Kidnapping
Misdemeanor
The forcible abduction or stealing away of a person. From his own country and sending him into another
128
Majority State/M.P.C.: Kidnapping
Aggravated False Imprisonment
1. Some movement of Victim OR
2. Concealment of Victim in secret place
129
Majority State: 4 common forms of Aggravated Kidnapping
1. Kidnapping for Ransom
2. Kidnapping for the Purpose of Commission of Other Crimes
3. Kidnapping for Offense Purpose
4. Child Stealing
130
Aggravated Kidnapping: Kidnapping for Ransom
The abduction or secretion of Person for the purpose of obtaining anything of value for the return of Person.
131
Aggravated Kidnapping: Kidnapping for the Purpose of Commission of Other Crimes
Abduction or secretion for the purpose of committing other offenses, such as robbery
132
Aggravated Kidnapping: Kidnapping for Offensive Purpose
Abduction or Secretion with the intent of
1. harming Person OR
2. committing some sexual crime with Person
133
Aggravated Kidnapping: Child Stealing
Leading, taking, enticing, or detaining Child with intent to keep or conceal the child from a guardian or parent.
NOTE: consent of children is irrelevant because age = incapacitation to consent
134
Kidnapping: Free consent given by a person competent to consent . . .
Precludes the confinement or movement of a person from being kidnapping
135
IF Statutes define kidnapping as detention involving movement of the victim, kidnapping arguably occurs . . .
Incident to the commission of other crimes, such as robbery or rape
Sometimes ONLY IF movement of Victim substantially increased the risk to the victim, over and above that necessarily involved in the other crime.
136
Common Law: Rape
FELONY
The unlawful carnal knowledge of a woman by a man, NOT her husband, WITHOUT her effective consent
137
Rape requires ONLY
The penetration of the female sex organ by the male sex organ
Emission is NOT necessary to complete the crime
138
Modern Trend: Rape is renamed to __________ AND Statutory terms are ____________.
Sexual Assault and Statutory Terms are gender neutral
139
Majority State: Rape: the requirement that woman and man are NOT married is
1. Abolished
| 2. Dropped IF parties are estranged or separated
140
Rape: Victim's Consent is INEFFECTIVE IF
1. Intercourse is accomplished by actual force
2. Intercourse is accomplished by placing Victim in fear of great and immediate bodily harm (even IF Victim fails to resist to the utmost
3. Victim is incapable of consenting because of
1. Unconsciousness
2. The effect of drugs or intoxicating substances
3. viVictim's mental condition (insane/cognitively impaired)
141
Rape: Consent: IF Victim is fraudulently caused to believe that the act is NOT sexual intercourse, the act
IS RAPE
142
IF Defendant fraudulently persuades Victim that he is her husband, intercourse
Does NOT constitute rape (best answer)
143
Intercourse obtained by fraud will constitute rape ONLY IF
Defendant fraudulently causes Victim to believe that the act is not sexual intercourse
144
Statutory Rape
The crime of carnal knowledge with a person the age of consent EVEN IF Victim willingly participated
145
Statutory Rape: Age of consent
Varies from state to state, generally 16 to 18
146
Statutory Rape is a _____ crime
Strict liability
147
Statutory Rape: Reasonable Mistake as to Victim's age
1. Defendant still LIABLE (best answer)
2. May prevent conviction IF Defendant reasonably believed that Victim was old enough to give effective consent (second best answer)
148
Crimes against nature: Beastiality
Probably the only crime against nature that still survives
It's the carnal copulation with an animal by a human being (male or female)
149
Adultery and Fornication were punished by
The church as ecclesiastical offenses
150
The misdemeanor offense of Adultery is committed when
Any person cohabits or has sexual intercourse with another, NOT his spouse IF
1. The behavior is open and notorious AND
2. Person is married AND other Person is not his spouse OR
3. Person is NOT married AND knows that other Person IS MARRIED
151
Fornication
Sexual intercourse between OR open and notorious cohabitation by unmarried Persons
152
Incest
Statutory Offense--usually a Felony
Marriage OR Sexual Acts between persons who are too closely related.
