Other Crimes

Question 1

the doctrine of “continuing trespass”

Answer 1

APPLIES TO LARCENY

Under the continuing trespass doctrine, applied by most courts, one who takes another’s property, knowing that it is not his own but intending to return it, commits a “trespassory taking” at that moment; that original trespassory taking, although not coinciding with an intent to
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steal, is deemed to continue until the taker does form such an intent, at which point the larceny is complete

Question 2

What are the specific intent crimes

Answer 2

Solicitation
Attempt
Conspiracy
First Degree Murder
Assault
Larceny
Robbery
Burglary
Forgery
False Pretenses
Embezzlement

Question 3

What are the malice (reckless disregard of an obvious or high risk that the paritcular harmful result will occur) crimes

Answer 3

Common law Murder
Arson

Question 4

What are the general intent (intended to commit an act that is prohibited by law, but not necessarily the result) crimes?

Answer 4

Battery
Rape
Manslaughter
Kidnapping
False imprisonment

Question 5

What are the strict liability crims (only requires D voluntarily committed the act, regardless of intent)

Answer 5

statutory rape
Selling liquor to minors
Bigamy (some juris’s)

Question 6

As to conspiracy, what kind of evidence is needed to prove an agreement existed?

Answer 6

the existence of an agreement need not be proven by direct evidence; circumstantial evidence can suffice.

See strat and tac, crimlaw Q2

Question 7

Man approaches man with gun and asks him to empty his pocket, victim is super drunk and just laughs, man flees; can he be charged with attempted robbery?

Answer 7

YES.

See Immanuel Q4

A robbery is a larceny from a person, or in a person’s immediate presence, brought about by either force or fear. The gunman would like to assert the defense of factual impossibility. The argument would be that the drunk man was incapable of feeling fear or even of perceiving that force was being threatened, so that it was impossible for the defendant to have succeeded with the robbery, thereby preventing him from being guilty even of an attempt to rob. But, sadly for the defendant, the defense of factual impossibility is universally rejected: Impossibility is no defense to attempt charges where, had the facts been as the defendant believed them to be, the defendant would have had the mental state required for the completed crime. Here, if the facts had been as the gunman believed them to be (i.e., that the victim was capable of feeling fear or at least recognizing that the gunman’s threat to use the gun might well be real), the gunman would have had the mental state for robbery. So the fact that circumstances made it factually impossible for the completed crime to occur is irrelevant.

Note, however, Q14 Immanuel: teller was not put in fear…however, the robber did not use force, just told him to give him the money or else. That is the distinguishing fact. So look for the use of force and/or V being put in fear (and if V not put in fear due to factual impossibility (too drunk), does not matter, still roberry).

Question 8

Accomplice.

Answer 8

The accomplice is the person who aids or encourages the principal to commit the illegal conduct.

Question 9

As to the charge of being an accomplice, what if the aid rendered did not help or was not utilized?

Answer 9

At least where the attempted aid is known to the [principal], it may make no difference that the aid was unsuccessful or was not utilized, as it may qualify as an ENCOURAGEMENT. On this basis, it is correct to conclude that an accessory who provides instrumentalities to a burglar for use in a particular burglary should not escape liability as an accomplice merely because the burglar found and used other instrumentalities at the crime scene.”

Question 10

As to the charge of attempt, is preparation enough to convict?

Answer 10

NO. the defendant must go beyond mere preparation in order to be convicted for attempted possession.

Question 11

‘Public welfare’’ offenses

Answer 11

are generally interpreted to be strict liability offenses, because they generally involve a relatively low penalty and are not regarded by the community as involving significant moral impropriety. Ordinances forbidding the sale of alcohol to minors generally fall into this public welfare-offense category. Consequently, such ordinances typically do not recognize the defense of mistake (even reasonable mistake).

Question 12

Battery is the:

Answer 12

Unlawful (without legal excuse);

Application of force;
The force can be applied by a third party acting under the defendant’s
direction or by an object controlled by the defendant.

To the person of another;
The application of force to an object near, carried by, or attached to the victim is sufficient (e.g., kicking a cane used by the victim).

That results in bodily harm or offensive contact.
The touching, however slight, must result in bodily harm (e.g., a bruise) or an offensive touching (e.g., an unwanted kiss).

*Remember, battery is a general intent crime (intent to cause injury is NOT necessary –
only the intent to do the unlawful act is required).

Question 13

Assault is either:

Answer 13

An attempt to commit a battery;

OR

Intentionally placing another in apprehension of imminent bodily harm.

If there has been physical contact with the victim, the crime can only be battery, not assault.

