Lonang Principles of Crimes
A. Biblical principles.
- 1. The Law of the Land
- a. The earth/ground/land reflects the sin condition of its inhabitants.
- 1) Genesis 3:17-19. Ground was cursed because of man’s sin.
- 2) Genesis 4:9-12. Ground reflects man’s sin condition – the “testimony” against Cain.
- 3) Isaiah 55:12. The trees of the field will clap their hands – creation acknowledging righteousness.
- 4) Luke 19:37-40. The stones would cry out in recognition of Jesus – creation acknowledging the Creator.
- 5) Romans 8:18-22. The creation groans because of the curse, i.e., the land suffers because of what people do.
- b. A crime, as opposed to a tort, is an act against the whole community.
- 1) Style of cases: People v. Smith, or State v. Jones, etc.
- 2) What acts are against the whole community?
- a) Acts that defile or pollute the land. Lev. 18:24-30.
- b) Defilement affects all inhabitants of the land. Num. 35:29-34.
- c) Everyone suffers for what the criminal does. A criminal doesn’t merely defile his own land, or the land of the victim, but the land of the jurisdiction which is responsible to punish the crime. Deut. 21:1-9.
- 3) Acts which violate the nature of the community may also be regarded as crimes, even though no land defilement occurs. (See below.)
- c. Not all sin defiles the land.
- 1) Merely moral offenses do not defile the land – covetousness, hate, jealousy, lust, etc.
- 2) Some offenses against persons or property do not defile the land, such as theft offenses, assault, battery, and false imprisonment. These are torts and not crimes.
- 3) What about drug abuse, alcoholism, suicide, etc.? Merely moral offenses?
- 2. Crimes against nature (mala in se).
- a. Offenses defiling the land. Lev. 18. Verses 24-28 make it clear these are offenses applicable to all nations, not merely ancient Israel, because nations which did not have the Mosaic law were still held accountable for these offenses.
- 1) Incest (v. 6-16) – Levitical “degrees” of blood relative: Mother, step-mother, sister, half-sister, granddaughter, step-sister, aunt (by blood or marriage), daughter-in-law, sister-in-law. Note: does not include first cousin or niece. Sexual relations with a daughter is impliedly prohibited as a form of lewdness (next point). Same re: mother-in-law.
- 2) Lewdness [“Double dealing”] (v. 17-18) – Sexual relations with a woman and her daughter or granddaughter (which impliedly prohibits sexual relations with any daughter or mother-in-law); or, marriage to a woman and her sister while both are alive. Also see, Lev. 20:14, where lewdness => marriage to a woman and her mother.
- 3) Menstrual intercourse (v. 19).
- 4) Adultery (v. 20).
- 5) Infanticide (v. 21).
- 6) Homosexuality (v. 22).
- 7) Bestiality (v. 23).
- 8) Murder. Num. 35:33.
- b. Other offenses against nature (capital crimes in Israel) – Inference: capital punishment indicates offense is criminal, not tortious, in character. Note: Whether capital punishment applies to the offense in nations today is a separate issue.
- 1) Offenses against God – Profaning sabbath, profaning God’s temple, blasphemy, idolatry, spiritism and practice of the occult.
- 2) Offenses against individuals – Murder, kidnapping, infanticide, inciting to idolatry, harboring a dangerous (man-killing) animal.
- 3) Offenses against authorities – Rebellion against parents, civil rebellion, judicial contempt.
- c. Only God can define crimes against nature (because He alone is the author of nature).
- 1) Man cannot expand the list of offenses against nature, nor expand the list of offenses which defile the land, beyond what is revealed in the laws of nature and nature’s God.
- 2) Man cannot “decriminalize” crimes against nature, such as murder, adultery, homosexuality, harlotry, etc.
- 3) “Victimless” crimes
- a) Examples: Prostitution, adultery, other sexual offenses.
- b) Consent does not negate unlawfulness of the act.
- c) Who is the victim of “victimless” crimes? – The land (whole community).
- 3. Other crimes (mala prohibitum) – chiefly, which violate the nature of the whole community.
- a. Offenses against the individual (CAUTION!).
- 1) Private discrimination? What is civil jurisdiction?
- 2) Tort offense? No, since torts do not “defile” the whole community.
- 3) Cannot simply make every tort also a “crime.”
- b. Offenses against the family (CAUTION!).
- 1) Bigamy? Perhaps, where one woman has two husbands. (Argument one needs to make: violation of the family order violates the nature of society, since the family unit is the basis of society.)
- 2) Cohabitation? What about common law marriage? Caveat: except as it constitutes harlotry, adultery, or other revealed offense.
- 3) Spousal abuse? Like all battery offenses, it would be an actionable tort. But is it also a crime?
- 4) Child abuse? Jurisdictional consideration: parental authority to use corporal punishment.
- 5) Caveat: cannot make every sin against the family a crime against society.
- c. Offenses against the civil authority.
- 1) Acts of contempt of lawfully constituted authority may be punished. Likely felonies.
- 2) Laws enacted within the proper sphere of civil jurisdiction may be penalized with criminal sanctions. Likely misdemeanors.
- 3) Caveat: cannot make it a crime for people to exercise their unalienable right to alter or abolish their form of civil government.
A. Actus Reus. What human authority is there to judge the heart or mind? Why can’t crimes be defined solely in terms of lack of authority, rather than intent?
- 1. A crime almost always requires concurrence of a physical act (actus reus) and a mental state (mens rea), and sometimes result and causation.
- 2. Physical act. Defendant must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act.
