Up to Thefts Flashcards
What is a felony?
A felony is a crime punishable by death or jail of more than a year, and fines.
At CL, murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, and burglary were felonies.
What is a misdemeanor?
A misdemeanor is a crime punishable in jail by up to 1 year and fines.
Distinguish Malum in Se and Malum Prohibitum.
Malum in Se means wrong in and of itself. Things that are inherently evil, either because of the criminal intent or the moral turpitude.
Malum Prohibitum means wrong because of statute. These are crimes because of legislative action, and not the bad nature of the act. Ex. hunting w/out a license.
Are common law defenses available in Model Penal Code states?
Often, yes. many jurisdiction adopted some parts of the MPC but retained common law defenses.
What is the “situs” of the crime?
The situs of the crime refers to where the crime occurred, and is used to establish the court’s jurisdiction. Many states extend the situs to a place where any part or element of the crime occurred.
What is an ex post facto law?
Ex Post Facto refers to a law that applies retroactively. Generally ex post facto laws are not allowed, but there have been exceptions. (Rogers v. Tenn., where death within 1 year and 1 day was made murder retroactively)
What is the majority view of the Lenity Doctrine?
The Lenity Doctrine is afforded to fairness of the criminal defendant, that any ambiguity in a statute will be viewed most favorably to the defendant.
What is Actus Reus?
Actus Reus is a fundamental principle of criminal liability, that committing a crime requires a voluntary act or omission.
When can an omission establish Actus Reus?
Omission can establish actus reus when there is a legal (not moral) duty to act, if:
Statute requires action and there is none,
Contractual obligation to take action and don’t,
Relationship (substantial) exist between the parties,
Assumption of duty and preventing help from others,
Peril is created by the defendant.
What is Mens Rea?
Mens Rea is a culpable mental state of the defendant, and must be proven when required beyond a reasonable doubt.
What are the recognized mental states in the MPC?
Purposefully- Intends the results
Knowingly- knows conduct will or is practically certain to produce results
Recklessly- consciously disregards substantial and unjustifiable risk
Negligently- should be aware of risk and gross deviation from standard of care (more than tort negligence)
How do the MPC mental states relate to mental states under the common law?
Purposefully/Intentionally and Knowingly (MPC) are both generally called “Willful” under the CL.
Recklessly (MPC) is generally called “wantonness” under the common law.
Criminal negligence may also be called Criminal Negligence in the CL, based on jurisdiction. Some jurisdictions overlap CL criminal negligence with Wantonness.
What are the common Specific Intent crimes?
Solicitation- intent to do crime solicited
Conspiracy- intent to do crime conspired
Attempt- intent to complete crime attempted
Burglary- intent to commit felony at time of entry
Theft offenses- intent to permanently deprive or defraud.
Assault- intent to batter someone
Premeditated murder- intent to kill w/ malice aforethought
SCAB TAPS
What are the malice crimes under the common law?
Common Law Murder and Arson are malice crimes, requiring only a recklessness mindset.
Specific intent defenses are not available for malice crimes.
What is Willful Blindness?
Willful Blindness offers an exception to Mens Rea. When the defendant have a subjective belief of a high-probability of possession and takes deliberate actions to avoid confirming.
Willful blindness converts an unknowing mindset to an intentional mindset.
When is Mistake of Fact a criminal excuse?
If a mistake of fact negates the requisite state of mind, it can be an excuse to specific intent crimes.
For general intent excuse, the mistake must be reasonable.
There is no mens rea excuse for strict liability crimes.
What are the CL elements of larceny?
A trespassory (w/out consent) taking, and asportation (carrying away), of personal property, of another, with intent to permanently deprive.
Compare the differences between larceny and larceny by trick.
Larceny by trick is not trespassory, the rightful owner gives consent to the taking. But it also includes the intent to defraud, and the misrepresentation negates the consensual taking.
What is personal property in terms of larceny or theft?
Under the CL, personal property is tangible property, not services or intangibles.
Under the MPC, property has been expanded to include services, documents and intangibles.
Fixtures (lights, trees, etc) are not personal property until they are severed and possessed by the owner.
What makes property “of another”?
Property must be “of another” to be stolen. Property is of another if that person have lawful possession. This can include when a trustee is responsible for the property and lost or misdelivered property.
When can the mens rea, “intent to permanently deprive” be negated?
A mental state that does not establish the intent to deprive is a defense to larceny crimes. This can occur when the taker is borrowing an item, or the taker has a claim of right to the property.
Trumm also says that property For Sale, if taken with the intent to pay, is a defense to mens rea.
When is a claim of right defense not available?
Claim of right defense is not available if the personal property is cash. Nor is it available to burglary crimes.
However, a claim of right IS a valid defense for embezzlement.
What are the common law elements of Robbery?
Robbery is essentially a Larceny done to or in the presence of the owner with force or intimidation.
Force can occur during the escape/alluding. Use of a weapon can elevate to Aggravated Robbery.
What are the MPC elements of Robbery?
MPC 222.1:
1) Theft, and
2) inflicts or threatens serious bodily injury, or
3) commits or threatens 1st or 2nd degree felony.
What are the elements of False Pretenses?
1) Obtained Title (and Possession usually),
2) with consent obtained by fraud,
3) with intent to defraud.
False Pretenses is Larceny by Trick, except the title passes along with possession of the property.
How does the historical CL define “fraud” for false pretenses?
Historically, the common law required that fraud had to be a past or present misrepresented fact.
The modern majority considers a false promise to do something in the future a ‘present misrepresentation’ at the time it occurs, and sufficient for False Pretenses.
The MPC criminalizes this under “Theft by Deception” (223.3)
What are the common law elements of Embezzlement?
(Trumm says)-
1) Property of another held in trust,
2) use of the property violates trust (no intent to permanently deprive),
3) with the intent to defraud.
(BARBRI says)-
Fraudulent, conversion, of property, of another, by a person in lawful possession or the property.
What are the elements of Forgery and Uttering a Forged Instrument?
Forgery is:
1) Making or altering, 2) of a false writing, 3) with intent to defraud.
Uttering a Forged Instrument is:
1) Offering as genuine, 2) an instrument that may be subject of forgery and is false, 3) with intent to defraud.
Both are specific intent crimes, “intent to defraud”
What is common law Extortion?
Under old common law, extortion was the corrupt collection of an unlawful fee, usually by an officer of the law.
What is the modern approach to extortion?
Under the modern definition, extortion is often called blackmail. It is obtaining property from another by means of threats.
The MPC says threats can be (223.4):
Bodily injury, criminal accusation, expose to hatred/contempt/ridicule/harm business, official action/inaction, strike/boycott/etc, testify/withhold testimony, or any other harm that would not benefit actor.
What are the common law elements of receiving stolen property?
1) Receiving possession and control, 2) of stolen property, 3) known to have been obtained in a criminal manner, 4) by another person, 5) with intent to permanently deprive the owner.
The MPC follows these elements closely.
What are the common law elements of Burglary?
1) Breaking, 2) and Entry, 3) of the Dwelling, 4) of Another, 5) at Night, 6) with intent of committing a Felony.
The MPC and modern views require minimal force to satsify “Breaking” and allow constructive breaking or only entry. Also expanded beyond “Dwellings” and eliminated the “Night” requirement. (varies by jurisdiction).