153
Incest: Degree of Relationship
No uniformity exists among the States
Majority: Blood Relatives
Significant Number: also includes some no blood relatives
154
Incest: Degree of responsibility
Some states make a distinction in penalties depending on the parties involved
155
Seduction
Statutory Felony
Male Person induces Unmarried Female of previously chaste character to engage in an act of intercourse on the promise of marriage
156
M.P.C.: Seduction
A male person induces a female person to engage in an act of intercourse based on a false promise of marriage.
157
Seduction: Defense
Subsequent marriage.
There is no uniformity requiring a specific time of the marriage. It may be before the indictment, after sentence, or anywhere in between.
158
Bigamy
Marrying someone while having another living spouse
A traditional strict liability offense
158
Actus Reus: Possession of Contraband may be . . .
1. Non-Exclusive
| 2. Constructive IF the Contraband is Located in an Area within Person's Dominion and Control
159
Common Law: Defendant is Guilty of Bigamy EVEN IF Defendant reasonably believed that . . .
1. Defendant's purported divorce was valid, OR
| 2. Defendant's spouse is dead
159
Majority: Transferred Intent: IF Defendant could assert Any Defenses or Mitigating Circumstances against Intended Victim,
Defense or Mitigating Circumstances may be asserted against Unintended Victim
e.g., self-defense, provocation
160
Common Law: Larceny
The taking and carrying away
Of another's tangible, personal property
By trespass
With intent to deprive Person of his interest in the property
1. Permanently
2. For an unreasonable time
161
Common Law: Larceny can be committed ONLY by the acquisition of personal property that is . . .
1. Capable of being possessed, AND
| 2. Of some value
162
Common Law: Larceny: Realty and Severed Materials are NOT:
Subjects of larceny
163
Larceny: If something is severed from realty and taken before Landowner takes possession,
Larceny is NOT committed.
164
Larceny: IF Landowner receives possession of Severed Materials as personalty, a subsequent taking . . .
Is Larceny.
165
Larceny: Traditionally, obtaining services wrongfully . . .
Does NOT rise to Larceny.
166
Larceny: Intangibles . . .
CANNOT give rise to larceny.
167
Larceny: Gas and Electricity . . .
Are considered personal property that can be stolen.
168
Common Law: Larceny: Documents and Instruments
Merge with the matter they represent
UNLESS they have monetary value in themselves
169
Modern Statutes: Larceny: Written Instruments
Modern statutes expand larceny to include instruments embodying intangible rights.
170
Larceny: Another's Property includes
Property taken from Someone with a Superior Possessory Interest
171
Embezzlement/Larceny: IF Defendant has possession (e.g., bailee) at the time of the taking, the resulting offense . . .
Is NOT Larceny
| MAY be Embezzlement
172
Larceny: IF Defendant has "custody" of property, NOT possession, then
Misappropriation of the property is Larcency
173
Larceny: Another's Property: Custody v. Possession: Possession involves __________________________________________________.
Possession involves a much greater scope of authority to deal with property than does c
Example: A, while in a store, asks B, the Clerk, if she may take a certain suit of clothing home on approval. B consents. A then asks her to see a watch to examine it; B gives it to her. A absconds with both items. Have either of them been taken from B's possession?
Held: the watch was taken from B's possession, because A only had the authority to look at it. The suit, on the other hand, was in A's possession at the time it was misappropriated because of the extent of control B had given A over it.
174
Larceny: Another's Property: Custody v. Possession: Low Level Employees
1. Generally ONLY have Custody of Employer's Property.
2. Employee has Possession IF
1. Employer gives Employee Especially Broad Power Over
Employer's Property
2. Employee receives Property directly from Third Person
WITHOUT Employer's Intermediate Possession.
175
Larceny: Another's Property: Custody v. Possession: Bailee
Generally Bailee has Possession of Bailor's Property BUT
IF Bailee Opens Closed Containers containing Bailor's Properties (i.e., breaking bulk), the law regards that Possession returns to Bailor.
IF Bailee Misappropriates Property AFTER Breaking Bulk, Bailee is taking from Bailor's Possession.
