Search The Library
Common Law Classes of Crimes
Felony - Traditionally, crimes punishable by forfeiture of all property: murder, manslaughter, mayhem, rape, robbery, sodomy, larceny, arson, burglary. Today, crimes punishable by death or imprisonment for more than one year.
Misdemeanor - All other crimes
Felony - 1st, 2nd, 3rd degree, crimes punishable by death or imprisonment for more than one year.
Petty Misdemeanor - as defined by offense, maximum term of imprisonment less than 1 year
Capitol Felony - punishable by death or life imprisonment
Misdemeanor - confinement in jail for not more than 1 year
mens rea - Culpable mental states
d) Criminal Negligence
Strict liability allowed where definition of offense does not require culpable mental state. Trend to abolish strict liability where incarceration may be imposed
Requirement of a voluntary act Acts done while unconscious are not voluntary. must be a voluntary act, omission or possession. Possession must be knowingly
Absent of specific duty, no liability for failure to act.
Elements of an omission case:
(1) a duty,
(2) an omission of that duty with the necessary mens rea,
(3) causal relationship between omission and result,
(4) awareness on the part of the actor of facts giving rise to the duty,
(5) performance of the duty was possible.
Liability held in 2 situations
1) omission is sufficient as defined in the offense
2) duty to perform omitted act is imposed by law (3) SAME (c)
Early common law - A person was required to report or prosecute one know to have committed a felony. Recently misprison dropped as incompatible with modern jurisprudence.
No misprison in Texas We do punish failure to stop and render aid, failure to render information, and failure to report suspected child abuse cases.
Where multiple crimes dispositioned, court may impose concurrent or consecutive sentences
Where multiple crimes arise out of the same criminal episode the sentences shall run concurrently.
For severance of offenses the court can impose concurrent or consecutive sentences.
Automatically imposed for a conviction of Murder. Those convicted of manslaughter were not executed. Determination of sentence in courts discretion.
General Guidelines - The defendant can be sentenced to death if 1
of 8 aggravating circumstances found AND no mitigating
circumstances found M.P.C. 210.6.
Can only be imposed for Capitol Murder and where the defendant acts intentionally or knowingly. See aggravating factors T.P.C. The death sentence is decided during the guilt phase of the Texas bifurcated trial
Specific Intent Crimes
solicitation, attempt, conspiracy, first degree premeditated murder, assault, larceny, robbery, burglary, forgery, false pretense, embezzlement
General Intent Crimes
battery, rape, false imprisonment, kidnapping
defendant is responsible for all proximate results unless causation is severed by a superceding factor (coincidental or act of nature)
Proximate cause in Homicide cases "Year and a Day" rule on limitations.
1) antecedant but for test: (subtle points)
2) when purposely or knowingly is a required element, element not established unless (a) transfered intent or more serious result than intended or (b) same kind of injury as designed and not too remote or accidental
3) when recklessly or negligently is element, element not established if th result not within the risk of which actor aware (same a,b)
defendant is responsible for results that would not have occurred [but for] his conduct, unless a concurrent cause was clearly sufficient and the actors conduct clearly insufficient.
Criminal Homicide (types)
(1) unlawfully causing the death
(2) of a living human being,
(3) with death occurring within a year and a day.
(1) Murder (malice aforethought),
(2) Voluntary Manslaughter (heat of passion),
(3) Involuntary Manslaughter
3) Negligent Homicide
4) Causing or aiding suicide
1) Capitol Murder
3) Voluntary Manslaughter
4) Involuntary Manslaughter
5) Criminally Negligent Homicide
4 types of malice (mens rea):
1) intent to kill murder
2) intent to do serious bodily harm
3) depraved heart: defense shows extreme indifference to human life
4) felony murder Criminal Homicide can be committed:
3) recklessly (similar to depraved heart)
Criminal Homicide can be committed:
3) recklessly, or with
4) criminal negligence (gross negligence) [misdemeanor]
Same as criminal homicide - above.
2) knowingly, or
3) recklessly under circumstances manifesting extreme indifference to human life.
4) felony murder, (3) above is presumed [1st degree felony]
1) intentionally or knowingly
2) intending to cause serious bodily injury and death results
3) felony murder [1st degree felony]
what would otherwise be murder (intentional homicide) committed under extenuating circumstances that mitigate murder to manslaughter.