- a. Omission as an Act. Failure to act gives rise to liability only if: (i) There is a specific duty to act imposed by law; (ii) has knowledge of the facts giving rise to the duty to act; and (iii) It is reasonably possible to perform the duty.
B. Specific Intent.
- 1. Specific Intent crimes are:
- a. Solicitation: Intent to have another person commit the crime.
- b. Attempt: Intent to complete the crime.
- c. Conspiracy: Intent to have the crime completed.
- d. First degree premeditated murder: Premeditation.
- e. Assault: Intent to commit a battery or intent to create fear of imminent bodily harm.
- f. Larceny and robbery: Intent to permanently deprive the other of his interest in the property taken.
- g. Burglary: Intent to commit a felony in the dwelling.
- h. Forgery: Intent to defraud.
- i. False pretenses: Intent to defraud.
- j. Embezzlement: Intent to defraud.
- 2. Malice – Common Law Murder and Arson – is not specific intent. Specific intent defenses are inapplicable.
- 3. General intent – may be presumed merely from the doing of an act. It is sufficient that is aware of a high risk or likelihood that crime will occur. Motive is immaterial.
- 4. Transferred Intent: Applicable to malice and general intent crimes, but not specific intent crimes (except 1st degree premed. murder).
- 5. Strict Liability Offenses: where can be guilty merely by committing the act, e.g., selling liquor to minors and statutory rape. Defenses such as mistake of fact are not available.
- 6. Model Penal Code categories of intent:
- a. A person acts purposely when his conscious object is to engage in certain conduct or cause a certain result.
- b. A person acts knowingly when he is aware that his conduct is of a particular nature or knows that his conduct will cause a particular result. Knowing conduct = willful conduct.
- c. A person acts recklessly when he knows of an unjustifiable risk and consciously disregards it. Recklessness involves both objective (“unjustifiable risk”) and subjective (“awareness”) elements. Generally, recklessness is the minimum standard for criminal liability.
- d. Negligence. When fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. Not the same as “reasonable person standard” from torts.
- 7. Common law: a corporation could not commit crimes. Modern trend: corporations are liable for acts of: (i) an agent acting within the scope of his office or employment; or (ii) a corporate agent high enough in hierarchy to presume his acts reflect corporate policy.
B. Modern view.
- 1. Common Law Criminal Homicides:
- a. Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (i.e., giving rise to a defense) and it was committed with one of the following states of mind: (i) Intent to kill; (ii) Intent to inflict great bodily injury; (iii) Awareness of an unjustifiably high risk to
human life (abandoned and malignant heart); or (iv) Intent to commit a felony (felony
murder). Intentional use of a deadly weapon authorizes a permissive inference of intent to kill.
- b. Voluntary manslaughter is a killing that would be murder except adequate provocation does not exist. Provocation is adequate if: (i) It was a provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self-control (e.g., exposure to a threat of deadly force or finding your spouse in bed with another are adequate); (ii)
was in fact provoked; (iii) There was not sufficient time between provocation and killing
for passions of a reasonable person to cool; and (iv) in fact did not cool off between the provocation and the killing.
- 1) Imperfect Self-Defense. Some states recognize an imperfect self-defense doctrine under which murder may be reduced to manslaughter even though (i) was at fault in starting the altercation; or (ii) unreasonably but honestly believed in the necessity of responding with deadly force (i.e., defendant’s actions do not qualify for self-defense
- c. Involuntary Manslaughter is a killing if it was committed with criminal negligence (defendant was grossly negligent) or during the commission of an unlawful act (misdemeanor or felony not included within felony murder rule).
- 2. Statutory First Degree Murder.
- a. Deliberate and Premeditated. If defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is first degree murder.
- b. Felony Murder. If a murder is committed during perpetration of an enumerated felony, it is first degree murder. The felonies most commonly listed include arson, robbery, burglary, rape, mayhem, and kidnapping. In these jurisdictions, other felony murders are second degree murder.
- c. Others. Some statutes make killings performed in certain ways (e.g., by torture) first degree murder.
- 3. Felony Murder: any death caused in the commission of, or in an attempt to commit, a felony. Malice is implied from the intent to commit the underlying felony.
- a. Felonies Included. Common law – burglary, arson, rape, sodomy, etc. Modern trend – felony murder doctrine is limited to felonies that are inherently dangerous.
- b. There are several limitations upon this rule: (i) must be guilty of the underlying felony. (ii) Death must have been a foreseeable result of the felony (alternate: the felony is malum in se). (iii) The death must have been caused before ‘s immediate flight from the felony ended; once reaches a place of temporary safety, subsequent deaths are not felony
murder. (iv) In most jurisdictions, is not responsible for the death of a co-felon
caused by resistance from victim or police (although is responsible for deaths of third parties).
- 1) Misdemeanor Manslaughter. Generally, the misdemeanor must be malum in se, and if the misdemeanor involved is not malum in se, a death caused during commission of a misdemeanor is manslaughter only if death was a foreseeable result of commission of the misdemeanor.
- 4. Causation. ‘s conduct must be both the cause-in-fact and the proximate cause of the victim’s death.
- a. Cause-in-Fact. A defendant is the cause-in-fact of the result if it would not have occurred “but for” ‘s conduct.
- b. Proximate Causation. ‘s conduct is the proximate cause of the result if it is a natural and probable consequence of the conduct, even if did not anticipate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation.
- c. Rules of Causation. An act that hastens an inevitable result is still the legal cause of that result. Also, simultaneous acts of two people may be independent causes of a single result.
- d. Limitations.
