Criminal Law

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Criminal Law Jurisdiction

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State has jurisdiction over crime if:
(1) any act constituting an element of the offense was committed in the state,
(2) an act outside the state caused a result in the state,
(3) the crime involved the neglect of a duty imposed by state's law, or
(4) attempt/conspiracy inside state to commit offense outside state.

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Theories of Punishment

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(1) Incapacitation
(2) Deterrence (Special or General)
(3) Retribution
(4) Rehabilitation
(5) Education of Public

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Constitutional Limitations

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Due Process requires that criminal statute must not be vague. Must be:
(1) Fair warning (a person of ordinary intelligence must be able to discern what is prohibited); and
(2) No arbitrary and discriminatory enforcement.

No Ex Post Facto laws, and no Bills of Attainder.

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Interpretation of Criminal Statutes

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Construed strictly in favor of defendant. If two statutes address the same subject matter, but come to different conclusions, the more specific statute will be applied. More recently enacted statute controls and older statute. Crimes committed prior to effective date of new code subject to prosecution and punishment under law as it existed at the time the offense was committed.

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Merger

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Common Law: If a person engaged in conduct constituting both a felony and a misdemeanor, could only be convicted of the felony - the misdemeanor merged into the felony.

Modern Law: No merger other than that a person who solicited another to commit a crime cannot be convicted of solicitation and completed crime. Same with attempt. Conspiracy, however, doesn't merge.

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Elements of a Crime

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Crime most always requires proof of a physical act (actus reus), a mental state (mens rea), concurrence of act and mental state, and sometimes proof of a result and causation.

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Physical Act (Actus Reus)

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Defendant must have performed a voluntary act or failed to act when there was a legal duty to do so. Act = bodily movement. Must be VOLUNTARY.

Failure to act gives rise to liability only if:
(1) specific duty to act imposed by law;
(2) defendant has knowledge of facts giving rise to duty to act; and
(3) it is reasonably possible to perform the duty.

NO general "Good Samaritan" law.

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Specific Intent Definition

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Crime requiring not only the doing of an act, but also the doing of it with a specific intent or objective. Specific intent cannot be inferred from the doing of an act.

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Specific Intent Crimes

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(1) Solicitation: intent to have the person solicited commit the crime.
(2) Attempt: intent to complete the crime.
(3) Conspiracy: intent to have the crime completed.
(4) 1st Degree Pre-Meditated Murder: premeditation.
(5) Assault: intent to commit a battery.
(6) Larceny and Robbery: intent to permanently deprive the other of his interest in the property taken.
(7) Burglary: intent to commit a felony in the dwelling.
(8) Forgery: intent to defraud.
(9) False Pretenses: intent to defraud.
(10) Embezzlement: intent to defraud.

NOTE: Attempt is ALWAYS a specific intent crime, even when the underlying offense is not.

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Malice

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Intent necessary for malice crimes (common law murder or arson) sounds like specific intent, but is less restrictive; requires only a reckless disregard of an obvious or high risk that the particular harmful result will occur. Defenses to specific intent crimes do not apply to malice crimes.

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General Intent

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Almost all crimes require at least a "general intent," which is an awareness of all factors constituting the crime. Defendant need not be certain that all the circumstances exist; it is sufficient that she is aware of a high likelihood that they will occur. Jury may infer general intent merely from doing the act. Defendant can be liable if intends harm actually caused, but to a different victim or object (transferred intent).

Defenses/mitigated circumstances may also usually be transferred. Applies to homicide, battery, and arson. Not attempt. Person found guilty of crime by transferred intent usually guilty of two crimes: completed crime against actual victim and attempt against intended victim.

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Strict Liability Offenses

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Doesn't require awareness of all of the factors constituting the crime (i.e., defendant can be found guilty from the mere fact that she committed the act). Common offenses: selling liquor to minors, statutory rape, and bigamy (in some jurisdictions). Certain defenses, such as mistake of fact, are not available.

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Model Penal Code (MPC) Analysis of Fault

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(1) Purposely: Conscious object is to engage in certain conduct or cause certain result.
(2) Knowingly: Aware that conduct is of a particular nature or knows conduct will very likely cause particular result (satisfies requirement of willful conduct).
(3) Recklessly: Knows of a substantial and unjustifiable risk and consciously disregards it.
(4) Negligent: Fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. Objective standard is used. Must have taken a very unreasonable risk.

