Criminal Law Outline

I. HOMICIDE
At common law- It was divided into 3 categories. Murder,
Involuntary and Voluntary Mans.
Murder: It is the intentional unlawful killing of a human being with
malice aforethought express or implied.
'Important Definitions
Malice Aforethought- Exists if the defendant had any of the following
states of mind:
a. Intent- Premeditated and deliberate
b. Intent to inflict great bodily injury- death
results from injury.
C. Reckless indifference to an unjustifiable high
risk to human lifeAn unintentional killing that results from defendant's
conduct that is reckless
Must distinguish between depraved heart murder
and involuntary
manslaughter. Depraved heart involves recklessness;
involuntary manslaughter
involves grossly or wantonly negligence.
d. Intent to commit felony- (defined later in outline)
'''Important Note: reckless indifference is an objective look at
the subjective state of mind
of the actor. Examples of depraved heart murder (reckless
indifference);
1. Firing a bullet into a room, as defendant knows is
occupied by several people.
2. Shooting into a caboose of a passenger train or into a
moving automobile,
occupied by human beings.
3. Driving a car at a very high speed along a main street.
4. Throwing stones from the roof of a tall building onto
the busy street below
5. Piloting a speedboat through a group of swimmers
6. Swooping an airplane as to risk the decapitation of a
motorist
7. Throwing a beer bottle at a pledge carrying a light oil

lamp.
8. Firing a pistol near, but not at, a person, and the bullet
ricochets off the wall and
strikes the person.
Look out on test for: DEPRAVED HEART MURDER V.
INVOLUNTARY MANSLAUGHTER
Ex. Driving fast down a busy downtown street at 12 noon v. driving down
a deserted country road and
killing someone at 2 a.m.
Ex. Shooting a gun into an occupied passenger train and killing someone
v. shooting into a freight car and
killing a hobo.
Ex. Shooting into a room that you know is occupied v. shooting into a
room that you reasonably believe to
be unoccupied and someone is unexpectedly inside.
Imperfect Self-Defense Rule:
Murder will be reduced to voluntary manslaughter when:
Defendant was at fault in starting the altercation
Defendant was unreasonably but honestly believed in the
necessity of responding with deadly force
*An assailant who commits an unlawful assault and battery on
another without malice; resulting in death
is guilty of manslaughter although the death was not intended
and the assault was not a character likely to result fatally.
*To constitute involuntary manslaughter, the homicide must have from the
Defendant's failure to exercise due caution and circumspection, which has
been held to be the equivalent of criminal negligence or culpable
negligence.
2. Misdemeanor-Manslaughter RuleA killing in the course of commission of a
misdemeanor
is
involuntary
manslaughter, although most courts would require
either
that
the
misdemeanor be malum in se (i.e., an inherently
wrongful
act),
or
if
malum prohibitum, that the death be the foreseeable
or
natural
consequence of the unlawful conduct.

D. FELONY MURDER.
'
An unintentional killing that results during the commission or attempted
commission of an underlying and independent felony.
Felony must be inherently dangerous; BARRK- Burglary, Arson, Rape,
Robbery, Kidnapping will result in a First Degree Murder. Any felony
other than the one listed would constitute at least a second degree felony.
Death must have resulted from the committing of the felony
Deaths that result before the Defendant had reached a place of temporary
safety are included in scope of felony murder- "look for one continuous
transaction"
Defendant must be guilty of underlying felony
If the killing was caused during the commission of a felony that does not
qualify as a felony murder case the killing will be involuntary manslaughter.
Merger Doctrine- Refers to the concept that only felonies independent of the
homicide can support a felony-murder instruction; felonies that arc an
integral part of the homicide are merged in the homicide.
II. ASSAULT & BATTERY

A. Assault
At common law, it is an attempt to commit a batter or the intentional creationother
than
by
mere
words of a reasonable apprehension in the mind of the victim of imminent
bodily
harm.
Simple
assault is a misdemeanor.
Present ability to succeed
Defendant must have a present ability to succeed or else liability is
precluded (MFC)
If there has been an actual touching the crime can only be battery. Every
battery includes .an
assault.
With a dangerous or deadly weapon
With the intent to rape, maim, or murder
To prosecute for assault with an intent to kill, the Defendant must have the
intent to kill
Aiming an unloaded gun at a person with intent to only cause fear in a
jurisdiction with statute with an intent to frighten requirement will only
result in simple assault.

B. Battery
The unlawful application of force to the person of another resulting in either
bodily injury or offensive touching. Simple battery is a misdemeanor.
Intent is not required; need not be intentional, it is sufficient that the
application of force is caused by Defendant's criminal negligence.
Force need not be directly applied (ex. Getting your dog to bite someone)
Sufficient is defendant set force in motion.
Aggravated Battery- Felony; ex. With a deadly weapon with intent to cause
harm. or committed upon a woman, child or police officer.
III. RAPE
The unlawful carnal knowledge of a woman by a man, not her husband,
without her effective consent.
i
Any sexual penetration, however slight, is sufficient to complete the crime if
the other elements are present.
Done by force and against her will; or woman's resistance overcome by
force or fear
At c/1 a man could not rape his wife; however, if he aids another in having
sexual intercourse with his wife without her consent then both he and the
actual penetrator can be convicted of rape.
Consent will be ineffective: by force, threat, inability or fraud. Mistake as to
victim's age is no defense.
If defendant believed, reasonable and in good faith, that the woman
consented to go to his apartment and have sexual intercourse with him, he
was not guilty of rape.
Vaginal penetration is not necessary, any penetration of the female genitalia
by the penis is sufficient.
Statutory rape- Provided by statue making the unlawful carnal knowledge of a
girl under a certain age a crime even if she consents. She is presumed by law
incapable of a valid consent.
IV. FALSE IMPRISONMENT
The unlawful confinement of a person without his valid consent. May be
accomplished by physical barriers or force, or it may be by threat of force or
assertion of authority which results in submission.
If there is consent then no false imprisonment.
MINOR CANNOT CONSENT
V. KIDNAPPING
Forcible abduction or stealing away of a man, woman or child from his own

country and sending him into another.