Question 14

False imprisonment consists of the:

Answer 14

Unlawful (without legal excuse);

Confinement of a person;
Confinement may be effected by forcing a person to go where he does not want to or by preventing him from going where he does not want so long as no alternative routes are available to him. This may be done by actual force, threat of force, or a show of force.

Without valid consent.

The Model Penal Code requires that the confinement “interfere substantially” with the victim’s liberty (i.e., It is not confinement to prevent a person from going where she desires to go, provided that there is alternative routes available to her.).

Remember, false imprisonment is a general intent crime (intent to cause injury is NOT
necessary – only the intent to do the unlawful act is required).

Question 15

Modern statutes define kidnapping as

Answer 15

unlawful confinement of a person that involves either:

Some movement of the victim;

OR

Hiding the victim.

Remember, kidnapping is a general intent crime (intent to cause injury is NOT
necessary – only the intent to do the unlawful act is required).

Question 16

Common law rape requires:

Answer 16

Unlawful sexual intercourse;

With a female;

Against her will by force or threat of force.

However, most modern day rape statutes have relaxed the common law elements. There is now rape that:

Does not have to involve a woman (i.e., gender-neutral rape laws);

Can occur without force or threat of force (e.g., involuntary intoxication);

AND

Can involve activity other than intercourse.
Remember, rape is a general intent crime (intent to cause injury is NOT necessary –
only the intent to do the unlawful act is required).

Question 17

Statutory rape requires

Answer 17

only that there is sexual intercourse with a person under age.

The defendant’s reasonable mistake of fact as to the victim’s age will NOT shield the
defendant’s liability, because statutory rape is a strict liability crime.

Question 18

Larceny consists of:

Answer 18

A taking (obtaining possession);

And carrying away;
The carrying away requirement is satisfied by even a slight movement (e.g., inches)

Of the personal property (not real property) of another;
The property must be taken from the custody or possession of
another. If the defendant had possession of the property at the time of the taking, the crime is not larceny (may be embezzlement).

By trespass (without consent);

With intent to permanently deprive.
The intent to permanently deprive the owner of their property must be present at the time of the taking.

Question 19

Embezzlement consists of:

Answer 19

The fraudulent conversion;
The defendant MUST intend to defraud (e.g., if the defendant intends to restore the exact property taken, it is NOT embezzlement).

Of the personal property of another;

By a person in lawful possession of that property.
Custody of the property is insufficient – the defendant must be in lawful possession of the property when the conversion occurs for it to constitute embezzlement. Possession involves a greater scope of authority to deal with property than does custody (e.g., low level employees usually only have custody of their employer’s property – thus, they commit larceny if they take it).

Question 20

False pretenses consists of:

Answer 20

Obtaining title;

To the personal property of another;

By an intentional false representation;
The victim must rely upon the false representation, and that reliance must cause the victim to pass title to the defendant.

Of a material past or present fact (not opinion);

With intent to defraud.
The defendant must either have known the statement to be false or have intended that the victim rely on the misrepresentation.

Question 21

Larceny by trick occurs

Answer 21

when the defendant obtains possession or custody (NOT title) of the victim’s property by the misrepresentation. Otherwise, false pretenses and larceny by trick operate in the same manner.

Note: if fraudulently obtain payment, then that can be false pretenses if victim gives without expectation that it will be returned (essentially, D has gotten title of the legal tender, more than just possession or custody)

Question 22

Robbery consists of:

Answer 22

A taking and carrying away;

Of the personal property of another;

From the other’s person or presence;
The property taken must be on the victim’s person or within the victim’s reach or control (i.e., in the presence of the victim).

By force or threat of force;
Threats must be made to the victim, a member of the victim’s family, or some person in the victim’s presence.

With the intent to permanently deprive.

Question 23

Receipt of stolen property consists of:

Answer 23

Receiving possession and control;

Of stolen personal property;
The property must be stolen property at the time the defendant receives it.

Known to have been obtained in an unlawful manner;

By another person;

With the intent to permanently deprive the owner of the property.

Question 24

Common law burglary consists of:

Answer 24

A breaking;
“Breaking” exists if the defendant creates or expands an opening by the use or threat of force, fraud, or intimidation.

And entry;
“Entry” exists if the defendant places any portion of his body or an instrument used to commit the crime into the structure.

Of the dwelling of another;
A dwelling is a structure that is used regularly for sleeping purposes, even if it is used for other purposes such as conducting a business. Ownership of the dwelling is irrelevant – occupation by someone other than the defendant is all that is required.

At nighttime;

With the intent to commit a felony in the structure (at the time of entry).
(Note: where a defendant commits a felony once inside the premises, courts will, in the absence of other evidence, presume that the defendant had the intent to commit that felony at the time of entry.)

