HOMICIDE MURDER

FIRST DEGREE MURDER SECOND DEGREE MURDER

MANSLAUGHTER
VOLUNTARY MANSLAUGHTER INVOLUNTARY MANSLAUGHTER

1. Defendant caused the death of 1. Defendant caused the death of 1. Defendant caused the death of 1. Defendant caused the death of another human being with another human being with another human being with another human unintentionally Defendants act must be the Defendants act must be the Defendants act must be the Defendants act must be the sole sole or but for proximate sole or but for proximate sole or but for proximate cause or but for proximate cause of the cause of the dead cause of the dead of the dead dead The victim must be born and The victim must be born and The victim must be born and The victim must be born and alive alive at the time of the act alive at the time of the act alive at the time of the act at the time of the act 2. Deliberation and Premeditation 2. Intent to do great or serious 2. Intent and adequate 2. Criminal Negligence requiring bodily injury Provocation, requiring reckless disregard or gross Deliberation implies a cool (i) Legally adequate provocation negligence mind that is capable of can be inferred from the (sexual intercourse of the Conduct that under the reflection. Premeditation is weapon used (i.e. shooting spouse, attempted battery, when a person with a cool person in leg to break his leg, circumstances involves a high mutual combat, unlawful arrest mind in fact reflects, at least but he dies is still murder). degree of risk of death or serious with excessive force). a short period of time, before OR. Willful and Wanton disregard injury. (ii) In the heat of passion the act of killing. of an unreasonable risk of EXAMPLES: D with frequent (inflame the passion of a harm (Depraved Heart) EXAMPLES: extremely seizures while driving suffers a reasonable person and to cause Reckless conduct must cruel means i.e., poison, seizure and kills; Parent fails to her to act from passion rather torture, or lying in wait. involve a substantial degree seek medical treatment for child; than reason; was person in fact OR Intent to commit a Felony of risk to human life, intoxicated driver; owner of provoked; and no cooling off overcrowded nightclub where fire A death occurs during the that a reasonable person period), and occurs. commission or attempted would have realized the risk. (iii) Causal connection between OR. Misdemeanor Manslaughter commission of an inherently EXAMPLES: Destroying provocation, passion and the A killing occurs during the dangerous felony (Mayhem, property by explosion yet fatal act (So provocation Rape, Sodomy, Burglary, commission or attempted realizing a great risk someone heat of passion the act Arson, Kidnapping, Escape, commission of an unlawful act. might be killed; firing a pistol which causes the death. Robbery) which is the EXAMPLES: Simple assault and into a moving train, firing a OR. Other forms Voluntary Mans. proximate cause of death. gun into an inhabited house, battery. Anything evidencing a Imperfect use of self-defense, Felon MUST be convicted Russian roulette reckless disregard for human life defense of others, or right to underlying felony to be short of depraved heart and not a arrest; Defense of duress or convicted of felony murder dangerous felony. necessity; Diminished mental EX: If Felon, Co-Felon, capacity; possibly assisted Victim, or Police kills a third suicide. party = Felony Murder.

OTHER CRIMES AGAINST PERSONS ASSAULT

At common law, there are two types: Attempted-Battery Type: Where defendant takes substantial step toward commission of a battery (i.e. throwing a rock at another, intending to hit him but misses) Fear of Harm Type: Defendant must (1) intend to cause apprehension in the victim and that apprehension must exist, AND (2) victim must be aware of the threat of harm. (mere words are not enough without an overt act to carry it out). *MI* - reasonable apprehension of an immediate battery. Other types Aggravated Assault: Assault with a deadly weapon or assault with intent to rape or maim. Felonious Assault: Assault with a deadly weapon but intent is less than to kill or commit great bodily harm.

BATTERY

RAPE

KIDNAPPING
1. Intentional 2. Unlawful (not unlawful is prevent from going somewhere, so long as he is not required to stay) 3. Nonconsensual (Consent is valid where it is freely given, without being under any physical or mental disability or subjected to coercion, threats, or fraud) 4. Confinement (when a person is either required by force or threat of force to stay where he does not want, or go where he does not want to go). 5. Asportation or Secrecy (victim is transported against her will or intent to secretly confine the victim. Kidnapping for Ransom: more serious degree, in which anything of value is demanded. Even if victim is released without payment, still ransom. Child Abduction: Kidnapping of a child by force, persuasion, or enticement. (consent of child is immaterial). Note: Victims of a crime, i.e. robbery and rape, is not kidnapping unless the confinement or movement increases the risk of harm to the victim.