VI.ARSON
The malicious burning of the dwelling of another.

Need not be intentional; only need to prove malice and reckless

Cannot commit arson when you burn down your own house
Mere charring or slight burning is sufficient damage to structure for arson
If any fiber of the wood is actually consumed by fire, this is a burning even
if it does not actually burn into flames.

There must be:

1. Some actual burning
2. Burning must be malicious
3. Object burned must be a dwelling house
4. House burned must be house of another
*Important Definitions
Blackened or smoke discoloration by heat is not sufficient
Damage must be caused by fire not an explosion
HOUSE BURNING (at C/L)- Is the malicious burning of one's own
dwelling. (Misdemeanor at
C/L). Structure is located in the city or town, close enough to create danger
to other homes.
VII. BURGLARY
The breaking and entering of the dwelling of another at nighttime with the
intent to commit a felony therein, without the consent of the owner.
Definition of elementa. BreakingMust be a breaking: Actual or Constructive
Cannot be a breaking if defendant entered through an open door or
window
Any opening by defendant, however slight, is sufficient for the breaking
element.
If the door is partly open, but insufficient for entrance the further opening of
the door constitutes a breaking.
Constructive Breaking- By fraud, threat, intimidation, or through the use of
a chimney.
Where victim was awakened by loud pounding on his door and was
confronted by the A who was armed and forced the victim into the home, is

constructive breaking.
One who enters a store while it is open for business, secretes himself therein
and is apprehended after closing hours under circumstances which indicate
an intent to steal, can be .convicted of storehouse breaking
Requirement of trespass
Must have gained entry without consent
If there is consent there is no burglary even if he actually commits a felony
therein
Any use of force coupled with consent will negate a criminal charge.
University policeman's entry into a building for which he had been given a
key did not preclude conviction for burglary where the policeman's duties
did not require entry and he did not enter for the purpose for performing his
duty.
Since each spouse had a legal right to be on the premises so long as the
marriage existed, entry onto the premise could not be a burglary. However,
where the wife got a court order that gave her the house any entry by the exhusband will be a breaking and entering.
b. EntryEntry is made by placing any portion of the body inside the structure,
even momentarily. Insertion of a tool or inanimate object into the structure
is entry if it is inserted for the purpose of accomplishing the felony. It is not
sufficient if it is inserted for purposes of gaining entry.
Shooting a bullet to .open a locked door to go in to kill homeowner v.
shooting through the window intending to kill a person.
Boring a hole through the door, near the bolt, is not an entry in the law of
burglary even if the point of the bit penetrates into the interior of the
building.
The instrument must be inserted not merely for the purpose of breaking, but
for the purpose of committing the contemplated felony.
A burglary conviction may be sustained on a theory of entry with intent to
steal even though on entry the defendant took nothing and left. Defendant
trespass entry coupled with circumstances corroborating an intent to steal is
enough.
Defendant broke into one building to gain access to another place where he
intended to commit larceny. If the entry was an integral part of a plan to
commit larceny in the immediate vicinity of the place entered, it was not
necessary that the intent be to commit it "therein".

Defendant broke into one building with intent to commit the felony of
lascivious acts with a child, ill was no defense to charge a burglary that his
intent was to commit the offense on the roof rather than in the building.

 Defendant committed burglary when he opened the hood of the car, reached
inside and removed a battery.
C. Dwelling
Any place if human habitation; a structure used with regularity for
sleeping purposes. Temporary absence of inhabitants will not derive of
character of dwelling, but if no one has moved in nor after everyone has
moved out with no intent to return, then there is no dwelling.
A dwelling house has been defined as a place where a man lives with his
family. Thus it is possible for a mobile home to be dwelling house.
Although the dweller had not lived in the building for a year and half, during
which time it had been used for storage, as he still regarded it as his home it
had not lost its character as a "dwelling".
Remember "part and parcel of dwelling. Other structures part of the
dwelling still satisfy the dwelling requirement. The other building as to be
near the actual dwelling and does not need to be fenced in.
D. Of Another
Must be a dwelling of someone other than the A. An owner can commit
burglary of his own structure if it is rented out and used as a dwelling by
others.
E. Nighttime
One hour after the setting of the sun and one hour before rising of the
sun
F. Intent to commit a felony at the time of entry
Defendant must have this intention at the time
of entry.
It is not necessary that he carry it out, only
that he have it
If the intent is formed after entry, then there is
not burglary.
VII. LARCENY
A taking and carrying away (asportation) of tangible personal property of
another by trespass with intent to permanently or for an unreasonable amount
of time deprive the person of his interest in the property.
Definitions of each elementA. TAKING
Securing dominion and control over another's property

