Bar Exam Criminal Law Correct!!

on the MBE, the death occurs before the felony is complete, D is still guilty of felony-murder. If during the commission of the underlying felony, one of the felons or the police kill an innocent bystander it is felony murder - ANSWER but if one of the felons or the police kill another of the felons it is NOT felony murder. A killing of an innocent victim during the commission of the following dangerous felonies, even if unintended, is felony murder: BARRK - ANSWER B - Burglary A - Arson R - Rape R - Robbery K - Kidnapping Defendant is not liable for the death of a - ANSWER co-felon from resistance of the victim or the police. HOWEVER--even under this view, the defendant can be held for felony-murder when resistance by the victim results in the death of a third-party bystander who is not a co-felon. Misdemeanor Manslaughter. - ANSWER A killing taking place during the attempted commission or actual commission of an inherently wrong (malum in se) misdemeanor, and which is sufficiently connected to the misdemeanor in time and place (as in felony murder) to have caused the death......Battery: The most common misdemeanor in misdemeanor-manslaughter cases is battery. Larceny (elements) - ANSWER 1) Taking - obtaining control. 2) Carrying away - the slightest trespassory (non-consensual) moving (asportation) of the property. 3) Personal property - anything not a fixture or attached to the land (excluding realty, services, and intangibles, although modern statutes have included these items, e.g., theft of electrical power, cab ride). 4) Of another - not yours (although a person may commit theft of his own property if it is lawfully in the possession of another, such as a merchant with a lawful lien or other interest therein). 5) With the specific intent to permanently deprive him thereof (animus furandi). Larceny is a crime against lawful possession, - ANSWER which is not the same thing as ownership or custody. Title is not an issue; one may commit larceny against a person who does not have legal title; indeed one may commit larceny against the possession of one who has violated title (a thief). An employee or repair merchant may have only "custody" of goods; a bailee has possession. Thus it is possible to commit larceny of stolen property or illegal contraband. The crime of larceny is complete upon the taking - ANSWER (actual asportation, however slight) of another's personal property with the requisite specific intent. Returning or putting the property back down, - ANSWER however instantaneous, is NOT a defense. Likewise forgiveness or condonation after the fact is NOT a defense. A good faith claim of right to the property - ANSWER if believed by the trier of fact, is a good defense. It is NOT larceny where the intent was: - ANSWER 1) To borrow the property. 2) To pay for the property that is for sale. 3) Taking property in order to obtain repayment of a debt; or 4) To obtain goods in the hope of reward. 5) If the property was actually abandoned (as contrasted with lost, mislaid, or misdelivered property). 6) To keep lost or mislaid property if there is no indicia of its true owner. Larcenous intent MAY be implied where the intent was: - ANSWER 1) To create a substantial risk of loss or serious damage to the property 2) To pay for property not for sale 3) To pledge or sell the property 4) To keep lost or mislaid property if there were indications of its true owner. Doctrine of "Continuous Trespass" or "Original Intent": - ANSWER 1) If the intent to steal was formed after a wrongful or non-consensual taking, 2) The requisite specific intent may "relate back" to the time of the actual taking 3) Under conditions which will indicate the appropriate animus furandi (e.g., converting innocent taking into intent to permanently deprive or destruction of lawfully taken property). Larceny in all forms is a - ANSWER specific intent crime. Defendant takes his watch in for repairs. When he comes back to the watchmaker he takes his own watch without the merchant's knowledge and without paying. - ANSWER Larceny under the theory of possessory violation and theft of services. Does NOT apply to "lost property": Defendant finds lost property and picks it up intending to keep it. - ANSWER NOT GUILTY of larceny because under the law of lost property his possession is lawful as against all the world except the true owner, whose identity is unknown; therefore no crime against the possession "of another" known to him. In the same situation, defendant finds a wallet or other item with no clear indicia of ownership. He picks it up, intending to return it to the true owner. When he gets home, he decides