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Criminal Law
Rutgers University, Newark School of Law
Thomas, George C.

Fall 2017 Criminal Law 1L Thomas

Common law crime

Statutory crime or MPC

MPC Mens Rea:

Purposely – if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result, and if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
Knowingly – if the element involves the nature of his conduct or the attendant circumstances aware of the nature or such circumstances exist, he is aware that his conduct is of that nature or that such circumstances exist, and if the element involves a result of his conduct, is practically certain that his conduct will cause such a result.
Recklessly – consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct; risk must be of such a nature that its disregard involves a gross deviation from the standard of a conduct that a law-abiding person would observe in the actor’s situation
Negligently – should have been aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct; actor’s failure to perceive it involves a gross deviation from the standard of care that a reasonable person in the actor’s situation would observe


Penal Theories in Action: Who Should be Punished?

The Queen v. Dudley and Stephens (England 1800s)

Was it murder? Higher court says yes, but they are pardoned.

Aims of Criminal Law

Model Penal Code – 1952, adopted at least in part by many states
English Common Law
“Crime” – conduct which will incur a formal and solemn pronouncement of the moral condemnation of the community
stare decisis – let precedent decide
“reasonable doubt” – not UNreasonable doubt, but guilt beyond a reasonable doubt – if the doubt is unreasonable, then guilty

Owens v. State (Maryland 1992)

Convicted of DWI, appeals claiming insufficient evidence.

Statute – Cannot drive while intoxicated on a public highway.

Owens was not driving on a public highway but parked in a private driveway with the car running, passed out, beer cans all over including between his legs. Unknown whether it is his house, unknown whether he was about to leave or had just arrived.
Holding: Upheld. Guilty. Sufficient evidence.

Why? No solid proof but inferences made. Infer that he is more likely to be arriving than leaving due to circumstantial evidence – beer cans all over car (if about to leave, why?), passed out (drove drunk enough to pass out, would not get into car and pass out).

No presumption of innocence on appeal. Evidence viewed most favorable to the State. Rational, not reasonable, doubt.


The first principle in American law. “No crime without law, no punishment without law.”
So these cases deal with whether or not the act is a crime.

Criminal statutes should be understandable to reasonable law-abiding people.
Statutes should be crafted so they don’t “delegate basic policy matters to police, judges, and juries for resolution on an ad hoc and subjective basis.”
Judicial interpretation of ambiguous statutes should be biased in favor of the defendant – lenity doctrine.

Commonwealth v. Mochan (Pennsylvania 1955)

Charged with intent to debauch, corrupt, devising and intent to harass, embarrass and vilify victim and her family – convicted on both.

Appeals – conduct not a criminal offense in PA, but State says unlawful under common law in PA and a misdemeanor (because a statute says that offenses not in the criminal code but in common law are punishable).
Dirty inappropriate phone calls about having an affair and other nasty things, shared phone line so others heard.
Do his actions violate common law?

Holding: Yes. His actions violate common law and are punishable. Precedence on 2 occasions that common law crimes can be misdemeanors if the act directly injures the public and public morality. Here, particularly bad things were said.

Keeler v. Superior Court (California 1970)

Defendant charged with murder, and others.

Beat wife in stomach, likely leading to death of her unborn baby.
Def. argues that the charge for murder must be vacated bc CA statute does not include fetus; State asks for judicial enlargement to include fetus in murder statute.
Common law – feticide not murder.
Holding: Not murder. Legislature did not intend for a fetus to be included in the statute when it was formed in 1850 because to 1872, common law did not include feticide as murder. Court cannot create or alter statutes.

This case leads the CA legislature to expand definition of murder to include feticide.

Values of Statutory Clarity

In Re Banks (North Carolina 1978)

“Peeping Tom statute” ruled by trial court unconstitutional. State argues error; defendant says it is vague and you must guess as to its meaning.

Is statute vaguely unconstitutional and broad?
“Any person who shall peep secretly into any room occupied by a female person shall be guilty of a misdemeanor…”
Words of a statute must be reasonably construed.
Holding: Not unconstitutional. Commonly known meaning to “peeping tom,” and statute refers only to those people. “Secretly” implies intent. Intent to invade privacy.

Principles of Punishment

Retributivist – punishment is justified because people deserve it; eye for an eye; how much and what type?; moral desert (culpability) of an offender is enough to punish him, preventing crime is just a plus – so punishing the moral wrong the person did, the fact they abandoned morals

Kant – right to administer punishment is the right of the sovereign as the supreme power to inflict pain on someone for committing a crime; person must be found guilty AND punishable

Utilitarian – justification lies in the useful purposes that punishment serves

Bentham – notion of proportionality; we do what we do to get more pleasure than pain so to stop people, we need to give them more pain for their actions than pleasure; weigh benefit and detriment to the person and society; fines better than prison because detriment to person convicted but money for society

n attempt to trap the company owner, to place property on loading platform where it could be taken by the accused constitute consent to such taking?

Conspiracy with an employee to steal meat from a company, but the employee told his bosses, who told the man on the loading dock to leave the items so they could be taken, to trap defendant. So the company knew what was happening the left items there to take.
Holding: Not larceny. No trespass, they basically let him in and let him take the items in an attempt to get him into trouble for his plan to steal. If you give consent to take, cannot be larceny, missing the trespassory taking element.

Rex v. Pear (England 1779)

Did def. intent to sell the horse at the time he borrowed it; did the delivery of the horse to the def. change the possession of property?

Def. borrowed a horse for a journey but wound up selling it for money. Gave a false address.
Always intended to sell it (false address); No, did not have possession b/c had bad intentions from the start, he was to return it the same day and only had custody fo the horse, had it for a specific purpose; poss. never passed bc he was given the horse to use it, not sell it – not owner’s intent

Brooks v. State (Ohio, 1878)

Under what circumstances does property become the subject of larceny by the finder?

Person dropped bank bills, could not find, took out an ad in paper; def. found them, kept them, kept it a secret too that he found them, then left town
Guilty because the property was not abandoned, no indication owner abandoned it, it was merely lost. Def. never intended to find the owner. If the def. believes or has reason to believe owner of lost property can be found, it is larceny. Duty to find owner, or try.

Of the Personal Property of Another

Lund v. Commonwealth (Virginia, 1977)

Can convictions be upheld under the statute?

Def. charged with theft of keys, comp. cards, and comp. printouts AND using without authority the comp. time and service of the university with intent to defraud such property having value of over $100. Under statutes – grand larceny, def. argues no evidence they were stolen or had the requisite value. Servers not subject to larceny.
Convictions overturned – no evidence of grand larceny of keys and cards, and the computer use can’t be considered under the larceny codes b/c statute does not mention “use” just “taking and carrying away personal property – goods and chattels.” Tangible items, these in this case NOT tangible. Comp. print-outs had no value.