- 1) Year and a Day Rule. For homicide, death of the victim must occur within one year and one day from infliction of the injury or wound.
- 2) Intervening Acts. An intervening act shields from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by . Negligent medical care is a foreseeable risk, so is liable; but refusal of medical treatment is not such a risk, so is not liable.
B. Modern view – Sex offenses
- 1. Rape: Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. The slightest penetration is sufficient.
- a. Absence of Marital Relationship. Under the traditional position, a husband cannot rape his wife, but there is a contrary modern trend.
- b. To be rape, the intercourse must be without effective consent, such as where: (i) Intercourse is accomplished by actual force; (ii) Intercourse is accomplished by threats of great and immediate bodily harm; (iii) The victim was incapable of consenting due to unconsciousness, intoxication, or mental condition; or (iv) The victim is fraudulently caused to believe that the act is not intercourse.
Consent due to other types of fraud is effective.
- 2. Statutory rape: carnal knowledge of a female under the age of consent; it is not necessary to show lack of consent. A showing of reasonable mistake as to age or a showing of voluntary consent is irrelevant since statutory rape is a strict liability crime.
- 3. Crime against nature (sodomy): anal intercourse, oral stimulation of the sexual organs of another, or intercourse with an animal.
- 4. Adultery is committed by both parties to sexual intercourse if either is validly married to someone else. It is often required that the behavior be open and notorious. Fornication is sexual intercourse or open and notorious cohabitation by unmarried persons.
- 5. Incest: marriage or a sexual act between closely related persons.
- 6. Seduction: inducing, by promise of marriage, an unmarried woman to engage in intercourse. The Model Penal Code does not require chastity or that the female be unmarried.
A. INTRODUCTION. Can an act be both a crime and a tort at the same time? If not, are assault, battery and false imprisonment torts or crimes?
B. Modern view.
- 1. Assault and battery.
- a. Battery: an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Simple battery is a misdemeanor. A battery need not be intentional, and the force need not be applied directly.
- 1) Most jurisdictions treat the following as aggravated batteries and punish them as felonies: (i) battery with a deadly weapon; (ii) battery resulting in serious bodily harm; and (iii) battery of a child, woman, or police officer.
- b. Assault is either (i) an attempt to commit a battery or (ii) the intentional creation – other than by mere words – of a reasonable fear in the mind of the victim of imminent bodily harm. If there is an actual touching of the victim, the crime is battery, not assault.
- 1) Aggravated assault (e.g., with a deadly weapon or with intent to rape or maim) is treated more severely than simple assault.
- 2. Mayhem: At common law, either dismemberment or disablement of a bodily part. The recent trend is to abolish mayhem as a separate offense and to treat it instead as a form of aggravated battery.
- 3. False imprisonment: The unlawful confinement of a person without his valid consent. It is not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her. Consent is invalidated by coercion, threats, deception, or incapacity due to mental illness, retardation, or youth.
- 4. Kidnapping. Modern statutes often define kidnapping as confinement of a person that involves either (i) some movement of the victim, or (ii) concealment of the victim in a secret place.
- a. Aggravated Kidnapping: kidnapping for ransom, for the purpose of committing other crimes, for offensive purposes, and child stealing (the consent of a child is irrelevant because incapacitated by age from giving valid consent).
A. INTRODUCTION. We have defined a crime as an unlawful act against the community, in contrast to an unlawful act against individuals (which would be a tort). What implications does this have for crimes against public authorities, i.e., the civil government? Is civil government the embodiment of the community or of society? Does civil government represent society for the purposes of the criminal law? Is an unlawful act against government necessarily a crime, or could it be a tort? Are all crimes acts against civil government?
B. Offenses against God and religion.
- 1. Historic view.
- a. Blackstone’s offenses against God and religion.
- b. Colonial and early state experience in America.
- c. Tucker; Kent.
- 2. Biblical perspective. Same as Blackstone?
- a. Definitional understanding of such offenses.
- b. Jurisdictional necessity that God and the civil ruler must be one and the same.
- c. Such crimes are beyond civil jurisdiction except in a formal (legal) theocracy.
C. Offenses against civil government.
- 1. Historic view.
- a. Blackstone’s view of
- 1) treason
- 2) constructive treason
- 3) seditious libel
- b. Early experience in America.
- c. The Alien and Sedition Law of 1798.
- 2. Biblical perspective.
- a. “Constructive treason,” insofar as it punished speech against the government or a public official, is rejected as an invasion of the freedom of the mind.
- b. Civil government has no right of self-preservation against the people’s right to lawfully alter or abolish their form of government, but government may suppress unlawful civil rebellion.
- c. Individual public officials have no right to maintain their public office (except for constitutional guarantees), and in fact any official may be removed for cause.
- d. “Seditious libel,” or a defamation of the government’s reputation, is not a punishable offence.
D. Offenses involving judicial procedure.
- 1. Perjury: the intentional taking of a false oath in regard to a material matter in a judicial proceeding.
- 2. Subornation of perjury: inducing another to commit perjury.
- 3. Bribery at common law was the corrupt payment or receipt of anything of value for official action. Modern bribery extends to nonpublic officials, and includes either the offering or taking of a bribe.
- 4. Compounding a crime consists of 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.
- 5. Misprision of a felony: at common law, the failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony. Under modern statutes, either misprision is no longer a crime, or it requires some affirmative action in aid of the felon.
B. Modern view.
- 1. Larceny: (i) A taking (obtaining control); (ii) And carrying away (asportation); (iii) Of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates); (iv) Of another with possession; (v) By trespass (without consent or by consent induced by fraud); (vi) With intent to permanently deprive that
person of her interest in the property.