(Subjective Standard used for 1-3)

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Vicarious Liability Offenses

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One in which a person without personal fault may nevertheless be held liable for the criminal conduct of another (usually an employee). Trend is to limit vicarious liabiltty to regulatory crimes and to limit punishment to fines.

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Enterprise Liability

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At common law, a corporation does not have the capacity to commit crimes. Under modern statutes, corporations may be held liable for an act performed by:
(1) an agent of the corporation acting within the scope of his office/employment; or
(2) a corporate agent high enough in hierarchy to presume his acts reflect corporate policy.

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Concurrence of Mental Fault with Physical Act

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Defendant must have had intent necessary for the crime at the time he committed the act constituting the crime, and the intent must have actuated the act. For example, if defendant is driving to victim's house to kill him, he will lack the necessary concurrence for murder if he accidentally runs victim over before reaching the house.

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Parties to a Crime

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Common Law: Principal in the first degree (actually did it), principal in the second degree (aided, encouraged, or commanded and was present), accessory (before and after). Conviction of principal required to convict an accessory.

Modern Approach: Most jurisdictions abolished the above distinctions. All "parties to the crime" can be found guilty.

Note: Accessory after fact still separate. Punishment usually bears no relationship to principal offense.

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Mental State (Accomplice Liability)

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To be guilty as an accomplice, most jurisdictions require that the person give aid, counsel, or encouragement to the principal with intent to encourage the crime. In absence of a statute, most courts would hold that mere knowledge that a crime will result is not enough. However, procuring an illegal item or selling at a higher price because of buyer's purpose may constitute a sufficient "stake in the venture" to constitute intent.

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Scope of Accomplice Liability

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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 to the same extent as the principal, as long as the other crimes were probable or foreseeable. One who may not be convicted as a principal may be convicted of being an accomplice.

Exclusions:
(1) Members of the protected class;
(2) Necessary parties not provided for (example - heroin selling statute may not provide penalty or liability for buyer);
(3) Person who effectively withdraws before crime is committed (repudiation is sufficient withdrawal for mere encouragement; attempt to neutralize assistance needed beyond encouragement). Notifying the police or taking other action to prevent crime is also sufficient.

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Solicitation

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Elements: Inciting, counseling, advising, urging, or commanding another to commit a crime with the intent that the person solicited commit the crime. Not necessary that the person respond affirmatively to the solicitation.

Defenses: Not a defense that solicited person isn't convicted, nor that offense solicited couldn't have been successful. In most jurisdictions, renouncing or withdrawing solicitation is not a defense. A legislative intent to exempt the solicitor is a defense.

Merger: Solicitor can't be punished for both the solicitation and attempt, conspiracy, or the crime itself.

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Conspiracy Elements

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(1) An agreement between two or more persons;
(2) An intent to enter into the agreement; and
(3) An intent by at least two persons to achieve the objective of the agreement.

The majority of states now require an over act, but an act of mere preparation will suffice.

Note: It takes two to conspire at common law. Must have two "guilty minds" - two people who intent to agree and intend that the crime be committed. Thus, if the defendant and an undercover cop "agree" to commit a crime, no conspiracy because only one party intended for the crime to occur.

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Conspiracy Agreement Requirement

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Need not be express. It may be inferred from joint activity.
Issues:
(1) At common law, husband and wife could not conspire together, but this distinction has been abandoned in most states.
(2) There can be no conspiracy between a corporation and a single agent acting on its behalf. But, there is a split of authority as to whether agents of a corporation may be deemed co-conspirators with corporation.
(3) Wharton Rule: Where two or more parties necessary for commission of substantive offense (adultery, dueling), no conspiracy unless more participate than are necessary for the crime. Exception: Doesn't apply to agreements with "necessary parties not provided for."
(4) Acquittal of co-conspirators usually precludes conviction (unless separate trials).
(5) Agreement with person in protected class, means no conspiracy.

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Conspiracy Agreement Required (MPC Approach)

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"Unilateral Approach" - Defendant can be convicted of conspiracy regardless of whether the other parties have all been acquitted or were only feigning agreement.

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Conspiracy Mental State

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Specific intent crime. Parties must have:
(1) Intent to agree; and
(2) Intent to achieve the objective of the conspiracy.

