MBE KAPLAN--CRIM LAW Flashcards
1
Q
A defendant had an argument with his neighbor. As they were quarreling, the defendant pulled out his penknife intending only to frighten the neighbor. The defendant accidentally slightly nicked the neighbor’s arm with the knife. Unknown to the defendant, his neighbor was a hemophiliac who then died from the cut.
What is the most serious crime that the defendant can be convicted of?
(A) Murder.
(B) Voluntary manslaughter.
(C) Involuntary manslaughter.
(D) Battery.
A
- (C) Choice (C) is the correct answer. Remember the distinction between voluntary and involuntary manslaughter. Voluntary manslaughter involves the intentional killing of another in the “heat of passion” brought about by adequate provocation. Provocation is adequate if it would cause a reasonable person would to lose self-control. Except for the mitigation of this objectively reasonable emotional condition, the intentional killing would be murder. On the other hand, involuntary manslaughter is an unintended homicide where there is an unlawful killing in the commission of an unlawful act not amounting to a felony. Here we have a battery (a misdemeanor at common law) that results in an unintended death. The most serious crime that the defendant can be convicted of is involuntary manslaughter. Choice (A) is incorrect because the defendant only intended to frighten his neighbor (an assault) and did not intend to kill him or to inflict great bodily harm; because there is no malice, the defendant cannot be convicted of murder. Choice (B) is incorrect because this was not an intentional killing. Choice (D) is incorrect. While there was, in fact, a battery, the victim died, and the question prompt asks the student to identify the most serious crime for which the defendant can be convicted.
2
Q
- A defendant wished to see his high school basketball team win the state championship. During an important game, the defendant pulled out a gun and shot at the leg of a key player on the opposing team. The defendant intended only to inflict a slight wound so that the opposing player would be unable to complete the game. When the defendant fired the shot, he unintentionally hit a player on his own high school team in the chest, killing him instantly.
What is the most serious crime that the defendant can be convicted of?
(A) Murder.
(B) Voluntary manslaughter.
(C) Involuntary manslaughter.
(D) Battery.
A
- (A) At common law, murder is the unlawful killing of another human being with malice aforethought. Malice is found where there was intent to kill, intent to inflict serious bodily harm, reckless indifference to human life, or a death caused during the commission of a dangerous felony. Although the defendant may have intended only to cause serious bodily harm, his actions did, in fact, cause the death of another human being. Such a killing is murder unless justified, excused, or mitigated. The fact that the defendant shot the “wrong” basketball player would not change the outcome, because he was aware (or should have been aware) that the shooting created a serious risk of death or grave bodily harm. Therefore, the malice is present, and the defendant can be convicted of murder, since there is no mitigation, justification, or excuse. Choice (B) is incorrect because voluntary manslaughter involves the intentional killing of another in the “heat of passion” brought about by adequate provocation. Provocation is adequate if it would cause a reasonable person would to lose self-control. There is no adequate provocation here. Choice (C) is incorrect because a homicide will be classified as murder where there is intent to cause serious bodily harm, which was the case here. Choice (D) is incorrect because the victim died.
3
Q
- A defendant hated his boss, who had recently demoted him to a less prestigious position. Late one afternoon, the defendant saw his boss walking down the hallway. The defendant pulled out a gun and fired four shots at his boss. Although none of the bullets directly hit his boss, one of the shots ricocheted against a wall and struck the boss in the head, killing him instantly.
What is the most serious crime that the defendant can be convicted of?
(a) Murder.
(b) Voluntary manslaughter.
(c) Involuntary manslaughter.
(d) Battery.
A
- (A) This is an example of a “depraved-heart” killing. Be aware of the following types of conduct that have been held to involve a very high degree of unjustifiable risk to human life, upon which to ground a “depraved-heart” murder conviction: (1) firing a bullet into a room which that the defendant knows is occupied by several people; (2) shooting into a caboose car of a passing train or into a moving automobile, necessarily occupied by human beings; (3) throwing a beer glass at one who is carrying a lighted oil lamp; (4) playing a game of “Russian roulette” with an other person; (5) shooting at a point near, but not aiming directly at, another person; (6) driving a car at very high speeds along a main Street; (7) shaking an infant so long and so vigorously that it cannot breathe. Choice (B) is incorrect because voluntary manslaughter involves the intentional killing of another in the “heat of passion” brought about by adequate provocation. Provocation is adequate if it would cause a reasonabLe person would to lose self-control. The defendant’s hatred for his boss does not constitute adequate provocation on these facts. Choice (C) is incorrect because the defendant’s reckless indifference to human life constitutes malice for the purposes of common law murder. Choice (D) is incorrect. While there was, in fact, a battery, the victim died, and the question prompt asks the student to identify the most serious crime for which the defendant can be convicted.
4
Q
- An owner of a 3-story building, with apartments on the top two floors and a convenience store and gas station on the ground floor, resides with his family in one of the second-floor apartments. One day, a truck driver pulled into the gas station for some gas. After filling up the gas tank, the truck driver entered the convenience store for a bite to eat. He was eating a bowl of chili when he noticed a cockroach in the food. The truck driver demanded a new serving of chili. When the owner refused, the truck driver stormed out of the store in anger.
The truck driver jumped into his truck and decided to get even by causing some damage. He purposely drove into one of the gas tanks, which ruptured the gas line. The collision caused a terrible explosion and the building became engulfed in flames. The owner could not escape the blaze and burned to death.
At common law, the truck driver should be found guilty of
(A) arson only.
(B) murder only.
(C) arson and murder.
(D) arson, burglary, and murder.
A
- (C) Extremely negligent conduct which that creates an unjustifiable but also a very high-degree risk of death or serious bodily injury to another or to others (though unaccompanied by any intent to kill or do serious bodily injury), and which that actually causes the death of another constitutes “depraved-heart” murder. By deliberately driving his truck into a gas tank, the truck driver’s conduct created an unreasonable risk of causing death or serious bodily injury. Consequently, he will be guilty of “depraved-heart” murder for the death that resulted, even though he did not intend to kill, only to cause some damage to the owner’s property. In addition, he will be guilty of arson, defined as the malicious burning of the dwelling house of another. The truck driver’s reckless conduct satisfies the malice requirement. Since the owner and his family resided in the second-floor apartment of the convenience store, it will qualify as a dwelling house. Note: on a bar exam essay question, students should also discuss the truck driver’s criminal liability under the felony-murder rule. Answer choices (A) and (B) are incorrect because, as discussed above, he will be found guilty of both arson and murder. Choice (D) is easily eliminated because the truck driver did not break and enter the convenience store with the intent to commit a felony therein.
5
Q
- A city has enacted an anti-noise statute that “prohibits amplification devices operated in public places which emit loud and raucous noises.” The municipality passed the law to protect the quiet and tranquility of its residents and to avoid distractions to traffic.
A high school student was driving in his car and listening to punk music on his car stereo system, which included a set of 12-inch subwoofers mounted in the rear. As the student drove past the high school, he turned up the volume to its highest level. A police car drove alongside the student and, hearing the loud and raucous music; the police officers arrested the student and charged him with violating the anti- noise statute.
Before the student was brought to trial, the highest court in the state ruled the statute unconstitutional as vague and overbroad. As a result, the charges against the student were dropped, and his case was dismissed. Thereafter, the district attorney’s office decided to prosecute the student for violating a state attempt statute.
The attempt statute provided that legal impossibility was no defense. Thereupon, the student was charged with attempting to violate the anti-noise statute. At trial, the student took the stand to testifi on his own behalf. He testified that when he was arrested, he had purposely turned up the stereo to its highest level because his favorite song was playing.
Will the student be found guilty of violating the attempt statute?
(A) Yes, because he possessed the requisite intent.
(B) Yes, because dismissal of the initial charge was not a final judgment and, therefore, double jeopardy does not attach.
(C) No, because double jeopardy precludes prosecution for attempt after the initial prosecution was dismissed.
(D) No, because a defendant cannot be retried for attempted commission of a crime that has been ruled unconstitutional by a state’s highest court.
A
- (A) The crime of attempt consists of: (1) an intent to commit the “target” offense, and (2) a “substantial step” in the furtherance of the crime. At common law, legal impossibility (but not factual impossibility) was a defense to attempt. The key to this question, however, is recognizing that legal impossibility is not a valid defense under this jurisdiction’s attempt statute. Therefore, the student can be found guilty of attempt despite the fact that the “target” offense (i.e., the anti-noise statute) has been ruled unconstitutional. Choice (B) is a true statement, but that is not a sufficient explanation of why there should be guilt for this attempt. Choice (A) is a better answer than choice (B) because it addresses part of the reason why the defendant should be found guilty. All choice (B) does is explain to you that he could be found guilty without giving any explanation why. Choice (C) is wrong because double jeopardy does not attach. Double jeopardy prohibits re-prosecution for a crime after there has been a final judgment (such as a conviction or acquittal). A dismissal of the initial charge does not constitute a final judgment. Choice (D) is an attractive answer because at common law, this attempt crime would be legally impossible because the law the student attempted to violate is unconstitutional. However, it is wrong, because, as discussed above, the statute legal impossibility is no defense. The common law rule does not support this result. It only works only in the closed universe where the hypothetical statute applies.
6
Q
- Two college students were members of the same fraternity. During a fraternity party, the defendant pulled out a gun, pointed it at the other student and said, “Beg for your life, sucker.” The student, who knew that the defendant had a reputation as a practical joker, said, “Get lost, you jerk.” The defendant then pulled the trigger and shot the student to death.
A statute in this jurisdiction provides: “Any intentional and premeditated killing with malice aforethought is murder in the first degree. Murder in the second degree is any killing that occurs during the commission or attempted commission of a serious or inherently dangerous felony. Manslaughter includes all other types of unlawftil homicide and unjustifiable killings.”
The defendant was subsequently prosecuted for killing the student. At trial, the defendant testified that a fellow fraternity member gave him the gun before the shooting and told him that it was unloaded.
If the jury believes the defendant, it should find him
(A) guilty of assault, but not murder or manslaughter.
(B) guilty of manslaughter.
(C) guilty of second-degree murder.
(D) guilty of first-degree murder.
A
- (B) This question requires that the reader properly interpret and apply the statute provided in the fact pattern. On the MBE, the Common Law rule will generally apply, unless the fact pattern or question stem triggers application of a different rule. Here, the statute provided makes choice (B) the best answer. Choice (A) is incorrect because, although the defendant only intended an assault (putting the student in fear of being shot), the victim died. Choice (B) is a better answer than choice (A) because the defendant is guilty of manslaughter which, in this jurisdiction, includes “all other types of unlawful homicide.” This definition thus encompasses misdemeanor-manslaughter, which covers assault or battery causing death situations. At common law, assault and battery were misdemeanors, and any-time the crime of assauLt (or battery) causes an unintentional killing, the defendant is guilty of misdemeanor-manslaughter. Choices (C) and (D) are wrong because the killing was not premeditated or committed during the commission of a serious felony.
7
Q
- One afternoon, a man was driving his car in the downtown section of a city. Already late for a ‘onsiness appointment, he was becoming very upset because of the heavy traffic. Suddenly, he decided to drive his car along the sidewalk to avoid the traffic jam. While he was speeding down the sidewalk, people were hastily scurrying to avoid his car. His car struck a pedestrian, who had tripped trying to get out of his way, killing her.
Which of the following is the best theory regarding the man’s criminal liability?
(A) Felony murder, because he was committing an assault with a deadly weapon.
(B) Transferred intent, because one is presumed to intend the natural and probable consequences of his acts.
(C) Intentional killing, because the man’s conduct was a substantial factor in causing the pedesthan’s death.
(D) Commission of an act highly dangerous to life, without an intent to kill but with disregard for the consequences.
A
- (D) Extremely reckless conduct, which creates what a reasonable person should recognize as an unjustiflably high degree of risk of death or serious bodily injury to another, constitutes “depraved-heart” murder when that conduct causes the death of another, even though there was no intent to kill or do serious bodily injury. Choice (A) is incorrect. It’s attractive because assault with a deadly weapon would constitute aggravated assault; a felony at common law and potential grounds for a felony murder charge. However, no facts say that the man was committing an assault. He was not trying to put the pedestrian in imminent fear of harm; he drove on the sidewalk to avoid a traffic jam. Choice (B) is incorrect because the doctrine of transferred intent cannot apply here because the man never intended to strike anyone with his car. Choice (C) is wrong. Intent to kill cannot be inferred from the fact that the man’s conduct caused the pedestrian’s death.
8
Q
- A woman was employed as a sales clerk at a department store. She worked in the women’s lingerie section. One evening around closing time, the woman took a diamond necklace from a cabinet
in the jewelry section of the department store and wrapped it in tissue paper. The woman then surreptitiously stuffed the necklace in a shopping bag, intending to remove it when she left the store. Moments later, the store owner approached the woman and told her she needed to stay late in order to do inventory. While the woman was completing inventory, the owner discovered the necklace and called the police.
The woman is most likely guilty of
a. attempted larceny.
b. larceny.
c. false pretenses.
d. embezzlement.
A
- (B) There are many key distinctions that are repetitively tested on the MBE. Surely, in the area of Criminal Law, students can anticipate being tested on the following distinctions: depraved-heart murder / involuntary manslaughter; larceny / embezzlement; Larceny by trick I false pretenses; attempt I conspiracy; Legal impossibility / factual impossibility; robbery I extortion; mistake of law / mistake of fact. This question tests another popular distinction: larceny I embezzlement. The key to the distinction is that larceny is a crime against possession, and embezzlement is a crime against ownership. For bar exam purposes, remember that lower echelon employees (janitors, secretaries, drivers) will usuaLly have mere custody over their employer’s property, so they are usually guilty of larceny when they steal. On the other hand, higher echelon employees (office managers and corporate officials) are often deemed to be in lawful possession of their employer’s property. Thus, when they steal, their crime is usually embezzlement. Here, the woman, as a low-leveL employee, has no right to possess the necklace (not even temporarily), so she was guilty of larceny when she took it from the cabinet with the intent to keep it. Answer choice (A) is wrong because the crime was complete when she took the necklace from the jewelry cabinet with the intent to steal. Choice (C) is incorrect because there was no misrepresentation of a material fact. Choice (D) is incorrect because, as stated above, the defendant did not have lawful possession.
9
Q
- A defendant met her friend at the electronics store where the friend worked. Unbeknownst to the defendant, her friend had taken a music player from the display case and stuffed it in her bag earlier in the day. Knowing that employees are subject to search when they leave the store, the friend surreptitiously put the music player into the defendant’s bag.
The defendant and her friend proceeded to a local tavern and drank shots of tequila. The friend became intoxicated and forgot to retrieve the stolen music player from the defendant’s bag. After leaving the tavern, the defendant proceeded home. Upon opening her bag, she was surprised to see the music player. Believing that the music player had accidentally fallen into her bag at the bar, the defendant planned to return it the next day. The following day, however, the defendant changed her mind and decided to keep it.
