Expressio Unius, Exclusio Alterius – the express of one thing impliedly indicates an intention to exclude another
Specific Intent Crimes:
M urder
E mbezzlement
L arceny
S olicitation
C onspiracy
A ttempt
F orgery
F alse pretenses
B urglary
A ssault
R obbery
Mens Rea – state of mind required
Actus Rea – act
Constructive Notice – law can’t be vague or ambiguous
· Homicide – unlawful killing of a human being by another
o Unborn baby not another human being
· Corpus Delicti – death, by another (not suicide, natural causes or accident), and the identify of the other
o Confession not enough
o Usually must have body
· Murder – unlawful killing of another with malice aforethought
o Malicious Aforethought – the requisite mental state for common law murder, encompassing any of the following
§ The intent to kill
§ The intent to inflict grievous bodily harm
§ Reckless indifference to the value of human life
§ The intent to commit a felony (felony murder rule)
o First Degree – willful and premeditated and deliberate or in the perpetration of a felony (felony murder-BARR) (poison / lying in wait)
§ Premeditation – needs some kind of consideration – reflection
· Thought of doing it with reflection
· Intent to kill – the decision
· The act of killing
o Robber who kills occupant of home – time for reflection doesn’t matter
o Second Degree – murder with malice but without intent or premeditation (extremely high risk of harm, disregard to human life). Any reasonable person would know that this activity is extremely, grossly dangerous.
§ This is not intentional murder in that it does not result from a specific, conscious intent to cause the death of any particular person, but from an indifference to or disregard of the risk.
§ Malice is defined as a particular ill will and where there is a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences or mind regardless of social duty
§ Ill will, depraved heart – the intent, without justification or excuse to commit a wrongful act, with reckless disregard of the law or of a person’s legal rights.
· Three part test to determine whether conduct is extremely recklessness – depraved heart:
o How high is the risk that someone will be harmed
o Is the individual aware of the risk
o Is there any social utility to the conduct. (ie., driving hurt daughter to hospital)
§ Glass house case
§ Throwing a rock off the overpass
§ Someone in airplane flies low and decapitates someone in convertible.
§ Drive speed boat into group of swimmers.
§ A guy discovers that his wife is having an affair. He stabs the other guy to death. Can you convict someone for a depraved heart murder for stabbing someone to death? Even if you direct that type of depravity to one person, it counts. He was found guilty
o Felony Murder Rule – Criminal homicide constitutes murder when:
§ Required recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
· Proceeding with felony-murder relieves the burden of proving malice aforethought. All you have to do is prove the felony and that someone was killed during the commission of the felony. That equals malice aforethought. It doesn’t matter if you actually intended to kill because the intent was to commit the felony, that is enough and you are responsible for any deaths that result.
o Cocaine dealer – must be inherently dangerous felony
§ Continuous Transaction Rule – a person is criminally liable for the natural and probable consequences of his unlawful acts as well as the unlawful forces set in motion during the commission of the felony
· Explosion after defendant was taken into custody
§ Felony Murder Rule Should not be interpreted too broadly
· Must be a continuous transaction
· Felony must be inherently dangerous
· Independent of the homicide
§ MERGER was developed as a shorthand explanation for the conclusion that the felony murder rule should not be applied in circumstances where the only underlying felony committed by the defendant was assault. Every murder has an assault so everything would be felony murder.
· Shooting a firearm at occupied dwelling with resulting unintended injury. This is felony murder – the shooting does not merge with the murder
Criminally Negligent Homicide – a conscious disregard for the victim’s safety and a gross deviation from reasonable conduct
Criminal Negligence Ordinary Negligence
-gross deviation from the standard -deviation from the
standard
o Mom left her kids locked in the house when it burned down
o Drunk married couple – husband put loaded gun on bed
· ASSAULT – Assault is an unlawful attempt coupled with a present ability to commit a violent injury on the person of another.
o Common law definition of assault:
§ an attempt with unlawful force to inflict bodily injury upon another;
§ an unlawful touching with criminal intent; and
§ putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting harm.
o Aggravated v. simple
§ Guy driving car at officers
§ Bar owner – justified touching – not unlawful
§ Must follow statute – ie., if it says there has to be substantial harm
§ Stalker case (Matsos)???
· Person repeatedly follows or harasses an individual with a malevolent intent
· BATTERY – the unlawful application of force to the person of another resulting in bodily injury or an offensive touching, a completed assault
o every battery has an assault in common law, merges together when battery occurs
o Attempt requires intent, attempt to commit a battery requires intent
§ Attempted rape of comatose woman – apprehension is not essential in attempt
· RAPE
o Common Law
§ 1) sexual intercourse; 2) with a woman not your wife; 3) without consent and by force or threat of force
§ Also unlawful carnal knowledge of a woman without her consent.
o Consent is a difficult issue in rape cases.
§ No third party involved, usually no witnesses
§ What does “no” mean in certain circumstances.