Criminal homicide committed:
1) recklessly, or
2) under the influence of extreme mental or emotional disturbance. [2nd degree felony]
what would otherwise be murder committed under immediate influence of sudden passion arising from an adequate cause [2nd degree felony]
Voluntary Manslaughter Mitigating murder defense
1) objective - would it arouse passion in the reasonable person?
2) subjective - was defense actually provoked?, is there evidence he lost control?
3) was defense still in the grip of heat of passion?
4) would a reasonable person have cooled off in the time between the provocation and the killing?
Subjective Test Only:
2) was defendant actually provoked?, is there evidence he lost control?
3) was defendant acting under an "extreme emotional disturbance"? (no triggering act required, no cool off limitation)
Same as Common Law.
Third Party Provocation
Provocation must come from victim. Third party provocation does not mitigate. Does not limit provocation to the act of the person killed limits provocation to the victim or one acting with the victim.
Requires something more than mere negligence:
1) defendant conduct must involve a high degree of risk or serious bodily injury, and
2) defendant must be aware that his conduct creates this risk
Manslaughter - recklessly, above
A person commits this offense if he;
1) recklessly causes death, or
2) causes death by accident when intoxicated [3rd degree felony]
Person guilty of murder if causes death of another person during the commission of ANY felony. Strict liability, vicarious liability to all participants in the felony. Abandons strict liability, but says recklessness and extreme indifference to human life are presumed (mens rea for murder). Applicable when actor is engaged or an accomplice in the commission, attempt, or flight after commission or attempt of; robbery, rape, deviant sexual intercourse by force, arson, burglary, kidnapping, or felonious escape.
Applicable to all felonies, but requires
(1) it be in the course and in furtherance of the commission, attempt, or flight from, and requires
(2) an act clearly dangerous to human life that causes the death of an individual.
Off shoot of (FM) Used in some jurisdictions to make a person liable for manslaughter (involuntary) when someone is killed in the commission of a misdemeanor. All participants liable.
Guilty of murder if the attempt was the natural or proximate consequence of defendant acts.
Guilty of criminal homicide if defendant purposely causes suicide by force, duress or deception
Approx 30 states recognize this as either murder or manslaughter 2nd degree felony if suicide or attempt results, misdemeanor otherwise.
3rd degree felony if suicide or attempt that results in serious bodily injury occurs, otherwise class C misdemeanor
Attempt recognized in common law as the intent to commit a crime coupled with acts but a failure to achieve the target crime.
Specific Intent Crime at C/L.
Three alternative definitions of attempt
1) Bungler Cases - crime is complete, but no harm takes place (the actor missed, screwed something up, etc..)
2) "Last Proximate Cause" test - the actor has done all he intends to do to accomplish the crime, but the act of others is required for the crime to be completed. (doesn't happen) 3) Substantial Last Step - measures the conduct of what has already been done (if substantial step taken). Subjective view, decided on a case by case basis. No Specific Intent Required
Texas has a broad definition of offense that requires two
1) Specific Intent to commit the offense
2) coupled with an act amounting to more than mere preparation No attempt for class C misdemeanors
No defense to attempt that the act was actually committed
Specific Intent Crime.
(1) an AGREEMENT to do
(2) either an unlawful act or a lawful act by unlawful means.
NO Overt Act required
Bilateral Approach [takes 2 people]
Agreement (with the purpose of promoting) + Overt Act Required in lower felonies, but NOT in first and second degree felonies
Unilateral Approach [only defendant needs to agree]
Agreement (person intends that a felony be committed) + Overt Act performed by one or more Required
(1) to request or incite
(3) to commit a crime [felony in U.S.]
(4) with the intent that the crime be committed. Defendant asks another to commit the crime for him NOT with him as accomplice.
Solicitation can include asking a person to act as an accomplice, The solicitation can be uncommunicated. Applies to all crimes
Solicitation only applies to
(1) capitol felonies
(2) first degree felonies and
(3) solicitation of a child to commit felony
Punishment: (1,2) one grade lower (3) same as target offense.
Attempt, Conspiracy, Solicitation
a reduced factor of the completed crime (mitigated sentence) punishment is of the same grade as the target offense except in capitol or first degree felony where punishment is a second degree felony.
Conspiracy/Attempt - one degree lower than target offense. Solicitation - Same as target offense, Except capitol and first degree felonies are one degree lower
Federal Law - for conspiracy if affirmative act to defeat conspiracy.