The defendant is guilty of
(A) receiving stolen property.
(B) larceny.
(C) receiving stolen property and larceny.
(D) neither receiving stolen property nor larceny.
A
- (D) One of the most important rules in Criminal Law is the requirement ofa concurrence of mens rea and actus reus. The defendant found the music player in her bag when she returned home from the bar. Believing that the music player had accidentally fallen into her bag, she initially intended to return it. Choice (A) is wrong because, in order to be guilty of receiving of stolen property, the defendant must know that the property is stolen at the time when the property comes into her possession. The defendant was unaware the property was stolen. Choice (B) is incorrect because larceny requires a “trespass in the taking.” It was the friend, not the defendant, who took the music player out of the possession of the storeowner. Choice (C) is incorrect for the reasons stated above. Note: lost or mislaid property can be the subject of larceny, if the person who finds it intends to steal it, and knows who the owner is, or has reason to believe that either the markings on the property or the circumstances of its discovery would reveal the identity of the owner.
10
Q
- Howard did not know it, but his wife was having an affair with another man. One day Howard came home early from work and caught his wife and the other man in bed together. In a violent rage, Howard picked up a large metal lamp and severely beat his wife and the other man. Both victims were seriously injured and hospitalized.
Howard was charged with the attempted murder of the other man. He was acquitted of the crime. After Howard’s acquittal, his wife and the other man died from injuries that were related to the beating. The state now wishes to prosecute Howard for manslaughter for the deaths of his wife and the other man.
Howard should be found
(A) guilty of manslaughter of his wife, but not guilty of manslaughter of the other man.
(B) guilty of manslaughter of the other man, but not guilty of manslaughter of his wife.
(C) guilty of manslaughter of both his wife and the other man.
(D) not guilty of manslaughter of either his wife or the other man.
A
- (C) The prosecution may charge and prosecute Howard for manslaughter of the his wife. The facts indicate that he was responsible for her death. He would likely be guilty of voluntary manslaughter, since he attacked her in the “heat of passion” with adequate provocation after catching her in bed with her lover. Choice (A) is an attractive one because prosecuting Howard for the manslaughter of the other man is more problematic, because as it raises double jeopardy concerns. The facts indicate that Howard was acquitted of the attempted murder of the other man. Thus, there was a “final judgment” on the attempted homicide. The issue is whether this acquittal precludes the state from prosecuting Howard for the manslaughter of the other man. As a general rule, attachment of jeopardy for a lesser included offense bars retrial forthe greater offense (Brown v. Ohio, 1977). Choice (A) is wrong because an exception exists where the state is unable to proceed on the more serious charge at the outset because additional facts necessary to sustain that charge have not yet occurred. Here, for example, the victim did not die until after the prosecution for attempted murder. As a result, the state could not prosecute the defendant on the greater charge at the outset. Therefore, the prosecution is not precluded under double jeopardy from prosecuting Howard for the manslaughter of the other man. Choice (B) is a distracter here. It tempts the reader to confuse the facts. For the reasons stated above, Howard may be found guilty of manslaughter for killing the wife, so choice (D) is incorrect.
11
Q
- A regular customer at a lounge is aware that the owner customarily keeps a gun hidden behind the bar. One night the customer was sitting at the bar and ordered a club soda. After serving him, the owner walked to the other end of the bar to wait on another customer. As he did so, the customer leaned over the bar and grabbed the gun. The customer pointed the gun at the owner and said, “This is a robbery.. . hand over all your money.”
Knowing the gun was unloaded, the owner refused to comply. The customer dropped the gun and ran out of the bar.
Besides larceny of the gun, the customer will be convicted of
(A) attempted larceny.
(B) attempted robbery.
(C) assault.
(D) assault and attempted larceny.
A
- (B) The crime of attempt consists of two elements: (1) a specific intent to commit the “target” offense, and (2) an act that constitutes a “substantial step” in the commission or attempted commission of the crime. Choice (A) is incorrect because the customer is guilty of attempted robbery, not attempted Larceny. Robbery differs from larceny in that the taking must be accomplished by force, violence, or intimidation. By threatening the owner at gunpoint, the customer clearly intended to commit a robbery. Some students may incorrectly think that, since the ownerwas not intimidated, the customer is not guilty of attempted robbery. However, even though thecustomer cannot be guilty of robbery, he nonetheless may be convicted of attempted robbery. Answer choices (C) and (D) are incorrect because larceny, assault, and battery are all a lesser-included offense to robbery.
12
Q
- A student was a practical joker who liked to perform zany antics. Late at night after studying, he would often walk around the campus dressed only in a raincoat and boxers. As he approached young women, he would flash them by opening his raincoat and exposing himself in his shorts. The student believed that he was committing a crime by flashing himself in front of the co-eds. In this jurisdiction, it is a felony to flash or expose oneself in the nude, so, unknown to the student, what he was doing was not a crime.
One night, the student broke into a sorority house intending to flash the sorority sisters. Clad only in his raincoat and shorts, he entered the bedroom of one of the sisters who was lying in her bed studying for an exam. The sister, who knew the student, said, “What are you doing here? Shouldn’t you be studying for finals?” The student then took off his raincoat and responded, “Study this, baby!” He then began to run through the sorority house in his shorts. Shortly thereafter, the police arrived and placed the student under arrest.
If the student is prosecuted, he should be found guilty of which, if any, of the following crimes?
(A) Burglary only.
(B) Attempted violation of the statute.
(C) Both burglary and attempted violation of the statute.
(D) Neither burglary nor attempted violation of the statute.
A
- (D) In order to answer this question, it is necessary to interrelate the following four rules of law: (1) burglary, (2) attempt, (3) legal impossibility, and (4) mistake of Law. Choice (A) is wrong because burglary is defined at common law as breaking and entering another’s dwelling house at night with intent to commit a felony (a misdemeanor will not do) therein. Consequently, the student would not be guilty of burglary because he did not have the required mental state (i.e., intent to commit a felony). Therefore, his mistake of law will be a valid defense, since it negates a mental state required for the crime. Choice (B) is incorrect because legal impossibility would constitute a valid defense to the inchoate crime of attempted violation of the “flashing” statute. Legal impossibility is commonly defined as the case in which the defendant did everything he intended to do but yet had not committed the completed crime. In effect, the student is not guilty of attempt because what beset out to do was nota crime. For the foregoing reasons, choice (C) is also incorrect.
13
Q
- In which one of the following situations would the defendant most likely be found guilty of felony murder?
(A) A baseball fan traveled all night to the stadium, planning to purchase tickets from a scalper at the stadium. However, the fan arrived at the stadium after the game had started, and no tickets were available. He proceeded to sneak around the guard at the entrance gate and illegally entered the stadium. He watched the remainder of the game in the standing room only section. The fan became so enraged when the opposition took the lead in the ninth inning that he pulled out a gun from under his jacket and aimed it at the section of spectators in front of him. Before he could be subdued he had fired three shots, killing one person and severely injuring another.
(B) A customer was in a bank filling out a deposit slip when a robber entered. The robber went to the teller’s window and quietly slipped a note to the teller, demanding everything in the cash drawer. The customer, who was unaware of the robbery taking place, went to the adjoining teller’s window and made his deposit. Upon obtaining his receipt, the customer suddenly collapsed and died of a heart attack. When the robber saw this, he panicked and left the bank before the teller could comply with his demand.
(C) Two men planned to rob a luncheonette during the noontime rush. At 12:30 p.m., as planned, one of the men entered the luncheonette and pointed a gun at the cashier, who handed over the money. The man left to meet the other man outside as he was standing guard as a lookout. As soon as the man ran out of the door, a police officer tried to grab him. The man evaded the officer for a brief moment. Thinking that the other man had double-crossed him and informed the police of their plans, he fatally shot the other man.
(D) A man and a woman had been feuding for years. In order to show him a thing or two, the woman decided to set fire to the man’s house. Before dawn one morning, the woman went to the man’s house and lit a match to gasoline she had poured at the man’s front door. The house caught fire and quickly spread to the man’s bedroom, where the man was able to leap out of the window without injury. A police officer who was driving by saw the woman running away one block from the man’s house. The police officer pulled his car up to the woman to determine if she was involved in setting the fire. Upon seeing the officer, the woman starts to flee the scene. As she is running away, the woman pulled out a revolver and started shooting indiscriminately behind her. The police officer was struck by one of the shots and was killed.
A
- (D) The woman in choice (0) would most likely be found guilty of felony murder. At common Law, one whose conduct brought about an unintentional death in the commission of a dangerous felony was guilty of felony murder. Today, the majority of jurisdictions have limited the felony murder rule in regard to the causal connection between the felony and the resulting homicide. More than a mere “but —for” causal relationship is required in most jurisdictions. The death must be the foreseeable and natural result of the felony. In short, whether there is a sufficient causal connection depends on whether the defendant’s felony dictated his conduct which that led to the homicide. Under the circumstances presented in choice (D), the woman was fleeing from the scene of the arson, (an inherently dangerous felony). Escape from the scene of the felony, and evading capture is a natural and foreseeable event, as is the use of force to effectuate the escape, and the police officer’s death was the direct result of being shot by the woman. Thus, the necessary causal connection exists placing the homicide “in the commission or’ the arson. Choice (A) is an example of “depraved-heart” type murder. Choice (B) is incorrect, since a causal connection did not exist between the bank robbery (the felony) and the customer’s fatal heart attack. The customer was not even aware of the bank robbery taking place. Choice (C) is aLso wrong, since the man intentionally shot the co-felon, and would be found guilty of murder. No causal relationship existed between the robbery and the death of the co-felon.
14
Q
- Late one night, a defendant and a man broke into a jewelry store. As they were looting the store, the owner, who lived across the street, looked out his window and saw additional lights on in the store. The owner ran across the street to his store. Before he arrived, however, the defendant became scared and left the store through a back entrance. When the owner entered the store, the other man hid behind a display counter. As the owner walked toward the cash register, he discovered the man in a crouched position. Startled, the man pulled out a knife and stabbed the owner to death. In this jurisdiction, the applicable burglary statute includes all buildings.
If he is subsequently arrested and charged with murder, can the defendant be found guilty?
(A) No, because the killing was unintentional.
(B) No, because he had renounced his participation in the burglary before the killing.
(C) No, because the owner’s death was not a foreseeable consequence of the burglary.
(D) Yes, provided that he is also found guilty of burglary.
A
- (D) The issue tested here is accomplice Liability to felony murder. There’s also a bit of testing strategy involved. Choice (D) is the best choice because of the way it’s phrased. The words “provided that…” is a contingency. It’s another way of saying “given that…” or “if we presume that” he is also found guilty of burglary…” Indeed, the defendant would have been found to have met all of the elements of burglary in that jurisdiction. He and the other man broke into the store with the intent to rob it. With regard to the defendant’s vicarious responsibility of for the owner’s death, it is often said that all parties are guilty for deviations from the common plan which that are the foreseeable consequences of carrying out the plan (e.g., an accidental shooting during an armed robbery being a typical example of a foreseeable deviation from the plan to rob). Under the established rule, accomplice liability extends to acts of the principal in the first degree which that were a “natural and probable consequence” of the criminal scheme the accomplice encouraged or aided. Therefore, choice (D) is correct, and choice (C) is incorrect because it is a foreseeabLe that one of the felons might use violence to avoid being caught. Choice (A) is easily eliminated because felony murder is one of the scenarios in which an unintended killing constitutes murder. Choice (B) is wrong because a mere change of heart or flight from the crime scene will not effectuate withdrawal from the crime. The accomplice must (1) to repudiate his prior aid, or (2) do all that is possible to countermand his prior aid or counsel, and (3) do so before the chain of events has become unstoppable.
15
Q
- After waiting in line for two hours to gain entry into a popular nightclub, a man was denied admission because his attire failed to conform to the club’s dress code. When he was refused admittance, the man angrily shouted to the club’s doorman, “You’ll be sorry for this. After I’m through, this club will be reduced to rubble.” Later that same evening, the man returned to the club with two explosives in his possession. He noticed the defendant leaving the club and followed him into a nearby parking lot. As the defendant was about to enter his car, the man grabbed him, pointed a gun and said, “Follow me, you punk, or I’ll blow your brains out.” The man led the defendant to the rear of the club, handed him the explosives, and directed him to throw them through an open window of the club. In fear of his life, the defendant tossed the explosives into the club, causing an inferno that killed 25 people. In this jurisdiction, the applicable arson statute includes all buildings.
If the defendant is charged with felony murder for the death of the people in the club, he will most likely be found
(A) guilty, because they were killings that occurred during the commission of an inherently dangerous felony.
(B) guilty, because duress is not a defense to murder.
(C) not guilty, because duress is a defense to arson.
(D) not guilty, because the defendant was justified under the circumstances.
A
- (C) The defendant is charged under the felony murder rule with arson as the underlying felony. Duress is a defense to arson. A defense to the underlying felony is a defense to a murder charge under the felony murder rule. That is why choice (C) is correct. Choice (A) is easily eliminated because it contains only a conclusory statement with no supporting reasoning. Choice (B) is an attractive choice because it is a true statement. Indeed, throwing explosives into a populated nightclub would, in real life, most likely give rise to a murder charge, for which duress is never a defense. Even though duress is not a defense to murder, it may be a defense to felony-murder if it negates the underlying felony. It is always important to pay close attention to what is being asked. Here, the question is: will the defendant be convicted under a felony murder theory? Since choice (B) does not address felony murder, it is not the best answer. Choice (D) is attractive because it addresses the key issue of criminal liability for the underlying felony. However, choice (D) is incorrect because duress is a defense based on excuse, rather than justification.
16
Q
- Many years ago, a nuclear power plant had been accused of poisoning local oyster beds with waste. The plant had been shut down for 10 years. Much to Darlene’s chagrin, officials at the plant had announced plans to reopen the plant.
Darlene, who was a waitress at a local restaurant, devised a scheme whereby she would contaminate oysters at her restaurant with small amounts of a poisonous substance. Although she didn’t want to seriously injure anyone, Darlene believed that if some people got sick from eating the oysters, they would attribute their illness to nuclear waste from the power plant. To facilitate her plan, she stole some poison from a local pharmacy. She sprinkled it on some oysters at the restaurant where she worked. Mistakenly, she put too much of the poison on some of the oysters. A few of the customers who ate the oysters became sick and nauseated. One person suffered convulsions and died from the poisoning.
A statute in the jurisdiction provides: “Any intentional and premeditated killing, or one occurring during the perpetration of a felony, is murder in the first degree. Murder in the second degree is murder with intent to cause serious bodily harm. Manslaughter is an unlawful killing due to recklessness.”
Assault with intent to kill or to cause serious physical injury is a felony in the jurisdiction. There are no separate felonies relating to adulterating food or poisoning.
The most serious crime for which Darlene can properly be convicted is
(A) first-degree murder, because her acts were intentional and premeditated.
(B) first-degree murder, because the death occurred during the commission of a felony.