to keep it. - ANSWER NOT larceny, but EMBEZZLEMENT, because while he came into innocent possession (although technically non-consensual, the possession of lost or mislaid property is initially lawful), his possession became custodial (gratuitous bailee) and one of trust which he violated by determining to keep the property of another. Same situation, but the wallet contains clear indicia of ownership. - ANSWER GUILTY of larceny NOT embezzlement, because with reasonable care he knew he was taking the personal property of another (known to him) with the intent to keep it. Defendant takes victim's property intending to return it. But he recklessly causes significant damage to the property. - ANSWER GUILTY of larceny under continuing trespass due to implied specific intent to permanently deprive the true owner thereof (even if the damaged property is returned). Defendant discovers his friend's cocaine and takes it intending to use it himself. - ANSWER GUILTY of larceny, because it is still illegal to steal property which is already stolen or illegal itself. Defendant is driving along and has a flat tire. Not having a spare, he begins to walk to the local service station. On the way he sees a worn but good tire leaning against the outside wall of a neighbor's garage. He takes the tire and leaves $100 in the mailbox with a note in payment, when this amount is clearly in excess of the value of the tire taken. - ANSWER GUILTY of larceny because it is still illegal to take property not for sale even if you leave ample payment for it. Same situation, but the neighbor later agrees that he got a good deal and keeps the $100, forgives the theft, and condones the "deal". - ANSWER Still GUILTY of larceny because forgiveness and condonation are not defenses to larceny which is also an offense against the community. Common Law Larceny requires a TIP - ANSWER T - Wrongful Taking of Property I - Specific Intent to Permanently Deprive Owner P - Personal Property of Another Embezzlement. - ANSWER 1) Fraudulent 2) Conversion 3) Of the personal property 4) Of another 5) By a person then in lawful possession of the property. 6) With the specific intent to materially interfere with the rights of the other. The "conversion" element amounts to more than a mere "taking"; - ANSWER it must amount to a serious interference with the owner's rights to the property. The "personal property" element means tangible property; - ANSWER it does NOT include services. The "fraudulent" element may be defended against by a claim of right or by intent to... - ANSWER restore the exact same property (not equivalent property or value). It is embezzlement - ANSWER if the defendant intended to restore equivalent property or to pay fair value. Embezzlement is - ANSWER a specific intent crime. False Pretenses. - ANSWER 1) Obtaining actual title (as contrasted to mere possession) of the 2) Personal property 3) Of another 4) By an intentional false statement or misrepresentation of past or existing material fact. 5) With the specific intent to defraud the victim thereof. The victim must - ANSWER actually rely on the misrepresentation that must be the major factor causing the victim to transfer title to the defendant (even though it is voidable due to the fraud involved). The misrepresentation must regard past or present fact - ANSWER a misrepresentation as to what will happen in the future is NOT sufficient (e.g., a false promise made without the present intent to perform). The defendant must actually - ANSWER pay for the goods for title to pass. False pretenses is a - ANSWER a specific intent crime. Larceny by Trick. - ANSWER 1) Obtaining mere possession (as contrasted to title) of the 2) Personal property 3) Of another 4) With the specific intent to permanently deprive the victim thereof 5) By an intentional misrepresentation of past or future fact. The determination of whether mere possession or whether title passes to the defendant is determined by - ANSWER the intent of the victim. The misrepresentation must be - ANSWER "material"; "puffing" will not qualify. Defendant drives into service station and tells attendant to "Fill it up" (implied future promise to pay). Once the gasoline is in the car, Defendant drives away, never having had the intention to pay. - ANSWER GUILTY of larceny by trick (as contrasted with simple larceny) because the theft (the taking of possession, not title) was coupled with and solely prompted by the misrepresented promise of future payment. Defendant finds lost property and in response to notice of reward agrees to meet the true owner to exchange the property for the reward. When the two meet, the owner realizes he has