Voluntary renunciation (abandonment) is an affirmative defense to attempt. NO Target can be hit to have this defense
(4) - Attempt
(3) - Solicitation
(6) - Conspiracy
Voluntary renunciation (abandonment) is an affirmative defense to attempt, conspiracy and solicitation where actor prevents target from being hit. Renunciation can serve to mitigate at the sentencing phase of the trial to reduce the punishment to one grade lower15.04(d)
Impossibility (defense to attempt) recognizes the defense of legal impossibility, but not factual impossibility.
(1) only the legal impossibility where if all is as defendant believes, no crime would result or
(2) Inherent impossibility is not mentioned
Merger of Inchoate Crimes
Attempt - merged with substansive offense (can be convicted of one or the other, not both). Conspiracy - no merger, can be convicted of both conspiracy and substansive offense Solicitation - merged with substansive offense and with Attempt Attempt - merged with substansive offense. Conspiracy - merge as far as conviction and punishment, but defendant can be prosecuted for both. Attempt - merges.
Conspiracy - not expressley stated. No case raising the issue.
Principle in 1st Degree - The actor
Principle in 2nd Degree - Present at scene and aids and abets. Can be tried an convicted before or after Priciple in 1st, [guilty of higher or lower or same crime].
Accessory before the fact - not present at scene, but aids and abets in some way prior. principle had to be convicted in advance, if aquitted, died, etc.. accessory couldn't be convicted. [guilty of offense committed]
Accessory after the fact - hinders apprehension, prosecution and/or punishment. (wife could not be accessory, only exception)
Misdemeanors - participants "before the fact" equally guilty, after the fact - no guilt. Guilty of an offense if committed by his own conduct or by conduct of another for which he is legally responsible, or both.
Accountable for the actions of another if (a) acting with the same culpability he causes an innocent or irresponsible person to engage in such conduct, (b).made accountable by code or law, (c) he is an accomplice
No defense that actor for which he is liabe, has been aquitted, not been prosecuted, been convicted for different offense, or is immune from prosecution.
Guilty of an offense if committed by his own conduct, or by conduct of one which he is criminall responsible, or both. [each party liable for target]
Distinction between accomplice and principle abolished.
No defense that actor for which he is liabe, has been aquitted, not been prosecuted, been convicted for different offense, or is immune from prosecution.
After the fact - charged with hindering apprehension or prosecution
(Pinkerton Rule) [Not part of Common Law]
(Federal) - Responsible for collateral crimes that one did not intend or agree to, that were foreseeable when comitted by a co- conspirator during the pendency of the conspiracy and in furtherance of it.
Renunciation is defense to co-conspirator collateral act Rejects Pinkerton Version of Pinkerton requires that the colateral crime be in furtherance of conspiracy and reasonably foreseeable by defendant.
Defense same as TX.
Initial burden on defense to raise the defensive issue, then burder of persuasion on prosecution to disprove beyond a reasonable shadow of dought
defense has the initial burden of production (no practicle difference between defense and affirmative defense)
defense has the initial burden of production and then proof of persuasion by a preponderance of the evidence
mens rea defense
Voluntary Intoxication is not a defense. It can be admitted as evidence to negate the element of specific intent in specific intent crimes, but not to negate general intent in general intent crimes.
Voluntary Intoxication can be used to negate an element of the offense for mental states higher that recklessness.
Involuntary Intoxication is an affirmative defense. Voluntary intoxication is not recognized as a defense or a factor that will negative mens rea. May be used as evidence of temporary insanity in mitigation of penalty
Mistake of Fact
Specific Intent - a mistake of fact made in honest good faith could negate the element of specific intent but the mistake must have been reasonable to negate any other required state of mind.
General Intent - mistake must be both honest and in good faith;
and reasonable to negate general intent.
No defense for strict liability or to sex crimes where mistake of age (maj view), or if another crime would have occurred if facts would have been as he believed
Mistake of fact is a defense if it negates the mental state required to establish an element of the crime.
No defense to sex crimes for mistake of age under 10.
Mistake of fact is a defense if the actor formed a reasonable belief about a matter of fact, if the belief negates the required mens rea. No defense to sexual assault of a child (under 17 is child in Texas)
Mistake of Law
Ignorance of the law is no excuse
Exceptions: affirmative defense when,
1) actor reasonably believes his conduct to be legal
2) the misunderstanding is based on an official but erroneous interpretation of the law.