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Co-Conspirator Liability

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A conspirator may be held liable for crimes committed by other conspirators if the crimes:
(1) were committed in furtherance of the objectives of the conspiracy, and
(2) were foreseeable.

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Termination of Conspiracy

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A conspiracy usually terminates upon completion of the wrongful objective. Unless agreed to in advance, acts of concealment are not part of the conspiracy. Note: Government's defeat of the conspiracy's objective doesn't automatically terminate the conspiracy. This is important because acts and statements of co-conspirators are admissible against a conspirator only if alone or made in furtherance of the conspiracy.

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Conspiracy Defenses

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Impossibility is NOT a defense. Withdrawal is not a defense to conspiracy, because conspiracy is complete as soon as the agreement is made and an act in furtherance is performed. Withdrawal MAY be a defense to crimes committed in furtherance of the conspiracy, even objective. Withdrawal is effective after performing an affirmative act notifying all conspiracy members of withdrawal. If provided assistance as an accomplice, must try to neutralize.

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Subconspiracies

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Chain Relationship: Single, large conspiracy in which all parties to subagreements are interested in the single, large scheme. All liable for acts of others in furtherance of the conspiracy.

Hub and Spoke Relationship: Many independent conspiracies are linked by a common member. Common member will be liable for all conspiracies, but members of the individual conspiracies are not liable outside their conspiracy.

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Attempt Elements

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An act, done with intent to commit a crime, that falls short of completing the crime.

Mental State: Defendant must intend to perform an act and obtain a result that (if achieved) constitutes a crime. Attempt ALWAYS requires specific intent. No attempt with negligent crime, because no one intends to be negligent.

Overt Act: Defendant must commit an act beyond mere preparation. Most courts follow a proximity test - require that the act be dangerously close to successful completion of the crime. Most criminal codes today (and the MPC) require that the act or omission constitute a substantial step in a course of conduct planned to culminate in commission of the crime that strongly corroborates actor's criminal purpose.

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Defenses to Attempt

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Factual impossibility is no defense (includes impossibility due to mistake in attendant circumstances).

Legal impossibility (i.e., that it isn't a crime to do that which defendant intended to do) is a defense (e.g., fishing in a lake where defendant believed fishing was prohibited, though it isn't, doesn't constitute an attempted violation of fishing ordinance).

Abandonment is no defense. If defendant had intent and committed an overt act, guilty of attempt despite abandoning the plan before crime was completed.

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Insanity

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M'Naughten Rule: Defendant didn't know right from wrong.

Irresistible Impulse Test: An impulse the defendant cannot resist.

Durham (or New Hampshire) Test: But for the mental illness, defendant wouldn't have done the act.

A.L.I. or MPC: Combination of M'Naughten and Irresistible Impulse.

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M'Naughten Rule

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Defendant entitled to acquittal only if he had a mental disease or defect that caused him to either:
(1) not know that his act would be wrong, or
(2) not understand the nature and quality of his actions.

Loss of control because of mental illness is no defense.

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A.L.I. or MPC Test for Insanity

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Modern Trend

Defendant entitled to acquittal if he had a mental disease or defect and as a result, he lacked the substantive capacity to either:
(1) appreciate the criminality of his conduct, or
(2) conform his conduct to the requirements of law.

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Procedural Issues with Insanity

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Burdens of Proof: All defendants presumed sane. Defendant must raise the insanity issue. Split authority as to whether defendant raising issue bears the burden of proof.

Defense need not be raised at arraignment. "Not guilty" will not waive the right to raise the defense later.

If defendant does not raise insanity issue, he may refuse court ordered competency evaluation. But if defendant raises insanity issue, can't refuse to be examined by court appointed shrink to aid the court in resolution of his insanity plea.

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Post-Acquittal Commitment

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In most jurisdictions, a defendant acquitted by reason of insanity may be committed to a mental institution until cured. Confinement may exceed maximum period of incarceration for the offense charged.

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Mental Condition During Criminal Proceedings

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Under Due Process Clause, defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, he is unable (1) to understand the nature of the proceedings against him, or (2) to assist his lawyer in preparation of his defense.

Defendant may not be executed if incapable of understanding the nature and purpose of the punishment.

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Diminished Capacity

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Defendant may assert that as a result of a mental defect short of insanity, he did not have the mental state required for the crime charged. Not all states allow this defense. Most who do limit it to specific intent crimes, but a few allow it for general intent crimes as well.