- a. Possession. The property must be taken from the possession of another. If had possession of the property at the time of the taking, the crime is not larceny, but may be embezzlement.
- 1) Custody vs. Possession. Possession involves a greater scope of authority to deal with the property than does custody. Ordinarily, low level employees have only custody of an employer’s property and so are guilty of larceny for taking it. A bailee, on the other hand, has a greater scope of authority over an owner’s property and so is not guilty of larceny for taking it, but may be guilty
- b. Intent to Permanently Deprive. Larceny requires that at the time of the taking intended to permanently deprive a person of property.
- 1) An intent to create a substantial risk of loss or an intent to sell or pledge the goods to the owner is sufficient for larceny.
- 2) Where believes that the property she is taking is hers or where she intends only to borrow the property or to keep it as repayment of a debt, there is no larceny.
- 3) There may be larceny where intends to pay for the goods (if goods were not for sale) or intends to collect a reward from the owner (if there is no intent to return goods absent a reward).
- c. Larceny can be committed with lost or mislaid property or property that has been delivered by mistake, but not with abandoned property.
- d. If defendant wrongfully takes property without the intent to permanently deprive (e.g., without permission borrows an umbrella), and later decides to keep the property, she is guilty of larceny when she decides to keep it. However, if the original taking was not wrongful (e.g., she took the umbrella thinking it was hers) and she later decides to keep it, it is not
- 2. Embezzlement: (i) The fraudulent; (ii) Conversion (i.e., dealing with the property in a manner inconsistent with the arrangement by which defendant has possession); (iii) Of personal property; (iv) Of another; (v) By a person in lawful possession of that property.
- a. Embezzlement: misappropriates property in his rightful possession.
- Larceny: misappropriates property not in his possession.
- b. Defendant must intend to defraud.
- 1) If intends to restore the exact property taken, it is not embezzlement. However, restoration of similar or substantially identical property is embezzlement.
- 2) Embezzlement is not committed if the conversion is pursuant to a claim of right to the property.
- 3. False pretenses: (i) Obtaining title; (ii) To personal property of another; (iii) By an intentional false statement of past or existing fact; (iv) With intent to defraud the other.
- a. If the victim is tricked – by a misrepresentation of fact – into giving up mere possession of property, the crime is larceny by trick. If the victim is tricked into giving up title to property, the crime is false pretenses.
- b. The victim must actually be deceived by, or act in reliance upon, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to . A misrepresentation as to what will occur in the future is not sufficient. A false promise, even if made future is not sufficient. A false promise, even if made without the present intent to perform, is also not
- 4. Robbery: (i) A taking; (ii) Of personal property of another; (iii) From the others person or presence (including anywhere in his vicinity); (iv) By force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim’s presence; (v) With the intent to permanently deprive him of it.
- 5. Extortion. Common law: the corrupt collection of an unlawful fee by an officer under color of office. Modern trend: extortion (blackmail) often consists of obtaining property, by means of threats to do harm or to expose information. Under some statutes, the crime is complete when threats are made with the intent to obtain property; i.e., the property need not be obtained.
- a. Extortion differs from robbery because in extortion the threats may be of future harm and the taking does not have to be in the presence of the victim.
- 6. Receipt of stolen property: (i) Receiving possession and control; (ii) Of stolen personal property; (iii) Known to have been obtained in a manner constituting a criminal offense; (iv) By another person; (v) With the intent to permanently deprive the owner of his interest in it.
- a. Manual possession is not necessary. possesses the property when it is put in a location designated by her or she arranges a sale for the thief to a third person (i.e., fencing).
- b. The property must be stolen property at the time receives it.
- 7. Theft. Under many modern statutes, some or all of the above property offenses are combined and defined as the crime of theft.
- 8. Forgery: (i) Making or altering (by drafting, adding, or deleting); (ii) A writing with apparent legal significance; (iii) So that it is false; i.e., representing that it is something that it is not, not merely containing a misrepresentation (e.g., a fake warehouse receipt, but not an inaccurate real warehouse receipt); (iv) With intent to defraud (although no one need actually have been
- a. If fraudulently causes a third person to sign a document that the third person does not realize he is signing, forgery has been committed. But if the third person realizes he is signing the document, forgery has not been committed even if the third person was induced by fraud to sign it.
- b. Uttering a forged instrument consists of: (i) offering as genuine; (ii) an instrument that may be the subject of forgery and is false; (iii) with intent to defraud.
- 9. Malicious mischief: (i) The malicious; (ii) Destruction of or damage to; (iii) The property of another. Malice requires no ill will or hatred. However, damage or destruction must have been intended or contemplated.
C. Offenses against the habitation.
- 1. Burglary: (i) A breaking (creating an opening by at least minimal force, fraud, or intimidation; if defendant had the resident’s consent to enter, the entry is not a breaking);(ii) And entry (placing any portion of the body or any instrument used to commit the crime into the structure); (iii) Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as
conducting a business); (iv) Of another (ownership is irrelevant; occupancy by someone
other than defendant is material); (v) At nighttime; (vi) With the intent to commit a felony in the structure (felony need not be carried out to constitute burglary). Modern statutes often eliminate many of the technicalities of common law burglary.
- 2. Arson: (i) The malicious (i.e., intentional or with reckless disregard of an obvious risk); (ii) Burning (requiring some damage to the structure caused by fire); (iii) Of the dwelling; (iv) Of another.
- a. Mere blackening by smoke or discoloration by heat (scorching) is not sufficient damage, but charring is.