(C) second-degree murder, because of the intent to cause physical harm.
(D) manslaughter, because her conduct was reckless.
A
- (D) On the MBE, follow the statutes given in the facts. In this case, first-degree murder requires an intentional and premeditated killing or a killing caused during the commission of a felony. Second-degree murder requires an intentto cause serious bodily harm, whereas manslaughter requires an unlawful killing due to recklessness. The main issue to be determined is the defendant’s mens rea. Darlene did not intend to kill anyone with the poison, although her plan was premeditated. First- degree murder requires both premeditation and intent. Likewise, the killing did not occur during the commission of a felony, since Darlene’s action did not constitute an assault. Assault is defined in the facts as a felony when it is committed with intentto kill or with intent to cause serious physical injury. Darlene did not possess either of these mental states, since the facts say that she “didn’t want to seriously injure anyone.” Therefore, no first-degree murder conviction is proper, and choices (A) and (B) are incorrect. Answer choice (C), second-degree murder, is incorrect for the same reason, namely that Darlene did not intend to cause serious bodily harm. By process of elimination, choice CD), manslaughter, is correct because her mental state was one of recklessness. Recklessness is generally defined as a high degree of negligence, (i.e., more than ordinary negligence) measured by an objective reasonable person standard, which creates a high and unreasonable degree of risk.
17
Q
- A woman was married to a very wealthy man who had a generous life insurance policy. Deciding that she had had enough of married life, and desiring to spend more time with her boyfriend, she began to plan an early and unexpected demise for her husband. The woman devised a scheme whereby she would contaminate her husband’s guacamole with a poisonous substance called strychnine. To facilitate her plan, she enlisted the help of her boyfriend. At first, the boyfriend adamantly refused to go along with her scheme, but when the woman threatened to break off their relationship, he reluctantly agreed. The boyfriend, a pre-med student, got the strychnine from the pharmacy by telling them that he was using it for an experiment with rats. The boyfriend then gave the strychnine to the woman, who sprinkled it in her husband’s guacamole. The husband died from the poisoning. A statute in the jurisdiction provides: “Any intentional and premeditated killing or one occurring during the perpetration of a felony, is murder in the first degree. Murder in the second degree is murder with intent to cause serious bodily harm. Manslaughter is an unlawful killing due to recklessness.” Assault with intent to kill or to cause serious physical injury is a felony in the jurisdiction. There are no separate felonies relating to adulterating food or poisoning.
The most serious crime for which the boyfriend can properly be convicted is
(A) first-degree murder.
(B) second-degree murder.
(C) manslaughter.
(D) no crime.
A
- (A) The boyfriend will be liable to the same extent as the woman, as a party to the crime. One is liable as an accomplice to the crime of another if he (1) gives assistance or encouragement or fails to perform a legal duty to prevent it (2) with the intent thereby to promote or facilitate commission of the crime. The boyfriend “agreed to assist” the woman “to facilitate her plan.” As an accomplice, he may be convicted to the same extent as the principal, the woman, for first-degree murder. Choice (A) is correct. Choices (B) and (C) are incorrect because the woman committed first-degree murder. Choice (D) is incorrect for the reasons stated above regarding accomplice liability.
18
Q
- A registered pharmacist was falsely told by his best friend one day that the friend needed a dangerous drug for an experiment he was conducting with rats in his lab. Unbeknownst to the pharmacist, his friend used the drug to poison his girlfriend. The poison killed her. The pharmacist was aware that his best friend had a volatile relationship with his girlfriend.
A statute in the jurisdiction provides: “Any intentional and premeditated killing or one occurring during the perpetration of a felony, is murder in the first degree. Murder in the second degree is murder with intent to cause serious bodily harm. Manslaughter is an unlawful killing due to recklessness.” Assault with intent to kill or to cause serious physical injury is a felony in the jurisdiction. There are no separate felonies relating to adulterating food or poisoning. Finally, it is a misdemeanor in the jurisdiction to distribute drugs without a prescription.
The most serious crime for which the pharmacist can properly be convicted is
(A) first-degree murder.
(B) second-degree murder.
(C) manslaughter.
(D) selling drugs without a prescription.
A
- (D) The pharmacist gave the drug to the friend in violation of the state statute making it a misdemeanor to sell the drug without a prescription. The pharmacist may be convicted of selling drugs without a prescription. An individual is criminally liable as an accomplice if he gives assistance or encouragement or fails to act where he has a legal duty to oppose the crime of another, and fully intends to effectuate commission of the crime. No accomplice liability will arise under the facts because the pharmacist had no knowledge of the friend’s criminal intent when he sold the drug and, therefore, could not have formed the requisite mental state, so choice (C) is therefore incorrect. Choice (A) is incorrect because there was no intent on the defendant’s part to kill the woman. Choice (B) is incorrect because the pharmacist did not intend to commit any serious bodily harm.
19
Q
- One evening, a defendant set fire to a homeowner’s occupied house. As a result of the blaze, the homeowner’s daughter was killed. The defendant was charged with felony murder on the first count and arson on the second count of the two-count indictment. The jury found the defendant guilty on the first count, but returned a not guilty verdict on the second.
The defendant’s attorney’s motion to set aside the guilty verdict on the felony murder charge will most likely be
(A) granted, because the guilty verdict is plain error that adversely affects the defendant’s constitutional rights.
(B) granted, because the verdicts are legally inconsistent and should lead to an acquittal of both charges.
(C) denied, because the verdicts do not amount to a reversible error.
(D) denied, because the defendant’s proper remedy is to seek an appellate review for a non-constitutional error.
A
- (B) In order for one to be found guilty of murder under the felony-murder rule, he must also be found guilty of the underlying felony. Thus, as in the present example, if a defendant is found innocent of the underlying felony, he cannot be found guilty of felony-murder. Answer choices (A) and (C) are incorrect because constitutional protections are not triggered as an issue here. The issues of harmless error and reversible error arise where there has been some conduct in the criminal process that is violative of one’s constitutionally protected rights. Choice (D) is incorrect because the defendant cannot be legally convicted for felony murder if he is not guilty of the underlying felony. If the jury’s verdict cannot be supported by the law, then the judge must grant the motion to set aside the verdict.
20
Q
- The night before his bar examination, the examinee’s next-door neighbor was having a party. The music from the neighbor’s home was so loud that the examinee couldn’t fall asleep. The examinee called the neighbor and asked her to please keep the noise down. The neighbor then abruptly hung up. Angered, the examinee went into his closet and got a gun. He went outside and fired a bullet through the neighbor’s living room window. Not intending to shoot anyone, the examinee fired his gun at such an angle that the bullet would hit the ceiling. He merely wanted to cause some damage to the neighbor’s home to relieve his angry rage. The bullet, however, ricocheted off the ceiling and struck a partygoer in the back, killing hr. The jurisdiction makes it a misdemeanor to discharge a firearm in public.
The examinee will most likely be found guilty for which of the following crimes in connection to the death of the partygoer?
(A) Murder.
(B) Involuntary manslaughter.
(C) Voluntary manslaughter.
(D) Discharge of a firearm in public.
A
- (A) The examinee is guilty of depraved-heart murder. Firing a bullet into a room which that the defendant knows is occupied by severaL people constitutes the kind of reckless indifference to human rights that will make a criminal defendant liable for murder, even though the killing was unintentional. Choice (B) is incorrect because the defendant’s reckless indifference to human life goes far beyond the gross negligence that would give rise to a charge of involuntary manslaughter; rather it constitutes malice for the purposes of common law murder. Choice (B) is incorrect because voluntary manslaughter involves the intentional killing of another in the “heat of passion” brought about by adequate provocation. Provocation is adequate ifitwould cause a reasonable person would lose self-control. The defendant’s anger over the noisy party on the eve of his bar exam is not adequate provocation. Choice (D) is wrong. Though there is a law against the discharge of a firearm in public, and the examinee might be charged with violating it, it is not the charge he will face in relation to the partygoer’s death.
21
Q
- A homeowner had a beautiful beach house overlooking the bay. Although the homeowner and his family lived in the beach house during the summer months, the house was left unoccupied for the remainder of the year. In order to protect the beach house from vandalism while it was vacant, the homeowner installed an automatic spring-gun device. The spring-gun was connected to the front door and calculated to automatically fire at chest level when the door was opened. No warnings were placed on the premises.
A local man, knowing that the homeowner’s beach house was unoccupied, decided to burglarize the home one evening. When the local man forced open the front door and was about to enter the premises, the spring-gun automatically discharged, killing him instantly.
If the homeowner is subsequently prosecuted and charged with the local man’s death, the most serious crime for which the homeowner will be found guilty is
(A) voluntary manslaughter.
(B) involuntary manslaughter.
(C) murder.
(D) assault with a deadly weapon.
A
- (C) An actor may never use direct or indirect force capable of causing death or serious bodily injury (including spring-guns and traps) to defend property unless a threat to the actor’s own safety justifies him to use such force as a means of self-defense. The fact that the homeowner set the spring-gun to fire at chest level upon opening the door suggests that he intended to kill (or at least cause great bodily harm to) any intruder. Either mental state is proper grounds for a murder conviction; therefore, choice (C) is the best answer. Choice (A) is wrong because there was no heat of passion brought about by adequate provocation. Choice (B) is incorrect because a homicide will be classified as murder where there is intent to cause serious bodily harm, which was the case here. Choice (D) is wrong because the assault resulted in the local man’s death, so the most serious charge is murder.
22
Q
- A husband was sitting in his living room when his wife entered and asked what he’d like for dinner. The husband replied, “I’m not hungry. I’m too angry at our next-door neighbor.” The husband had had an argument with his neighbor earlier that day. The husband then said, “I’ve got this burning desire to go next door and beat him up.” As the husband was about to walk out the door, he turned to his wife and said, “You want to come along and watch?” The wife nodded, as if to say okay, and followed him next door.
Moments later, the husband rang the doorbell, and the neighbor came to the door. After entering the home, the husband grabbed the nei’ghbor and began punching him in the face. Terribly frightened, the neighbor pleaded with the husband to stop. As the husband continued to hit him, the neighbor turned to the wife and said, “Please tell him to get off me.” The wife, who despised the neighbor, simply stood by and told her husband, “Do it, honey. . . do it.” The husband punched the neighbor repeatedly and afterward threatened to kill him.
On a charge of battery, the wife should be found
(A) not guilty, because the wife’s hands never made contact with the neighbor.
(B) not guilty, because the wife’s mere presence and oral encouragement will not make her guilty as an accomplice.
(C) guilty, because, with the intent to have the neighbor beaten, she shouted encouragement to her husband.
(D) guilty, because she aided and abetted her husband through her mere presence, plus her intent to see the neighbor beaten.
A
- (C) The wife is guilty of battery as an accomplice. An individual is criminally liable as an accomplice if he gives assistance or encouragement or fails to act where he has a legal duty to oppose the crime of another, and fully intends to effectuate commission of the crime. Choice (A) is wrong because even though the wife’s hands never touched the neighbor, she can still be liable as an accomplice because she did encourage the battery. Choice (B) is incorrect because it contravenes the rule above. The wife’s encouragement, combined with her intent to effectuate the crime, will, indeed, make her guilty as an accomplice. Choice (C) is preferred over choice (D) because the wife “aided” and “abetted” her husband by shouting encouragement, not by her mere presence.
23
Q
- In which of the following situations would the defendant not be guilty of homicide?
(A) A defendant came into a bar looking for a fight. He walked up to a victim, tapped him on the shoulder and said, “You bother me. Get out of here.” The victim ignored him, and the defendant proceeded to punch the victim in the face and stab him in the arm with a knife. The victim thereupon took out a knife that had been concealed in his pocket and stabbed the defendant in the right arm. The defendant, fearful that the victim would stab him in the heart, took out a gun and shot the victim to death.
(B) A defendant was home in bed with a fever one night, and all the lights in his house were off. A victim, who was scouting the neighborhood that night for a house to burglarize, broke into the defendant’s house through the basement window and went upstairs to the bedrooms to look for jewelry. The defendant, who was not aware that someone else was in the house, was startled when he saw the victim walk past his room toward the stairs leading to the outside doorway. The defendant pulled out a pistol from under his pillow when he saw the victim and shot him to death.
(C) A defendant started a joke about the victim’s brother. When word got to the victim about the defendant’s joke, the victim became incensed. He rushed to the defendant’s home, broke open the door and found the defendant preparing dinner in the kitchen. He immediately said, “I’m going to kill you.” The defendant knew that the victim had been convicted of attempted murder several years ago, and he cringed when the victim took out a gun and pointed it at him. The defendant could have easily darted for the open front door and evaded the victim but, instead, he suddenly pulled a knife from the kitchen wall, lunged at the victim, and stabbed him to death. Unknown to the defendant, the victim’s gun was not loaded.
(D) A defendant was a reporter for a newspaper and was sent on assignment to another state to cover the story of a mining disaster. He was sitting in his hotel room one evening, trying to get a message to his editor, when a victim knocked at the door. The defendant opened the door, and the victim announced a robbery. The defendant took a lamp from the night table and threw it at the victim. The victim was momentarily stunned, and the defendant then pulled a gun out of his own suitcase and shot the victim to death.
A
- (C) Choice (C) is the best answer. The defendant would have the strongest case successfully alleging the defense of self-defense. The facts in choice (C) are sufficient to indicate that the defendant has a reasonable belief that he was in immediate danger of deadly force or serious bodily harm. It is immaterial that the defendant did not know that the victim’s gun was not loaded. As a general rule, one who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonably believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger. The defendant not only had such reasonable belief to justify the use of deadly force, but he also had no duty to retreat from his own home. Be aware of the problems involving the “duty to retreat” when deadly force is used in self-defense. The majority of jurisdictions hold that the defender (who was not the original aggressor) need not retreat, even though he may do so safely, before using deadly force upon an assailant whom he reasonably believes will kill him or do him serious bodily harm. However, even in the minority of jurisdictions that require retreat, the defender (1) need not retreat unless he knows he can do so in complete safety, and (2) he need not retreat from his home or place of business. Choice (A) is wrong because, even though he acted in defense of his life, he cannot assert self-defense as a justification for killing the victim because the defendant was the aggressor. If a person has a reasonable belief that he is in imminent danger of unlawful bodily harm, he may use that an amount of force which that is reasonably necessary to prevent such harm, unless he is the aggressor. Choice (B) is not the best answer. Even though discovering an intruder in his home would reasonably instill fear, perhaps even fear that he might be harmed, the facts do not say that the victim was about to use deadly force against the defendant. Rather, the defendant saw the victim walking away from his room toward the door. Similarly, choice (D) is wrong. Since the victim announced a robbery when he entered, but there is not evidence that suggests that the use of deadly force was imminent.