 Cannot be "taken" if it is chained, although it may be moved (leather coat

chained to store's mannequin).
One may "take" if he sells property of another as his own to an innocent
third person (innocent agent rule)
May be a "taking" even though defendant has not removed property from
other's presence or premises (placing property in coat pocket to give
appearance that it was gone- exercising control that is wholly inconsistent
with the owner's rights).
Instrument of trespass can be by hand of another. Look for children
(innocent agent).
If the criminal intent exists at the time of the taking of the property, it is
larceny: but, if the intent does not rise until after the defendant received
possession, then it is embezzlement (when there is some sort of
entrustment).
For example, where shift supervisor at a detention facility took money from
incoming prisoner accounts which had been "entrusted" to him, he was
properly convicted of embezzlement.
B. CARRYING AWAY
The distance "carried away" need not be substantial if entire property is
moved at a slight distance; must be made in a way as signifying a carrying
away.
A may be convicted of the larceny of a CQW although the only asportation
was after he killed the animal. He had been found dragging the carcass
away.
*Important Definitions
One who wrongfully took and carried away another's property to pawn it,
though he said it was his intent to redeem and return the property, was
properly convicted of larceny because he was unemployed and had no
reasonable expectation of being able to carry out the return.
"Continuing Trespass"- If A wrongfully takes property without the intent to
permanently deprive (ex. Without permission borrows an umbrella), an later
decides to keep the property, he is guilty of larceny when he decides to keep
it. However, if the original taking was not wrongful (ex. He took the
umbrella thinking it was his) and he later decides to keep it, it is NOT
larceny.
C. TANGIBLE PROPERTY OF ANOTHER
Under common law, the person last in possession of property retains
constructive possession until he
abandons it, gives it to another person, or until another person otherwise
acquires actual possession.
Abandoned, Lost, or Mislaid Property

To commit larceny with Lost Property1, The finder of lost property must know or have reason to believe he can find
out who the identity of the owner is AND;
2. The finder at that moment must take possession of the lost property, and
have the intent necessary for larceny.
Remember, look at type of item lost. If identifiable then it's lost (e.g. wallet).
Ex. If you find a watch and do a diligent search, no larceny.
To commit larceny with Misdelivercd Property
1. The recipient must, at the time of the misdelivery, realize the mistake that is
being made and,
2. The recipient must, at the time he accepts the delivery, have the intent
required for larceny.
On the other hand, if, when he takes delivery, either (1) he does not realize the
mistake and so cannot then have an intent to steal, or (2) he does realize the
mistake but intends to return the property, he cannot be guilty of larceny even
though he may later decide to steal, for 2 reasons: (a) as to the original taking
of delivery, there is not trespass, for he took it with an innocent mind, and (b)
as to Ihe later intent to Steal, it did not coincide with the taking.
*Important Definitions
When look at abandoned property you will probably see 2 things.
1) Found in some place like a dump yard.
2) Item has no value
Abandoned property- No larceny
Important Definitions
In the situation of a bailment or a mechanic's lien, when the owner takes
back his possession the value attached will be the value of the chattel, not the
debt.
Tangible property, not real property unless; there was a severance from the
realty and a subsequent asportation (there are two acts and not one continuous
activity- A left the premises or a substantial amount of time lapsed in between)
then there could be a larceny.
Remember, the apple tree example. If you pick if off the tree- No larceny. If
the apple dropped on the ground and you were to take after. Larceny.
Written documents were considered, for purposes of larceny, to be merged
into the things which they represented- so that a deed, representing real estate,
or a contract, representing an intangible right to performance, could not be
stolen.
One who obtains money from the bank on a forged not is not guilty of
larceny of that money and one who receives that money with knowledge of the
facts is not guilty of larceny. No trespass, bank intended to give the money. Gas
and electricity are commonly held to be things that can be the subject of
larceny.
Appropriation by spouse is not larceny. *It is no defense that the theft was

from the actor's spouse, except that misappropriation of household and

personal effects or other property normally accessible to both spouses is theft
only if it involves the property of the other spouse and only if it occurs after the
parties have ceased living together.
D. INTENT TO PERMANTENTLY DEPRIVE
Intent to create a substantial risk of loss
Intent to pledge goods or sell them to owner
May be inferred
Not satisfied Intent to borrow
Intent to obtain repayment of debt
Property taken from a thief can be larceny; property taken by a joint owner
from the other owner can
not be larceny.
Custody v. Possession
Possession involves a greater scope of authority to deal with the property than
does custody. Ordinarily, low level employees have only custody of an
employer's property and so are guilty of larceny for taking it. A bailee, on the
other hand, has a greater scope of authority over an owner's property and so is
not guilty of larceny for taking it, but may by guilty of embezzlement.
Look at how much authority or control the person has with the property; The
more control the person has over the property the more likely he will
have possession, the more likely he will not have committed larceny.
The less control, and the more likely he will have custody, and the more
likely he will have committed larceny.
Low level employees normally have custody rather than possession. A bailee
generally will have possession; howev er, if he opens closed containers in
which the property has been placed by the bailor (breaks the bulk) the
possession will turn into custody and the bailee may be guilty of larceny if
he misappropriates the property after breaking the bulk.
If the A had possession at the time of the taking the offensc is NOT larceny,
if the A had custody the crime is larceny.
VIII. LARCENY BY TRICK
A form of larceny whereby the A obtains possession of the personal property of
another by means of fraud or promise which he knows is false at the time he
takes possession.

 A only acquires possession to property; never title.