Intentional or negligent unlawful General Intent to commit application of force to the person of 1. unlawful (performed by a male another or to an extension of the who is not husband of victim) person 2. Sexual Intercourse (simple penetration) General criminal intent req. 3. Without consent (against No battery where there is consent victims will so no consent if or justification fraud, intoxication, mental, No pain or bodily injury threat of death or injury). necessary, just the slightest touching will suffice. Can be directly to body of victim (*MBE* Male to female) or something closed to, carried Statutory Rape: Female is under the by, or attached to the victim. age of consent, rape is committed despite her consent.

*MI* - Unlawful touching Aggravated Battery: (i) battery with a deadly weapon; (ii) battery resulting in serious bodily injury; (iii) battery of a child, woman, or police officer. Mayhem: Dismemberment or disablement of a body part (aggravated battery).

*MI* Criminal Sexual Conduct. Statutory Rape: First Degree CSC is sexual penetration with a victim under 13 y/o and an actor more than 36 months older Third Degree CSC is sexual penetration with: a victim 13 to 18 years old; defendant knows victim is mentally incapacitated, victim is related to the accused by blood, or the victim is 16 to 18 years old and defendant is teacher.

LARCENY
(Defendant has custody)

CRIMES AGAINST PROPERTY EMBEZZLEMENT ROBBERY

1. Larceny 2. From a Person The question is whether the goods are within the victims ability to reach, inspect, observe, or control. 3. By Force or Intimidation of immediate harm. If actual force, then the force must be more than the amount necessary to effectuate the taking and carrying away. (i.e. a purse snatcher takes bag by surprise, w/o a fight then NO robbery. If there is a fight for the bag, theres a robbery). Intimidation sufficient for robbery is the degree of force by words, gestures, or actions which will create an apprehension of danger so that a person will party with his property against his will. Force or Intimidation must be for immediate harm (future threats of harm is extortion or blackmail). Extortion: the use of threat of future injury to a person or harm to property to obtain or attempt to obtain the property of another.

(Defendant has lawful possession)

RECEIVING STOLEN GOODS

1. The Receiving of Physical possession or control over the property (i.e. directing the disposition of the goods or acting as a broker in selling them) 2. Stolen Goods Property received must actually be stolen, despite what the receiver believes. 3. the Knowledge that it was stolen test of knowledge is subjective Receiver has knowledge if: (i) he knows its stolen, (ii) believes them to be stolen, (iii) suspects their stolen and fails to investigate 4. with Intent to deprive the owner If received in order to destroy or sell, he has the necessary intent. The intent must be at the time he receives the property. (Stolen goods by larceny, robbery, embezzlement, false pretenses, and burglary).

1. Trespassory Taking and Trespassory means it must be against a person in possession and it must be wrongful Taking means defendant must obtain possession (or exercise control). 2. Carrying away of This can be satisfied by the slightest movement. 3. Tangible personal property of value 4. from the Superior possessory interest of another 5. with Specific intent to deprive him of it permanently. (Look to intent at the time of the taking, not after it has been taken)

1. Specific Intent 2. By one in lawful possession to 3. Fraudulently convert Seriously interfere with the owners right to the property by using it for a long time, selling it, damaging it, or unreasonably withholding it. 4. Tangible personal property of value of another.

**Merges with Robbery** **Lesser-included offense of robbery**

CRIMES AGAINST PROPERTY AND HABITATION FALSE PRETENSES FORGERY BURGLARY

1. Breaking and Creating or enlarging an opening by any amount of force, fraud, or threat 2. Entering Any part of the defendants body that crosses into the dwelling through the opening achieved by the breaking. 3. the Dwelling of Another A place where one sleeps A place of business will not be a dwelling unless the owner sleeps there regularly or it is attached to a residence. No longer a dwelling if last dweller permanently abandons it, intending never to sleep there again. 4. in the Night Time Insufficient natural day light to see burglar. 5. with the Intent to Commit a Felony. at time of B/E, defendant intends to commit a felony (not a misdemeanor) that is causally connected with B/E. actual felony need not actually occur. *MI* Home Invasion: Burglary minus the night time requirement (therefore, can occur at any time).

ARSON
1. Malicious Intent to burn the dwelling, or an act done under such circumstances that there is obviously a plain and strong likelihood of such a burning (i.e. burn personal property and spreads to anothers home). 2. Burning of the It must touch the structure itself. The slightest ignition will suffice Does NOT need to be extensive nor destroy the building. 3. Dwelling (or within the curtilage) the place of ones residence there is no need for anyone to present at the time of the burning Curtilage is a space which is enclosed or could be enclosed (i.e. grounds and buildings surrounding the dwelling). 4. of Another Possession or occupancy, NOT title, determines whose house a building is for purposes of arson.