24
Q
- A defendant was walking through a park when he decided to rob someone. He hid behind a tree, lying in wait for a victim to approach. Shortly thereafter, a girl was strolling in the park when the defendant suddenly jumped from his hiding place and accosted her. Although the defendant intended only to rob his victim, he punched her in the mouth and she fell to the ground. The defendant then grabbed her purse and fled. Unknown to the defendant, the girl suffered a fractured skull when her head struck the pavement. She subsequently died from her head injuries.
Which of the following is the most serious crime for which the defendant can be found guilty?
(A) Murder.
(B) Felony murder.
(C) Involuntary manslaughter.
(D) Voluntary manslaughter.
A
- (B) As a general rule, one whose conduct brings about an unintended death in the commission or attempted commission of a felony is guilty of felony-murder. In many states, the felony-murder rule is limited in its application to serious felonies that must be dangerous to life. Exam Tip: These felonies can be remembered by the mnemonic BARRK: Burglary; Arson; Rape; Robbery; and Kidnapping. Since the girl’s death occurred during the commission of a robbery, the defendant would be guilty of felony-murder. Choice (A) is not the best answer because felony-murder is a specific type of murder. Choice (B) is the better choice because it is more specific. Choice (C) is an attractive, but incorrect, choice because it tempts the reader to classify the death as misdemeanor-manslaughter because the defendant punched the girl in the mouth, thus committing battery, a misdemeanor. However, the death occurred during a robbery (the defendant took the purse from the girl’s person by force), so he will be liable for the girl’s death under a felony-murder theory. Choice (D) is incorrect because the girl’s killing was unintentional.
25
Q
- A state statute provides: “Whenever a person knows or should know that he (or she) is being arrested by a police officer, it is the duty of such person to refrain from using force or any weapon in resisting arrest.” Violation of the statute is made punishable by fine and/or imprisonment.
One morning, there was a bank robbery in the state. That afternoon, a police officer arrested a suspect who he believed was involved in the crime. However, the police officer and the suspect have given different accounts concerning what happened next.
According to the police officer, after the suspect was apprehended, he resisted arrest and hit the police officer in the mouth with his fist. The police officer, who was momentarily stunned, pulled out his nightstick and struck the suspect over the head with it.
On the other hand, the suspect claimed that after he was arrested, he cursed at the policeman, whereupon the police officer began hitting the suspect with his nightstick. To avoid being hit again, the suspect hit the police officer with his fist, knocking him down. The suspect was charged with assault.
The suspect should be found
(A) not guilty, if the arrest was unlawful without probable cause and the jury believes the suspect’s account.
(B) not guilty, if the arrest was lawful, provided that the jury believes the suspect’s account.
(C) guilty, if the arrest was lawful, regardless which account the jury believes.
(D) guilty, if the arrest was unlawful, regardless which account the jury believes.
A
- (B) One who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonably believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger. The suspect is being charged with the crime of assault, not with violating the resisting arrest statute. As a result, self- defense may be a valid defense to assault. Therefore, choice (B) is correct. Choice (A) is incorrect. If the jury believes the suspect’s account, he will be found not guilty, irrespective of whether the arrest was lawful or not. Choices (C) and (D) are incorrect for the same reason: If the jury believes that the suspect acted to prevent being hit with the nightstick, the suspect will be found not guilty on the assault charge.
26
Q
- A boyfriend and his girlfriend were attending a house party. While the party was in progress, a few teenagers from the neighborhood vandalized some of the cars parked outside the house. They broke the headlights and stole the battery from the boyfriend’s car.
When the party ended, the boyfriend and his girlfriend left the house and got into his car. The boyfriend, who was about to drive his girlfriend home, was unaware of what had happened. He tried to start the car, but it wouldn’t turn on. Two police officers, who were parked outside the house, watched the boyfriend as he tried to start the car. They then approached the boyfriend and charged him with attempting to violate a local ordinance making it a misdemeanor to drive at night without headlights.
The boyfriend’s best defense to the charge is
(A) factual impossibility.
(B) mistake of fact.
(C) entrapment.
(D) no requisite intent.
A
- (D) The boyfriend is being charged with the crime of attempt. Attempt is a specific intent crime. The boyfriend, having noticed neither the broken headlights nor the missing battery, did not possess the requisite state of mind required for commission of the crime, and so cannot be found guilty of attempt. Choice (A) is wrong because factual impossibility is no defense to attempt where the defendant intends a criminal act but cannot accomplish it because of facts unknown to him at the time of the act. Choice (B) is attractive because the boyfriend was mistaken about his presumption that his car was in the same working condition in which he left it. However, mistake of fact is a defense where it negates the existence of a mental state required to establish a material element of the crime. In otherwords, there would be no crime if the facts were such as the defendant thought them to be. Mistake of fact, is simply not in issue here. Choice (C) is easily eliminated because there was no action on the part of the police officers that would have influenced the boyfriend in any way.
27
Q
- Two brothers who were in need of money approached their wealthy uncle’s housekeeper and asked her to poison him. The brothers would inherit the uncle’s estate when he died. The housekeeper agreed, but on the condition that they would pay her $10,000 from their inheritance. After the brothers agreed to her demand, the housekeeper decided to place some cyanide in the uncle’s tea one morning. As the housekeeper was preparing the tea, the uncle was visited by his personal physician. When the housekeeper was ready to serve the tea, the uncle asked her to fix some tea for his physician also. The housekeeper did so and then carefully set the tea on the table so that the uncle’s cup was facing him. However, when the physician reached over to get some sugar, he inadvertently took the uncle’s cup with the cyanide and drank it. Seconds later, the physician died from the poison.
Which of the following crimes are the brothers guilty of?
(A) Conspiracy to commit murder of their uncle only.
(B) Conspiracy to commit murder of their uncle and the physician.
(C) Conspiracy to commit murder of their uncle, and murder of the physician.
(D) Solicitation, conspiracy to commit murder of their uncle, and murder of the physician.
A
- (C) The brothers are guilty of conspiracy to murder their uncle. They entered into an agreement to murder their uncle and had the specific intent to carry out their criminal objective. The defendants are also guilty of murder under an accomplice theory of liability, since they asked the housekeeper to kill their uncle. Choice (A) is incorrect because, as discussed, the brothers are also guilty of murder. Choice (B) is wrong because there was neither an agreement nor intent to murder the physician. Choice (D) is incorrect because solicitation merges into the conspiracy crime.
28
Q
- Under which of the following situations would the defendant most likely be found guilty of murder?
(A) A defendant conspired with two other men to rob a store. On the day of the robbery, the three participants drove to the store in a stolen van. In accordance with their plan, the defendant was to wait in the getaway van while the two men conducted their heist. While the two men were inside the store, the defendant decided to renounce his involvement and participation in the scheme and hurriedly drove away in the van. In his haste, the defendant failed to see a pedesthan jaywalking across the street, and struck and killed the pedestrian.
(B) A defendant, accompanied by his girlfriend, was attending his law school graduation party. Both the defendant and his girlfriend became highly intoxicated during the party celebration. As the defendant and his girlfriend were leaving the party, the defendant handed his girlfriend the keys to his automobile and directed her to drive home. While driving, the girlfriend suddenly swerved the car across the median strip into the path of an oncoming car, killing the driver of the other vehicle.
(C) A defendant, whose driver’s license had been revoked one week previously, was driving on an infrequently traveled country road one night. Knowing that his car brakes were defective, the defendant was traveling at 35 m.p.h. in a zone in which the speed limit was 25 m.p.h. when a victim suddenly darted in front of his car. In an effort to avoid striking the victim, the defendant applied his brakes to no avail. The car struck and killed the victim.
(D) One afternoon a defendant was delivering pornographic materials to various adult bookstores in the community. In this jurisdiction, the delivery of pornographic materials constituted a misdemeanor. As the defendant was on his way to a book store for his final delivery of the day, he inadvertently struck a blind man who was crossing an intersection. Six months later, the blind man died as a result of injuries suffered in the accident.
A
- (A) Under the theory of felony-murder, the defendant in choice (A) would be found guilty of murder for causing the death of the pedestrian (during the commission or attempted commission of the robbery/burglary at the department store). It should be pointed out that the defendant’s “withdrawal” would be ineffective, so as not to exonerate him of criminal responsibility for the pedestrian’s death. A withdrawal is effective only if communicated to his confederates made in time for his companions to effectively abandon the conspiracy. Thus, notice is insufficient unless it is given to all of the other conspirators. Choice (B) is not the best answer. In order to be found guilty of murder, the defendant must have acted with malice. He must have had the intent to kill, or cause great bodily harm, have acted with reckless disregard for human life, or have caused the death during the commission of a dangerous felony. Because none of these apply here, the defendant is not guilty of murder. Choice (C) is also wrong because the requisite malice is not present. This is an attractive answer choice because the defendant was negligent in driving his car knowing that his brakes were defective. However, negligence, even gross negligence, does not rise to the level of reckless indifference. Choice (D) is incorrect. If the defendant is criminally liable for the homicide because it occurred during the commission of a crime, the crime would be a misdemeanor-manslaughter (involuntary manslaughter).
29
Q
- A brother and his sister, who was 15 years old, had just left a movie theater late one evening and were walking toward a dimly lit parking lot to get to their car. As they reached the car, a defendant, who was visibly intoxicated, emerged from behind a trash can and approached them. The defendant knocked the brother to the ground and hit him over the head with a trash can, causing the brother to lose consciousness. The defendant then forced the sister into the car and raped her.
The defendant is charged with assault with intent to commit rape, based on his attack on the brother. The defendant’s best defense would be which of the following statements?
(A) Although the sister was only 15 years old, she appeared to be 16 years old to a reasonable man.
(B) The defendant did not intend to rape the sister.
(C) The defendant’s intoxication at the time negated the required general intent.
(D) It is impossible to prove that the defendant was the perpetrator because the parking lot was dimly lit.
A
- (B) This question illustrates a number of Multistate principles: (1) answer the precise question asked; (2) read carefully; (3) select the BEST of the four answers; (4) if you cannot identify any answer as correct, at least eliminate the incorrect choices to increase your odds of choosing the best answer; and (5) in choosing an answer, note thata choice that is only possibly correct is preferred overone that is absolutely wrong. There are three important elements to the question asked: (a) a defense (b) to the crime of assault with intent to commit rape (c) based on an attack on the companion of a rape victim. Choice (A) is incorrect because this selection suggests an unsuccessful mistake of fact defense to the charge of statutory rape. Choice (C) is wrong because the crime involved in the question is a specific intent crime, and intoxication may be a defense only to a specific (not general) intent crime. In other words, choice (C) is an incorrect statement of law. Choice (D) is incorrect, as the mere fact that the lot was “dimly lit” will not preclude a guilty verdict. Consequently, only choice (B) applies, certainly an arguable and conceivably correct interpretation of the crime of assault with intent to rape.
30
Q
- In which of the following situations is the defendant’s conduct most likely to make him criminally responsible for the victim’s death?
(A) A defendant shot a victim in the head. The victim was then taken to a hospital for treatment of the wound. An earthquake later struck the city, causing the hospital to collapse. The victim was crushed to death in the rubble.
(B) A defendant and a victim lived in the same apartment building. The defendant knew that the victim was having a love affair with a married woman. One day, the defendant learned that the victim was to be murdered by the married woman’s husband. Although the defendant had ample time to warn the victim, he failed to do so. That night, the victim was stabbed to death by the husband.
(C) A victim, who was a gambler, was heavily in debt to the mob. The defendant, who was a mob enforcer, threatened to kill the victim if he didn’t pay up. Frightened, the victim boarded the next airplane flight out of town. The airplane crashed, and the victim was killed.
(D) A defendant and a victim were driving to work together when the defendant, without provocation, stabbed the victim in the arm. The defendant then pushed him out of the car. The victim fell along the side of the street and fractured his ankle. Unable to move from the roadway, the victim was fatally crushed a half-hour later by a car driven by a drunk driver.
A
- (D) This question deals with defenses to murder. In order to impose criminal liability, the defendant’s conduct must be the “proximate” cause of the crime. Where an intervening cause in the form of an unforeseeable act of God follows a defendant’s criminal act and thereby causes death, the defendant may be relieved of liability. In choice (A), the earthquake caused the hospital to collapse, crushing the victim to death. As a superseding cause, the earthquake will cut off the defendant’s liability, so choice (A) is incorrect. In choice (C) the defendant will not be liable for the victim’s death due to lack of causation, so this answer choice is incorrect. Although the threat to kill the victim may have frightened him enough to board an airplane, the defendant’s act in itself did not proximately cause the victim’s death; the plane crash did. Choice (B) is incorrect because omission to act isa basis to impose criminal responsibility only where there exists a legal duty to act—generally established by contract, by statute, or by relationship. The defendant had no familial or business relationship with the victim such that a duty to warn existed. Therefore, he would not be responsible for the victim’s subsequent death. Choice (D) is correct by process of elimination; the defendant pushed the victim directly out of the car after stabbing him in the arm, thereby causing the fractured ankle. Because of the immobility of the ankle, the victim was unabLe to move from the roadway. Being run over subsequently by a drunken driverwas not only a direct intervening cause of the defendant’s initial conduct, but it was a foreseeable result. Therefore, the claim of causation will not be broken, and the defendant will be criminally responsible.
31
Q
- A defendant and his college roommate went home together for the holiday vacation. The defendant was to go back to college by himself. The day that the defendant was to drive back to college, his roommate asked him if he would deliver a package to one of their classmates. The defendant agreed, and the roommate gave him a small package, which the defendant placed in his glove compartment.
While driving back to school, the defendant was stopped for speeding. When the state trooper asked the defendant for his license and registration, he reached into the glove compartment. As he did, the package that his roommate had given him fell onto the floor. When it hit the floor, the box broke open and a plastic envelope containing a white substance slid out. Seeing that the substance appeared to be cocaine, the state trooper arrested the defendant for possession of illegal narcotics under a state statute making it a felony to willfully possess a controlled substance. The package did, in fact, contain cocaine.
If the defendant is later brought to trial for this charge, his best defense is that
(A) the defendant didn’t know what was in the package.
(B) the roommate didn’t tell him he was carrying illegal narcotics.
(C) the package didn’t belong to him. (D) the cocaine was illegally seized.
A
- (A) Many statutes defining conduct that is criminal will employ words or phrases indicating some type of bad-mind requirement: “intentionally” or “with intent to
,““knowingly” or “with knowledge that . . . ,““fraudulently” or “with intent to defraud,”“willfully,” and so on. In our case, choice (A) is the best answer because if the defendant didn’t know what was in the package, she wouldn’t possess the required mental state for the statutory crime. Choice (B) is a correct statement of fact and, explains why the defendant did not know what was in the package, but it is not the best answer because this statement does not negate the mens rea of the crime. Choice (C) is also factually true, but is no defense to the crime of willful possession of a controlled dangerous substance. Choice (D) is incorrect. First, nothing in the facts say that the cocaine was illegally seized. Second, illegal seizure is not a defense, though it may result in the exclusion of the package at trial.