Same as Common Law
No defense if another crime would have occurred if facts would have been as he believed
defendant must prove by preponderance of evidence Same as Common Law
No defense if another crime would have occurred if facts would have been as he believed
M'Naghten Rule - predominant; defendant doesn't know nature and quality of act, or if so deosn't know it's wrong.
Irresistible Impulse Test - supplements M'N; defendant couldn't control his conduct.
Durham Rule - short lived, defendant's act is product of mental defect.
New Federal Rule - defendant is unable to appreciate the nature
and quality of his act. (combo of M'Naghten and irrestible impulse
defendant lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. [affirmative defense] (stricter than M'Naghten - restricted right/wrong test) defense, as a result of severe mental disease or defect, did not know that his conduct was wrong.
Manditory comittment for those aquitted of act, attempt or threat of serious bodily harm. ** only defense in Texas that requires prior notice
[affirmative defense] Diminished Capacity
May be possible to establish under (a). Mitigates murder. (Not majority)
ages at the time of offense
Child under 7 - no criminal liability,
7-13 rebuttable presumption of incapacity, presumed unable to form intent (except conclusively presumed incapable of rape) 14+ treated as adult
Bar to trial and or defense
< 16 not triable or convictable
16-17 not tirable or convictable unless juvenile court waived or had no jurisdiction over them.
General prohibition against prosecution of anyone under 15, (except for perjury, or state/local traffic offenses.
15-16 cannot be prosecuted as adults unless juvenile court waives jurisdiction or for the same crimes as above.
17+ Adults (except 17 or under - no death) Grand Jury petition for delinquency; murder, aggravated kidnapping, aggavated sexual assault, deadly assault of law officer, or attempted capitol murder. (sentenced to reform until 18 then transfer to T.D.C.)
Superior Orders (military orders)
[A defense] if actor reasonable believes conduct required or authorized by law, court, or government tribunal (Superior Orders), or in the execution of the legal process.
Justification & Excuse
[A defense] if defendant was compelled to commit the offense by a person's threat of immenent physical harm to the accused or a third party. (didn't apply to homicide)
[Affirmative defense] if coerced by the use of, or threat of
unlawful force against his person or third person that a
reasonable person would have been unable to resist
(1) Not available if defense recklessly or negligently placed himself in that situation.
(2) [Affirmative defense] if coerced by threat of imminent death or serious bodily injury to himself or another.
(a) If not a felony compulsion by force or threat of force is sufficient.
(b) Person of reasonable firmness standard
[A defense] where situation created by natural (environmental) forces. Required reasonable belief that criminal act was necessary to avoid greater harm. (good faith belief not enough) Not available if defense created the situation, or took anothers life soley to prevent his own death.
[Affirmative defense] where actor believes (subjective) it
(1) harm avoided > harm committed,
(2) no exception for the situation defined in offense, (3) no legislative purpose to exclude necessity.
Choice of Evils [A defense] if
(1) actor reasonably beleives conduct is immediatly necessary to avoid harm;
(2) desirability of avoiding harm > abiding by standards, harm sought to be prevented by law
(3) no legislative purpose to exclude justification.
Defenses Involving Force
Non deadly force - if the actor reasonably believed he was in imminent danger of bodily harm, and the force used was reasonably necessary to avoid harm.
Deadly force - only available against what actor reasonably believed to be an imminent threat of death or serious bodily injury. Non deadly force - where actor believes the such force is immediatly necessary for protection against an unlawful force on the present occasion.
Not available for resisting arrest, against occupier or possessor of property with right of claim.
Deadly Force - against death, serious bodily harm, kidnapping, or sexual intercourse by force Not avialable if actor provoked incident, can retreat, or surrender posession to a person with right of claim, or officer in line of duty. ** No retreat required from dwelling or work
Non deadly force - when and to the degree he reasonably beleives is immediatly necessary to protect agains the others use or attempted use of unlawful force.
Not available - resisting lawful or unlawful arrest (unless officer uses unreasonable force first), response to verbal provocation alone, actor provoked the use of force
Deadly force - if justified as above, if a reasonable person would not have retreated, against the threat of deadly force, to prevent aggravated kidnapping, murder, sexual assault, or robbery.
Imperfect Self Defense
Reasonable mistake - Self defense, a reasonable belief is all that is required
Unreasonable mistake - No defense A belief is all that is
required, but if actor is reckless in mistake, manslaughter
results, if he is negligent, criminally negligent homicide
Same as Common law.