- b. The common law misdemeanor of houseburning consisted of: (i) a malicious; (ii) burning; (iii) of one’s own dwelling; (iv) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them.
B. Modern view.
- 1. Solicitation.
- a. Elements: inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime. The person solicited need not comply.
- b. Defenses. It not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful. In most jurisdictions, it is not a defense that the solicitor renounces or withdraws the solicitation. However, it is a defense that the solicitor could not be found guilty of the completed crime because of a legislative intent to exempt them.
- c. Merger. If the person solicited commits the crime, both he and the solicitor are liable. If the person solicited commits an attempt, both parties can be liable for attempt. If the person solicited agrees to commit the crime, both parties can be held liable for conspiracy. However, the solicitor cannot be punished for both the solicitation and these other offenses.
- 2. Conspiracy.
- a. Elements: (i) an agreement between two or more persons; (ii) an intent to enter into the agreement; and (iii) an intent by at least two persons to achieve the objective of the agreement.
- 1) The parties must agree (either expressly or impliedly) to accomplish the same objective by mutual action.
- 1) A conspiracy must involve a meeting of minds between at least two independent persons.
- (1) A husband and wife can conspire together.
- (2) There can be no conspiracy between a corporation and a single agent acting on its behalf.
- (3) Wharton Rule: where two or more people are necessary for the commission of the substantive offense, there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.
- (4) If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or of conspiracy to commit that crime. Likewise, the nonprotected person cannot be guilty of conspiracy if the agreement was with the protected person only.
- (5) Effect of Acquittal of Some Conspirators
- (A) Traditional view: acquittal of all other co-conspirators precludes conviction of the remaining . In some jurisdictions, a conviction of one co-conspirator is allowed to stand when the alleged co-conspirator is acquitted in a separate trial.
- (B) Modern view: acquittal of one co-conspirator does not bar conviction of other co-conspirators.
- 2) Mental State – specific intent. Parties must: (i) intend to agree and (ii) intend to achieve goal of the conspiracy.
- 3) Overt Act. An act in furtherance of the conspiracy must be performed. Mere preparation is usually sufficient.
- b. Liability for Co-conspirators. A conspirator may be held liable for crimes committed by other conspirators if the crimes (i) were committed in furtherance of the objectives of the conspiracy and (ii) were foreseeable.
- c. Impossibility is not a defense to conspiracy.
- d. Withdrawal is not a defense to the conspiracy, but may be a defense to crimes committed in furtherance of the conspiracy. To withdraw, a conspirator must affirmatively notify all co-conspirators in time for them to abandon their plans.
- e. A conspiracy terminates upon completion of the wrongful objective. Unless agreed to in advance, concealment isn’t part of conspiracy.
- f. Conspiracy and the completed crime are distinct offenses; i.e., there is no merger. A defendant may be convicted of both.
- g. In complex situations, there may be a large conspiracy with a number of subconspiracies. In such situations, it is important to determine whether members of one subconspiracy are liable for the acts of another subconspiracy. The two most common situations are:
- 1) A chain relationship is a single, large conspiracy in which all parties to subagreements are interested in the single large scheme. In this case, all members are liable for the acts of the others in furtherance of the conspiracy.
- 2) In a hub-and-spoke relationship a number of independent conspiracies are linked by a common member. Although the common member will be liable for all of the conspiracies, members of the individual conspiracies are not liable for the acts of the other conspirators.
- 3. Attempt: an act, done with intent to commit a crime, that falls short of completing the crime.
- a. To be guilty of attempt, must intend to perform an act and obtain a result that, if achieved, would constitute a crime. Regardless of the intent necessary for the completed offense, an attempt always requires a specific intent (i.e., the intent to commit the crime).
- b. Defendant must commit an act beyond mere preparation for the offense. Most courts follow the “proximity” test, which requires that the act be “dangerously close” to successful completion of the crime.
- 1) Model Penal Code requires that the act or omission constitute a “substantial step in a course of conduct planned to culminate in the commission of the crime” that strongly corroborates the actors criminal purpose.
- c. Factual Impossibility (for to complete the crime) is No Defense.
- d. Legal impossibility (i.e., that it isn’t a crime to do that which defendant intended to do) is a defense.
- e. Abandonment is not a defense. If had the intent and committed an overt act, she is guilty of attempt even though she changed her mind and abandoned the plan.
- f. Attempt merges with the completed crime. A cannot be found guilty of both attempt and the completed crime.
B. Modern view – Insanity.
- 1. Insanity. Whether, at the time of the crime, was so mentally ill as to be entitled to acquittal.
- a. M’Naghten Rule. is entitled to acquittal only if he had a mental disease or defect that caused him to either: (i) not know that his act would be wrong; or (ii) not understand the nature and quality of his actions.
- b. Irresistible Impulse Test. is entitled to acquittal only if, because of a mental illness, he was unable to control his actions or conform his conduct to the law.
- c. Durham (or New Hampshire) Test. is entitled to acquittal if the crime was the product of his mental illness (i.e., crime would not have been committed but for the disease).
- d. A.L.I. or Model Penal Code Test. is entitled to acquittal if he had a mental disease or defect, and, as a result, he lacked the substantial capacity to either: (i) Appreciate the criminality of his conduct; or (ii) Conform his conduct to the requirements of law.
- e. Procedural Issues.
- 1) All defendants are presumed sane; must raise the insanity issue. There is a split among courts as to whether raising the issue bears the burden of proof.
- 2) A “not guilty” plea at arraignment does not waive the right to raise the defense at some future time.