Important Definitions
Remember to look at owner's intent- ask yourself what did the owner intent to
give? Was it merely possession or was he willing to give title? If title, it's False
Pretenses.
VIII. FALSE PRETENSES
Obtaining title to personal property of another by an intentional false statement
of past or existing fact; with intent to defraud the other.
Important Definitions
Ask yourself- what is being obtained by the defendant, Title (False pretenses)
or Possession (L. by trick)
The absence of an intent on the part of a cashier to knowingly and
voluntarily transferring possession or title to any money in excess of that
received place the A's conduct within the ambit of larceny rather than false
pretenses. However, if the cashier asked you "did you give me a $10 (as you
did), and you reply no I gave you a $20, and the cashier proceeds to give you
change of a $20, that would be false pretenses.
One who obtained title to property by false pretenses, but did not have
possession and never succeeded in getting possessing away from the other, was
not guilty of false pretenses.
The victim must actually be deceived by, or act in reliance upon, the
misrepresentation, and this must be a major factor (or the sole cause) of the
victim passing title to the A. A misrepresentation as to what will occur in the
future is not sufficient. A false promise, even if made without the present intent
to perform, is also not sufficient.
Ex. B telephones Bank for loan and to put jewels as collateral. A overhears
conversation and dresses up as a bank employee and picks up jewels from B. B
passed possession not title therefore it is Larceny by Trick. A gets title and
commits False Pretenses only if the victim intends to convey title.(SO don't
forget to look at the owner's intent to convey title!!)
Attorney goes to bank to get a loan to purchase furniture and tells them his
firm should be lucrative but is actually not. Fails to make payment of loan.
A is not guilty b/c misrepresentation of a future fact is insufficient for false
pretenses.
A promise made without intention to perform is a misrepresentation of a
state of mind, and thus a misrepresentation of existing fact, and is a false
pretense.
BEST DEFENSE- "I did not hav

e the intent to defraud or gain title"

VIII. EMBEZZLEMENT
The fraudulent conversion of personal property of another by a person in
lawful possession of that property.
Whether a bailee who converts property bailed to him is guilty of larceny or
embezzlement depends upon the time of his intent. If (he criminal .intent
exists at the time of the taking of the property, it is* larceny, but if. the
intent does not-arise until after the A receives possession, then it is
embezzlement.'
If the & intends to restore (and had the ability to do so) the exact property
taken, it is not embezzlement. However, if the A intends to restore similar or
substantially identical property, it is embezzlement, even if it was money
that was initially taken and other money- of identical value- that he intended
to return.
Must have a bailment or entrustment_ a bailee wrongfully takes property
from the bailor.
A bailee who obtains possession of property without fraudulent intent is not
guilty where he subsequently converts it. With lawful possession, he cannot
commit a trespass with respect to property.
A bailee who intends to appropriate the chattel at the time he first receives it
from the bailor is guilty of larceny.
A loan of money can never give rise to embezzlement."
VIII. ROBBERY
A taking and carrying of personal property of another from the other's person
or presence by force or threats of immediate death or physical injury to the
victim (family member or some person in victim's presence) with the intent to
permanently deprive him of it.
Larceny is a lesser included crime of robbery; larceny and assault or larceny
and battery merge into robbery.
Robbery does not require that A's violence or intimidation be for the very
purpose of taking the victim's property. It is sufficient if he takes advantage
of a situation which he created for some other purpose. Thus A is guilty of
robbery if he took advantage of the fear he created in order to obtain the
victim's property, even if his primary purpose has been to commit rape.
Where the act of force and the taking of the property are so connected as to
form a continuous chain of events so that prior force make it possible for
the A to take the property from the victim's body without resistance, that is
sufficient for a conviction of the crime of robbery.
X. INCHOATE CRIMES
A. CONSPIRACY
At common law, conspiracy was defined as a combination or agreement

between two or more persons to accomplish some criminal or unlawful

purpose, or to accomplish a lawful purpose by unlawful means.
If a A and an undercover cop or informer "agree" to commit a crime, there is
no conspiracy at C/L because only one person, the A, intended that the
crime be committed. You need 2 guilty minds.
At C/L there is no requirement to do an overt act. The agreement in itself is a
crime.
The crime is a misdemeanor.
It was not necessary that an agreement be one to commit a crime in order to
be guilty. Only necessary that the object of the agreement be something
"unlawful" or that the parties intended to accomplish something lawful by
"unlawful" means.
Husband and wife could not conspire together because the law viewed them
as one person.
At Common law conspiracy DOES NOT MERGE.
At common law conspiracy does not require an overt act because the
agreement itself is sufficient.
At common law you cannot withdraw from conspiracy.
At common law you cannot withdraw from solicitation (because the solicit
happened as soon as you make that first step)
MPC
Criminal Conspiracy- a person is guilty of conspiracy with another person or
persons to commit a crime if with the purpose of promoting or facilitating its
commission he:
(a) agrees with such other person or persons that they or one or more-of
them will engage in conduct which constitutes such crime or an
attempt or solicitation to commit such crime,
or
(b) agrees to aid such other person or persons in the planning or
commission of such crime of an attempt or solicitation to commit
such crime.
Modern trend is to limit criminal conspiracies to agreements to commit
crimes.
Requires in overt act in furtherance of the agreement. *The act may be
performed by any of the other conspirators.
Conspiracy has to be with 2 or more persons
At MPC conspiracy is a substantive crime and it does NOT MERGE into the
completed crime. (You will be charged for both conspiracy and the other
crime

