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Criminal Law
University of Kansas School of Law
Stacy, Thomas G.

Professor of Law
University of Kansas
1. Felonies
a. Common law. Under the common law, the felonies consisted only of murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, and burglary. Other crimes were misdemeanors.
b. Modern law. Most states now define a felony to include any crime punishable by imprisonment of one year or more
i. Kansas law. The statute defining the crime generally specifies whether the crime=s a misdemeanor or a felony. K.S.A. 21-3105(1), which applies when the statute defining the crime does not so specify, defines a felony as ‘a crime punishable by death or by imprisonment.”
2. Misdemeanors- Crimes that are not felonies are misdemeanors.
3. Significance of distinction. The distinction between felonies and misdemeanors is relevant in two principal contexts. First, the felony murder rule, as its name suggests, does not apply with respect to misdemeanors. Second, courts use the distinction as a factor in deciding the mens rea or culpability (intent, recklessness, negligence, or strict liability) required by an ambiguous statute A court is quite unlikely to hold that a felony is a strict liability offense. It is also more likely to hold that a felony requires subjective culpability (intent or recklessness as opposed) as opposed to objective culpability (negligence) or no culpability at all (strict liability) respecting each element of the offense
1. Merger. When one offense merges with another, the defendant cannot be convicted of and sentenced upon both. The general modern rule is that there is no merger of offenses: A defendant may be charged with and convicted of multiple offenses. There are however exceptions to this general rule.
In contrast with attempt and solicitation, conspiracy does not merge with the crime the D conspired to commit. Thus, if D conspired to commit murder, D may be charged, convicted, and sentenced on both murder and conspiracy to commit murder.
ii. Exception: Felony Murder Rule. Some felonies that result in a killing (e.g., the felony of voluntary manslaughter) merge with that killing so that the defendant may be convicted of the felony but not felony murder based upon that felony. See supra III. A. 1. c. ii.
iii. Limited merger of greater and lesser-included offense. A greater and lesser-included offenses do not merge in one sense: the defendant may be charged with both a greater and a lesser-included offense. But greater offense and lesser-included offenses do merge in another sense: The defendant may not be convicted of and sentenced upon both a greater and lesser-included offense.
EXAMPLE: Aggravated arson (the greater) requires proof of arson (the lesser) plus the additional element that a human being was present in the building when burned.
* Exception to the limited merger of greater and lesser included offenses. felony murder and the underlying felony- Kansas cases hold that the underlying felony on which a felony murder conviction is predicated is not a lesser included offense of felony murder. The defendant may thus be charged with, convicted of, and sentenced upon both the underlying felony and felony murder in the same proceeding. The rationale for this treatment is that the merger of greater and lesser included offenses is matter of legislative intent. Although the underlying felony fits within the definition of lesser included offense in KSA 21-3107, Kansas courts have had a longstanding practice of charging and sentencing upon both the underlying felony and felony murder. Even though the criminal code has been amended a number of times, the legislature has not changed this practice and presumably approves of it. See State V Sutton, 256 Kan. 913 (1995).-
2. General versus Specific Offenses: permissible charges and punishment. The defendant’s conduct may sometimes violate both a generally defined prohibition (e.g., making a false statement to a government official) and a prohibition more specifically addressed to the conduct (e.g., making a false statement to a government official in connection with obtaining a housing loan). A question of legislative intent arises. Did the legislature intend for the conduct be punished exclusively under the more specific prohibition, under either the specific or the general but not both, or both? The rule of thumb, which may yield to other evidence of legislative intent is that the specific prohibition controls and that the defendant may be charged, convicted, and punished only under the more specific prohibition. State V. Wilcox, 245 Kan. 76 (1989).
EXAMPLE: D obtains public assistance from a state agency by making false statements in documents submitted to that agency. One statute, X.S.A. 21-3711, prohibits false writings while another, K.S.A. 39-720, prohibits welfare fraud. Held: The legislature intended that D be charged and punished under the welfare fraud statute, the provision statute more specifically directed to her conduct. State V Reed, 254 Kan. 52 (1993).
The rule that the defendant may be charged and convicted only under the more specific offense is not jurisdictional in nature. The defendant flay waive it by, for example, pleading guilty to the general offense, LaBona V. State, 255 Kan. 66 (1994).
A criminal offense generally requires a wrongful act (actus reus) , a wrongful intent (mens rea), and a concurrence of the act and intent. In addition, some offenses, such as homicide offense, require a harmful result and a causal link between the defendant’s act and intent, on the one hand, and the result, on the other-
A. ACT (actus reus) – Bad thoughts alone cannot constitute crime, there must be an action, or an omission to act where there is a legal duty to act.
1. Voluntariness. The act must be voluntary in the sense that it must result from bodily movements resulting from the exertion of the defendant’s will. Reflexive actions or acts occurring while the defendant is unconscious or asleep are not considered voluntary. Of course, one can voluntarily put oneself in a position in which one knows one might fall asleep, become unconscious, or engage in reflexive action. The act of voluntarily putting oneself in that position may support criminal liability when there is a concurrence between such act, the mens rea, and result (if any) required by the offense in question.
Example: D, who knows himself to be subject to frequent seizures, drives his car. D has a seizure while driving, loses control, and kills a pedestrian. The act of losing control of the car, which is caused by the seizure, is not voluntary. The act of getting into the car and driving it, however, is a voluntary act. Given D=s knowledge that he is subject to frequent epileptic seizures, there is a concurrence between this act and the reckless state of mind required by involuntary manslaughter. There is also a causal link between D’s voluntary act and the proscribed result, i.e., the death of a human being. D may be convicted of involuntary manslaughter.
