Week 5

Question 1

Larceny

Answer 1

(1) trespassory (without consent)
♣ Modifies taking, so it means the taking is without owner’s consent.

(2) taking and carrying away of
♣ Carrying away means to remove the item from where it was.

(3) tangible personal property of another
(4) with the intent at or before the time of the taking to permanently deprive the other of his interest in the property.

Question 2

Embezzlement

Answer 2

Embezzlement is the:
(1) fraudulent conversion

(2) of property of another
(3) by a person in lawful possession of that property.

Embezzler must have intent and in a trust position.

Question 3

False Pretenses/Larceny by Trick (never been on essay)

Answer 3

The crime of False Pretenses consists of:
(1) obtaining title

(2) to the property of another
(3) by an intentional or knowing false statement of past or existing (but not future) fact
(4) with the intent to defraud the other.

If defendant only obtains possession, but not title, defendant is guilty instead of larceny by trick.

Money is not title until it is used for what or whom the giver of the money intends.

Question 4

Robbery (Larceny + force/threat of force)

Answer 4

Robbery is the:
(1) taking of personal property of another;
♣ Need to take.

(2) from the other’s person or presence [requires some immediacy to it];
(3) by force or threat of force; and
(4) with the intent to permanently deprive the other of his interest in the property.

Question 5

Receipt of Stolen Property

Answer 5

Receipt of stolen property consists of:

(1) Receiving possession and control of stolen property;

(2) Knowing it was stolen by another person or that supplier did not have right to property;
(3) with the intent to permanently deprive the true owner of the property.

Question 6

Forgery

Answer 6

Consists of making or altering a false writing of apparent legal significance with the intent to defraud.

Question 7

Extortion

Answer 7

Extortion is the obtaining of property or other thing of value by means of oral or written threats.

Question 8

Burglary

Answer 8

1. Breaking (use of any force, however slight to gain entry without consent) and
2. Entering
3. Of the dwelling (which at common law included all buildings within the curtilage of the house but has expanded in meaning) of another
4. In the nighttime

With the intent to commit a felony therein

Question 9

Arson

Answer 9

Arson is the malicious burning by fire of the dwelling of another.

o Malice element requires either intent or reckless disregard.

o Burning must be charring (turn building into charcoal basically).

o Most states extend the term “dwelling” to all be all other structures.

Question 10

Criminal Assault

Answer 10

1. The attempt to commit a battery; or

Specific intent crime – requires intent to commit a battery plus some overt act toward completion of the crime

2. Intentional creation, by other than mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm.

Question 11

Kidnapping/Aggravated Kidnapping

Answer 11

(confinement + movement or concealment)

The confinement of a person that also involves either movement of the victim or concealment of the victim in a secret place.

Aggravated kidnapping requires kidnapping for:

o Ransom,

o To commit other crimes,

o Offensive purpose, and
♣ Ex. Committing a sexual offense
with the victim.

o Child stealing

Question 12

Rape

Answer 12

At common law:

The unlawful carnal knowledge,
♣	Unlawful means without consent.
•	No consent if by:
o	force, 
o	threat, or 
o	where the victim is incapable of consenting, due to:
♣	unconsciousness, 
♣	drugs, 
♣	alcohol, or 
♣	mental capacity.

Of a woman

By a man who is not her husband (modern statutes eliminate)

Question 13

Homicide (Second-degree murder -> first-degree murder -> (mitigation to) voluntary manslaughter)

Answer 13

Common law and second-degree murder is the:

(1) unlawful killing of a human being
Unlawful - No justification
o below)
(2) with malice aforethought.

Question 14

Homicide (Second-degree murder -> first-degree murder -> (mitigation to) voluntary manslaughter)

Answer 14

Common law and second-degree murder is the:

(1) unlawful killing of a human being
Unlawful - No justification

• Ex. D unlawfully killed V if D had no justification for killing V – see self-defense discussion below
  (2) with malice aforethought.

Malice aforethought is established by:
(1) intent to kill;
• Intent can be inferred from the killing, especially if given no other details.

(2) intent to inflict great bodily injury;
(3) reckless difference to the unjustifiably high risk to human life (abandoned and malignant heart); OR
(4) Felony-Murder (killing committed in the course of the commission of a dangerous felony)

If V does not die at D’s hand – causation is an issue. Look to see if death was the foreseeable result of D’s actions.

Question 15

Felony Murder Rule

have to commit a dangerous felony else besides the murder

Answer 15

Felony in the felony murder must be a dangerous felony, and must be an act independent of the killing.

If co-felon is killed by the police or the victim…
Majority Rule – Not felony murder
Strong Minority Rule – Felony Murder

Question 16

First-degree murder

Answer 16

All murder is second-degree murder unless committed with premeditation and deliberation. If murder is done with premeditation and deliberation, then it is considered first-degree murder.

Premeditation is an act committed after a period of reflection, which can be brief.

Deliberation is an act committed coolly and dispassionately.

Question 17

First-degree felony murder

Answer 17

Occurs if the felony is highly dangerous and set out on an enumerated list.

Burglary, arson, rape, robbery, kidnapping and train robbery.

Question 18

Voluntary manslaughter

Answer 18

IF you determine first or second-degree murder, and only if the call of the question seems to ask for it by asking what crimes or homicide defendant committed.

Voluntary manslaughter is the:

(1) intentional killing of a human being
(2) with adequate provocation.