 Wharton Rule-Where two or more people are necessary for the commission
of the substantive offense (e.g. adultery, dueling, sale of contraband), the
"Wharton Rule" states that there is no crime of conspiracy unless more
parties participate in the agreement than are necessary for the crime. Some
courts hold that if the Wharton Rule applies, there can never be a conviction
for conspiracy. Others hold that if the rule applies, it prohibits conviction
for both conspiracy and the crime that the parties agreed to commit.
Wharton Rule provides that if there is crime there must be at least 2 people
to do it.
Ex. A & B agree to meet a dawn to engage in a duel. They are apprehended
before daybreak, however, dueling is a crime in the juris, and A is charged
with conspiracy to commit dueling. Wharton's Rule applies and prevents
liability.
A Substantive crime does not take 2 people to commit the crime
If Wharton Rule applies then there will never be a case that you can be
charged for conspiracy and substantive crime.
Conspiracy to commit Murder is a specific intent crime, there is NO implied
malice in conspiracy to commit a crime
SPECIFIC INTENT IN CONSPIRACY- require 2 elements. (1) the intent to
agree, or conspire, and
(2) the intent to commit the offense which is the object of the conspiracy.
-Must show that conspirators intended to agree but also that they
intended to commit all the elements of the offense.
The Mere knowledge from the seller, that the buyer intends to use illegal
activity does not make a conspiracy nor an aider or abettor. HOWEVER, if
the seller promotes the venture himself, then the seller will have a stake in
the venture and he will be charged with aiding and abetting.
Look for a cut price in a conspiracy. Having a stake in the outcome.
Ex. Before Joe went to prison, he said that he was going to kill the judge.
When he was getting out of prison he told the media that he was going to
kill the Judge. The salesman at the gun store saw the newspaper and sold
the gun at regular price. Is salesman guilty for conspiracy to kill the judge.
YES
Ex. C sold a gun to D under such circumstances that it was criminally
negligent for him to do so because of the likelihood that D would use it to
kill X, which he did. D was convicted of first degree murder and C was
convicted of involuntary manslaughter.
Ex. It was held defendants who supplied ordinary commercial food items to
persons who used the items in the manufacture of illicit liquor could be

convicted of aiding and abetting a conspiracy absent showing of a stake in

the conspiracy.
Ex. Where an employee conspired with an outsider to steal from the
employer,'which was done, the employee could be convicted of
embezzlement, the outsider convicted of larceny and both convicted of
conspiracy to commit larceny.
Rule Of Consistency
-The rule insures that the jury will adhere to the conspiracy requirement of
the occurrence of at least two guilty minds; and second, it prevents the jury
from weighing the same pieces of evidence differently in regard to each of
the alleged conspirators.
Unilateral Approach- Conspiracy is established by showing that the
defendant agreed with another to, commit a crime, thus acquittal of all
others will not prevent the defendant's conviction.
-Therefore You can be found GUILTY all by yourself of committing
conspiracy.
Ex. The fact that a conspiracy can be divided into distinct subgroups does not
mean there is more than one conspiracy as long as the various subgroups
are engaged in one overall plan. (ONE CONTINOUS TRANSACTION)
Ex. A person can be a party to a conspiracy if all details are not known and
even if he wasn't present. As long as conditions are met. He will also be
liable for other crimes of all the other conspirators that are in the "Natural &
Probable consequence" and committed in furtherance of the conspiracy.
Ex. 3 conspirators and 1 is waiting in car, 1 is outside but the 3 had agreed
no guns. 1 who is inside took in a gun without anyone's knowledge and
shoots the owner. No meeting of minds about gun and therefore it was not a
foreseeable consequence.

Ex. 4 coconspirators go into a bank to rob, but I says she cannot go

through with it and runs out the back door. Not successful withdrawal.
Once the agreement is made and crime has started it is too late to
withdraw. Even if she told police when she ran out the door it is too late!

Impossibility-No Defense- Impossibility is not a defense to a charge of

conspiracy.
Withdrawal-No Defense- Because the conspiracy is complete as soon as the
agreement is made and an overt act is committed.
The MFC recognizes voluntary withdrawal as a defense if the defendant
thwarts the success of the conspiracy, (e.g. informing the police)
1. Must be communicated to the others
2. If supplied materials to others, you need to get them back
3. Notify police.
Ex. A, B, and C decide to rob a store, C leaves to go steal a getaway car.

While C is gone A decides she doesn't want to do it and tells B to tell C

when he gets back. When C gets back B and C decide to rob the store
anyway. All are guilty.
Where an employee conspired with an outsider to steal from the employer,
which was done, the employee could be convicted of embezzlement, the
outsider convicted of larceny, and both convicted of conspiracy to commit
larceny.