Duty to Retreat
Only against deadly force when actor knows he can retreat with complete safety Deadly force, if a reasonable person in actors situation would have retreated
Defense of 3rd party
(objective approach) Defender would have same right as victim. Viewed from the standpoint of victim Same privlige to protect another as he has to protect himself. A belief is all that is required.
Judged from the viewpoint on the defendant, would he have had the right to self defense to protect himself in victims position
Defense of Habitation
Modern courts limit the defense to situations where the intruder intends to commit a filony or the harm an occupant. where the intruder is committing or attempting a felony and has employed or threatened deadly force against or in the presence of the actor, or anything less than deadly force would expose the actor or another to serious harm.
No special rule for defense of habitition. Texas retreat rule applies to dwellings.
Resisting Unlawful Arrest
Reasonable force is available in resisting unlawful arrest.
non-deadly force allowed where officer attempts to use excessive force before actor offers any resistance.
Defense of Property
Deadly force not allowed, Non deadly force could be used to regain property if in hot persuit.
Deadly force not available unless attempted disposession of dwelling, in the commission of arson, burglary, robbery, or felonious theft, and there is a threat or use of deadly force
Non deadly force - can be use to prevent a taking or disposession and to recapture taken property if actor used force immediatly or in fresh persuit.
Deadly force - when as above, and when he reasonably believes deadly force necessary to prevent arson, burglary, robbery, theft during nighttime, or criminal mischeif as night; or to prevent one who is fleeing from escaping with property from above.
Man Traps (spring guns)
may be used where actor, if present, would be justified in taking life or inflicting serious bodily harm. (* act at his own peril in setting device)
(1) can be used if not designed to cause death or serious bodily harm and
(2) the use is reasonable under the circumstances as the actor believes and
(3) the device is one customarily used or notice is given
(1) can be used if not designed to cause death or serious bodily
(2) the use is reasonable under the circumstances as the actor reasonably believes when he installs device.
Use of force in law enforcement
(last resort test) officer not allowed to used deadly force to apprehend fleeing felon unless arrest could not otherwise be affected. Now trend toward just in case of violent felony. Citizens were entitled to prevent any felony.
Non deadly force - justified if making or assisting an arrest and actor believes it immediatly necessary, and makes known, or can't make known, purpose for the arrest.
Deadly force - if the arrest if for felony, and actor is a peace officer or believes he is assisting a peace officer, and creates no risk to 3rd persons. and believes delay of arrest creates substantial risk of death or serious bodily injury. Non deadly force - if reasonably believes necessary to make or assist arrest, search, or prevent escape. Must notify of purpose, if possible, before using force.
Deadly force - if necessary to make arrest, and actor reasonably believes deadly force authorized, or believes delay of arrest creates substantial risk of death or serious bodily injury ** no duty to retreat
No English C/L, became American Case Law 1932
(1) subjective - majority opinion,
(2) objective - minority opinion.
Subjective - 2 prong -
(1) was the offense induced by the government agent,
(2) was the defense predisposed to commit the offense.
Objective - was the offense induced by the government in employing methods of persuation that create a risk that the offense will be committed by persons other than those ready to commit it.
[Affirmative Defense] Objective Approach Not available where causing or threatening bodily injury is an element of the offense, Issue of entrapment is tried by court in absense of jury.
[A Defense] Objective Approach. Sting operations are exempt
Violation of Due Process
Can be raised where entrapment is barred by defense's predisposition and where the the governments conduct is "outrageous".
Right to Trial & Counsel
Right to Counsel Federal:
In all felonies cases, in misdemeanors only when a sentence of incarceration is actually imposed In all first appeals. Not required in discretionary appeals.
defendant does not have the right to counsel of his choice.
In all cases, felony and misdemeanor, punishable by imprisonment C.C.P. Art. 26.04
Presumptions (inferences) not allowed to shift the burden of proof reguarding the elements of an offense.
All appear to be permissable presumptions (inferences) that the underlying factual basis must be PBRD
RICO (son of conspiracy)
Lot of vauge government power.
Federal RICO makes illegal:
(a) using income derived from a pattern of racketeering to acquire interest in an enterprise;
(b) acquiring an interest in enterprise through racketeering activity;
(c) conducting the affairs of an enterprise through racketeering; and/or
(d) conspiracy to commit (a,b,c, no act reqd.)