Adequate provocation (words, and even catching spouse cheating not enough)

(1) Provocation would arose sudden and intense passion in the mind of an ordinary person (obj);
(2) defendant is in fact provoked (sub);
(3) insufficient time for passions of a reasonable person to cool (obj); and
(4) defendant in fact did not cool off (sub).

Question 19

Involuntary manslaughter

Answer 19

If murder was by some form of accident (no intent)

Involuntary Manslaughter involves (1) Criminal negligence (greater deviation from [tort] standard of care), or
(2) A killing caused by an unlawful act not a felony (misdemeanor)

Question 20

Attempt

Answer 20

An attempt is:

(1) the intent to commit a specific crime and
- Defendant must intend to commit the act (write about intent to commit murder not elements, and substantial step) (can infer from conduct)

(2) an overt act in furtherance of that crime.

Factual impossibility is not a defense to attempt.

Legal impossibility is a defense to attempt.

Question 21

Accomplice Liability

Answer 21

The elements of accomplice liability are that:

(1) Defendant encourages or assists,
(2) another person who commits a crime,
(3) with the intent to promote or facilitate the commission of the crime.

Defendant is guilty of any and all foreseeable acts/crimes (brief description) of the other person engaged in the commission of the crime.

General agreement is not intent—so knowledge is generally not intent, unless Defendant does more, as Eric did in the take-home by loaning the truck.

Question 22

Conspiracy

Answer 22

A conspiracy requires:

(1) an agreement between or among two or more persons to commit a crime;
(2) the intent to enter into the agreement; and
(3) the intent to achieve the objective of the agreement. - Eric may have said one thing, but his actions connoted something else, which was an agreement crime was going to happen.

(4) most states require an overt actin furtherance of the conspiracy, which can be mere preparation.
- In furtherance means the act is necessary to accomplish the goal of the conspiracy.

Question 23

Conspiracy

Answer 23

A conspiracy requires:

(1) an agreement between or among two or more persons to commit a crime;
(2) the intent to enter into the agreement; and
(3) the intent to achieve the objective of the agreement. - Eric may have said one thing, but his actions connoted something else, which was an agreement crime was going to happen.
(4) most states require an overt actin furtherance of the conspiracy, which can be mere preparation.

All co-conspirators are liable for any acts of another co-conspirator that are foreseeable and in furtherance of the conspiracy
- In furtherance means the act is necessary to accomplish the goal of the conspiracy.

After establishing the conspiracy, for any and all crimes not directly committed by a co-conspirator, for that co-conspirator discuss (5) foreseeability as you would for accomplice liability.

Protected class exception - If one of the conspirators is the victim of the crime and is in a statutory protected class, there cannot be a conspiracy unless a third person is part of the conspiracy.

Wharton Rule – if the crime requires two participants, a third person must enter into the agreement for there to be a conspiracy.

Question 24

Self-Defense

Answer 24

• A person may use deadly force if:
  o (1) he is without fault (didn’t initiate the assault or provocation);
  o (2) he is confronted with unlawful force—the victim had no legal right to use force on defendant; and
  (3) he reasonably believes he is threatened with imminent death or great bodily harm

Question 25

Self-Defense

Answer 25

A person may use deadly force if:

(1) he is without fault (didn’t initiate the assault or provocation);
(2) he is confronted with unlawful force—the victim had no legal right to use force on defendant; and
(3) he reasonably believes he is threatened with imminent death or great bodily harm.

The majority rule is there is no duty to retreat.

The minority rule requires retreat only if it can be done in complete safety, and does not require retreat from the home or business.

Question 26

Imperfect Self-Defense

Answer 26

If defendant’s belief as to the threat is unreasonable, then a finding of imperfect self-defense will mitigate murder to voluntary manslaughter.

Question 27

Defense of Another

Answer 27

Defendant must reasonably believe:

(1) the other person is legally entitled to use force and
(2) may only use reasonable force to prevent it.

When discussing reasonable belief, discuss if the other person could have used self-defense, using the elements of self-defense.

Question 28

Duress

Answer 28

Defense of duress requires a:

(1) threat,
(2) Defendant reasonably believes threatens death or great bodily harm.

Duress not a defense to homicide (murder/manslaughter)

Question 29

Mistake of Fact

Answer 29

The mistake must be:

(1) reasonable and
(2) must negate the required mental state for a crime.

For example, if the accused takes the wrong briefcase from the bus, reasonably believing it was theirs, there is no larceny—the specific intent to permanently deprive another of their property is missing. This is a favorite area to test on the MBE.

Question 30

Intoxication

Answer 30

Voluntary - not a defense to general intent (murder) (apprehension for assault/battery) or malice crimes.

Rule: Voluntary intoxication is a defense to all specific intent crimes, including first degree murder, burglary, larceny, robbery, and all attempt crimes.

Involuntary – defense to both all crimes, both general and specific intent crimes.

It may be treated as insanity, so you must also then discuss the four types of insanity defenses.

Question 31

Insanity Defenses (if insanity is a possible defense, discuss all 4)

Answer 31

M’Naghten Rule
A disease of the mind caused a defect of reason such that the defendant lacked the ability to either know the wrongfulness of his actions or understand the nature and quality of his actions.

Irresistible Impulse
Defendant is unable to control his actions or conform his conduct to the law.

Durham Rule
but for causation—if the crime was a product of the mental disease or defect, this requires an acquittal.

ALI/MPC Test (combines the above three)
As a result of mental disease, defendant lacked substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the law.