32
Q
- A woman was in a public restroom at a mall. While the woman was at the sink, a man entered the restroom and told her not to make a sound. Frightened, the woman ran to an open window in the bathroom and jumped onto the fire escape. As she exited down the fire escape, the woman accidentally fell, bruising her legs.
Which of the following crimes, if any, would the man most likely be convicted of?
(A) Assault.
(B) Battery.
(C) Assault with intent to commit rape.
(D) No crime.
A
- (D) In a majority of jurisdictions, assault includes both (1) attempted battery, and (2) the doing of an act which that places another person in reasonable apprehension of receiving a battery. In those jurisdictions where an assault is limited to an attempted battery, intent to commit a battery (i.e., an intent to cause physical injury to the victim) is required. The second type of criminal assault requires some overt act by the defendant to arouse a reasonable apprehension of bodily harm. Thus, threatening words alone, without any overt act to carry out the threat, or indecent proposals by a man to a woman, not accompanied by any attempt to carry them out without her consent, will not suffice. Choice (B) is incorrect because there was no harmful or offensive touching; there was no contact at all, so the man may not be convicted of battery. Choices (A) and (C) are incorrect because there was no attempted battery; the man did nothing to put the woman in reasonable apprehension of imminent harm.
33
Q
- A defendant was charged with attempted rape of a victim. The crime allegedly occurred at a party at the defendant’s home. During the party, the defendant invited the victim into his bedroom to show her his tattoos. When she entered his bedroom, the defendant ripped off her blouse and threw her onto his bed. He then jumped on the victim and tried to pull off her skirt. When the victim began to scream, some of the guests rushed into the bedroom and pulled the defendant off the victim. At trial, the defendant testified that he wanted to have sexual intercourse with the victim but he believed that she was consenting. The defendant further testified that he had consumed a pint of whiskey earlier in the evening and was intoxicated at the time the incident occurred.
If the jury believes that the victim did not consent but also believes that the defendant, in his intoxicated state, honestly believed that she was consenting, the defendant should be found
(A) guilty, because consent is determined by the objective manifestations of the victim and not the subjective beliefs of the defendant.
(B) guilty, because voluntary intoxication is no defense.
(C) not guilty, because he honestly believed that she was consenting.
(D) not guilty, because his belief that she was consenting was reasonable.
A
- (C) Voluntary intoxication may be a valid defense for a specific intent crime if it negates the requisite mental state. Attempt is a specific intent crime. Choice (C) is correct because if the jury believes that the defendant thought the victim consented, then they cannot find that he had the requisite mens rea. Choice (B) is wrong, but attractive, because it is a true statement of law; with respect to general intent crimes. If the defendant were charged with the crime of rape, then choice (B) would be correct, because intoxication is not a valid defense for the “general-intent” crime of rape. Choice (A) contains a true statement, but it is incorrect because the defendant’s guilt of the attempt crime does turn on his subjective belief. Choice (D) is incorrect because reasonableness is irrelevant here.
34
Q
- A man is on trial for rape. The alleged victim testified that she went out to dinner with the man. Afterward, he invited her to his apartment for coffee. Upon entering the apartment, he violently assaulted her. Although she tried to resist, he overpowered and raped her.
The man testified that during dinner, he and the victim drank two bottles of Champagne. When they returned to his apartment, he was so intoxicated that he honestly believed that she consented to the intercourse.
The jury determined that the victim did not consent to the intercourse. The jury also found that the man, as a result of his intoxication, honestly but unreasonably believed that she was consenting. As a consequence, the defendant should be found
(A) not guilty, because he honestly believed that the victim consented.
(B) not guilty, because his intoxication negated his criminal intent.
(C) guilty, because rape is a general intent crime. (D) guilty, because she did not consent, and his belief that she was consenting was unreasonable.
A
- (D) This question involves a two-step approach. First, rape is a general intent crime. Second, mistake of fact can be a valid defense for a general intent crime if it is reasonable. Note that mistake can be a valid defense for a specific intent crime (such as larceny or burglary) whether it is reasonable, or unreasonable, as long as it is honest. Choice (A) is incorrect. Even if the jury believes that the man was honestLy mistaken about the victim’s consent, his mistake was unreasonable, so it will not provide a valid defense to the general intent, the crime of rape. Choice (B) is wrong because, as discussed, rape is a general intent crime. Choice (C) does not address the reasonableness of the man’s mistake. In other words, if the man’s mistake had been reasonable, then he would not be guilty of rape, despite the fact that it is a “general intent” crime.
35
Q
- A defendant was playing cards with a group of friends at their weekly poker game. Earlier in the evening, one of the players handed the defendant a gun and told him it was unloaded. As a joke, the defendant pointed the gun at one of his friends and pulled the trigger. Unknown to the defendant, the gun was loaded and it discharged. The bullet grazed the friend’s shoulder, slightly wounding him.
The defendant was charged with assault with intent to kill. In this jurisdiction, battery is a lesser included offense of assault. At trial, the defendant requested that the court instruct the jury that if his mistake was honest, whether reasonable or unreasonable, it would be a valid defense to assault and the lesser included offense of battery. Conversely, the prosecution wanted the court to instruct the jury that in order for the defendant’s mistake to be a valid defense for either crime, it must be reasonable.
Regarding the jury instructions, which of the following statements is most accurate?
(A) The defendant is correct with respect to assault, and the prosecution is correct with respect to battery.
(B) The defendant is correct with respect to battery, and the prosecution is correct with respect to assault.
(C) The prosecution is correct with respect to both the battery and assault charges.
(D) The defendant is correct with respect to both the battery and assault charges.
A
- (A) With respect to the defense of mistake of fact, it is necessary to distinguish between specific intent and general intent crimes. Any mistake of fact, reasonable orunreasonable, is a defense to a specific intent crime. On the other hand, in order to be a defense for a general intent crime, the defendant’s mistake must be reasonable (namely, the type of mistake that a reasonable person would have made under the circumstances). This question requires that the reader be able to differentiate between assault (a specific intent crime) and battery (a general intent crime). As a consequence, the defendant is correct with respect to assault, and the prosecution is correct with respect to battery. A mistake, even an unreasonable one, negates the specific intent required for an assault conviction, but with respect to the battery, mistake can only be a defense if the mistake was reasonable. Forthe foregoing reasons, choices (B), (C), and (D) are incorrect.
36
Q
- A wife was unhappily married to her husband, an alcoholic. When the husband got drunk, he would become abusive and beat the wife. During the course of their marriage, the beatings became more violent and more frequent. Unable to endure the physical abuse any longer, the wife hired a hit man to kill her husband. One night while the husband was asleep, the hit man entered the home with a key given to him by the wife and shot the husband to death. Afterward, the wife was prosecuted for murder as an accomplice.
At trial, the prosecution presented the facts outlined above. Thereafter, the defense sought to have the judge instruct the jury that the wife acted in self- defense under the battered women’s syndrome.
Based on the given facts, should the judge give such an instruction to the jury?
(A) No, because the wife’s belief in the necessity of deadly force in self-defense was unreasonable.
(B) No, because even though the wife was the victim of spousal abuse, she could have avoided the danger by safely retreating.
(C) Yes, because, on these facts, a reasonable jury could conclude that the wife acted in self- defense by using necessary force to protect herself from the husband’s constant violent attacks.
(D) Yes, because a criminal defendant’s Sixth Amendment right to a jury trial prohibits a court from refusing to submit affirmative defenses to the jury.
A
- (A) A person is privileged to use deadly force in self-defense if (a) she reasonably believes that she is in immediate danger of death or serious bodily injury, and (b) the use of such force is necessary to avoid this danger. The given facts indicate that the wife was not in immediate danger of unlawful bodily harm. In fact, the husband was asleep when she arranged to have the hit man kill him. The judge should not instruct the jury on self-defense because the wife has failed to show that she was in immediate danger of serious bodily injury when the murder occurred. Choice (B) is wrong. Not only does the retreat doctrine not apply in one’s own home, it does not apply here because, as discussed, the wife was not in danger of immediate harm. Choice (C) is wrong because it relies on a legally incorrect presumption that self defense may be asserted against intermittent attacks, when it is, in fact, limited to situations where one must use force to protect herself oneself from immediate danger of death or great bodiLy harm. Choice (D) discusses an issue that is not relevant on these facts.
37
Q
- A woman and a defendant entered into an arrangement where the woman promised to pay the defendant $10,000 to act as a surrogate mother. In return, the defendant agreed to be implanted with the woman’s embryo and carry the baby to term. The woman paid the defendant the $10,000 upfront.
During the seventh month of the pregnancy, the defendant changed her mind and decided to keep the child herself. The defendant moved out of state and gave birth to the baby, which she refuses to turn over to the woman.
The defendant is guilty of
(A) no crime.
(B) embezzlement.
(C) kidnapping.
(D) false pretenses.
A
- (A) Sometimes the best way to answer Multistate questions is by process of elimination, especially when the correct answer choice isn’t obvious. Choice (B) is wrong because embezzlement covers the misappropriation of either personal or real pro perty. Embezzlement is broader than larceny, which, at common law, was limited to the theft of personal property. Nonetheless, the defendant is not guilty of embezzlement because we are dealing with a child, not personal or reaL property. Choice (D) is incorrect because the original English false pretenses statute covered only “money, goods, wares, or merchandise,” and thus was limited to tangible personal property and money. By the same token, the defendant is not guilty of kidnapping, which is the forcible abduction of a person. Since we are not deaLing with abduction by force, choice (C) is incorrect. Therefore, by process of elimination, choice (A) is the best answer.
38
Q
- A man, a woman, and their son went to their neighbor’s house. The man intended to take back some tools that he believed were his and that the neighbor was keeping unlawfully. The woman believed that the tools were the man’s, and she intended to help the man take them. When the son learned that the man and the woman were going to break into the neighbor’s home, he decided to accompany them. The son planned to find some items inside that might be worth taking.
Arriving at the neighbor’s home, the man opened the front door, which was closed but unlocked. Upon entering, the son went to the neighbor’s upstairs bedroom and found a watch, which he took. In the meantime, the man and the woman went to the garage and began rummaging through the neighbor’s tools. The man found the tools, which he seized. The three of them then left the neighbor’s home.
In this jurisdiction, burglary is defined as the breaking and entering of any structure with the intent to commit a felony therein.
Which, if any, individuals should be found guilty of conspiracy?
(A) The man, the woman, and the son.
(B) The man and the woman.
(C) The woman and the son.
(D) None.
A
- (D) The Common Law definition of conspiracy requires (1) an agreement between two or more persons (which constitutes the act), and (2) an intent to achieve a criminal or unlawful objective. To constitute conspiracy at common Law, there must be a combination of two or more guilty persons. Based on these facts, the “plurality” requirement is not satisfied, because the man and the woman lacked the intent to achieve a criminal objective. Both believed the man was the true owner of the tools. Therefore, neither the man nor the woman should be found guilty of conspiracy. The son intended to commit a crime when he decided to accompany the man and the woman in breaking in to the home, but he never entered into an agreement with the man or the woman to commit a theft inside the home. Since he has no co-conspirator, the son should not be found guilty of conspiracy. For the foregoing reasons, answer choices (A), (B), and (C) are incorrect.
39
Q
- A driver drove his car into the full-service area of
a gas station. He told the attendant, “Ten gallons,
please.” The attendant went ahead and pumped
10 gallons of gas into the driver’s tank. When the
attendant approached the driver for payment, the
driver drove off without paying.
The driver is guilty of
(A) larceny.
(B) larceny by trick.
(C) false pretenses.
(D) embezzlement.
A
- (B) The distinction between obtaining possession and obtaining title is the principal dividing line between larceny by trick and the crime of false pretenses. The crime of false pretenses requires that the defendant, by his lies, obtain title to the victim’s property. If he obtains possession without title by means of his lies, his crime is larceny by trick. In Hufstetler v. State, 37 Ala. App. 71 (1953), the defendant’s conviction for larceny by trick was affirmed where he (the driver) suddenly drove off without paying for the gasoline. In this particular situation, the court held that the defendant got possession but not title because the fraud vitiated the (gas station) owner’s consent. Because the fraud (i.e., the deception, here, the driver’s implication that he would pay) is said to vitiate consent, the fraud is the reason that the attendant pumped the gas. Thus, the driver has obtained possession, not ownership of the gasoline. Because both the crimes of false pretenses and embezzlement are crimes against ownership, choices (C) and (D) are incorrect. Choice (A) is not larceny because it was not a simple “trespassory taking”; instead, the driver told a lie to get the attendant to pump the gas.
40
Q
40. A boyfriend stole a diamond necklace that he gave his girlfriend as a birthday present. At the time the boyfriend gave the necklace to his girlfriend, she did not know that it was stolen. Three weeks later, while the boyfriend and his girlfriend were lying in bed, she whispered in his ear, “Gee, darling, I really love the diamond necklace you gave me. . . it must have cost a fortune.” The boyfriend responded, “Honey, the necklace didn’t cost me anything. . . I stole it.” Startled by her boyfriend’s confession, the girlfriend broke down and started crying. Moments later, however, after regaining her composure, the girlfriend decided to keep the necklace. The girlfriend is guilty of (A) receiving stolen property. (B) larceny. (C) larceny by trick. (D) no crime.
A
- (D) This is another question that illustrates the helpfulness of eliminating the incorrect answers. Choice (A) is the most attractive answer, as the boyfriend did give his girlfriend a stolen necklace, and she did, in a literal sense “receive” it. However, choice (A) is incorrect because the girlfriend lacked the requisite mens rea for the crime of receiving stolen property. She would have to have known that the necklace was stolen at the time she received it. Receiving stolen property is statutorily defined, but in most states (1) the property must be received; (2) it must have been previously stolen; (3) the person receiving the property must know it was stolen; and (4) the receiver must intend to deprive the owner of his or her property. Choice (B) is wrong. The crime of larceny requires the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner. The mental state of intent to steal must concur in time with the act of taking and carrying away. In this question, the boyfriend, not the girlfriend, performed the act of stealing the diamond necklace. The girlfriend decided to keep it three weeks Later. Therefore, she cannot be guilty of common law larceny. At most, the girlfriend is an accessory after the fact. Since the girlfriend did not obtain possession of the neckLace by lying to someone, she cannot be guilty of larceny by trick, so choice (C) is wrong. By process of elimination, choice (D) is the best answer.
41
Q
- One afternoon, a woman was having lunch with her boss when the boss excused herself to go to the bathroom. As the boss stood up to leave the table, her wallet fell out of her pocketbook onto the floor. The boss was unaware of what occurred and proceeded to the bathroom. The woman, however, saw the wallet fall. Intending to steal it, the woman picked up the wallet and placed it in her pocket. Before the boss returned to the table, the woman had a change of heart and decided to give the wallet back. Thereupon, the woman told her boss what had happened and handed her the wallet when she returned from the bathroom.
The woman is guilty of which, if any, crime?
(A) No crime.
(B) Larceny.
(C) Embezzlement.
(D) False pretenses.