- 3) A defendant may refuse a court-ordered psychiatric examination to determine his competency to stand trial, unless he raises the insanity issue.
- f. A defendant acquitted by reason of insanity may be committed to a mental institution until cured. Confinement may exceed the maximum period of incarceration for the offense charged.
- g. A defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, he is unable (i) to understand the nature of the proceedings being brought against him; or (ii) to assist his lawyer in the preparation of his defense. A defendant may not be executed if he is incapable of understanding the nature and purpose of the punishment.
- h. Some states recognize the defense of “diminished capacity” under which may assert that as a result of a mental defect short of insanity, he did not have the mental state for the crime charged.
C. Modern view – Incapacity.
- 1. Intoxication. Intoxication by drugs, alcohol or medicine may negate an element of a crime.
- a. Voluntary Intoxication is the result of the intentional taking without duress of a substance known to be intoxicating.
- 1) Voluntary intoxication may be a defense only if the crime requires purpose (intent) or knowledge, and the intoxication prevented from formulating the purpose or obtaining the knowledge. The defense is not available if purposely becomes intoxicated in order to establish the defense.
- 2) Voluntary intoxication is no defense to crimes involving negligence, recklessness, or strict liability.
- b. Involuntary Intoxication results from the taking of an intoxicating substance without knowledge of its nature, under direct duress imposed by another, or pursuant to medical advice.
- c. 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 an insanity defense.
- 2. Infancy. Common law: no liability for an act committed by a child under age 7. For acts by a child between 7 and 14, there was a rebuttable presumption that the child was unable to understand the wrongfulness of his acts. Children age 14 or older were treated as adults. Modern statutes often provide that no child can be convicted of a crime until a stated age is reached, usually 13 or 14.
However, children can be found to be delinquent in special juvenile or family courts.
B. Accomplice liability.
- 1. Parties to a crime
- a. Common law. Principal in 1st degree (person who committed offense); Principal in 2nd degree (person who aided or abetted and was present at the crime); accessory before the fact (person who assisted or encouraged but was not present); and accessory after the fact (person who assisted known felon to escape arrest or punishment).
- b. Modern trend is to abolished the distinctions between principals in the 1st and 2nd degrees and accessories before the fact: All such parties can be found guilty of the principal offense. An accessory after the fact is still treated separately.
- 2. Mental state required. An accomplice must give aid, counsel, or encouragement to the principal with the intent to encourage the crime. Mere knowledge that a crime will result is not enough.
- 3. Scope of liability. An accomplice is liable for crimes he did or counseled and for other crimes committed by the principal which were probable or foreseeable while committing the crime contemplated.
- a. One who may not be convicted of being a principal may still be convicted as an accomplice.
- b. Exclusions from Liability.
- 1) Members of a class protected by a statute are excluded from accomplice liability.
- 2) A party necessary to the commission of a crime, by statutory definition, but whose liability is not provided for in the statute, is excluded from accomplice liability.
- c. Withdrawal: A person who withdraws from a crime before it is committed or becomes unstoppable is not an accomplice. (i) Repudiation is sufficient withdrawal for mere encouragement. (ii) Attempt to neutralize assistance is required if participation went beyond mere encouragement.
- 4. Vicarious Liability. A person without personal fault may be liable for the criminal conduct of another (usually an employee). Trend is to limit liability to regulatory crimes and punishment to fines.
B. Modern view.
- 1. Justification.
- a. Self-Defense.
- 1) Nondeadly Force. A person without fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force. There is no duty to retreat.
- 2) Deadly Force. A person may use deadly force in self-defense if (i) she is without fault; (ii) she is confronted with unlawful force; and (iii) she is threatened with imminent death or great bodily harm.
- a) Retreat. Generally there is no duty to retreat before using deadly force. The minority view requires retreat before using deadly force if victim can safely do so, unless: (i) the attack occurs in the victim’s home, (ii) the attack occurs while the victim is making a lawful arrest, or (iii) the assailant is in the process of robbing the victim.
- 3) If one is the aggressor in the altercation, she may use force in defense of herself only if (i) she effectively withdraws from the altercation and communicates to the other her desire to do so, or (ii) the victim of the initial aggression suddenly escalates the minor fight into a deadly altercation.
- b. Defense of Others. A defendant has the right to defend others if she reasonably believed that the person assisted had the legal right to use force in his own defense. No special relationship need exist.
- c. Defense of a Dwelling. Nondeadly force may be used to prevent what is reasonably regarded as an unlawful entry in or attack on ‘s dwelling. Deadly force may only be used to prevent a violent entry made with intent to commit a personal attack upon an inhabitant, or to prevent an entry to commit a felony in the dwelling.
- d. Defense of Other Property
- 1) Defending Possession. Deadly force may never be used in defense of property. Nondeadly 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.
- 2) Regaining Possession. Force cannot be used to regain possession of property wrongfully taken unless the person using force is in immediate pursuit of the taker.
- e. Crime Prevention. 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.
- f. Use of Force to Effectuate Arrest. Nondeadly force may be used if it reasonably appears necessary to effectuate an arrest. Deadly force is reasonable only if it is necessary to prevent a felon’s escape and the felon threatens death or serious bodily harm.
- 1) Private Persons. A private person may use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime. A private person may use deadly force only if the person harmed was actually guilty of the offense for which the arrest was made.
- g. Resisting Arrest. Nondeadly force may be used to resist an improper arrest even if a known officer is making that arrest. Deadly force may be used, however, only if the person does not know that the person arresting him is a police officer.