C/L the crime does NOT

merge.
MFC- the crime does NOT
merge.
B. ATTEMPT
Specific Intent to commit a crime is not a crime. An attempt to perpetrate
it is necessary to constitute guilt of law.
OVERT ACT- Something you put in motion indirectly or indirectly
Mere preparation is insufficient
Once you abandon the intent you can reclaim self-defense (St. v. Rider).
Where A did not have a concurrence of the actus reus and mens rea of the
crime.
There must be an affirmative or positive act on the part of the A to move
something (i.e. car). If the act is accidental it is not an act. Must be a
voluntary act. ;
Ex. Pushing a car while drunk is NOT considered moving the car. Must be in
operative control.
Constructive Possession is not enough for conviction of drug trafficking. Ex.
A tells B to watch over these drugs. One must not actually have actual or
physical possession.
Mere presence in a vehicle while drugs are present; a passenger would NOT
be liable for possession
Ex. Putting poison on the under side of a mustache cup and leaving it where
the owner was expected to drink from it and be killed, is an attempt to
commit murder. Same as placing poison in lipstick.
Two men planned to rob a payroll clerk of his payroll. They went to the
bank where he was to receive the payroll stationed themselves to waylay
him, but were arrested just before the clerk arrived. This was held to be an
attempt to rob.
Two men planned to rob the persons in a saloon. They procured arms and
masks. They went to the saloon, pushed open the door and started to enter, but
withdrew hastily when they saw a large crowd inside. This was held to be an
attempt to rob.

 Two men planned to rob a third. They made inquiries about him, procured
masks, and hired a taxi to hunt for him. This was held to be preparation only.
Ex. Look for a guy who is attempting to rob. He never found the person he
wanted to rob, so he could never take an overt act toward that person. No
attempt.
Defendant was convicted for attempted bank robbery where he held
surveillance on the bank, made a sketch of the bank, obtained instruments to
assist in the robbery, identified the bank manager's car. The ct. found the
conduct to be a substantial step and upheld the conviction on authority of the
MPC.
Ex. Man who meet 12 year old girl by internet, was not convicted of
attempted rape. Held that A did not reach the level of an overt act leading to the
commission of the rape.
For Attempted Murder- You need specific intent. Remember SCRAPE FLAB
Murder and Arson- No need for specific intent.
Questions to ask yourself if defendant committed an Attempt?
1- Did defendant intend to commit the crime?
2- Was what he did wrongful in itself?
3- Was it impossible for the defendant to commit the crime?
4- Did the defendant use an appropriate method?
5- Was it in mere preparation of the crime?

6- Was defendant's act to remote to be considered?

7- Was defendant's conduct sufficiently blameworthy to blame punishment?

Factual Impossibility- Is NO defense to attempt (e.g. it is not a defense to say

that the lady that you attempted to rob had no money or in an attempt to
receive stolen goods that were no longer stolen because defendant purchased
them from an undercover police officer).
Legal Impossibility- Is a defense (i.e. that it is not a crime to do that which A
intended to do. Es. A going fishing in a lake in which he erroneously believed
fishing was prohibited cannot be convicted of attempted violation of fishing
ordinance.
Abandonment- Is NO defense. If the A had the intent and committed an over
act, he is guilty of attempt despite the fact that he changed his mind and
abandoned the plane before the intended crime was completed.
*Distinguish Voluntary and Involuntary Abandonment-Voluntary Abandonment- is an affirmative defense for attempt.
- Involuntary Abandonment- is when the A fails to complete the
attempted crime because
of unanticipated difficulties which increase the probability of
detention or apprehension.

MPC
The MPC would permit a defendant to avoid liability by proving voluntary
abandonment, subject to 2 conditions;
The abandonment must not have been motivated in any way by
circumstances not present or apparent earlier which increase the risk of
detention or apprehension or which merely increase the difficulty of
committing the crime; and
The abandonment must not have been prompted by a decision to postpone
the crime until a better time or until a different victim or opportunity is
found. 5.01(4)
Attempt merges with the completed crime. Thus a A cannot be found guiity
of both attempt and the completed crime.
C. SOLICITATION
Consists of inciting, counseling/advising, inducing, urging, or
commanding another to commit a felony with the specific intent that
the person solicited commit the crime (general approval or agreement
is insufficient).
Mere Solicitation is not an attempt to commit the crime solicited.
Specific Intent Crime. Even if the other person does not do the crime, the
solicitor is guilty.

Impossibility No Defense- It is not a defense that the solicitation could not

have been successful, as where the person was a police undercover agent. The
culpability of the solicitor is measured by the circumstances as she believed
them to be.
Withdrawal or Renunciation No Defense- Once the solicitation has been
made, it is generally no defense that the solicitor changed her mind or
countermanded her advice or urging.
Exemption form Intended Crime IS Defense-If the solicitor could not be
guilty of the intended. crime because of a legislative intent to exempt her, she
would have a defense..
ex. A minor female could not be found guilty of solicitation of statutory rape
by urging a man to have intercourse with her, because she could not be guilty
of the completed crime.
Abandonment
Note: you cannot withdrawal from solicitation because solicitation is a crime in
and of itself.
-at common law it was a misdemeanor

-at MFC it is a felony

Note: Once you begin to take steps you cannot abandon a crime, however in
the MODERN TREND voluntary abandonment is ok.
"
.
. .
-Abandonment will be there at common law
-Abandonment will be there if involuntary or voluntary at Modern Trend
You can only be charged with murder if it has Malicious Omission.
Solicitation merges with the crime. Cannot be held for both.
Negative Acts & Legal Duty
A driver of a vehicle who had an epileptic seizure while driving when he
knew he was subject to a seizure was responsible for the resulting homicide
when A's vehicle struck a child.
A legal duty in Negative Acts may arise in 4 ways
(1) By express permission of the law
(2) Because a legal responsibility between the parties i.e. Mom/child,
Dad/child
(3) By Contract
(4) Factual situation, no legal duty, but a legal duty arises if defendant
places victim in peril.
Is there a legal duty between a Husband and a Wife? YES.
Ex. Although the beating of the child was inflicted by another, the mother
who did not seek aid could be convicted of abuse to such minor child
Ex. Brother who assumed care of his disabled Down's Syndrome sister had
assumed duty of care and was properly convicted of reckless homicide for
the sister's death
Orally addressing a crowd and urging them to kill and rob and commit other
acts of violence, is an offense.
Ex. A mother who was present when her child was assaulted and failed to take
reasonable steps to prevent the assault, may
be found guilty of aiding and
abetting the assault.
AGENCY
A person cannot be held liable for the criminality act by his
employee; if
(i) The employer did not know or
(ii) The employer never asked or demanded the
employee to do the act,

