MBE Crim Flashcards
CL Arson damage necessary
In order for a fire set in a dwelling to be arson, there must be some damage (e.g., charring) to the structure of the dwelling. Smoke damage alone is insufficient. Answer choice B is incorrect because, unlike burglary, arson does not require that defendant enter the structure with the intent to commit a crime.
CL conspiracy (unilateral okay?)
At common law, to be guilty for a conspiracy, there must have been an agreement between two parties. When only one conspirator has the intent to agree, such as when the other conspirator is a governmental agent there is no conspiracy, unless another participant is involved. Here, only one of the two parties involved had a true intent to agree to the crime. Accordingly, conspiracy could not properly be charged.
WIthdrawal from conspiracy at CL
At common law, withdrawal is NOT a defense to conspiracy because the conspiracy is complete as soon as the parties enter into the agreement. Accordingly, as soon as the man and his friend agreed to kill the man’s wife, the conspiracy was complete. Remember that, unless the fact pattern specifically indicates otherwise, the common-law rule for conspiracy applies on the MBE.
Accessory after the fact
generally
and, does the principal need to be convicted?
Incorrect: Answer choice D is correct. A person who aids or assists a felon to avoid apprehension is an accessory after the fact. If the purpose of the defendant’s move was to assist the lumberjack to avoid apprehension, then she is an accessory after the fact. Answer choice A is incorrect because the principal need not be convicted for the accessory to be charged. Answer choice B is incorrect because an accessory after the fact, by definition, renders aid to the defendant after the completion of a crime. Answer choice C is incorrect because the defendant would have to know about the child abuse (not the indictment) to be an accessory.
Remember what merges into what, and choose the OR option
Larceny into Robbery
Assault into Robbery
Rape - fraudulent inducement of consent?
Fraudulent conduct does not negate consent in most situations. Here, the man induced the woman to consent to sexual intercourse through false promises–“fraud in the inducement”–but that, standing alone, does not negate consent under the common law. Here, the man made false promises to obtain consent, but did not conceal the actual nature of the act; consequently, the fraud was in the inducement, not in the factum.
A defendant decided to kill his attorney. He set out for the attorney’s house. Before he got there he saw the broker, who resembled the attorney. Thinking the broker was the attorney, the defendant shot at the broker. The shot missed the broker, but wounded the chauffeur, who was some distance away. The defendant had not seen the chauffeur.
In a prosecution under a statute that proscribes attempt to commit murder, the district attorney should indicate that the intended victim(s) was (were): A. the attorney only. B. the broker only. C. the chauffeur only. D. the attorney and the broker.
POINT: murder is not a specfic intent crime, therefore ATTEMPTED murder should be in reference to whom was actually shot at, rather than the intended victim
Answer choice B is correct. Murder is the unlawful killing of a human being committed with malice aforethought. Attempt is a substantial step in the direction of committing a crime, coupled with the specific intent to commit the crime. The defendant had the intent to kill the attorney and mistakenly thought that the broker was the attorney. Mistake of fact is a defense to any specific intent crime, even if the mistake is unreasonable, if the mistake negates the defendant’s requisite intent. Answer choice B is the best answer choice because the defendant, by aiming and shooting at the broker, shows the requisite intent to kill the person whom he shot and has taken a substantial step towards the commission of that crime. Answer choice A is incorrect and not the best choice because, although the attorney was the original intended victim, he was not present at the time of the shooting. Additionally, the defendant’s actions in setting out for the attorney’s house do not amount towards a substantial step towards the murder. Answer choice C is incorrect because there was no intent to murder the chauffeur. Answer choice D is incorrect even though it alludes to the issue of transferred intent, because the specific intent requisite for an attempted murder charge would still have to be established. As set forth above, the defendant did not take a substantial step towards the murder of the attorney.
Majority Rule Conspiracy - Withdrawal?
Conspiracy is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose. Under the majority rule, a conspiracy does not exist until an overt act has occurred, and withdrawal is possible between the date of the agreement and the commission of the overt act. In order to withdraw, notice must be communicated to the other co-conspirators, or the police must be advised of the existence of a conspiracy in a timely manner. Upon completion of the overt act (here, renting the van), the conspiracy is formed, and withdrawal is no longer possible.
Accomplice libaility
An accomplice is a person who, with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime and is present at the commission of the offense. An accomplice is responsible for the crime to the same extent as the principal. To legally withdraw (and therefore avoid liability for the substantive crime), the accomplice must REPUDIATE prior aid or do all that he can to negate the prior assistance before the crime is put into motion. A mere change of heart after the crime is put into motion is ineffective, as notification to the legal authorities must be timely and directed toward preventing others from committing the crime. In this case, the friend did not effectively withdraw as an accomplice or co-conspirator until after the man had the van in front of his brother’s house, and the friend did not immediately notify the police so as to prevent the crime. Accordingly, he would be guilty of larceny as both co-conspirator and accomplice.
SHIT, go with your instinct, threat to others in Robbery
A husband and wife were walking to their car one evening after having seen a movie. As they were passing a dark alleyway, the defendant leaped out brandishing a gun. He pushed the wife against the wall of a nearby building, held the gun to her head, and demanded money from the husband. The husband handed over his cash. The defendant grabbed the cash and ran away.
Which of the following, listed in descending order of seriousness, is the most serious crime for which the defendant may be convicted?
A. Robbery from the husband.
B. Larceny from the husband.
Answer choice A is correct. Robbery is larceny from a person by force or intimidation. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal. Assault is an attempt to commit a battery, or intentionally placing a victim in apprehension of receiving an immediate battery. Here, robbery is the most serious crime for which the defendant may be convicted. The defendant demanded money from the husband while threatening the wife. The act of brandishing the gun and pointing it at the wife is enough to constitute intimidation. Answer choices B, C, and D are incorrect because the call of the question requests the most serious crime for which the defendant may be convicted and robbery is the most serious offense listed. Additionally, larceny and assault both merge into robbery so the defendant could not be convicted of either of those and robbery.
Duty to retreat before use of nondeadly force
NONE! even in retreat jx
MPC conspiracy
the Model Penal Code, by defining conspiracy as requiring agreement by the defendant but not by two or more persons, adopts a unilateral interpretation of conspiracy. This is a minority view, but the question specifically indicates that it applies.
Taking $ from coconspirator
Two counts of larceny!
In this case, although the colleague did not actually take the money from the supervisor, he aided and abetted the teller in larceny by transferring the money to the car, and thus would be guilty to the same extent as the teller. The colleague also committed larceny against the teller, as stolen property taken from a thief can constitute larceny. That is, a second thief is guilty of larceny when he steals the property from the first thief, unless the second thief had superior possessory interest in the property.
Burglary
unlawfully entered the neighbor’s house at night with intent to commit a felony (larceny
Merger
larceny assault and battery all merge into robbery!