2- Omission. A person may not be held criminally liable for a failure to act unless the law imposes on that person a duty to act under the circumstances. It is only when the law requires action that a failure to act satisfies the act requirement.
a. Sources of a duty to act.
i. Statute. A person has a legal obligation to act when required by statute (e.g., statute requiring reporting of an accident or filing of a tax return)
ii. Contract (e.g., a contract between a doctor and patient for medical treatment).
iii. Fiduciary or other special relationship between the defendant and another (e.g., parent=s duty to care for child).
iv. Voluntary assumption of care (e.g. a Good Samaritan undertakes to help a stranger).
V. Putting another person in a dangerous position from which he needs to be rescued (e.g., pushing a nonswimmer into a pond).
B. INTENT (mens rea). A criminal offense generally, though not invariably, requires that a defendant act with a culpable state of mind with respect to each element of the offense.
1. Model Penal Code Schema. The Model Penal Code outlines a useful and influential grading of degrees of culpability:
a. Purposely. A defendant acts purposely with respect to an element of the offense (e.g., death of a human being) when it is his motive or purpose to bring abort the existence of that element,
EXAMPLE: D sets off a bomb with the hope of killing V, although he is uncertain whether his action will have that effect. V is in fact killed. D has acted purposely with respect to the death of V; V=s death was the motive of D=s action.
b. Knowingly. A defendant acts knowingly with respect to an element of the offense (e.g. death of a human being) when he is aware of that element’s existence or is practically certain that his action will bring that element about.
indifferent to whether X is killed, D is practically certain that the bomb will kill Xas well as V. X in fact dies. D has not acted purposely with respect to X=s death because X’s death was not the motive of his action. He has, however, acted knowingly with respect to X’s death because he was practically certain that his action would result in X’s death.
C. Recklessly. A defendant acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element
exists or will result from his conduct. The defendant’s conduct must involve a gross deviation from the standard of care expected of a reasonable person under the circumstances.
EXAMPLE: D chops down a huge tree with the awareness of a strong possibility that it will crash into an occupied house. The tree in fact crashes into the house, killing an occupant. D has not acted purposely with respect to the death because the motive of his action was not to kill anyone. Nor has D acted knowingly with respect to the death because he was not practically certain that his conduct would result in death. D, however, has acted recklessly with respect to the death because he is aware of a substantial and unjustifiable risk that his action will result in death
D. Negligently. D acts negligently with respect to a material element of the offense when he should be aware of a substan

called a public welfare offense) that does not require any culpability, courts utilize the same factors listed in #2 above. Strict liability offenses are very much the exception in criminal law.
a- constitutionality. Strict liability crimes are generally held to be constitutional. In Lambert V. California, 355 U.S. 225 (1957) however, the U.S. Supreme Court invalidated a Los Angeles ordinance making it a strict liability offense for a felon to fail to register because of the absence of “circumstances which might move one to inquire as to the necessity of registrationY.@
4. General Intent vs. specific Intent The caselaw in many jurisdictions, including Kansas, distinguishes between general intent and specific intent offenses.
a. Significance of distinction. Jurisdictions make the distinction between specific and general intent offenses for the following purposes:
1. Defense of voluntary intoxication, in most jurisdictions, the defense of voluntary intoxication applies only to the extent it negates a specific intent required by an offense.
ii Unreasonable mistake of fact. Some jurisdictions hold that an unreasonable mistake of fact is a defense only if it negates a specific intent required by an offense. For general intent offenses, an unreasonable mistake of fact will not absolve the defendant of liability, even if it negates the intent required by the offense.
iii. Diminished capacity. In many jurisdictions, evidence of diminished capacity (i.e., mental infirmity short of legal insanity) is relevant only when it negates a specific intent required by an offense.
b Meaning of distinction. The best view is that a general intent is the intent required with respect to the actus reus of the crime. A specific intent is an intent that the offense requires above and beyond the intent respecting
the actus reus of the crime.
EXAMPLE: First-degree premeditated murder requires that the defendant’s acts resulting in the victim’s death be intentional i-c. purposeful or knowing) and premeditated. The intent required with respect to the actus reus — the requirement that the acts causing to the victim’s death be knowing or purposeful — is a Ageneral intent.” But in addition to this general intent, the offense requires premeditation — an intent over and above that required with respect to the actus reus. premeditation is a specific intent,” Voluntary intoxication and unreasonable.
mistake of fact are thus defenses to first-degree premeditated murder when they negate the specific intent of premeditation required by the offense.
EXAMPLE: Burglary involves breaking and entering a dwelling with the intent to commit a felony therein. The actus reus of the offense is the breaking and entering of a dwelling. The requirement that these acts be done intentionally is the general intent required by the offense, i.e., the intent required respecting the actus reus. In addition to this general intent, burglary requires an additional intent to commit a felony in the dwelling. This additional intent is a specific intent. Thus, voluntary intoxication and unreasonable mistake of fact are defenses to burglary when they negate the specific intent of an intent to commit a felony in the dwelling.
liability for misdemeanors, K.S.A. 21-3204 also provides that no criminal intent is needed if the crime is a misdemeanor and there is a clear legislative purpose to impose absolute liability.sets off a bomb in a room with the hope or killing V. D is aware that x is in the room along with V. Although D isDefinition. A lesser-included offense typically has some but not all of the elements of the greater offense and has no elements beyond those of the greater offense. See K.S.A. 21-2107(2) (defining lesser-included offenses as “(a) a lesser degree of ~ crime” and (6) a crime necessarily proved if the crime charged were proved. ~r)Exception: Merger of attempt and solicitation with a completed crime. A person who successfully attempts a crime cannot be convicted of both the completed crime and the attempt. A person who solicits the commission of a crime cannot be convicted of both solicitation and the completed crime –