- h. Necessity. It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. The test is objective; a good faith belief is not sufficient.
- 1) Limitation – Death. Causing the death of another person to protect property is never justified.
- 2) Limitation – Fault. The defense of necessity is not available if is at fault in creating the situation requiring that he choose between two evils.
- 3) Duress Distinguished. Necessity involves pressure from natural or physical forces; duress involves a human threat.
- i. Public Policy. A police officer (or one assisting him) is justified in using reasonable force against another, or in taking property, provided the officer acts pursuant to a law, court order, or process requiring or authorizing him to so act.
- j. Domestic Authority. 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.
- 2. Excuse of duress. It is a defense to a crime other than a homicide that 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.
- 3. Other defenses.
- a. Ignorance or mistake of fact is relevant to criminal liability only if it shows that lacked the state of mind required for the crime. It is irrelevant for strict liability crimes. A mistake need not be reasonable to disprove specific intent. However, ignorance or a mistake must be reasonable to disprove any other state of mind.
- b. Mistake or Ignorance of Law. A belief that an activity would not be a crime is no defense, even if that belief was reasonable and based on the advice of an attorney.
- 1) Exceptions. A defense exists if: (i) the statute proscribing her conduct was not published or made reasonably available prior to the conduct; (ii) there was reasonable reliance upon a statute or judicial decision; or (iii) in some jurisdictions, there was reasonable reliance upon official interpretation or advice.
- 2) Ignorance of Law May Negate Intent. If ‘s mistake or ignorance of law establishes a lack of the state of mind required for the crime, is entitled to acquittal. This applies only to crimes where state of mind requires some knowledge of the law.
- c. Consent. Unless the crime requires the lack of consent of the victim (e.g., rape), consent is usually not 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: (i) the consent was voluntarily and freely given; (ii) the party was legally capable of consenting; and (iii) no
fraud was involved in obtaining the consent.
- d. Condonation or Criminality of Victim No Defense. Forgiveness by the victim is no defense, nor is illegal conduct by the victim.
- e. Entrapment. Entrapment exists only if (i) the criminal design originated with law enforcement officers and (ii) was not in any way predisposed to commit the crime.
- 1) A person cannot be entrapped by a private citizen.
- 2) Under federal law, an entrapment defense cannot be based upon the fact that a government agent provided an ingredient for commission of the crime (e.g., ingredients for drugs), even if the material provided was contraband.
B. Enforcement of Crimes.
- 1. The Authority to exact justice.
- a. God has full authority to exact justice, not man. Romans 12:19. To exact complete justice => Vengeance/revenge. Vengeance is the Lord’s.
- b. Man’s authority must be delegated to him.
- 1) Authority doesn’t arise merely from the nature of the wrong
- 2) Individual authority is to love (repay good for evil). Romans 12:18-21, Matt. 5:44.
- 3) Individual authority is to obey the law, not administer it. James 4:11-12.
- c. Institutional authority.
- 1) Family
- a) Fathers have duty to discipline children – Rod. Eph. 6:1-4, Prov. 13:24; 22:15; 23:13-14.
- b) Sanction limited to family members
- 2) Church
- a) Rulers have duty to excommunicate – Staff. 1 Cor. 5:1-13; 6:1-11.
- b) Sanction limited to church members
- c) Procedure to be followed. Matt. 18:15-17.
- 3) Civil Ruler
- a) Duty to punish wrongdoer – Sword. Romans 13:3-4, 1 Pet. 2:13-14.
- b) Sanction limited to citizens/subjects.
- 2. Purpose of Sanctions
- a. God’s purpose
- 1) To satisfy perfect righteousness. Romans 6:23.
- 2) To restore man to God or man to man. Ezek. 18:30-32.
- 3) To cleanse the creation through judgment. Gen. 6.
- b. Man’s purpose should be to mirror God’s, realizing that man has no authority to exact full justice.
- c. Limited Jurisdiction to enforce crimes – Not all offenses against God or nature can be enforced.
- 3. The mandate to do Justice.
- a. “Justice: jus – tice.” To carry out the law.
- 1) Law => the expressed will of God.
- 2) Justice => to carry out the will of God.
- 3) Liberty => freedom to do the will of God.
- b. Principles of Just Sanction
- 1) Blameworthiness (Fault). Ezek. 18:20. Deut. 24:16.
- 2) Proportionality. Ezek. 18:25.
- 3) Mans law is to reflect God’s law.
- c. The importance of cleansing the land (atonement for sin).
- 1) Civil ruler has a duty to punish crimes (above).
- 2) The doing of justice brings God’s reward.
- 3) Failure to punish crimes is blameworthy (incurs curses). God’s judgment will follow the one who fails to punish crimes, in addition to and sometimes instead of, the one who did the original crime.
C. Forms of punishment.
- 1. Lex talionis. Ex. 21:23-25, Lev. 24:17-21, Deut. 19:21.
- a. Interpretive guidelines.
- 1) Non-literal interpretation
- 2) Difference between man and animals. Lev. 24:17-21.
- b. Other punishments for crimes provided under the Mosaic Code.
- 1) Whipping/flogging (undefined “wickedness”) – Deut. 25:1-3.
- 2) Note: Imprisonment was not used.
D. Modern view of rights in regard to punishment. The eighth amendment prohibits cruel and unusual punishment. A penalty that is grossly disproportionate to the seriousness of the offense committed is cruel and unusual. State appellate courts do not have to compare the death sentence imposed in a case under appeal with other penalties imposed in similar cases.
B. Biblical principles.
- 1. Murder. Lev. 24:21. Numbers 35:30-34.