176
Larceny/Embezzlement: Another's Property: Custody at the Time of a Taking: IF Person has Lawful Custody of Property when Person "Takes" the Property,
Person is NOT guilty of Larceny, EVEN IF Person does NOT Own the Property
Person MAY be guilty of Embezzlement
177
Larceny: Custody at the Time of a Taking: IF Owner takes Own Property WHEN Another has Lawful Possession,
Owner may be guilty of Larceny.
178
Larceny: Another's Property: Stolen Property
May be the subject of Larceny
179
Common Law: Larceny: Another's Property: Joint Property
Joint Owner CANNOT commit Larceny by taking the Jointly Held Property
180
Larceny: Another's Property: Lost or Mislaid Property
The law regards that Owner Constructively Possesses lost or mislaid property
IF lost or mislaid property is FOUND AND TAKEN, the Property is taken from Owner's Possession AND Larceny may be committed.
181
Larceny: Another's Property: Abandoned Property
Abandoned property has NO Owner; therefore, Larceny CANNOT be committed by appropriating abandoned property.
182
Larceny: Taking: It is essential that Defendant . . .
Actually Obtain Possession and Control of Property
183
Larceny: Taking: Destruction
INSUFFICIENT to constitute a Taking.
184
Larceny: Taking: Movement
INSUFFICIENT to constitute a Taking.
185
Larceny: Takings by Innocent Agents
IF Defendant obtains control of Property through the acts of Innocent Agents, a TAKING STILL OCCURS.
Example: D points out Cow and offers to sell it to X for $10. X gives D the money and takes the cow. D is guilty of Larceny.
186
Larceny: Carrying Away
1. ALL Property's Parts or Portions MUST be (slightly) MOVED
AND
2. the Movement MUST be part of the carrying away process.
187
Larceny: Trespass
Defendant must Take Property from Another's Possession OR Control in a Trespassory manner, i.e. without the consent of the person j custody or possession of the property.
188
Larceny: Trespass: Larceny By Trick
IF Victim consent to Defendant taking Possession or Custody of Property BUT the CONSENT was INDUCED BY MISREPRESENTATION, the Consent it INVALID, and the resulting Larceny is often referred to as larceny by trick.
WATCH OUT: distinguishing false pretenses
189
Larceny: Intent
At the time of taking, Defendant intended to permanently deprive Another of his property interest
190
Larceny: IF Defendant intends to deal with Property in manner involving Substantial Risk of Loss,
The intent is sufficient for Larceny
191
Larceny: IF Defendant takes goods with the intent to sell them back to the owner,
The intent is sufficient for larceny because it involves the substantial equivalent of (substantial risk of) permanent loss.
192
Larceny: If Defendant intends to return property within a reasonable time AND at the time of the taking has a substantial ability to do so,
The unauthorized borrowing does NOT Constitute Larceny.
NOTE: Many states make it a crime to joyride (borrowing a motor vehicle, even if borrower fully intends to return it)
193
Larceny: IF Defendant honestly believes she is entitled to repayment of Other's Debt AND Defendant takes Other's money or goods,
Defendant is not guilty of Larceny BUT the goods MUST be less than or equal to the amount of the debt
Rationale: Defendant believes the property is his; therefore, Defendant lacks the intent to deprive someone else of her property
194
Larceny: Intent: IF Property taken is NOT For Sale, the fact that Defendant intends to pay for it . . .
Does NOT negate the Larceny.
195
Larceny: Intent: IF Property taken is For Sale, the taking is NOT Larceny IF
Defendant has Specific AND Realistic Intent to Repay Seller.
196
Larceny: Intent: IF Defendant takes goods, intending to return them AND HOPING for a reward,
The intent is INSUFFICIENT for Larceny.
197
Larceny: Intent: IF Defendant takes goods NOT intending to return them UNLESS she is ASSURED of an Award,
The intent is sufficient for Larceny because it creates a substantial risk of loss.