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Voluntary Intoxication

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Intentionally taken without duress. Substance must be known to be intoxicating. May only be offered if crime requires purpose (intent) or knowledge, and the intoxication prevented defendant from formulating purpose or obtaining the knowledge. Often a good defense to specific intent crimes. Not available if defendant purposely became intoxicated to establish defense.

No defense to crimes involving malice, recklessness, negligence, or strict liability.

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Involuntary Intoxication

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Only involuntary if taken without knowledge of substance's intoxicating nature, under direct duress imposed by another, or pursuant to medical advice while unaware of substance's intoxicating effect. May be treated as mental illness, and defendant entitled to an acquittal if she meets jurisdiction's insanity test.

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Intoxication as Related to Insanity

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Continuous, excessive drinking or drug use may bring on actual insanity, and thus a defendant may be able to claim both an intoxication defense AND and insanity defense.

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Infancy

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Common Law: No liability for an act committed by a child under age 7. 7-14, there is a rebuttable presumption that child was unable to understand the wrongfulness of his acts. 14 or older treated as adults.

Modern Statutes: Often modify above and say that no child can be convicted of a crime until a certain age reached (usually 13 or 14). However, kids can be found to be delinquent in special juvenile or family courts.

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Justification

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Justification defenses arise when society has deemed that although the defendant committed the proscribed act, she should not be punished because the circumstances justify the action.

Justification defense depend on the immediacy of the threat - threat of future harm is not enough.

Nondeadly force justified where it appears necessary to avoid imminent injury or to retain property. Deadly force justified only to prevent death or serious bodily injury.

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Self-Defense - Nondeadly Force

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Person without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force upon herself. No duty to retreat.

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Self-Defense - Deadly Force

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Person may use deadly force in self-defense if (1) she is without fault; (2) she is confronted with "unlawful force;" and (3) she is threatened with imminent death or great bodily harm.

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May the Aggressor Use the Defense of Self-Defense?

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Yes, if (1) she effectively withdraws from the altercation and communicates to the other her desire to do so, or (2) the victim of initial aggression suddenly escalates minor fight into a deadly altercation and initial aggressor has no chance to withdraw.

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Retreat

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Generally, no duty to retreat before using deadly force. Minority view requires retreat if victim can safely do so, unless:
(1) attack occurs in victim's home,
(2) attack occurs while victim is making a lawful arrest, or
(3) assailant is in the process of robbing the victim.

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Defense of Others

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Defendant has the right to defend others if he reasonably believes that the person assisted has the legal right to use force in his own defense. All that is necessary is the reasonable appearance of the right to use force. Generally, there need be no special relationship between the defendant and the person assisted.

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Defense of a Dwelling

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Nondeadly force may be used to prevent or terminate what is reasonably regarded as an unlawful entry into or attack on the defender's dwelling. Deadly force may be used only to prevent a violent entry made with intent to commit a personal attack on an inhabitant or to prevent an entry to commit a felony in the dwelling (justification is to protect the dwelling's inhabitants).

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Defense of Other Property

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Deadly force may never be used in the defense of property. Non-deadly force may be used to defend property in one's possession from unlawful interference, but may not be used if a request to desist or refrain from the activity would suffice.

Force cannot be used to regain possession of property wrongfully taken unless the person using force is in immediate pursuit of the taker.

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Crime Prevention (Justification)

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Nondeadly force may be used to the extent that it reasonably appears necessary to prevent a felony or serious breach of the peace.

Deadly force may be used only to terminate or prevent a dangerous felony involving risk to human life.

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Use of Force to Effectuate Arrest

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Nondeadly force may be used by officers if it reasonably appears necessary to effectuate an arrest. Deadly force is only reasonably if it is necessary to prevent a felon's escape AND the felon threatens death or serious bodily harm. Private person has privilege to use nondeadly force to make arrest if crime was in fact committed and private person has reasonable grounds to believe person arrested did it. May use deadly force ONLY if person harmed was actually guilty of offense arrested for.

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Resisting Arrest

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Nondeadly force may be used to resist an improper arrest even if a known officer is making the arrest. Deadly force may be used, however, only if the person does not know that the person arresting him is an officer.

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Necessity

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It is a defense to a crime that the person reasonably believed that the commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. Test is objective - good faith belief is not sufficient.