- a. Before the Noahic covenant, man lacked authority to punish murder. Gen. 4.
- b. Delegation of authority to execute murderers. Gen. 9:6.
- c. Noahic covenant applies to Noah and his descendants. Gen. 9:9. However, inasmuch as all people on the earth today are descendants of Noah, this commands now applies to every nation.
- 2. Rape. Deut. 22:25-27 likens rape of a married or engaged woman to murder.
- 3. Capital crimes under the Mosaic Code.
- a. Offenses against God.
- 1) Profaning sabbath. Ex. 31:14-15.
- 2) Layman who “comes near” the tabernacle of God. Num. 1:51; 3:10; 18:7. Similarly, w/re Mt. Sinai – Ex. 19:12-13.
- 3) Blasphemy. Lev. 24:16.
- 4) Idolatry. Deut. 17:2-7. Ex. 22:20.
- 5) False prophet (inciting to idolatry). Deut. 13:5-11.
- 6) Spiritism or sorcery. Lev. 20:27. Ex. 22:18.
- b. Rebellion against institutional authorities.
- 1) Cursing parents. Ex. 21:17, Lev. 20:9.
- 2) Striking parents. Ex. 21:15.
- 3) Rebellion against parents. Deut. 21:18-21.
- 4) Civil contempt. Joshua 1:18.
- 5) Judicial contempt. Deut. 17:8-13.
- c. Offenses against individuals.
- 1) Murder. Ex. 21:12-14, Num. 35:16-34.
- 2) Kidnapping. Ex. 21:16, Deut. 24:7.
- 3) Harboring dangerous animal. Ex. 21:29.
- 4) Infanticide. Lev. 20:2.
- 5) Rape of a married or engaged woman. Deut. 22:25-27. Note: not applicable to forced intercourse with single woman. Deut. 22:28-29.
- d. Sexual offenses.
- 1) Adultery. Lev. 20:10, Deut. 22:22-29.
- 2) Incest (mother, step-mother, daughter-in-law only). Lev. 20:11-12.
- 3) Sodomy/homosexuality. Lev. 20:13.
- 4) Lewdness (man marries woman and her mother). Lev. 20:14.
- 5) Bestiality. Lev. 20:15-16. Ex. 22:19.
- 6) Harlotry. Deut. 22:20-21.
C. The specific punishments of the Mosaic Code do not necessarily apply today.
- 1. This is true even when the crime itself may be dictated by the law of nature.
- a. Offenses against God (capital crimes in ancient Israel) are entirely unenforceable today because no modern nation is a theocracy in the biblical sense.
- b. What other specific punishments are peculiar to Israel and not applicable to modern nations? See Week 11 – Modern Applicability of Mosaic Code.
- 2. General principles of blameworthiness and proportionality do apply today.
- 3. How to punish modern day defilements of the land?
- a. Examples: Adultery, abortion, homosexuality.
- b. Choices of punishment (Not an easy choice):
- 1) Capital punishment. Why or why not?
- a) General Principles.
- (1) Authority to execute must be expressly delegated, and Noahic covenant does not expressly cover any crime other than murder.
- (2) Yet, must not all authority to impose any form of punishment also be expressly delegated?
- (3) Where is there an express delegation of authority to punish crimes in general? Rom. 13:1-7, 1 Pet 2:13-14? These do not expressly authorize or limit any forms of punishment.
- b) Plausible views (biblically):
- (1) Capital punishment limited to murder only.
- (2) Capital punishment applicable to murder and rape only. (See Deut. 22:25-27, where rape of married or engaged woman is analogized to murder.)
- (3) Capital punishment applicable to offenses which are both capital crimes under Mosaic law and “defilement offenses.”
- c) Generally rejected views (biblically):
- (1) Capital punishment applies to all Mosaic capital offenses. (This would require Mosaic law, covenantally, to apply to modern gentile nations.)
- (2) Capital punishment applicable to offenses against God. (This would require a modern nation to be a legal theocracy.)
- 2) Imprisonment. Ineffective, not proportionate to crime, fails to make atonement.
- 3) Whipping, or other corporal measures.
- c. Lack of any punishment => destruction of the whole community.
- 1) Civil ruler has failed its duty as a minister of God. Rom. 13:3-4.
- 2) People have failed in their duty to choose righteous leaders.
- 3) Whole community is subject to God’s judgment.
D. Modern view of Death Penalty
- 1. For Murder. The death penalty can be imposed only under a statutory scheme that gives the judge or jury reasonable discretion, full information concerning defendants, and guidance in making the decision. The sentencing body must be allowed to consider all mitigating evidence. A statute cannot make the death penalty mandatory upon conviction of first degree murder.
- 2. Guidance. A death penalty statute must not be vague.
- 3. Based on Prior Convictions. If the death sentence is partly based on the aggravating factor of defendant’s prior conviction, the sentence must be reversed if the prior conviction is invalidated.
- 4. Death Penalty for Rape or Felony Murder. The eighth amendment prohibits imposition of the death penalty for the crime of raping an adult woman, because the penalty is disproportionate to the offense. Also, the same logic precludes the death penalty for felony murder unless the felony murderer’s participation was major and he acted with reckless indifference to the value of human
- 5. Death Penalty Sanity Requirement. The eighth amendment prohibits executing the death penalty upon a prisoner who is insane at time of execution, even if he was sane at the time the crime was committed.
- 6. Death Penalty for Minors. The death penalty may be imposed on murderers who were 16 or older at the time they committed murder. Execution of murderers younger than 16 at the time of their crime might be forbidden.