198
The 4 Situations Requiring Highly Technical Application of Larceny Elements
1. Abandoned or Lost Property
2. Misdelivered Property
3. "Container" Situations
4. "Continuing Trespass" Situations
199
Larceny: Person finding lost or mislaid property can commit Larceny IF
1. Finder knows, or has reason to believe, that Finder can find out Owner's identity AND
2. At the moment Finder takes possession, Finder MUST have the intent necessary for Larceny.
200
Larceny/Embezzlement: IF Finder of lost or mislaid property takes custody without the intent to steal BUT later formulates the intent,
1. Finder has NOT committed Larceny
| 2. Finder has NOT committed embezzlement because no trust relationship exists between Finder and Owner
201
Larceny: Person accepting misdelievered property commits larceny IF
1. At the time of misdelievery, Person realizes the mistake AND
2. At the time of the acceptance of the misdelievery, Person has the intent to permanently deprive
202
Larceny: Container Cases: IF Defendant is charged with Larceny for an item Defendant discovers within another larger item or container, which Defendant legitimately possesses, the issue is
Whether Defendant already has possession at the time she appropriates the discovered item.
IF YES, NO larceny because Property was not taken from Another
IF NO, larceny
203
Larceny: Containers: IF Parties intended to transfer a container, the law regards that . . .
Recipient takes immediate possession of both the container and its contents.
Therefore, Recipient's later misappropriation of contents is NOT larceny because Recipient already has possession.
204
Larceny: Containers: IF Parties do NOT intend to transfer a container AND regard the it,s transferred as empty, the law regards that . . .
Recipient does NOT obtain possession of contents UNTIL Recipient discovers them.
IF at the time of Discovery, Recipient has the intent to permanently deprive, Recipient is guilty of Larceny
205
Larceny: a Trespassory taking WITHOUT the intent to permanently deprive,
Is NOT Larceny
206
Larceny: a Trespassory taking of property WITH a wrongful state of mind BUT WITHOUT the intent to permanently deprive AND LATER, while still in possession, the intent to permanently deprive develops,
The trespass involved in the initial wrongful taking is regarded as "continuing" AND Person is guilty if Larceny.
NOTE: Person NOT guilty of Larceny IF initial state of mind was NOT motivated by a wrongful state of mind
207
Embezzlement was NOT a Common Law Crime,
It is part of the America Common Law, a statutory misdemeanor beginning in 1799, intended to plug the gaps in the law of larceny.
208
Modern Statutes: often distinguish between grand embezzlement and petit embezzlement based on . . .
The value of the property embezzled
Grand Embezzlement = Felony
Petit Embezzlement = Misdemeanor
209
Generally, Embezzlement requires . . .
Fraudulent
Conversion
Of Another's Property
By Person in Lawful Possession of Other's Property
210
Embezzlement: Conversion requires that . . .
Defendant dealt with Property in a manner INCONSISTENT with the Trust Arrangement, pursuant to which Defendant holds the property.
211
Embezzlement: Conversion need NOT result in . . .
Defendant's Direct Personal Gain.
212
Embezzlement: Property
Usually Statutorily Defines as "property that may be subject to larceny" I.e., real property and services CANNOT be embezzled
Some relatively expansive statutes make embezzlement of real property a crime.
213
Embezzlement: IF Borrower converts money for personal use AND fails to repay Grantor,
Borrower is NOT guilty of embezzlement because embezzlement requires that converted property belongs to Another, not Convertor
214
Embezzlement: Intent
Intent to defraud
215
Embezzlement: Intent: IF Defendant intended to restore the EXACT Property take,
NO Embezzlement
216
Embezzlement: Intent: IF Defendant intended to restore SIMILAR or SUBSTANTIALLY IDENTICAL Property,
Embezzlement EVEN IF Defendant initially took money with intent to restore it with other money of identical value.
217
Embezzlement: IF Defendant honestly believes she is entitled to repayment of Other's Debt AND Defendant converts Other's Property,
NO Embezzlement. The fact that Defendant retained Property openly tends to establish a claim of right
218
Embezzlement: IF a conversion of property clearly occurred, Victim . . .
Need NOT make a demand that it be returned.
219
Embezzlement: IF a conversion of property doubtfully occurred, it may be necessary that . . .
1. Owner demanded return
| 2. Defendant refused to return
220
Minority States: Embezzlement: Limitation
The fraudulent conversion of property "entrusted" or "delivered" to Embezzler.
Therefore, IF Person finds lost property and fraudulently converts it, while in lawful possession, Person is NOT guilty of embezzlement.