A
- (B) Commission of the crime of larceny requires a taking (caption) and carrying away (asportation) of another’s property. A taking occurs when the offender secures dominion over the property, while a carrying away requires some slight movement of the property. Once the woman picked up the wallet (with the intent to steal) and placed it in her pocket (sufficient asportation), she committed the crime of larceny despite the fact that she later returned the property. The woman later had a “change of heart” and returned the wallet to her boss, but that would not constitute a valid defense. For this reason, choice (A) is incorrect. Both choices (C) and (D) are wrong because the crimes of false pretenses and embezzlement are both crimes against ownership, and the woman never had the right to possess the wallet.
42
Q
- A defendant entered a department store and took the elevator to the eighth-floor toy department. He went there intending to purchase a new game. The defendant, who only had $8.00 in his possession, saw that the game he wanted was selling for $10.00 Realizing that he did not have enough money to pay for the game, he ripped the $10.00 price tag off the box. While no one was looking, the defendant then took the $7.00 sticker from another game and placed it on the box. He then purchased the game for $7.00 and walked out of the store.
Which one of the following crimes may the defendant be convicted of?
(A) False pretenses.
(B) Larceny.
(C) Deceit.
(D) Conversion.
A
- (A) Choice (A) is correct because the crime of false pretenses requires that the defendant by his lies obtain title to the victim’s property. Choice (B) is incorrect. If one obtains possession without title by his lies, his crime is larceny. At common Law, larceny consists of (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it. In this regard, larceny by trick is simply one way of committing the crime of larceny; it is not a crime separate from larceny. Answer choices (C) and (D) are easily eliminated because both refer to intentional torts.
43
Q
- An owner took his car to an auto mechanic to have the oil changed. When he returned to pick up his car later in the day, the mechanic told him the charge was $1 The owner objected and said the charge was excessively high. The mechanic indicated that the amount was reasonable and showed the owner a price listing substantiating the charge. As the two men were arguing, the mechanic excused himself to answer the telephone in the rear of his shop. While the mechanic was on the phone, the owner got into his car and drove off without paying the servicing charges.
If the owner is subsequently charged with larceny, he should be found
(A) not guilty, because the car was his own property.
(B) not guilty, if the jury finds the servicing charge to be excessively high.
(C) guilty, if the jurisdiction has a statute making theft of services a crime.
(D) guilty, because he took the car without the mechanic’s consent.
A
- (C) At common law, larceny was limited to the taking (and carrying away) of tangible personal property. Modern statutes in most jurisdictions have broadened the scope of larceny to include the theft of Labor or services or the use of property. Consequently, choice (C) is correct, and the owner is guilty of larceny if the jurisdiction has a statute making theft of services a crime. Remember to apply the common law unless the question provides a statutory definition. Choice (A) is incorrect because the owner is being charged with larceny of the services, not his own car. Choice (B) is wrong. Even if the service charge was excessively high, the owner did not have the right to drive off without paying. Choice (D) presents a true statement, but, as discussed above, at common law, larceny is limited to tangible personal property. The owner can only be found guilty of larceny of the mechanic’s services in a jurisdiction that has statutorily defined larceny to include the theft of services; so choice (C) is preferred over choice (D).
44
Q
- In most states, the division of homicide into degrees is distinguished according to which of the following?
(A) the causal relationship between the defendant’s act and the resulting death.
(B) the attendant circumstances surrounding the death.
(C) the nature of the act causing the death.
(D) the defendant’s state of mind at the time the killing was committed.
A
- (D) It is important that students understand the common law definition of murder as distinct from statutory definitions of murder. This important concept is frequently misunderstood. At common law, there are no degrees of murder. “Murder is the unlawful killing of a human being with malice aforethought.” This is the common law rule. Malice can be found where there Is: (1) intent to kilL, (2) intent to inflict great bodily harm, (3) reckless indifference to human life, or (4) a killing committed in furtherance of a dangerous felony (felony murder). At common law, there are no degrees of murder. Degrees of murder are statutorily defined. Since the common law is the default rule, when approaching a question about murder, you needn’t discuss consider degrees of murder, unless the question prompts you to do so. In most jurisdictions that distinguish between first-and second-degree murder, first-degree murder will include the premeditated variety, as well as felony murder. Everything else is second-degree. Thus, choice (D) is the best answer. Choice (A) is wrong. Although causation is always required in homicide cases, the causal relationship is irrelevant to the distinction between first-and second-degree murder. Answer choice (B) is easily eliminated, since “the attendant circumstances” is so vague as to have no meaning at all. Choice (C) is incorrect because the key distinction is the defendant’s mental state, not her actions.
45
Q
- A law school professor was hired to teach a bar review course. The professor taught the course in three cities. After conducting the sessions, the professor submitted an expense report to the owner of the bar review course. Her expense voucher included a $225 travel expenditure to a fourth city where the professor had attended a symposium unrelated to the bar review course.
The professor also submitted the $225 travel expenditure to the administrator for the faculty at the law school where she teaches. The dean of the law school had previously approved the professor’s appearance at the symposium. The owner paid the professor for the symposium-related expenditure but indicated that the expense item was improperly billed to his company.
The professor was indicted for false pretenses. In her defense, she contends that the double billing was the result of a bookkeeping error. Her defense should be
(A) valid, if her mistake was reasonable.
(B) valid, if she didn’t know that the billing to the bar review company included the symposium expenditure.
(C) invalid, if her bookkeeping error was unreasonable.
(D) invalid, because white-collar crime imposes absolute criminal liability.
A
- (B) In order to answer this question correctly, the reader must know the elements of the crime of false pretenses. False pretenses involves: (1) a false representation of a material present or past fact (2) which causes the victim (3) to pass title to (4) his property to the wrongdoer, (5) who (a) knows his representation to be false, and (b) intends thereby to defraud the victim. Answer choice (B) is the best answer here because the defendant must intend to defraud in order to be guilty of false pretenses. If the professor did not know that the bill to the bar review company included the expenditure for the symposium, then she didn’t have the requisite meris rea, and her defense would be valid. Choices (A) and (C) are wrong for the same reason. Mistake of fact to a specific intent crime, even if unreasonable, will be a valid defense, so long as it negates the required mental state. Choice (D) is easily eliminated, as there is no strict liabiLity for specific intent crimes.
46
Q
- Late one night, co-defendants broke into a warehouse and proceeded to load the large crates of appliances onto their truck. As they were leaving, one of the co-defendants inadvertently threw his cigarette butt into a refuse pile of old cardboard boxes and papers. Soon afterward, the refuse ignited into a small fire. Although the co-defendants had time to douse the fire without any danger to themselves, neither did so. Instead, they climbed into the truck and fled. Meanwhile, the fire quickly spread, engulfing the entire warehouse in flames.
At common law, the co-defendants should be found guilty of
(A) burglary and arson.
(B) larceny and arson.
(C) larceny only.
(D) burglary, larceny, and arson.
A
- (C) At common law, the defendants could only be convicted of larceny, which is the taking and carrying away of the personal property of another by trespass with intent to permanently deprive that person of his interest in the property. The defendants could not be convicted of burglary or arson since, at common law, both offenses required commission in the dwelling house of another. Choice (A) is wrong because it includes burglary, and that is incorrect for the reason stated above. Choice (B) is incorrect because it includes arson, and that is wrong for the reason stated above. Choice (D) is incorrect for the reasons stated above.
47
Q
- Two men were told by the defendant that a medical devices company was now using the old warehouse on the river for storing its supply of defibrillators. Late one night, the two men broke into the warehouse and proceeded to load the large crates of defibrillators onto their truck. As they were leaving, one of the men inadvertently threw his cigarette butt into a refuse pile of old cardboard boxes and papers. Soon afterward, the refuse ignited into a small fire. Although the men had time to douse the fire without any danger to themselves, they did not do so. Instead, they fled. Meanwhile, the fire quickly spread, engulfing the entire warehouse in flames.
If the defendant is later charged as a co-conspirator, in all likelihood he would be held responsible as
(A) an accessory before the fact.
(B) a principal in the second degree.
(C) an accomplice.
(D) not respbnsible.
A
- (D) Since the defendant only furnished factual information concerning the contents of the warehouse without knowledge or participation in the planned scheme to commit the burglary, he cannot be held as a co-conspirator, accessory before the fact, or principal in the second degree. Choice (A) is incorrect for the reason stated above. Choice (B) is incorrect because a principal in the second degree is typically an accessory. Choice (C) is incorrect for the reasons stated above.
48
Q
- A defendant decided to rob a bar because he knew that the bar was now utilizing a new security system that was faulty and that nighttime was the best time to break in.
Late one night, the defendant broke into the bar and proceeded to load large kegs of beer onto his truck. As he was leaving, the defendant inadvertently threw his cigarette butt into a trash can behind the bar. Soon afterward, the trash ignited into a small fire. Although the defendant had time to douse the fire without any danger to himself, he did not do so. Instead, he climbed into the truck and drove away. Although the fire spread beyond the trashcan, the fire department responded quickly and was able to put it out. The floor behind the bar was charred. The statutes for both burglary and arson in this jurisdiction include residential and business structures.
The defendant should be convicted of which of the following crimes?
(A) Arson, burglary, and larceny.
(B) Arson and burglary.
(C) Larceny and burglary.
(D) Arson, robbery, and burglary.
A
- (A) Choice (A) is correct because modern statutes have broadened the property, which, if burned and/or burglarized, include buildings. ALthough the defendant did not intend originally to set fire to the pub, an arson was nevertheless committed by his failure to douse the fire without endangering himself. Charring is sufficient for arson. Keep in mind, however, that blackening is not. In addition, the defendant should also be convicted of larceny because it was a trespassory taking and carrying away of the property of another with the intent to permanently deprive the victim of the property. Choice (B) is incorrect because the defendant is also guilty of larceny, and that makes choice (A) a more complete answer. Choice (C) is incorrect because the defendant is also guilty of arson for the reason stated above. Choice (D) is incorrect because there is no robbery here, as the defendant did not commit larceny from a person with the use of force or threat of force.
49
Q
- A state has a statute defining burglary as “the breaking and entering without privilege of any building or occupied structure with the intent to commit a felony therein.” Late one night, the defendant broke into a warehouse located in the largest óity in the state. He carried with him an incendiary device with which he intended to commit arson. After breaking a window and putting his leg through the glass, the defendant was immediately arrested by a security guard.
The defendant should be found guilty for which of the following crimes under modem law?
(A) Burglary.
(B) Burglary and attempted arson.
(C) Burglary, attempted arson, and robbery.
(D) Criminal damage to property.
A
- (B) In accordance with the state burglary statute, the defendant is guilty of burglary because he (1) broke into and (2) entered (3) the warehouse (4) with the intent to commit a feLony therein. The defendant should also be found guilty of attempted arson because (1) he intended to commit arson and (2) engaged in an act constituting a “substantial step” in the commission of the crime — which consisted of the defendant’s breaking into the building with an incendiary device in his possession. The Model Penal Code sets forth several categories of conduct which that are sufficient as a matter of law to be corroborative of the actor’s criminal purpose. Model Penal Code Section 5.O1(2)(O hoLds that it is a “substantial step” to be in “possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which serve no lawful purpose of the actor under the circumstances.” Choice (A) is incorrect because the defendant is also guilty of attempted arson, as stated above. Choice (C) is incorrect because there was no taking from a person by force or threat of force. Choice (D) is incorrect because this would be a misdemeanor, and the defendant is guilty of far more serious crimes, as stated above.
50
Q
- A state has a statute defining burglary as “the breaking and entering without privilege of any building or occupied structure with the intent to commit a felony therein.” Late one night, a burglar broke into a jewelry store located in the state. She was immediately arrested by the night security guard. When the burglar was apprehended by the security guard, she offered him $500 to let her go. The security guard agreed. The burglar then handed him the money and took with her the jewelry she intended to steal.
If the security guard is later arrested, he should be found guilty for which, if any, of the following crimes?
(A) Conspiracy to commit burglary.
(B) Accessory before the fact to burglary
(C) Accessory after the fact to burglary.
(D) No crime.
A
- (C) Here, the defendant shouLd be found guilty as an accessory afterthe factto burglary. According to LaFave, there are three basic requirements which that must be met to constitute one as an accessory after the fact: (1) a completed felony had theretofore been committed by another; (2) he knew of the commission of the felony by the other person; and (3) he gave aid to the feLon personally for the purpose of hindering the felon’s apprehension, conviction, or punishment. Choice (A) is incor rect because there was no specific intent on behalf of the defendant to commit the underLying crime of burgLary. Choice (B) is incorrect because you don’t have facts that the burglar committed another burglary. Choice (D) is incorrect for the reasons stated above.
51
Q
- In which situation would the defendant most likely be guilty of murder?
(A) As a practical joke, the defendant throws a firecracker in a crowded movie theater. A victim, who has a weak heart, becomes frightened and thinks someone is firing a gun. The victim suffers a heart attack and dies.
(B) The defendant hates her husband after learning that he is having an affair with her best friend. She also knows that her husband owes a man a large amount of money, which he refuses to pay. Before the husband is about to leave for work, the defendant looks out the window and sees the man hiding outside with a gun. The defendant decides not to warn the husband, who then walks outside and is shot and killed by the man.
(C) The defendant and his friend attended a party together. At the party, the friend became extremely inebriated. The friend asked the defendant if she could borrow his car to drive to the liquor store to buy more booze for the party. Although the defendant was aware of the friend’s intoxicated condition, he allowed her to drive his car to the liquor store. The friend drove through a red light and collided with the victim’s car. The victim was killed in the accident.
(D) The defendant keeps a loaded gun in his house for protection. One day, the defendant leaves the gun on the kitchen table and leaves for work. That same day, a robber breaks into the defendant’s home, sees the gun, and steals it. The robber then uses the gun to rob a convenience store. During the robbery, the robber shoots and kills the proprietor with the defendant’s gun.
A
- (B) For criminal liability to be based upon a failure to act, it must first be found that there is a legal dutyto act. The situations which that impose such a duty include:
(1) duty based upon the relationship of the parties; (2) duty based upon statute; (3) duty based upon contract; (4) duty based upon voluntary assumption of care; (5) duty based upon creation of peril; (6) duty to control conduct of others; and (7) duty of landowner. Regarding duty based upon relationship, the common law imposed an affirmative duty upon a husband to aid his imperiled wife. InterestingLy enough, the common law is silent on a wife’s legal duty. LaFave states, however, that “it would seem that a wife owes a similar duty to act to safeguard her husband.” Criminal Law, footnote 11, pg. 204. Thus, choice (B) is correct. Choices (A) and (C) are incorrect. At most, the defendant would be guiLty of involuntary manslaughter, as the conduct in both situations would not rise to the level of depraved-heart murder. Choice (D) is incorrect. The defendant would not be guilty of any crime committed by the robber, as his conduct of leaving the gun on his kitchen table was not criminal.