 A corporation can be held liable(i) Must be within the scope of employment for the benefits of the
corporation.
X. PARTIES TO A CRIME
At C/L- There were 4 types of parties to a felony.
1. Principals in the 1s' Degree- Person who actually engage in the
act or omission that constitutes the criminal offense.
2. Principals in the 2nd Degree- Person who aid, command or
encourage the principal and are present at the crime.
3. Accessories Before the fact- Person who aid, abet or encourage
the principal but are not present at the crime.
4. Accessories after the fact- Person assists after the crime is
committed.
An accessory could not be convicted unless the principal had already been
convicted, although both could be convicted in a joint trial if the jury
determined the principal's guilt first.
Abandoned the requirement (above) and an
accessory can be convicted even if the principal has
evaded or has been tried and acquitted.
Has done away with "parties to the crime"
distinctions b/w principals. All parties can be found
guilty of the criminal offense.
Principal- engages in the act or omission that causes the
criminal result. Also, anyone who acts through an innocent,
irresponsible, or unwilling agent is classified as a principal.
Ex. A gives poisonous drink to B to give to C. B doesn't know
anything. B gives to C. C then dies. A is the principal. The
principal does not have to be present.
Accomplice- Is one who aids, counsels or
encourages the principal before or during the
commission of the crime.
Accessory after the fact- Aiding and assisting in
order to help the felon escape, arrest, trial or
conviction. The crime by the principal must be a
felony and it must be completed at the time the aid
is rendered.
An accomplice is responsible for the crimes he did
or counseled and for any other crimes committed in

the course of committing the crime contemplated,

as long as the other crimes were probable or
foreseeable.
Ex. A commands B to burn C's house, and B does
so. The fire spreads to X's house, and it was
foreseeable that it would do so. A is an accomplice
to the burning of X's house.
MENS REA& ACTUS REAS
Criminal Intent
Crimes generally require a mens rea or intent
Defendant must have been aware of facts that constitute the crime
and defendant need not have known anything about the law.
Exceptions: Strict liability: Statutory Rape, Bigamy, Regulatory
crimes.
A. Actus Reas
a. Voluntary Act
b. Omissions
i. Statute
ii. Contract
iii. Relationship
iv. Voluntary assumption of care
v. Creation of the peril
Transferred Intent
**lmportant Definitions- (Walker's words)
Ex. A shoots at B, intending to kill him. B/c of bad aim A hits C,
killing him. What is a guilty of? A is guilty of Attempt to
commit murder to B, and Murder to C.
Ex.2 A shoots at B, intending to kill him. A hits C, but only
wounds him. A will be liable to B for attempt to commit murder
and A will also be liable of battery to C-..NOT attempted murder
(No transfer intent).
B. Mens Rea
MFC-Requirements of
Culpability
Purposely- If the element involves the nature of his conduct or result
thereof, it is his conscious object to engage in conduct of that nature or to
cause such a result and if the element involves attendant circumstances, he
is aware of the existence of such circumstances or he believes or hopes that

they exist.
Knowingly- If the element involves that nature of his conduct or the
attended circumstances, he is aware that his conduct is of that nature or that
such circumstances exist. He is aware that it is practically certain that his
conduct will cause such a result.
Recklessly- He consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his conduct. Risk must be
the nature and degree that, considering the nature and purpose of the actor's
conduct and the circumstances known to considering the nature and purpose
of the actor's conduct and the circumstances known to him, its disregard
involves a gross deviation from the standard of conduct that a law-abiding
person would observe in the actor's situation.
Negligently- The risk must be such a nature and degree that the actor's
failure to perceive it, considering that nature and purpose of his conduct and
the circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor's
situation.
Important Definitions
Ex. A wrote bounced checks. & never knew that his checking account was
overdrawn. Held not guilty. There is no presumption that a person knows the
status of his checking account.
. SPECIFIC INTENT CRIMES
SCRAPE FLAB
Solicitation
Conspiracy
Robbery
Attempt
Premeditated Murder,
Embezzlement
Forgery
Larceny
Assault
Burglary
STRICT LIABILITY
A Strict Liability offense is one that does not require awareness of all of the
factors constituting the crime. The major significance of an offense's being
strict liability offense is that certain defenses, such as mistake of fact, are
not available.
Ex. Federal Legislation prohibits the transfer of firearms not registered under
federal law. Is it a defense that the A was ignorant of the fact that a firearm