221
Generally, False Pretenses Requires . . .
Obtaining Title
To Another's Property
By an intentional (minority: knowing) false statement of past ot existing fact
With intent to defraud
222
False Pretenses v. Larceny:
IF Defendant obtains only custody . . .
IF Defendant obtains title . . .
1. Larceny by trick
2. False Pretenses
NOTE: what is obtained depends upon Victims intentions to Convey
223
False Pretenses/Larceny by Trick: IF Defendant knows that Victim holds a mistaken belief, Defendant's failure to correct the mistaken belief is NOT misrepresentation IF
1. Defendant was NOT responsible for creating the mistaken belief OR
2. Defendant has NO fiduciary duty to the aggrieved party
224
False Pretenses/Larceny by Trick: Defendant must have created
A false impression as to the matter of fact
225
False Pretenses/Larceny by Trick: IF Defendant's statements constitute only an opinion or puffing, Defendant's statements . . .
Are NOT misrepresetations
226
False Pretenses/Larceny by Trick: Traditionally: Defendant's misrepresentation MUST have related to . . .
A past or present fact
False promises were NOT sufficient
227
False Pretenses/Larceny by Trick: M.P.C./Majority: ANY false representation . . .
Is suffice to constitute a misrepresentation, including false promise to perform.
228
False Pretenses: Victim MUST actually . . .
Be deceived by, or act in reliance on, the misrepresentation AND
the deception or action must be a major factor (or sole cause) of Victim passing title to Defendant
229
False Pretenses: Intent to Defraud: Depending on the statute involved, Defendant MUST have
1. Known the statement was false OR
2. Intended for a victim to rely upon the misrepresentation OR
3. Subjected Victim to a risk of loss
230
False Pretenses: Majority State: Defendant knows of a statement's falsity IF
Defendant deliberately avoided learning the truth, AFTER Defendant was put on notice of the high probability of the statement's falsity
231
Majority State: Bad Check Legislation
Resembles False Pretenses, but its a separate statutory crime prohibiting tendering no-account or insufficient funds checks with the intent to defraud.
232
Majority State: Abuse or Misuse of Credit Card Legislation
Resembles False Pretenses, BUT it's a separate statutory offense (misdemeanor) to
Knowingly obtain property by a means of a stolen, forged, canceled, revoked, or otherwise unauthorized credit card
233
Robbery requires. . .
```
A taking
Of Another's Personal Property
From Other's Person or Presence
By force or intimidation
With intent to permanently deprive
```
234
Robbery is . . .
A felon in ALL jurisdictions and
| Basically aggravated larceny, in which the taking is accomplished by force or threats of force,
235
Robbery: IF force is used, it MUST be
Sufficient to overcome Victim's resistance.
236
Robbery: IF threats are used, they MUST be
Threats of immediate death or serious physical injury to Victim, Victim's Family/Relative, or Present Person.
Threats to damage property are INSUFFICIENT UNLESS the threat is to destroy Victim's dwelling
237
Robbery: Property MUST be taken from . . .
Some location reasonably close to the victim (within Victim's vicinity)
IF Victim is within a house, Any property also within the house is in Victim's presence
238
Robbery: the use of force or threats MUST must be used to . . .
1. Gain possession of the property OR
| 2. Retain possession immediately after gaining possession
239
Majority State: Aggravated Battery
Battery accomplished with a deadly weapon
240
Common Law: Extortion
Misdemeanor
The corrupt collection of an unlawful fee by an officer under color of his office.
241
Majority Trend: Extortion/Blackmail
Obtaining property from another by means of certain oral or written threats, usually threats to
1. Cause physical harm to Victim or Others
2. Damage Victim's Property
242
Split View: Extortion: Completion
1. Crime complete when threats are made with intent to obtain money or something of value (threat = essence of offense)
2. Crime complete when money or property actually obtained because of the threats
243
Extortion: Threats do NOT need to involve
Immediate or physical harm
244
Extortion: Property generally does NOT need to be obtained from
victim's presence or person
245
Common Law: Receipt of Stolen Property
Misdemeanor
Substantially identical to modern offense
246
Receipt of Stolen Property requires . . .