Question 25

Common law arson consists of:

Answer 25

The malicious;
I.e., intentional OR with reckless disregard of an obvious risk

Burning;
The fire must cause damage to the structure (e.g., lighting a couch on fire in a house is not sufficient if there is no damage to the structure).

Of the dwelling of another.
A dwelling is a structure that is used regularly for sleeping purposes, even if it is used for other purposes such as conducting a business.

Question 26

An attempt requires:

Answer 26

The specific intent to perpetrate a crime;

AND

An overt act beyond mere preparation that falls short of completing the crime.
Most states require the overt act to be a “substantial step” toward completion of the crime under a subjective test.

Note: Merger. Attempt merges with the underlying crime, meaning a person cannot be convicted for both attempt and the underlying crime.

Note: Withdrawal. Under the common law, abandonment or withdrawal is NOT a defense to attempt. If the defendant had the intent and committed an overt act beyond mere preparation, she is guilty of attempt despite the fact that she changed her mind and abandoned the plan before the crime was completed. However, under the Model Penal Code (minority of jurisdictions), a fully voluntary and complete abandonment is a valid defense. Abandonment is not voluntary if it is motivated by a desire to avoid detection.

Question 27

Solicitation consists of:

Answer 27

Requesting another to commit a crime;
The crime is completed upon the request. The other person need not agree to commit the crime in order to be found guilty of solicitation.

With the intent that the person solicited commit the crime.

Note: Merger. In most jurisdictions, solicitation merges with the substantive offense.

Note: Withdrawal. In most jurisdictions, it is NOT a defense that the solicitor renounces or withdraws the solicitation. However, the Model Penal Code recognizes renunciation as a defense if the defendant prevents the commission of the crime.

Question 28

Under the common law, a conspiracy consists of:

Answer 28

An agreement between two or more persons;

To accomplish a criminal objective;

With the intent to enter into the agreement;
The intent to enter into the agreement may be inferred from the conduct of the parties.

AND

With the intent to commit the criminal objective.

Question 29

Conspiracy and Overt Act.

Answer 29

Unlike the common law, a majority of states also require that an overt act be committed in furtherance of the criminal objective. The overt act does NOT have to be criminal in nature (e.g., a conspirator buying a hammer in order to commit a burglary would be a sufficient overt act, even though buying a hammer is not criminal in nature).

Question 30

Conspiracy and Termination.

Answer 30

A conspiracy terminates upon completion of the criminal objective. All acts or statements made after termination are inadmissible against a conspirator (e.g., statements made to police after the completion of the criminal objective).

Question 31

Conspiracy and Pinkerton Liability.

Answer 31

A conspirator may be held liable for crimes committed by their co-conspirators if the crimes were:

Committed in furtherance of the criminal objective;

AND

Foreseeable.

Question 32

Conspiracy and Withdrawal.

Answer 32

Withdrawal may be a defense to crimes committed in furtherance of the conspiracy. However, withdrawal from the conspiracy is NOT a defense to the conspiracy itself UNLESS the conspirator:

Performs an affirmative act that notifies all members of the conspiracy of her withdrawal;

Gives notice in time for the members to abandon their plans;

AND

Attempts to neutralize her assistance if she provided any as an accomplice.

Question 33

Conspiracy and Merger.

Answer 33

Conspiracy does NOT merge with the completed crime (i.e., a defendant may be convicted of the crimes committed in furtherance of the conspiracy AND the conspiracy itself).

Question 34

Strict liability crimes generally have the following attributes:

Answer 34

(1) they are regulatory in nature; (2) they do not involve serious penalties; (3) they involve serious harm to the public; and (4) it’s easy to determine the true facts.

In fact, statutes regulating food, drugs and misbranded articles, as well as hunting license requirements and the like, are all common forms of valid strict liability statutes.

firearms registration statutes are classic strict liability offenses, also, but if the statute makes it a felony, then it is unlikely to be a strict liability offence (involves seirous penalty).

Question 35

inchoate means

Answer 35

once one act is complete with the intent to do another, the crimes are satisfied

solicitation (merges)
attempt (merges)
conspiracy (does not merge)

burglary and larceny are not classically inchoate, but they are inchoate in the sense that once one act is complete with the intent to do another, the crimes are satisfied.

Question 36

Do co-conspirators need to be present at each commission of each crime in order to be guilty of conspiracy?

Answer 36

NO.

Also note that the arrest of one co-conspirator does not automatically terminate the conspiracy when the others continue carrying out the mission of the conspiracy.

conspirators must agree to the joint pursuit of unlawful ends