forgotten to bring the money for the reward. He asks the Defendant to wait until he returns; defendant agrees. While owner is gone, defendant decides not to wait but to keep the property after all and leaves. - ANSWER NOT GUILTY of larceny by trick because at the time the promise to wait was made there was no intention to defraud or misrepresentation as to a past or existing material fact. NOT GUILTY of false pretenses because there was likewise no fraudulent intent at the time of the promise to wait and there was no false material misrepresentation as to a past or future fact (he did intend to wait when the promise was made). GUILTY of EMBEZZLEMENT because the defendant had then come into lawful possession and an entrustment or bailment of the property at the hands of the true owner that trust he subsequently violated by determining to keep it for himself. Receiving Stolen Goods. - ANSWER a. Receiving actual or constructive possession and control b. Of the personal property c. Of another d. Known to the recipient to have been obtained in a criminal manner e. With the intent to permanently deprive the true owner of his interest therein. Robbery. (in fact a crime against BOTH property and person). - ANSWER a. Taking and carrying away b. Of the personal property c. Of another d. From the other's person e. By immediate threat, fear, intimidation, force, violence, death or physical injury to the victim or someone in his presence........A threat of harm may suffice in lieu of violence. V must be placed in apprehension of harm. f. With the specific intent to permanently deprive him thereof. The taking must be by force from the victim's immediate presence; - ANSWER the taking of property in such a manner outside the victim's presence is EXTORTION. Counts of robbery are enumerated by the number of victims - ANSWER not the number of articles taken (e.g., taking the payroll from the clerk and several more items each from four customers in the store accounts for five counts of armed robbery). Defendant discovers victim lying on a public sidewalk. Unknown to defendant, the victim is dead (or, in another case, the victim may be drunk or unconscious). He goes through victim's pockets and takes either money or identification papers, or anything else for which he thinks he might later find a use. - ANSWER NOT GUILTY of robbery because the victim was not put in fear. Instead, GUILTY of LARCENY. Burglary. - ANSWER a. Breaking - opening by force, fraud, or intimidation, by even the slightest breaking of the "close" or "curtilage" of the property, and b. Entering - placing any portion of the body or any instrument used for the burglary into the property c. Of the dwelling house - a structure used regularly for sleeping purposes or a related structure (such as an adjoining shop, place of business, or other related "outhouse"). d. Of another - meaning in the possession of someone else, even if the defendant is the landlord or has title. e. In the nighttime - after sundown at a time when the perpetrator's face is obscured (note that "at dusk" or "just as the sun was setting" is NOT yet nighttime for common law/MBE purposes). f. With the intent to commit a felony therein - the felony need not necessarily be theft inside, but could be any felony and it need not be accomplished to constitute the burglary. Late one winter night defendant broke into victim's house to get out of the cold. Once inside, however, he saw a diamond bracelet and took it, leaving early the next morning. - ANSWER GUILTY only of LARCENY; but NOT GUILTY of burglary because the requisite intent was not present at the time of the breaking and entering. Late one night defendant broke into victim's house in order to settle a grudge by killing him. To defendant's surprise, however, victim was not home. Once inside, defendant saw a diamond bracelet and took it with him as he left in disgust. - ANSWER GUILTY of both BURGLARY and LARCENY, since the requisite felonious intent (murder) was present at the time of the breaking and entering (whether accomplished or not) and the after- acquired larcenous intent materialized (theft of the bracelet) once inside. Assault. - ANSWER 1) Threatening conduct (mere words are insufficient). 2) With the specific intent. 3) To cause reasonable apprehension. 4) Of imminent harm (a battery) to the victim. An actual unwanted touching, however, - ANSWER transforms the assault into a battery. Remember that assault is a - ANSWER specific intent crime. Note for references to "involuntary manslaughter" and "misdemeanor manslaughter", discussed below, - ANSWER that at common law, assault was a misdemeanor. Battery. - ANSWER 1) Unwanted touching.