1. False Representations of a 1. Making or altering a Representation must be false Must be a material alteration of an existing document, such Can be by words, devices, or that it affects a legal right. conduct, employed with 2. False writing with intent to deceive. 2. Material Fact (Past or Present) Not merely false statements. The writing must represent Mere expression of opinion itself to be something that it is or belief is not enough not. It must be about a present or 3. Intent to defraud. past fact, NOT future (so predictions are not enough) 3. with Reliance by the victim to Test of reliance is subjective. Therefore it is sufficient if the particular victim was in fact deceived. 4. Obtain title of personal property of another with Victim must pass title to the property to the defendant. 5. Intent to defraud Defendant knows the representation is false or makes representation without knowledge as to its truth or falsity.

CL Malicious Mischief (Misdemeanor): Malicious destruction of, or damage to, the property of another.

INCHOATE CRIMES ATTEMPT

An attempt is 1. a substantial step in the direction of committing a crime, substantial test requires conduct that goes beyond preparation to commit the crime. 2. coupled with an intention to commit that crime, and Only needs to intend to perform the act, and the acts are criminal is all the intent needed. 3. the apparent ability to complete the crime Defense of Impossibility: Factual impossibility is NOT a defense Inherent impossibility is where defendant intends to commit a crime, but chooses means obviously incapable of bringing about the criminal act. VAILD defense Legal Impossibility is a VALID defense If defendant has progressed to perpetration, the crime of attempt is committed and abandonment is NO defense. *Merger: If successful in attempt and commits the crime, there is no separate crime of attempt; the attempt and the crime merge.

SOLICITATION
Solicitation occurs when the defendant, 1. with the intent that another person commit a crime, 2. entices, advices, incites, orders or otherwise encourages that person to commit a crime. If the solicitor would not be guilty of the crime if it were accomplished, she cannot be convicted of solicitation. Merger If the person solicited agrees to commit the crime, then conspiracy has been formed and the crime of solicitation merges into conspiracy. The person who successfully solicited the commission of a crime would be guilty of the substantive crime, but not solicitation.

CONSPIRACY (No merger)

Conspiracy is 1. an agreement between two or more persons, must agree to accomplish same objective. 2. an intent to enter into an agreement, 3. an intent to achieve the objective of the agreement, and 4. *MI* an overt-act in furtherance of the conspiracy Wharton Rule: There can be no conviction for conspiracy if the only parties to the agreement are those absolutely necessary to commit the substantive offense. Acquittal of All but one: If all other coconspirators are acquitted, then the one remaining must be acquitted as a matter of law. Impossibility is NO DEFENSE to conspiracy. Termination: a conspiracy continues until its objectives are fulfilled or until it is abandoned. Criminal conspiracy usually ends when the crime is successfully completed. Abandonment is presumed if no party to the conspiracy has don an over act in furtherance Withdrawal: must do affirmative act to notify all co-conspirators, before attempt stage has been reached. o No defense b/c conspiracy is at time of the agreement but not guilty of substantive crime Crimes and Declarations of one conspirator attributed to the others

PARTIES TO A CRIME
1. The perpetrator (Principal in the First Degree): the person who performs the criminal act with the requisite intent, either personally or through an innocent agent. Two or more persons can be perpetrators of the same crime. There MUST be a principal in the first, in every crime. a. Principal in the Second Degree: One who is actually or constructively present at the scene of a felony and aided and abetted its commission, or stood ready to aid or abet its commission, with the intent that the crime be committed. (Punished to the same extent as a perpetrator). 2. Accessory Before the Fact: One who aids, counsels, or encourages the commission of a felony, but is not present at the time of perpetration. a. Requirements for Withdrawal: a party can withdraw as an accessory before the fact, but to avoid liability for the substantive crime, she i. communicate that withdrawal to the principal and ii. attempt to thwart the commission of the substantive crime. 3. Accessory After the Fact: Common law, only applied to felonies a. Requirements i. A completed felony must have been committed, ii. The accessory must have known of the commission of the felony, and iii. The accessory must have given aid to the felon personally for the purpose of hindering the felons apprehension, conviction, or punishment. b. Examples: Concealing the felon, aiding her in making her escape, destroying or altering evidence, or giving false information in order to divert the police away from felon. Merely failure to report a felony or arrest a felon is not sufficient. 4. Compounding: This crime occurs when one receives some property or other consideration in return for agreement not to prosecute or inform on one who has committed the crime. a. Requirements i. An agreement, ii. Knowledge of the actual commission of the crime iii. The receipt of some consideration.