(1) existance of an enterprise that affects interstate or foriegn commerce;
(2) defense associated with enterprise;
(3) defense participated in conduct of enterprise affairs;
(4) participation was through a pattern of racketeering.
"Racketeering Activity" (2 acts for pattern) - act or threat of: murder, kidnaping, gambling, arson, robbery, bribery, extortion, dealing in drugs (prison > 1yr.), obscenity, and money laundering. (plus a lot more)
Punishment-fine up to $25,000, 20 years, + forfieture of all interest in Enterprise and forfeiture or (power base)
Civil RICO - Treble Damages.
Dispenses with mens rea requirement of engaging in racketeerin activity. State and Federal prosecution NOT 2 jepordy Texas RICO - Requires a combination (3 or more persons), mens rea with regard to the combination, one predicate act required. (no pattern necessary)
Punishment - if target acheived , one degree higher than target.
Renunciation is affirmative defense, withdrawal can be mitigating factor when actor doesn't take action to prevent offense. Testominial immunity provided.
Federal: principally aimed at extortion by gangsters, has become principle weapon against corruption in government affairs. Elements:
(1) defense induced victim to part with property,
(2) defense did so willingly and knowingly by means of extortion,
(3) the act delayed, interrupted or adversly affected interstate commerce.
ENGLISH COMMON LAW ** All others are statutory expansions
(1) the tresspasory
(2) taking and
(3) carring away (asportation) of the
(4) (tangible) personal property (not services, land, trade secrets)
(5) of another [not spouse]
(6) with the intent to steal it (permanently deprive). (Cant steal already stolen property)
(1) Stealth - unknown to victim;
(2) By Servant - servant given custody but still the agent of master;
(3) Finder of Lost or Mislaid Property - defense intends to appropriate rather than return;
(4) By Bailee - converted by bailee given posession by agency relation;
(5) By Trick - (not the same as False pretense) actor only gets posession NOT title based on a representation of treating it in a particular way..
Intent to return - defense,
Intent to repay - no defense,
Refusal to pay debt not a theft crime.
A joint owner,partner cannot be guilty of larceny
Consolidated Theft Crimes No permanent to deprive required, time for loss of value sufficient, or to hold for reward. Theft from spouse possible. (household goods only after seperated)
Lost or mislaid property - Guilty if he fails to take reasonable measures to resore property to rightful owner.
Intent to repay - no defense
A partner can be guilty of theft when co-owner exceeds his authority.
Consolidated Theft Crimes.
For theft conversion for personal benefit not required, only appropriation. (can appropriate already stolen property)
Similar to M.P.C. on permanently deprive. Lost or mislaid property - owner must be able to be identified fro this to be theft.
Intent to repay - no defense
Taking of property distinquishes theft crimes from criminal mischief, distruction of property.
No defense in joint ownership if other has right to exclusive control, if equal right appropriation refers to unauthorized control.
(1) the fraudulent,
(2) conversion of,
(3) the property,
(4) of another,
(5) by one in lawful possession of it. (no permanent to deprive required)
Embezzlement punishes conversion, missapplication or missappropriation. Good faith intent to restore no defense if not done before charges filed. Must restore exact thing taken not similar item (exact bills $)
False Pretense (swindling) the obtaining or title and posession (or just title) to property by knowingly or recklessly by making a misrepresentation of a past or presently existing fact of material significance with the intent (and does) cause the victim to part with it. (future promise may be larceny by trick)
Theft by deception - defendant creates or reinforces false impression, (future promise possible but will not be infered by failure to perform alone. prevents another from aquiring information, fails to correct a false impression, or fails to disclose a lein. Falls under general theft statute. Deception which would render consent ineffective. Future promise similar to M.P.C.
Receiving and Concealing
C/L - did not punish this!
The guilty receiver must know the goods were stolen. defense cannot be guilty of stealing and receiving the same item. knowing, or beleiving property probably stolen. Knowlege can be presumed
Actual knowlege required, but can be presumed.
Texas sting provision.
Right of Claim
defense in larceny cases. defendant must show he had right of claim to specific item, not just taking something to make up for it.
Defense to all forms of theft, including theft by deception No specific rule, but prior case law.
Larceny + by use of force or threat of immediate force. Force or threat had to occur during the theft. Threat of force involves immediate, physical injury, otherwise extortion.
Multiple actors - multiple robberies, multiple items taken -
Force or threat could be during or in flight after. Robber did not have to be successful in taking. Robbery limited to forceful or itimidating acts that would be first or second degree felonies or involve serious bodily injury or threat of it. No aggravated robbery.