```
Receiving possession and control
Of stolen personal property
Known to have been obtained in a manner constituting a criminal offense
By Another Person
With intent to permanently deprive Owner
```
247
Modern Law: Extortion
Generally expanded far beyond its initial common law definition
248
Receipt of Stolen Property: Possession and Reciving
Possession is sufficient for receiving, BUT NOT necessary.
249
Receipt of Stolen Property: Receiving
1. Manual Possession OR
2. Thief places Stolen Property in Place Designated By Defendant OR
3. For Profit, Defendant arranges for Thief to sell stollen property directly to Third Party
250
Majority Trend: Receipt of Stolen Goods: "Stolen"
Defined broadly to included property obtained by commission of any of the property offenses BUT the property MUST have stolen status at the time it is received by Defendant
251
Receipt of Stolen Property: IF Police recover Stolen Goods AND use them in an undercover operation WITHOUT owner's permission, the goods . . .
Are NOT stolen AND Defendant CANNOT be guilty of receipt of stolen property
BUT
Defendant MAY be guilty of attempt to receive stolen goods
252
Majority Trend: Theft
Theft = modern statutory crime
The consolidation of larceny, embezzlement, false pretenses, and receipt of stolen goods.
253
Majority Trend: Larceny and other Property Offenses are expanded to cover . . .
Services, documents, intangibles, and joint property
254
Minority Trend: reject the requirement of absorption for Larceny and require only that . . .
Control of the proper be obtained
255
Minority Trend: simplify trespass requirement for Larceny
Defendant only needs to obtain unauthorized "control" over the property
256
Common Law: Forgery
Making or Altering
Of a False Writing
With Intent to Defraud
257
Common Law: Uttering a Forged Instrument
Offering as genuine
A false instrument (may be forged)
With Intent to defraud
258
_________________________________ is a potential subject of forgery.
Any writing that has apparent legal significance
Writing = typewritten, printed, engraved, and other similar material
259
_________________________________________ CANNOT be the subject for Forgery
Writings that derive their value from the mere fact of their existence (I.e., historical or artistic value)
260
Forgery: False Statement
The writing MUST represent itself to be something it is not.
It is INSUFFICIENT that a writing merely contains a false statement.
261
Forgery: Making
Forgery can be committed by the making of an entire instrument
262
Forgery: Alteration
Forgery may be committed by altering an existing instrument, IF the alteration is material (affecting legal rights)
263
Forgery: Alteration may be in the form of . . .
1. Changing some of the writing
2. Adding to the existing writing
3. Removing some of the existing writing
4. Improperly filling in blanks
264
Forgery: IF Defendant fraudulently causes Third Person to sign a document that Third Person does NOT realize he is signing,
Forgery has been committed
265
Forgery: IF Defendant fraudulently causes Third Person to sign a document AND Third Person realizes he is signing the document,
Forgery has NOT been committed, EVEN IF induced by fraud
266
Forgery: Intent
Intent to defraud BUT no one actually needs to be defrauded
Intention if pecuniary harm is NOT necessary
Intention of ANY harm is sufficient
267
Common Law: Malicious Mischief
Misdemeanor
Malicious
Destruction of OR Damage to
Another's Property
268
Common Law: Malicious Mischief: Damage
Only necessary that some physical damage be done, which
1. impairs the utility of the property OR
2. materially diminishes Property's value.
269
Common Law: Malicious Mischief: Intent
Malice, which requires that the damage or destruction was contemplated or intended by Defendant
Malice does NOT require ill will or hatred
270
Common Law: Burglary
Breaking and Entering
Another's Dwelling
At nighttime
With Intent to commit a felony therein
271
Common Law: Burglary: Breaking
Actual breaking requires the use of some force to gain entry BUT minimal force is sufficient (i.e., opening a closed door)
272
Common Law: Burglary: Breaking: IF force is used to enlarge an opening so that entry can be made,
Traditional Rule: NO breaking
| Better View: Breaking occurred because force was used to gain entry
273
Common Law: Burglary: Constructive Breaking
Gaining entry by means of
1. Fraud
2. Threat
3. Intimidation
4. A Chimney
274
Common Law: Burglary: Breaking: IF Defendant has Resident's consent to enter,
The use of force to gain entry is NOT a breaking because breaking requires trespass.