JUSTIFICATION DEFENSES SELF-DEFENSE

Arises from necessity and exists only so long as and to the extent that the necessity exists. Non-Deadly force is justified when the defendant is threatened by an assailant whom she reasonably believes is inflicting or about to inflict unlawful bodily harm. Deadly Force: action that is either intended or likely to cause death. Defendant must (i) reasonably believe he is in danger of death or great bodily injury and that it is necessary to use deadly force to prevent it; and (ii) the danger must be immediate. No Self-Defense for: Aggressor or one committing felony.

DEFENSE OF OTHERS
One is justified in using reasonable force in defense of another person when he 1. honestly and reasonably believes that the other is in immediate danger of unlawful bodily harm from his assailant, and 2. that use of force is necessary to avoid this danger.

DEFENSE OF DWELLING
An individual has greater latitude in defense of ones dwelling (home) than in the defense of other property. Deadly force is permissible only when: (i) defender reasonably believes that trespasser intends to commit a felony or do harm to people on premises, or (ii) to prevent a burglary where the burglar intends to kill or inflict serious bodily harm on a person on the premises.

DEFENSE OF OTHER PROPERTY

Defender can use reasonable non-deadly force (if necessary) to prevent the unlawful trespass to or the carrying away of her personal property and to prevent the unlawful entry or trespass to her real property. Deadly force is NEVER justified.

CRIME PREVENTION
One who reasonably believes that a crime is being committed or is about to commence in his presence, may use reasonable force to terminate or prevent the commission of the crime. Use of Deadly force is limited to the prevention of dangerous felonies and must appear to be reasonably necessary to prevent it.

EFFECTUATE ARREST
During lawful arrest, a police officer or private citizen is justified in using reasonable force to defend herself against one who is resisting arrest. Force is justified under the rules of self-defense.

PUBLIC AUTHORITY
(i.e. killing of an enemy during war, execution of death sentence, are innocent homicides).

NECESSITY
Where defendant reasonably believes that the conduct was necessary to avoid some harm to society that would exceed the harm caused by the conduct. If a third alternative is available, he must avail himself of it.

DOMESTIC AUTHORITY
A parent of a minor child is justified in using reasonable force to discipline the child. However, the force must be reasonable in light of the childs age, sex, health, and particular conduct.

CAPACITY DEFENSES INSANITY

MNaghten Test: It must be proved that, at the time of the commission of the act, the defendant was laboring under such a defect of reason, from the disease of the mind, as to not know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong. Irresistible Impulse Test: One is not guilty by reason of insanity if it is determined that the defendant had a mental disease which kept her from controlling her conduct. Durham Rule: an accused is not criminally responsible if his unlawful act was the product of mental disease or defect.

DIMINISHED CAPACITY
Evidenced that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense. (D.C. usually leads a defendant being guilty of a lesser-included offense).

INTOXICATION
Voluntary: It is a defense where it negates the existence of specific intent of the crime charged. o May reduce first degree murder to second degree murder (no reduction to manslaughter) o *No defense if intent formed before intoxication* Involuntary: Is a complete defense to a crime if, as a result of the intoxication, the defendant does not know the nature and quality of his act or that it is wrong.

INFANCY
*CL*, person under the age of 7 is deemed not to have criminal capacity for any offense. *MI* Under the age of 13/14, there is no criminal liability. Can still be found delinquent in juvenile court.

DURESS
Not guilty if performed under 1. Threat of imminent infliction of death or great bodily harm, and 2. He reasonably believes death or great bodily harm will be inflicted on him or member of immediate family if not performed. *Not applicable to Homicide*

OTHER EXCULPATORY DEFENSES MISTAKE OF FACT ENTRAPMENT

Mistake of Fact is a defense when it negates the existence of a mental state essential to the crime charged. o No defense in strict liability or public welfare offenses. Mistake of Law is NO defense to general intent or strict liability crimes. o It is a defense to Specific intent Designed to prevent government manufacture of crime. Requires: 1. When defendant was not predisposed to commit crimes as this and 2. the officers created the intent to commit the crime in his mind *MI* Objectively, were police so reprehensible under circumstances?

CONSENT
Consent freely given is a defense to o battery o forcible rape o kidnapping, and o theft.