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Domestic Authority

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The parents of a minor child, or any person "in loco parentis" with respect to that child, may lawfully use reasonable force upon the child for the purpose of promoting the child's welfare.

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Duress

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Defense to crime other than homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime.

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Mistake or Ignorance of Fact

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Relevant to criminal liability only if it shows that the defendant lacked the state of mind required for the crime. Thus, irrelevant for strict liability crimes.

If mistake offered to "disprove" specific intent, mistake need not be reasonable, but if offered ti disprove any other state of mind, must have been reasonable.

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Mistake or Ignorance of Law

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Not a defense generally, even when reasonable and based on attorney's advice. However, if reliance on attorney negates a necessary mental state, can demonstrate that government has not proved case beyond a reasonable doubt.

Exception - Defense if:
(1) statute proscribing her conduct was not published or made reasonably available prior to conduct;
(2) there was reasonable reliance on a statute or judicial decision; or
(3) in some jurisdictions, there was a reasonable reliance on official interpretation or advice.

If defendant's state of mind requires some knowledge of law, and mistake/ignorance negates intent, entitled to acquittal. Example: Though buyer of a gun's past crime was a misdemeanor, but it was a felony - can't be found guilty of selling gun to a known felon.

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Consent

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Unless crime requires lack of consent (i.e., rape), consent is not usually a defense. Consent is a defense to minor assaults or batteries if there is no danger of serious bodily injury. Whenever consent may be a defense, it must be established that:
(1) consent was freely and voluntarily given;
(2) party was legally capable of consenting; and
(3) no fraud was involved in obtaining the consent.

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Condonation or Criminality of Victim

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Forgiveness by the victim is no defense. Likewise, the nearly universal rule is that illegal conduct by the victim of a crime is no defense.

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Entrapment

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Exists only if:
(1) the criminal design originated with law enforcement officers, and
(2) defendant was not predisposed to commit the crime prior to contact by the government.

Merely providing opportunity is not entrapment. Person cannot be entrapped by a private citizen. Under federal law, entrapment can't be based on the fact that a government agent provided ingredient for crime, even if material provided was contraband.

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Battery

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An unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Simple battery is a misdemeanor. Need not be intentional, and force need not be applied directly. Some jurisdictions recognize consent as a defense to simple battery and/or certain specified batteries.

Aggravated battery is a felony: (1) battery with deadly weapon, (2) battery resulting in serious bodily harm, and (3) battery of a child, woman, or cop.

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Assault

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Either: (1) attempt to commit battery or (2) intentional creation (other than by mere words) of a reasonable apprehension in the mind of the victim of imminent bodily harm. If actual touching, must be battery, not assault. Aggravated assault (e.g., with a deadly weapon, or with intent to rape or maim) is treated more severely.

Example: If defendant holds victim up at knifepoint and demands his money as a joke - not guilty of attempted battery assault, but guilty of reasonable apprehension assault.

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Mayhem

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At common law, felony of mayhem required either dismemberment or disablement of a bodily part. Recent trend is to abolish mayhem as a separate offense and to treat it instead as a form of aggravated battery.

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Common Law Criminal Homicides

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(1) Murder
(2) Voluntary Manslaughter
(3) Involuntary Manslaughter

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Common Law Murder

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Unlawful killing of human being with malice aforethought, which exists if no facts reducing the killing to voluntary manslaughter or excusing it, and committed with one of these states of mind: (1) intent to kill, (2) intent to inflict great bodily injury, (3) reckless indifference to unjustifiably high risk to human life (abandoned and malignant heart), or (4) intent to commit felony.

Note: Don't let your feelings mislead - sometimes the situation can be sympathetic, but not quite enough to reduce to voluntary manslaughter.

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Voluntary Manslaughter

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Killing that would be murder but for the existence of adequate provocation. Provocation is adequate only if: (1) would arouse sudden and intense passion in ordinary person's mind, causing him to lose self-control, (2) defendant was in fact provoked, (3) not sufficient time between provocation and killing for "cooling down," and (4) defendant in fact did not cool off between provocation and killing.

Some states have imperfect self-defense: Murder may be reduced to manslaughter even though (1) defendant started altercation, or (2) defendant unreasonably but honestly believed in necessity of responding with deadly force, but doesn't qualify for self-defense.

