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Criminal Law
South Texas College of Law Houston
Crump, Susan Waite


She tries to make the questions proportionate to the subject matter of the class.
You must now everything backwards and forwards.
Multiple choice – there will be space on the back to explain an answer to question that seems ambiguous.
180 raw score points, 30 minutes per essay; stick to the time limits.
Texas Penal code – you can paraphrase consent parts of sexual assault.
Look at her outline –
Heavy emphasis on Texas;
Know the Penal code frontwards and backwards

A. Overview of Crimivictims will. erReasonable Doubt (In Re Winship)
a. Burden of Persuasion: Govt. must negate any criminal defense beyond a reasonable doubt
b. Burden of Production: burden of interjecting Defense falls on D. These affirmative defenses include such things as mental illness, duress, entrapment, necessity, self-defense, and defense of property.
(1) The Supreme court held that D need only prove these defenses by a preponderance of the evidence, (i.e. 51%).
(2) a few state laws require the prosecution bear the burden of disproving all affirmative
(a). Why?
1. Reduces factual errors
2. Increases public confidence
3. Criminal law sanctions are severe
4. Far worse to convict an innocent man than to free a guilty man (i.e. error on side of caution)
(b). All criminal cases in TX must have judge explain reasonable doubt to jury
1. Based on reason and common sense (not on conjecture or emotion)
2. Based on facts or reasons deducted from facts

B. Elements of all Crimes
1. Actus Reus -The law requires a person to commit an unlawful act not just think about doing so.
a. voluntary act- will
b. circumstances/ Causation
c. result (for murder, that death resulted)
d. Crimes resulting from non volitional acts will not create criminal liability. People v. Newton – shot police officer while he was unconscious from a gunshot to the stomach. Some examples are:
(1). while the actor was physically forced by another to engage in the conduct.
(2). A reflex action by D is not actus reus b/c not voluntary, e.g. crime while having an epileptic seizure or some other convulsion resulting from a physiological disorder.
(3). Unconscious Defense . . . where not self-induced (e.g. alcohol), unconsciousness is a complete defense to a charge of criminal homicide bc/element of voluntary act is not met. also hypnotized.
e.g. A ∆ can be convicted for failing to act only when either:
(1) a statute specifically criminalizes the omission or (2) the failure to act substantially contributes to bringing about an illegal result. Davis v. Commonwealth – starved and froze her mother to death by not feeding her or providing adequate heat.
(3) ∆ had a legal duty to act. Situations in which a legal duty to act include:
(a) Certain relationship duties, e.g., parent to care for a child;
(b) duties imposed by statute. e.g., file taxes by April 15, stop & render aid if your in a car wreck
(c) duties imposed by contractual obligations e.g. a lifeguard or nurse
(d) duty based on voluntary assumption of care (e.g. parent-child, spouse-spouse)
(e) duty arising from the creation of the peril (i.e., if one creates peril, he must render assistance).
(f) duty to control the conduct of others, (e.g. parent’s duty to control a child); and
(g) duty of a landowner to care for invitees
(4.) Breach of Duty:
(a). Intentional breach (malice) . . . if death results from malicious omission of duty . . . murder.
(b). Negligent breach of duty . . . if person is “criminally negligent” in omitting to perform duty . . . involuntary manslaughter.
(c). Criminally Negligent = conduct that must be a reckless nature; failure to perceive it was in a callous disregard for victim’s life & for the probable consequences of the act. (i.e. breach of duty was gross and wanton).
(5). Reckless killing (inv. ms.)

et into the defendant’s mind & try to determine their subjective intent. This is oftentimes difficult to do, especially if direct evidence is unavailable. In that case, you can infer the mens rea from the circumstances & the defendant’s conduct.

State v. Peoria: Flasher case. There was no direct evidence as to his mental state. He did not wave, make faces at, signal, or motion the walkers-by; hence, we can infer that subjectively, he had no intent to expose himself, therefore the mens rea required for conviction is missing.

II. Homicide
A. History of Common Law Murder (Murder, Vol. MS., Inv MS
1. Malice Aforethought (an evil heart, fatally bent on mischief)
a. Four criminal states of mind
a1. Express Malice:
(1). intent to kill
a2. Implied Malice:
(2). intent to cause serious bodily injury but death results
(3). depraved heart homicide (extremely reckless act)
(4). felony murder (D kills victim during commission of a felony
B. Common Law & Pennsylvania Pattern of Homicide
1. Murder: an unlawful killing with malice aforethought and either express or implied malice
a. Murder in 1st degree:
1. express malice- intent to kill
2. Premeditation:
a. Some type of reflective process in which the D must engage prior to the killing can be spur of the moment
b. Penn: if intentional killing, mental state sufficient to show premed. even though D did not plot or plan the killing
c. Calif.: requires preconceived plan or design
3. Deliberation:
(EX) Commonwealth v. Webster: Prof. of chemistry kills colleague. E