275
Common Law: Burglary: Breaking: IF Defendant has consent to enter during limited times,
Entry by force at other times IS a breaking
276
Common Law: Burglary: Breaking of the Dwelling
The breaking MUST effect entry into the structure or some separately secured us portion.
Sufficient: Defendant broke to enter a closed closet or wall safe
Insufficient: Defendant breaks open a box or trunk within dwelling
277
Common Law: Burglary: Breaking: IF Defendant hides in a dwelling with the intent to commit a felony, and then breaks to get out of the dwelling,
There is NO Burglary because the breaking must be to gain entry
278
Common Law: Burglary: Entry
Entry is made by placing any portion of the body inside the structure, even momentarily
279
Common Law: Burglary: Entry: IF a tool or inanimate object is inserted into the structure,
Entry occurs IF it was inserted for the purpose of accomplishing the felony (i.e., shooting bullet through window)
Entry does NOT occur IF it is inserted for the purposes of gaining entry
280
Common Law: Burglary: Dwelling
A structure regularly used for sleeping purposes
281
Common Law: Burglary: Dwelling: IF a structure is used for both sleeping and other purposes, i.e., conducting business,
The structure remains a dwelling
282
Common Law: Burglary: Dwelling: Temporary Absence
Temporary absence of the dwellers within the dwelling does NOT deprive the dwelling of its character as a dwelling
283
Common Law: Burglary: Dwelling: BEFORE Dweller moves in, EVEN IF the structure was built to be a dwelling,
The structure is NOT a dwelling
284
Common Law: Burglary: Dwelling: AFTER last dweller moves out with NO intent to return
The dwelling looses its character as a dwelling.
285
Common Law: Burglary: Another's Dwelling: Occupancy v. Ownership
Occupancy is material
Owners can commit burglary of his own structure IF others rent and use the property as a dwelling
286
Common Law: Burglary: Nighttime
The period during which the countenance of a person could not be discerned by natural light
287
Common Law: Burglary: Intent
At the time of entry, Defendant MUST have intended to commit a felony
It is not necessary that the intent be carried out.
IF intent is formed after entry, then NO burglary
288
Majority Trend: Burglary: Breaking
In many jurisdictions, it is sufficient that Defendant entered the structure, EVEN IF Defendant did NOT break to gain entry
289
Majority Trend: Burglary: Breaking: Remaining in a Structure
It is often burglary to remain concealed I'm a structure with the intent to commit an felony
290
Majority Trend: Burglary: Dwelling/Structures
The description of structures that can be burglarized are often expanded beyond dwellings and sometimes beyond structures to include yards and cars
291
Majority Trend: Burglary: Nighttime
The requirement that entry be at nighttime is often ABANDONED
BUT Burglary at nighttime is often assigned a more severe penalty than other burglaries.
Nighttime is often defined by statutes as sunrise and sunset
292
Majority Trend: Burglary: Intent
The intent to commit a felony is is often expanded, making it sufficient for Defendant to intend to commit ANY theft, EVEN misdemeanor thefts
293
Common Law: Arson
The malicious
Burning
Of Another's Dwelling
294
Common Law: Burning/Damage
The required damage MUST be caused by fire
damage caused by an explosion does NOT constitute arson
295
Common Law: Burning: Scorching v. Charring
Mere blackening by smoke or discoloration by heat ("scorching") is INSUFFICIENT
There MUST be some damage t the fiber of the wood or other combustible material; therefore, mere "charring" is sufficient.
Destruction or significant damage to the structure is not required
296
Common Law: Arson: Dwelling
Defined the same was a dwelling for burglary
Before dweller moves in and after dweller moves out with no intent return, NO Dwelling
Dwelling may be used for other purposes than sleeping
Temporary absences do NOT negate characteristic of dwelling
Occupancy is material: Owners can commit arson of his own structure IF others rent and use the property as a dwelling
297
Majority Trend: Arson: Dwelling
Most states, by statute, extend arson to structures other than dwellings
NOTE: questions testing onto her arson issues, i.e. malice, often assume without saying that the jurisdiction's arson law applies to structures other than dwellings
298
Common Law: the burning of One's own house is
The misdemeanor of "house burning" IF other dwellings were nearby
299
Common Law: Arson: Intent
Malice, all that malice requires is that Defendant acted with
1. intent or knowledge that the structure would burn, OR
2. reckless disregard of an obvious risk that the structure would burn.