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Involuntary Manslaughter

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A killing is involuntary manslaughter if it was committed with criminal negligence (defendant was grossly negligent) or during the commission of an unlawful act (misdemeanor or felony not included in felony murder rule).

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Statutory Modification of Common Law Classifications of Murder

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1st Degree Murder:
(1) Deliberate and premeditated;
(2) Felony murder (arson, robbery, burglary, rape, mayhem, and kidnapping)
(3) Special types of killing (torture)

2nd Degree Murder: All others.

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Limitations on Felony Murder

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(1) Must be an inherently dangerous felony.
(2) Defendant must be guilty of underlying felony.
(3) Felony must be distinct from killing (i.e., not aggravated battery).
(4) Death must have been a foreseeable result.
(5) Death must have been caused before defendant's immediate flight from the felony ended. Once felon reaches "temporary safety," subsequent deaths are not felony murder.
(6) In most jurisdictions, defendant is not guilty of felony murder if co-felon is killed as a result of resistance from victim or police.
(7) Agency theory - Defendant not liable unless he or agent causes the death.
(8) Proximate Cause theory - Defendant liable if killed by victim or police.

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Causation

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Cause in Fact: Defendant's conduct is cause in fact of the result if wouldn't have occurred but for defendant's conduct.

Proximate Cause: Defendant's conduct is proximate cause if result is natural and probable consequence of the conduct even if defendant did not anticipate.

An act that hastens an inevitable result is still the legal cause of the result. Simultaneous acts of two or more people may be independently sufficient causes of single result. Victim's pre-existing weakness or fragility, even if unforeseeable, doesn't break chain of causation.

Year and One Day Rule: Traditionally, for defendant to be liable for homicide, death of victim must occur within one year plus one day of inflicting injury or wound. Most states have abolished this.

Intervening act shields defendant from liability if act is a coincidence or outside foreseeable sphere of risk created by defendant.

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False Imprisonment

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Unlawful confinement of person without his valid consent. Consent is invalidated by coercion, threats, deception, or incapacity. Not confinement to prevent person from going where she wants to go, so long as alternative routes are available to her.

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Kidnapping

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Modern statutes often define kidnapping as unlawful confinement of person involving either (1) some movement of victim, or (2) concealment of victim in a "secret" place.

Aggravated kidnapping: kidnap for ransom, for purpose of committing other crimes, for offensive purposes, and for child stealing.

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Rape

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Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. Slightest penetration sufficient. Most states reject husband part entirely or when estranged/separated.

Lack of effective consent exists where:
(1) intercourse accomplished by actual force;
(2) intercourse accomplished by threats of great and immediate bodily harm;
(3) victim incapable of consent due to intoxication, unconsciousness, or mental condition; or
(4) victim fraudulently caused to believe act is not intercourse.

(Other types of fraud also invalidate consent).

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Statutory Rape

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Carnal knowledge of a female under the age of consent. Reasonable mistake as to age or a showing of voluntary consent is irrelevant as statutory rape is a strict liability crime.

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Adultery and Fornication

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Adultery - both parties to sex guilty if either validly married to someone else. Often required that behavior be open and notorious.

Fornication - sex or open and notorious cohabitation by unmarried persons.

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Incest

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Marriage or sexual act between closely related persons.

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Seduction

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Inducing, by promise of marriage, an unmarried woman to engage in sex. MPC doesn't require chastity or that the female be unmarried.

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Bigamy

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Common law strict liability offense of marrying someone while having another living spouse.

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Larceny

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Taking and carrying away of tangible personal property of another by trespass with intent to permanently deprive person of their interest in property.

Custody vs. possession: possession is greater scope of control. If defendant had possession, not larceny (may be embezzlement).

Intent: At time of taking, defendant intended to permanently deprive. Intent to create a substantial risk of loss, or intent to sell/pledge goods to owner is sufficient for larceny. Where defendant believes property is hers, or only intends to borrow or keep as repayment of debt, no larceny.

May be larceny where defendant intends to pay for goods (if goods not for sale) or intends to collect a reward). Can be larceny with lost or mislaid property or property delivered by mistake, but not abandoned property. If defendant wrongfully takes property without intent to permanently deprive and later decides to keep, guilty when he decides to keep it. If original taking isn't wrong, and he decides to keep, it's not larceny.

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Embezzlement

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Fraudulent conversion (i.e. dealing with property in manner inconsistent with arrangement by which defendant has possession) of personal property of another by a person in lawful possession of the property.