was not registered? NO

FINAL QUESTION (possible)
Defendant was convicted for having an obscene book in his bookstore. The
state interpreted the statute to read that knowledge that the book was obscene
was imputed by possession of the book. Ct. ruled that a state's power to create
strict liability crimes is limited by constitutional guarantees. Also, can be
argued that the defendant never had any knowledge of the obscene material in
the book.
Ex. Liquor was sold to minors on a number of occasions by bartender. Owner
knew nothing of the transactions. Although the bartender may be strictly liable
under the statue regardless of his belief (why b/c as we know there are any
mistake of defenses to strict liability). The owner will not be criminally
liable, but liable in a civil court, therefore he will be fined.
Important Definitions
Remember to look out for a Non-employee for the above fact pattern. Might be
a trick question on the test. Of course, if it's a contractor, the owner will not be
vicariously liable.
VICARIOUS LIABILITY
A person without fault may nevertheless be held vicariously liable for the
criminal conduct of another (usually an employee). Unlike Strict Liability,
which dispenses with the mens rea requirement, but retains the requirement
that the A have personally engaged in the necessary acts or omissions,
vicarious liability dispenses with the personal actus reus requirement but
retains the need for mental fault on (he part of the employee.
Malum in se and Malum Prohibitum
A was attempting a suicide when someone tried to break it. The gun went off
and hit the other person. A will be liable for manslaughter b/c the act of suicide
is an unlawful act (malum in se). If the A were doing an act that was malum
prohibitum, he shall not be punished for the act from misfortune or by chance
(i.e. speeding 10 mph over speed limit).
Ex. Ct. affirmed the holding that driving a car on the public roads or highways
while in an intoxicated condition is an unlawful act; therefore, it was entirely
proper for the court to give instruction defining manslaughter, (footnote).
Ex. A ran into a boy and knocked him down while A was driving a sleigh
inviolation of the speed law. This was held to NOT sufficient to be a guilt of
assault and battery.
Ex. If there is a traffic violation and an unintentional death is it manslaughter?
The question remains was the & negligent or recklessness (mens rea needed for
MPC is negligence)? If there is no mens rea, then the defendant can only be

held liable in a civil case. An unlawful act inviolation of a malum prohibituni

statute will create liability for involuntary manslaughter only if it is
accompanied by a recklessness for the consequences of that act. (Sealy case)
Ex. Speeding is malum prohibitum, but speeding over 50 miles over the speed
limit in a school zone during recess or after school could be deemed to be an
evil act that could result in criminal culpability. An unlawful act is therefore
determined from the mental state of the actor and not just solely from the
unlawful act theory.
Ex. Where the A is charged with violation (assaulting a federal officer), he
claims he was unaware that the victim was a fed. Officer, the question
becomes: would the A have been justified, b/c of the agent's actions in using
force against the agent had the agent in fact been a civilian. If the A made an
honest mistake of fact with respect to the agent's status and the A's use of force
would have been justified against a private citizen, then he cannot be held
criminally liable. If, on the other hand, the A would not have been justified in
using force against a private citizen or if the A used more force than the law
permitted his mistake as to the agent's status would be no defense the charge.
What will negate culpable mental state?
A. Mistake of Fact- Ignorance or mistake as to a matter will affect criminal
guilt only if it shows that the A did not have the state of mind required for
the crime.
Ex. A hunting in the woods shoots through the trees at a figure he believes to
be a deer. In fact it is B, who is killed. A's mistake of fact establishes that he
did not have the required state of mind for murder.
Ex. A this time shoots through the trees at a figure he believes to be his enemy,
B, intending to kill him. In fact, the figure is C who is killed. A is guilty for
murder for C despite his mistake of fact as to C's identity, b/c A's mistake does
not negate his intent to kill a person.
B. Voluntary Manslaughter- Is an intentional killing distinguishable from
murder by the existence of adequate provocation.
Important Definitions
Adequate Provocation- Elements
a. sudden and intense passion in the mind of an
ordinary man.
b. The defendant must have in fact been provoked
c. There must not have been sufficient time to
cool off
d. Defendant in fact did not cool off

 When is Provocation adequatea. A being subjected to a serious battery or threat of

deadly force.
b. Discovering spouse in bed with another person
c. Mere words are generally not sufficient provocation unless the
words constitute informational words or words with a present
ability to inflict harm..
Provocation based on evidence that the victim had at one time stolen A's
television set, introduced A's son to heroin, assaulted A in the past,
threatened A and his son and was arguing with A and made some motions
towards A was sufficient for manslaughter.

Heat of Passion- any intense or vehement emotional excitement of the kind

prompting violent and aggressive action. Such as, rage anger, hatred,
furious resentment, fright or terror. Such emotional state of mind must be of
such a degree as would cause an ordinary man to act on impulse without
reflection.
An assault or battery resulting in a reasonable belief that the A is in imminent
danger of losing his life or suffering great bodily harm may be of sufficient
provocation to reduce the killing to voluntary manslaughter.
A's belief, sincere though unreasonable, will negate malice. Murder reduced
to manslaughter if A subjectively believed the circumstances justifying the
killing existed, but objective reality negates that existence.
Past affairs cannot constitute adequate provocation.
If two persons engage in mutual combat, the blows given by each are
adequate provocation to the other; thus, if one kills the other, the homicide
may be reduced to voluntary manslaughter.
C. Involuntary Manslaughter- Distinguished from voluntary mans. By lack of
intent toJcill.
2 types.
1. Criminal NegligenceWhen death is cause by criminal negligence.
Negligent act that is unjustifiable which can cause
death or serious injury.
Important Definitions
It is criminal negligence to point and fire a gun (weapon) at another, even if
the person pointing the gun may have good reason to believe the weapon
will cause no injury.
Criminally negligent act must be the proximate cause of death-