Liable for robbery even if theft not complete. Reckless
infliction if injury sufficient, but defense must intentionally or
In flight after, injury or threat is sufficient
Common Law Crime (felony) -
(2) by breaking
(3) of a dwelling house,
(4) occupied by another,
(5) with intent to commit a felony inside
(6) at NIGHT.
Entry - abody part must break plane of house Breaking - force required, not usual entry. Modern court do away with breaking,, dwelling house, felony, and night. entering a building or occupied structure (a place, vehicle or structure adapted for overnight accomodations), with the intent to commit a crime within.
2nd degree felony, if at night, of if person injured, or armed with explosive, else 3rd degree felony affirmative defense if structure abandoned.
Felony burgulary in 3 ways:
(1) entering a building, not then open to the public, without effective consent with intet to commit a felony of theft,
(2) remaining concealed in building with the intent to commit felony or theft,
(3) by entering a building without effective consent and committing or attempting felony or theft.
No breaking required, Burgulary and felony or theft don't merge.
Aggravated if premesis are habitation, or defense has deadly
weapon, or explosive, or injury attempted or occurs during
commission or flight.
Recent unexplained possession is sufficient to convict.
The corrupt collection of unlawful payment by an official under the color of office. Modern law has expanded extortion. Akin to burglary, except imtimidation, (or coersion) is not for the immediate use of force, and the place of taking is immaterial.
Most states don't require appropriation of the property. (Texas &
Consolidated as theft crime., contains right of claim as defense. See threats..
Consolidated as theft crime.
Coersion means to accuse a person of any offense, expose a person to hatred, contempt or ridicule, or to harm credit or business repute of any person.
Theft of Services
(1) securing performance,
(2) diverting services for unauthorized purpose,
(3) holding rental property beyond lease
Grading Theft Crimes
Grand Larceny - > 12 pence (sheep)
Petty Larceny - if not, modern day misdemeanor 3rd degree felony - > $500, or if firearm, or motor propelled vehicle, or if defendant is in business of buying an selling stolen goods, else misdemeanor.
If defendant steals property worth more that he though, mistake of
If defendant steals property worth less, convicted on what he thought he was stealing (same as above)
Class C < $20
Class B $20 < $200
Class A $200 < $750
3rd $750 < $20,000
2nd $20,000 < $100,000
What defense intended to steal is immaterial, fair market value rule, if undeterminable, then replacement cost.
National Stolen Property Act.
(1) interstate transportation,
(2) with fraudulent intent, of
(3) fraudulently obtained property of
(4) value of $5,000 or more.
Intellectual Property not covered.
Mail and Wire Fraud
(1) a scheme to defraud
(2) use of interstate mail or wire in furtherance (this only has to be incedental, not fraudulent) Interpreted very broadly, any scheme.
Crimes Against Persons
Specific Intent Assault
(1) conduct amounting to attempted battery,
(2) with specific intent to commit battery,
(3) the present ability to do so,
(4) the victim need not be aware of threat.
General Intent Assault
(1) intentionally placing another in fear of immediate bodily harm,
(2) with apparent intent to commit battery,
(3) with apparent present ability,
(4) the victim must be aware of the threat.[misdemeanor]
Simple Assault - if defense attempts to cause or purposely, knowingly or recklessly causes injury, or negligently causes injury w/deadly weapon, of attempts by physical menace to place other in fear of serious bodily injury. [misdemeanor]
Aggravated Assault - attempts to cause serious bodily injury or causes .... showing extreme indifference to human life [2nd degree], or purposely or knowing attempts or causes SBI with a deadly weapon [3rd degree]
Simple Assault -
(1) intentionally, knowingly or recklessly causing bodily injury [class A]
(2) intentionally or knowingly threatens imminant injury [class C]
(3) intentionally causing physical contact [class C]
Aggravated Assault -
(1) Assault + serious bodily injury
(2) threatening or causing injury to officer or official w/deadly weapon, (3) causing bodily injury to a person in a court proceedint.
(1) voluntary conduct (unlawful application of force)
(2) intentional, reckless, or negligent
(3) and harmful result (no matter how slight)
Included in Assault
Mayhem, Kidnapping, False Imprisnmt, Enticing Child, Arson, Criminal Mschf, Perjury, Bribery, Compounding
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.