No specific intent is required, BUT it is NOT sufficient that the burning was accidental, EVEN IF Defendant was negligent
300
Common Law: House Burning
Misdemeanor
```
Malicious
Burning
Of One's Own Dwelling
IF the structure is located
1. In a city or town
2. So near to other houses as to create a danger to them
```
301
Common Law: Arson: Intent to defraud Insurance Company
NOT arson to burn one's own dwelling for the purpose of fraudulently collecting the insurance
302
Majority Trend: Arson: Intent to defraud Insurance Company
Modern Statutes often make it an offense to burn one's own dwelling for the purpose of fraudulently collecting the insurance.
303
Majority Trend and M.P.C.: Expanding Criminal Lability for Arson
The definition of arson is expanded to include
1. damage caused by explosion
2. Other types of property, including commercial structures, cars, and trains
304
Common Law: Perjury
The willful and corrupt taking of a false oath in regard to a material matter in a judicial proceeding
305
Common Law: Perjury: Materiality
Materiality MUST be alleged in the indictment AND proved by the prosecution
Material Statements = Statements that might affect some phase or detail of the trial, hearings declaration, etc.
306
Common Law: Perjury: Contradictory Statements
IF Witness makes two contradictory statements at the same proceeding AND admits that one of the statements is false BEFORE the end of the proceeding, Witness CANNOT be prosecuted for Perjury because we want witnesses to correct any false statement before substantial damage is caused
307
Perjury: Civil Liability: Litigation under the Civil Rights Act, ALL Witnesses . . .
are completely immune from civil liability based on their testimony in judicial proceedings. Briscoe v. LaHue, U.S. (1983)
308
Common Law: Subornation of Perjury
Procuring or inducing another to commit perjury.
Minority States: NOT part of the perjury statute
309
Common Law: Bribery
The corrupt payment OR Receipt of anything of value in return for official action
310
Modern Law: Bribery
1. Can be a felony
2. May be extended to classes of persons who are not public officials (e.g. Athletes)
3. Offering OR Taking a bribe may constitute the crime
311
Bribery: Mutual Intent
NO mutual criminal intent, JUST ONE PERSON
312
Minority: Bribery: Failure to Report
Some states make the failure to report a bribe a misdemeanor offense.
313
Common Law: Compounding a Crime
Entering into an agreement for valuable consideration to
1. not prosecute another for a felony or
2. conceal the commission of a felony or
3. conceal the whereabouts of a felon
314
Modern Law: Compounding a Crime
The definition remains essentially the same BUT it applies to ANY crime, NOT just felonies
Minority: Felony Offene
315
Common Law: Misprison of a Felony
Person fails to disclose OR report knowledge of the commission of a felony
Person IS NOT Principal OR Accessory Before the Fact
NO consideration
316
Majority: Misprison of a Felony
Today, most jurisdictions do not recognize the crime of misprison of a felony; therefore, People have NO obligation to report crimes
317
Offenses against the Person
1. Assault
2. Battery
3. Mayhem
4. Homicides
5. False Imprisonment
6. Kidnapping
318
Sex Offenses
1. Rape
2. Statutory Rape
3. Crimes Against Nature
4. Adultery
5. Fornication
6. Incest
7. Seduction or Carnal Knowledge
8. Bigamy
319
Property Offenses
1. Larceny
2. Embezzlement
3. False Pretenses
4. Robbery
5. Extortion
6. Receipt of Stolen Property
7. Forgery
8. Malicious Mischief
320
Offenses against the Habitation
1. Burglary
2. Arson
3. House Burning
321
Offenses Involving Judicial Procedure
1. Perjury
2. Subornation of Perjury
3. Bribery
4. Compounding a Crime
5. Misprison of a Felony