52
Q
52. A passenger on a subway car placed her pocketbook on the seat next to her and began to zip up her jacket. Defendant was standing in front of the passenger and holding on to the hand rail. Seeing the pocketbook unattended, he suddenly grabbed it and tried to run away. As he did so, the passenger became very frightened and fell backward. She struck her head against the window and was knocked unconscious. In the commotion, Defendant dropped the pocketbook and hurriedly exited the subway car empty-handed. Defendant should be found guilty of a. larceny. b. attempted larceny. c. assault. d. robbery.
A
- (A) The distinction between larceny and robbery is tested on each and every Multistate exam. Robbery requires that the taking be done by means of violence or intimidation. Larceny from the person or presence of the victim is not robbery without the added element of force or violence. The line between robbery and larceny from the person (between violence and lack of violence) is not always easy to draw. The “snatching” cases, for instance, have given rise to some dispute. LaFave points out that “the great weight of authority supports the view that there is notsufficient force to constitute robbery when the thief snatches property from the owner’s grasp so suddenly that the owner cannot offer any resistance to the taking.” Criminal Law, pg. 696. Choices (C) and (D) are incorrect. This is larceny, despite the fact that the victim became frightened after the taking. Choice (B) is wrong because sufficient asportation occurred when the Defendant took the pocketbook off the seat (even if it was only a slight distance).
53
Q
- A state has the following homicide statute in effect:
“Whoever, purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate a rape, arson, robbery, burglary, or any other felony dangerous to human life, kills any human being, is guilty of murder in the first degree, and, on conviction, shall suffer death or be imprisoned in the state prison for life; Whoever maliciously but without premeditation kills any human being, is guilty of murder in the second degree, and, on conviction, shall be imprisoned in the state prison for life; Whoever unlawfully kills any human being without malice, express or implied, either voluntarily upon a sudden heat or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter, and on conviction, shall be imprisoned in the state prison not less than two years nor more than 20 years.”
A man is having an affair with a married woman. The husband finds out about his wife’s relationship with the man. The next day, the husband sees the man walking down the street. Enraged by the man’s relationship with his wife, the husband pulls out a gun and shoots the man, killing him.
The husband is subsequently arrested and prosecuted under the homicide statute for killing the man. At trial, the husband’s attorney attempts to introduce evidence that at the time the husband shot the victim, he was intoxicated.
Upon objection by the prosecuting attorney, the evidence is
(A) admissible.
(B) admissible, but the jury must be cautioned that it does not pertain to manslaughter.
(C) admissible, but the jury must be cautioned that it does not pertain to felony murder or seconddegree murder.
(D) not admissible.
A
- (B) This is another popular Multistate Criminal Law question dealing with voluntary intoxication as a defense for homicide. Always remember that voluntary intoxication will never mitigate murder to manslaughter. It may reduce first-degree murder to second-degree murder if the intoxication negates the defendant’s premeditation, deliberation, or intent. Furthermore, choice (B) is correct because voluntary intoxication is no defense to manslaughter. Choice (A) is incorrect because it is not as strong as choice (B), which speaks directly to the issue in the question. Choice (C) is incorrect because intoxication may pertain to felony-murder, even though it will not reduce a second-degree murder to manslaughter. In this regard, intoxication may be a defense for the underlying felony in a felony-murder prosecution, such as robbery, where it negates the intent to steal. Choice (D) is incorrect for the reasons stated above.
54
Q
- Having just stolen a car, a defendant was operating the car within the posted speed limit when the steering suddenly malfunctioned. The car swerved out of control, jumped the curb, and crashed into a home. The defendant was arrested and charged with the separate crimes of larceny and malicious destruction of property.
During the trial the judge instructed the jury that the theft of the car was sufficient evidence to satisfS’ the malice requirement for the malicious destruction of property charge. The defendant’s attorney has filed a motion objecting to the judge’s jury instruction.
The judge’s instruction was
(A) correct, because malice can be inferred from the intent to steal.
(B) correct, because malicious destruction of property is a general intent crime.
(C) incorrect, because larceny is not a lesser included offense of malicious destruction of property.
(D) incorrect, because malice requires a showing of recklessness.
A
- (D) Larceny and malicious destruction of propertyare separate criminal offenses. Choice (A) is incorrect. The mere theft of the auto does not satisfy the malice requirement for the destruction of property offense. Choices (B) and (C) are incorrect, as they do not answer the call of the question as to whether the judge’s instruction to the jury was proper. Choice (D) is correct because reckless conduct satisfies the malice requirement.
55
Q
- A defendant went to a convenience store intending to rob it. The defendant had a gun inside his coat pocket. When the defendant entered the store, the owner saw that he had his hand in his coat pocket. Although the owner did not actually see the gun, he noticed a bulge in the defendant’s coat pocket.
Paranoid because of a rash of recent robberies, the owner said, “Please don’t hurt me 11 do anything you want.” The owner then fainted and fell to the floor. The defendant walked behind the counter and opened the cash register. He took the money from the register and left the store.
If the defendant is charged with robbery, he should be found
(A) guilty, because the owner was placed in fear.
(B) guilty, because the defendant entered the store with a gun in his possession.
(C) not guilty, because the defendant did not make any threat of force.
(D) not guilty, because the defendant did not take any money from the victim’s person.
A
- (C) Robbery at common law consists of the same six elements as larceny, namely, (1) a trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it, plus the two added elements of (7) the taking must be accomplished by force, violence, or intimidation and (8) the taking must be from the victim’s person or presence. With respect to element 7, robbery requires that the taking be done by means of force, violence, or intimidation. The most common sortoffearin robbery, of course, isthefearengendered bythe robber’sthreat of immediate bodily injury or death, as where the robber points a gun, loaded or unloaded, at the owner, with a threat to shoot unless the latter hands over his property. In this question, the defendant did not actually threaten the owner nor did he brandish his gun. Therefore, choices (A) and (B) are incorrect. Choice (D) is incorrect because a defendant does not have to actually take money from a victim in order to be found guilty of robbery.
56
Q
56. A wealthy retiree had amassed a fortune after selling his pharmaceutical company. The retiree and his wife lived in an exquisitely decorated penthouse apartment overlooking a park. One night, the retiree and his wife were returning home from dinner when they were accosted by a man outside their apartment building. The man brandished a gun and told the retiree and his wife to take him to their apartment. Upon entering the apartment, the man blindfolded the retiree and his wife and tied them up with duct tape to chairs in the living room. The man then stole the retiree’s wallet and assorted jewelry from the bedroom. After the man exited the apartment, the retiree and his wife tried desperately to free themselves from their constraints. As the retiree was struggling, he suffered a heart attack and died. The man should be found guilty of (A) burglary. (B) robbery and burglary. (C) robbery and murder. (D) burglary, robbery, and murder.
A
- (D) First, the man is guilty of burglary, which at common law was defined as the (1) breaking (2) and entering (3) of the dwelling house (4) of another (5) at nighttime (6) with intent to commit a felony therein. In the present case, students must assume that the man intended to commit a larceny or felony when he led the victims into the apartment at gunpoinL Second, the man is guilty of robbery because there was a violent taking of the victims’ personal property. Although robbery requires presence, “the robber takes property from the victim’s presence if he locks or ties the victim up in one room of a building and then helps himself to valuables located in another room.” LaFave, pg. 780. Third, the man is guilty of felony-murder because the retiree’s death was proximately related to the robbery and burglary. Therefore, choices (A) and (B) are incorrect. Choice (C) is wrong because burglary and robbery are separate criminal offenses.
57
Q
- A husband and wife owned and operated a grocery store. The grocery store was situated in the first floor of the building in which the husband and wife occupied a second-floor apartment. Late one evening, the defendant was walking past the grocery store when he decided to steal the money he heard had been stashed in a cigar box inside the store.
The defendant furtively walked to the rear of the building. He then proceeded to open the gate to the fenced-in back yard. Once inside the back yard, the defendant attempted to pry open the back window of the grocery store. Awakened by the barking of his watchdog, the husband went out onto his second- floor back porch and saw the defendant below. The husband yelled at the defendant. Startled, the defendant turned to run when he noticed a large package lying outside the rear door to the store. The defendant picked up the package, which contained baked bread that had been delivered earlier in the evening, and the defendant then ran off.
Which of the following crimes will the defendant most likely be convicted of?
(A) Larceny.
(B) Burglary.
(C) Larceny and attempted burglary.
(D) Larceny and burglary.
A
- (C) The defendant wouLd be guilty of larceny, which at common law may be defined as the (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it. In the present example, the defendant committed larceny by taking (caption) and carrying away (asportation) the package containing the baked bread. With respect to the crime of burglary, students should note that, at common law, burglary consisted of (1) breaking and (2) entering of (3) a dweLling house (4) of another (5) in the nighttime (6) with the intent to commit a felony therein. Here, the defendant would be guilty of attempted burgLary (rather than the completed crime) because he did not gain entry into the grocery store’s structure. According to LaFave, “a place of business used onLy during the day will not so qualify, but if it is attached to a residence it will.” Choice (A) is incorrect because the defendant is also guilty of attempted burglary. Choice (B) is incorrect because the defendant is also guilty of larceny. Choice (D) is incorrect because the defendant did not complete the crime of burglary for the reasons stated above.
58
Q
- The victim owned and operated a small convenience store that was situated on the first floor of the building in which the victim occupied a second-floor apartment. Late one evening, the defendant was walking past the convenience store when he decided to break into the store to steal beer and cigarettes.
The defendant threw a brick through the window of the convenience store and quickly went inside. Awakened by the alarm, the victim went down the stairs and into the convenience store. Seeing the victim, the defendant turned and began to run.
Seeing the defendant running away with a case of beer and a carton of cigarettes, the victim ran after the defendant but tripped and fell, breaking his neck, which resulted in his immediate death.
If the defendant is subsequently charged with the victim’s death, he will most likely be found
(A) guilty of felony murder.
(B) guilty of involuntary manslaughter.
(C) guilty of voluntary manslaughter.
(D) not guilty, because it was unforeseeable that a death would occur under the circumstances.
A
- (A) In accordance with the felony murder rule, at common law, one whose conduct brought about an unintended death in the commission or attempted commission of a serious or inherently dangerous felony was guilty of murder. Choice (B) is incorrect because the defendant is guilty of felony murder, as stated above. Choice (C) is incorrect because a voluntary manslaughter is an intentional killing brought about by a reasonable provocation, and there are no facts to support it here. Choice (0) is incorrect because the victim’s death was foreseeable.
59
Q
- A defendant and his friend were down on their luck. They decided they would make some extra cash by robbing the local liquor store. The friend didn’t like guns and decided to use a toy gun, which looked like a real gun, but only shot water. The defendant was aware that the gun was not real.
Their plan fixed, they walked into the liquor store late one afternoon when few customers were in the store. The friend produced the toy pistol and pointed it at the customers and the clerk. The defendant ordered everyone to the floor, and the clerk began to rummage behind the counter for the key to the register. While his head was ducked, the clerk pulled a shotgun from behind the counter and fired it at the defendant and his friend. The defendant dived to the side, but his friend was shot and killed.
If the defendant is subsequently charged with his friend’s death he should be found
a. guilty of felony murder.
b. guilty of voluntary manslaughter.
c. guilty, because a felon may be convicted of the murder of a co-felon.
d. not guilty, because the clerk was justified in killing the friend.
A
- (D) The Redline limitation on the felony—murder doctrine holds that a felon is not liable for the death, which the felon did not intend, of a co-felon participating in criminal activity. According to LaFave, Criminal Law, 2Ed, pg. 629, “it is now generally accepted that there is no felony-murder liability when one of the felons is shot and killed by the victim, a police officer, or a bystander.” Although this is contrary to the common law rule, Redline is now the prevailing view in a majority of jurisdictions. Choice (A) is incorrect for the reasons stated above. Choice (B) is incorrect because a voluntary homicide is an intentional killing based on reasonable provocation. Choice (C) is incorrect because it reflects the common law rule.
60
Q
- Under which one of the following situations would the defendant(s) most likely be found guilty of larceny?
(A) A customer took his watch to a jeweler for repairs. The defendant inspected the watch and informed the customer that the watch needed a minor adjustment, which he would perform that afternoon. The customer gave the watch to the defendant and told him that he would return the following day to pick it up. As the defendant was repairing the watch, he discovered that it was an extremely valuable antique. He then substituted a less-expensive look-alike for the watch, which the customer picked up the next day.
(B) As two defendants were walking down the street, they noticed a victim park his metallic gold sports car and enter the pool hail. When they approached the car, one of the defendants observed that the victim had left the keys in the ignition. Knowing that the victim would be hustling pool all evening, the defendants hopped into the sports car and drove off, intending to return the car later that evening.
(C) During a craps game in the back room of a bar, the defendant lost $150 to the victim. The defendant left the bar after losing his money and returned an hour later with a gun in his possession. Honestly believing that the $150 still belonged to him, the defendant confronted the victim in the back room and demanded the return of his money. Frightened, the victim handed the money back to the defendant.
(D) One afternoon, the defendant noticed the victim riding his racing bike in the park. The defendant, who always wanted to own a racing bike, saw his opportunity when the victim left his bike unattended to participate in a touch football game. The defendant jumped on the bike and quickly rode away. Later that evening, the defendant called the victim and demanded $200 for the return of the bike. The victim agreed to the defendant’s demand. The following day, the victim paid the defendant the money, and the defendant, in turn, returned the bike.
A
6o. (D) Choice (D) is correct. Choice (A) is incorrect because the defendant did not commit larceny when he fraudulently converted the watch which that he was lawfully in possession of. Therefore, the defendant would be guilty of embezzlement, not larceny. Choice (B) is wrong because one who takes another’s property, intending at the time he takes it to use it temporarily and then return it unconditionally within a reasonable time (and having the substantial ability to do so), lacks the intent to steal required for larceny. Choice (C) is wrong because one may take the property of another honestly, but mistakenly, believing that it is his own property. In such an event, the defendant lacks the intent to steal required for larceny, even though his mistaken but honest belief was unreasonable. A similar result was reached in People v. Rosen, 78 R2d 727 (1938), where the defendant used a pistol to recapture money he had lost by illegal gambling, honestly believing the money still belonged to him; conviction of larceny held reversed for lack of intent to steal. Consequently, choice (D) is correct, since it is no defense to larceny that the taker intended to return it (i.e., the stolen property), only if he should receive a reward for its return.
61
Q
- A state has the following statute in effect:
“No person shall sell, barter, furnish, or give to a minor under 16 years of age an air gun, rifle, shotgun, pistol, or other firearm; or being the owner or having charge or control thereof, knowingly permit it to be used by a minor under such age. Whoever violates this statute shall be fined not more than $1,500 (one thousand five hundred dollars), or imprisoned not more than 45 days, or both.”