Must intend to defraud: If defendant intends to restore exact property taken, not embezzlement. However, if defendant intends to restore with similar or substantially identical property, embezzlement (even if money).

Embezzlement not committed if conversion is pursuant to a claim of right to the property. Whether defendant took property openly is an important factor.

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False Pretenses

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Obtaining title to personal property of another by an intentional false statement of past or existing fact with intent to defraud the other.

If victim is tricked by misrepresentation of fact into giving up mere possession of the property, the crime is larceny by trick. Victim tricked into giving up title to property, crime is false pretenses.

Victim must be deceived by or act in reliance on the misrepresentation and this must be a major factor (or the sole cause) of passing title to defendant. Misrepresentation as to what will occur in the future or a false promise (made without intent to perform) is not sufficient.

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Robbery

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Taking of personal property of another from the other's person or presence (including anywhere in his vicinity) by force or threats of immediate death or physical injury to victim, family, or someone in victim's presence, with intent to permanently deprive him of it. Victim MUST give defendant property because she feels threatened - no other reason will suffice.

Different from larceny, because there are no threats involved in larceny.

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Extortion

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Common law extortion consists of the corrupt collection of an unlawful fee by an officer under the color of office. Under Modern statutes, extortion (AKA blackmail) often consists of obtaining property by means of threats to do harm of expose information. Under some statutes, crime is complete when threats made with intent to obtain property (need not be obtained).

Different from robbery, because threats may be of future harm, and victim need not be present when the property is taken.

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Receipt of Stolen Property

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Receiving possession and control of "stolen" personal property known to have been obtained in a criminal manner by another person with intent to permanently deprive owner of interest.

Manual possession is not necessary. Defendant possesses property when put in location designated by her or arranges a sale to a third person.

Property must be stolen at the time defendant receives it.

Front 85

Theft

Back 85

Under many modern statutes, some or all of the following offenses combined and defined as theft: larceny, embezzlement, false pretenses, robbery, extortion, receipt of stolen property.

Front 86

Forgery

Back 86

Making or altering (by drafting, adding, or deleting) a writing with apparent legal significance (e.g., a contract, not a painting) so that it is false (representing something it is not, not merely containing a misrepresentation), with intent to defraud (although no one need actually be defrauded).

If defendant fraudulently causes third person to sign a document that the third person doesn't realize he's signing, it's forgery. But if the third person realizes, no forgery even if induced by fraud.

Uttering a forged instrument: offering as genuine an instrument that may be subject o forgery and is false with intent to defraud.

Front 87

Malicious Mischief

Back 87

Malicious destruction of or damage to the property of another. Malice requires no ill will or hatred. Does, however, require that the damage or destruction have been intended or contemplated by defendant.

Front 88

Burglary

Back 88

Common Law: A breaking (must lack consent) and entry (slightest entry will suffice) of a dwelling (structure regularly used for sleeping purposes) of another at night with intent to commit a felony in the structure (need not actually happen).

Modern statutes often eliminate many "technicalities" (requirement of breaking, dwelling, at night, and intent to commit felony - misdemeanor is often enough).

Intent MUST be present at the time of entry - later intent is not sufficient.

Front 89

Arson

Back 89

Common Law: Malicious burning (requires some damage caused by fire) of the dwelling of another. Many statutes provide for any structure to be sufficient for arson.

Mere blackening by smoke or discoloration by heat is not sufficient, but mere charring is.

Common law misdemeanor of house-burning: Malicious burning of one's own dwelling if structure is situated either in town or city or so near to other houses as to create a danger to them.

Front 90

Perjury

Back 90

Intentional taking of a false oath (lying) in regard to a material matter in a judicial proceeding.

Front 91

Subornation of Perjury

Back 91

Procuring or inducing another to commit perjury.

Front 92

Bribery

Back 92

Common law: Corrupt payment or receipt of anything of value for official action.

Modern statutes: May be extended to nonpublic officials, and either the offering of a bribe or taking of a bribe may constitute the crime.

Front 93

Compounding of Crime

Back 93

Agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon. Under modern statutes definition refers to any crime, not just felonies.

Front 94

Misprision of a Felony

Back 94

Common Law: Failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony.

Modern Statutes: No longer a crime, or if it remains a crime, requires some affirmative action in aid of the felon.