A mother purchased an air rifle, which she gave to her son. The mother, a police officer, who was familiar with firearms, trained her son in the systematic practice of care in the use of the air rifle. One afternoon, the son, who was 15 years of age, was playing with his friends. The three boys took turns firing the air rifle, which discharged small pellets, at various targets in the son’s back yard. As one of the friends, who was 16 years old, was using the air rifle, he fired a shot over the other friend’s head, intending to frighten him. The pellet missed the other friend, but struck a next-door neighbor in the eye, severely injuring her.
The mother is subsequently charged with violating the state statute. As her defense, the mother claims that she erroneously believed the statute prohibited firearms to be given or sold to minors under 15 years of age.
If the mother’s mistaken belief is honest, it should
(A) result in her acquittal, because she didn’t have the necessary mental state required for the crime.
(B) result in her acquittal, because the friend is 16 years of age or older.
(C) not prevent her conviction, because mistake of law is no defense.
(D) not prevent her conviction, because mistake of fact is no defense.
A
6i. (C) As a general rule, ignorance or mistake as to a matter of fact or law is a defense if it negates a mental state required to establish a material element of the crime. H ow- ever, LaFave states that a “quite different kind of mistake of law, whereby the defendant believes that his conduct is not proscribed by the criminal law, is generally not a defense.” Criminal Law, pg. 356. Choices (A) and (B) are incorrect because the statute may be violated in either of two ways. First, anyone who gives, sells, or furnishes an air gun (or firearm) to a minor is guilty of violating the statute. Second, anyone who is the owner or in control of a firearm and who knowingly permits it to be used by a minor is also in violation of the statute (which imposes strict criminal liability). In the present case, the mother violated the first section of the statute by giving the air rifle to her son, who was underthe statutory age. Choice (D) is incorrect because a mistake of fact, which is not present in our question, can be a defense.
62
Q
- One morning in a Laundromat, a defendant approached a man and said, “If you don’t pay me $500 by July 2,, I’ll beat you to a pulp.” A week later, on July 2, the defendant met the man at a local bar and demanded the money. The man handed the defendant the $500. After receiving the money, the defendant then punched the man in the stomach and hurriedly left the bar.
Under modem statutory law, the defendant will most likely be found guilty of which of the following crimes?
(A) Extortion and battery.
(B) Extortion and robbery.
(C) Assault and battery.
(D) Assault and robbery.
A
- (A) Statutory extortion (or blackmail) covers threats to do future bodilyharm. The crime of robbery by intimidation requires that the threat be to do immediate harm. Since the defendant threatened the man with future bodily harm, the former would be found guilty of extortion, not robbery. In addition, the defendant should be found guilty of criminal battery, which may be defined as the unlawful application of force. Assault, on the other hand, does not require such physical contact. Therefore choices (B), (C), and (D) are incorrect.
63
Q
- A woman entered a jewelry store and asked the store’s owner if he had any bracelets with turquoise and mother-of-pearl inlay. The owner answered affirmatively and showed the woman two display trays of bracelets. As the woman was looking at a few of the pieces, the telephone in the store began to ring. The owner excused himself and walked to the rear of the store where he answered the telephone call. While the owner was speaking on the phone, the woman placed one of the bracelets in her pocketbook and walked a few feet toward the front door of the store. She was about to leave the store, without paying for the bracelet, when she suddenly noticed one of the other employees. Thinking that the employee had seen her place the bracelet in her pocketbook, the woman walked back to the counter and returned the bracelet to the display tray. In fact, the employee had seen the woman take the bracelet but decided not to say anything after she put it back.
If the woman is subsequently prosecuted for larceny of the bracelet, she will most likely be found
(A) guilty, because it is not relevant that she returned the bracelet to the display tray.
(B) guilty, because the employee had actually seen her place the bracelet in her pocketbook.
(C) not guilty, because she returned the bracelet to the display tray.
(D) not guilty, because she didn’t leave the store with the bracelet in her possession.
A
- (A) Commission of the crime of Larceny requires a taking (caption) and carrying away (asportation) of another’s property. A taking occurs when the offender secures dominion over the property, while carrying away requires some slight movement of the property. Therefore choices (C) and (D) are incorrect. Choice (B) is incorrect. The fact that the employee did or did not see her place the bracelet in her pocketbook is not relevant as to whether the woman would be guilty of larceny.
64
Q
- A man was at a hotel bar having a drink when the defendant approached him and sat down next to the man. The man was attracted to the defendant and immediately engaged her in conversation. After having a few drinks together, the man invited the defendant back to his room for a nightcap. Sensing that the man was wealthy, the defendant agreed to accompany him back to his hotel room.
When they got back to the room, the man excused himself to go to the bathroom. While he was inside the bathroom, the defendant took some narcotics from her purse and placed them in the man’s drink. The defendant realized that the narcotics were a strong sedative and hoped that they would cause the man to pass out. She then planned to steal his wallet and jewelry. Upon returning from the bathroom, the man proceeded to finish his drink. Shortly thereafter, the man passed out. While he was unconscious, the defendant took his watch off his wrist and pulled the wallet out of his pants. She took $300 in cash from the wallet. As she was leaving, the defendant noticed that the man had a diamond earring in his left ear. She then ripped out the earring from his ear and stole that, as well. The man suffered a cut in his earlobe when the defendant snatched the earring.
Which of the following crimes should the defendant be convicted of?
(A) Larceny.
(B) Robbery.
(C) Larceny and robbery.
(D) Battery and larceny.
A
- (B) This question covers two important elements regarding robbery. At common law, robbery consists of all six elements of larceny: (1) trespassory (2) taking and (3) carrying away (4) the personal property (5) of another (6) with intent to steal, plus two additional requirements: (7) the taking be accomplished by force, violence, or intimidation, and (8) the taking must be from the victim’s person or presence. First, one may commit robbery by rendering his victim helpless by administering intoxicating liquors or drugs to produce unconsciousness as a means of force. LaFave, Criminal Law, pg. 782. Second, choices (A), (C), and (D) are wrong because larceny is a “Lesser included” crime and merges into robbery. A defendant cannot be guiLty of both larceny and robbery for the same criminal transaction.
65
Q
- A defendant shot and killed a victim at close range with a revolver. After the shooting death, the defendant was arrested and charged with first-degree murder. In this jurisdiction, first-degree murder is defined as “knowingly or willfully causing the death of another human being.”
Which of the following situations, if believed by the jury, would most likely result in the defendant’s acquittal of the first-degree murder charge?
(A) The victim, who was the defendant’s brother, suffered from an incurable case of cancer and asked the defendant to kill him to put an end to his pain and suffering.
(B) The killing was not done with premeditation or deliberation.
(C) The defendant intended to kill himself, but the bullet grazed his head and struck and killed the victim.
(D) The defendant intended to kill another man, but the victim unknowingly stepped in front of the other man and was struck and killed by the bullet.
A
- (C) According to LaFave, “A is guilty of murder if he is actually the agent of B’s death, notwithstanding the fact that he acted at B’s request — as where A shoots and kills B upon B’s insistence that he wants to die now rather than continue to suffer from a serious illness.” Criminal Law, p. 650. Choice (A) is incorrect, since mercy killing would not result in the defendant’s acquittal of the first-degree murder charge. Choice (B) is also incorrect because the lack of premeditation and deliberation (subjective mental states determined from the defendant’s conduct in light of the surrounding circumstances) does not preclude the fact that the defendant’s conduct in firing the gun at the victim could still have been knowing and/or willful. Choice (D) is incorrect because the defendant’s intent to kill the other man, the intended victim, will be transferred to the victim, the actual victim, under the doctrine of transferred intent. By process of elimination, choice (C) is correct. Suicide is not murder under the statute, since the defendant would be required to have knowingly or willfully caused the death of another human being, not of himself. By attempting suicide, the defendant did not knowingly or willfully cause the death of the victim.
66
Q
- A state has a statute prohibiting the sale of cigarettes to any person under the age of 17. Violation of the statute is a misdemeanor punishable by a fine not less than $500 or more than $5,000 The state courts have interpreted this statute as a public welfare offense requiring no particular mental state for its violation. As such, this is a strict liability crime whereby culpability is imposed on a defendant for doing the proscribed act.
The defendant, a recovering alcoholic, worked as a cashier at a drug store. Late one night while the defendant was working alone, he got the urge to have a drink. He opened a bottle of rum that the store sold and soon began drinking. A short time later, the defendant became inebriated and passed out. Not long thereafter, a 15-year-old girl entered the store to purchase a package of cigarettes. She took a box off the shelf and went to the cashier’s counter to pay for them. Seeing the defendant lying on the floor, unconscious, the girl left the exact price for the cigarettes on the countertop and left the store.
If the defendant is prosecuted for violating the state statute, he should be found
(A) guilty, because the offense does not require any mental state.
(B) guilty, because the defendant’s intoxication was voluntaiy.
(C) not guilty, because the defendant was unconscious.
(D) not guilty, because the defendant’s employer is vicariously liable for the violation that occurred.
A
- (C) This Multistate question deals with statutory interpretation. Here, it is necessary to carefully read the facts to see that the statute makes it a crime to sell cigarettes to anyone under the age of 17. In the present example, the defendant did not violate the statute because he didn’t sell the cigarettes to the girl, so we know the answer must be choice (C) or choice (D). Note that choice (D) is wrong because if the defendant is not criminally liable, then no vicarious liability will be imposed on the owner of the drug store. Choice (A) is incorrect because although the statute is a strict liability crime, the defendant would still have to fulfill the actus reus requirement and because he was unconscious, he could not do so. Choice (B) is incorrect for the reasons stated above.
67
Q
- A state has a statute prohibiting the sale of guns and ammunition to any person under the age of 17. Violation of the statute is a felony punishable by a fine of $5,000 and imprisonment for up to two years. The state courts have interpreted this statute as a public welfare offense requiring no particular mental state for its violation. As such, this is a strict liability crime whereby culpability is imposed on a defendant for doing the proscribed act.
A defendant, a 15-year-old, entered the store to purchase a shotgun as a present for her father. She took a shotgun off the shelf and went to the cashier’s counter to pay for it. Not seeing the cashier anywhere, the defendant left the exact price for the shotgun on the countertop and left the store.
If the defendant is prosecuted for violating the state statute, she should be found
(A) guilty, because she purchased the shotgun while under the statutory age.
(B) guilty, because the statute imposes absolute criminal liability.
(C) not guilty, provided she was unaware that the statute prohibited the sale of weapons to a person in her age group.
(D) not guilty, provided that the legislative intent was not to make the purchase of shotguns a criminal offense.
A
- (D) The statute is interpreted to make the sale, not the purchase, of firearms (to minors) a criminal offense. As such, only sellers of firearms and ammunition may be convicted under the statute. Choice (A) is incorrect because, as stated above, only the sale of firearms is prohibited under the statute. Choice (B) is incorrect for the reasons already stated. Choice (C) is incorrect, because, even if this were true, ignorance of the law is not a defense.
68
Q
- Late one night, a defendant, who had a long history of drug-related arrests, was attending a party at a house. During the party, the defendant approached an undercover narcotics agent and offered to sell him some drugs. The undercover agent purchased the drugs from the defendant. Immediately thereafter, the undercover agent arrested the defendant and charged him with conspiracy to sell narcotics and sale of narcotics. He was convicted of both crimes and given consecutive seven-year sentences.
On appeal, the defendant’s best argument is which of the following?
(A) There was no true agreement between him and the undercover agent and, hence, no
conspiracy.
(B) There was no true agreement between him and the undercover agent and, hence, no sale.
(C) He cannot be convicted of both the sale of narcotics and conspiracy because each offense is essentially the same crime.
(D) He cannot be convicted of both the sale of narcotics and conspiracy because both crimes arose from the same criminal transaction.
A
- (A) The agreement is all-important in conspiracy. In order to have a conspiracy, there must be an agreement between two or more persons to engage in a criminal act. Since the buyer was an undercover poLice officer, he never intended to really purchase the narcotics; he feigned agreement because he wanted to trap the defendant. Therefore, no agreement (or “meeting of the minds”) existed. Choice (A) is preferred over choice (B) because in a conspiracy, you need the requisite plurality of two or more persons entering into an agreement. On the other hand, the defendant can be convicted of sale of narcotics because sale does not require an agreement between two or more persons. Choices (C) and (D) are incorrect, as double jeopardy would not prevent conviction for conspiracy and the sale of narcotics.
69
Q
- A husband came home early from work one day. He walked to the bedroom and, upon opening the door, saw his wife and another man in bed together. Visibly upset, the husband told the other man to leave. As the man was reaching for his pants, he pulled out a gun, fearing that the husband was about to attack him. When the husband saw the gun, he jumped on the man and angrily twisted his neck, breaking it and killing him.
The husband is guilty for which, if any, of the following crimes?
(A) Murder.
(B) Voluntary manslaughter.
(C) Involuntary manslaughter.
(D) No crime.
A
- (D) In this question, the facts clearly indicate that the other man was the aggressor. When the husband caught the other man in bed with his wife, the husband did not threaten the other man with bodily harm or injury. It was only after the other man brandished his weapon that the husband acted in self-defense and killed him. Therefore choices (A) and (C) are incorrect. This type of question appears frequently on the Multistate because many students will skim the facts and go for choice (B), since they have been trained for that response anytime they see an apparent “heat of passion” killing.
70
Q
- While on a camping trip, a defendant became intoxicated and decided to take a walk late at night. He was so drunk he could not find his way back to the campsite. He did, however, come across a secluded mountain cabin, in which he decided to take shelter for the night. Since the door to the cabin was locked, he broke a window and entered the structure. Once inside, he fell asleep on the sofa. When he awoke the next morning he was hungry. The defendant then found some food in the refrigerator, which he cooked and ate. Before leaving the cabin, the defendant looked around to see if there was anything worth stealing. He opened the door to the bedroom and found a gold watch on the nightstand. He placed the watch in his pocket and left the cabin. The defendant was later arrested and charged with burglary.
The defendant’s strongest defense would be that
(A) he was drunk when he broke into the cabin.
(B) the crime was not completed until the morning hours.
(C) he did not have the requisite intent at the time of the breaking and entering.
(D) the cabin was empty when he entered it.
A
- (C) The common law definition of burglary requires that there be a (1) breaking and (2) entering of (3) a dwelling house (4) of another (5) in the nighttime (6) with the intent to commit a felony therein. Although the defendant originally broke into the cabin at night, his breaking and entering was not accompanied by the requisite felonious intent. Thus, choice (C) is the best answer. Since burglary is a specific intent crime, intoxication is a defense to the crime if it negates a required element of the crime, and this is so, whether the intoxication is voluntary or involuntary. This makes choice (A) an attractive answer, but choice (A) is incorrect because there are no facts that say that the defendant’s intoxication prevented him from forming the requisite intent, but merely that he could not find his way back to the campsite. Choice (B) is not the best choice. The breaking and entering took place in the nighttime. If the defendant had the intent to commit a felony at the time, then the crime of burglary would be complete at the breaking and entering. Choice (D) is wrong because whether the dwelling house is vacant or occupied is irrelevant to the crime of burglary.
