CRIMINAL LAW MIDTERM FALL 2011

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44 terms

Homicide

the lawful or unlawful killing of a human being by another. includes murder and manslaughter (unlawful) and excusable and justifiable (lawful) killings.

Murder

the unlawful killing of a human being with malice aforethought, express or implied.

Malice

A human endangering state of mind. It does not need to be directed at any one person and can be express or implied. There are four types: intent to kill, intent to inflict great bodily injury, depraved heart / wanton disregard, and the felony-murder rule.

Intent to Kill

(express malice) Exists where there is intent manifested to unlawfully kill a human being.

Intent to GBI

is an express form of malice.

Depraved heart / wanton disregard

is an implied form of malice. Occurs when a person acts with conscious disregard for and awareness of an unjustifiable risk to human life.

Felony-Murder Rule

Applies if death occurs during and as a result of the commission of an inherently dangerous felony. It is inherently dangerous if there is a high probability of death (arson, rape, robbery and burglary are the most common). If criminals reach the place of safety, then they have escaped and the rule does not apply.

Merger Doctrine

exception to the felony murder rule. Applies when felonies that are an integral part (i.e. no independent purpose) of the homicide are merged into homicide (in CA limited to assault based crimes).

First Degree Murder

Occurs when there is a willful, deliberate, premeditated intent to kill or during the commission of Burglary, Arson, Robbery, Kidnapping, Sex Crimes, Mayhem, Poison, Torture, Lying in wait, Bombing or use of explosives, and in CA Carjacking and Trainwrecking.

Second Degree Murder

Includes all other kinds of murder with malice aforethought, or when there is insufficient evidence to prove deliberate and premeditated, or during an inherently dangerous felony not defined in the first degree predicate.

Voluntary Manslaughter

is the intentional and unlawful killing of a human being by another without malice in the heat of passion based upon adequate provocation or in a good faith but reasonable belief in self-defense.

Adequate Provocation - Voluntary Manslaughter

the act must be so great as to inflame the passions or a reasonable person and tend to cause him to act, for the moment, from passion rather than reason; a rash act without reflection.

Heat of Passion - Voluntary Manslaughter

the act must be so extreme that for a moment D acts from passion rather than reason with no cooling off period.

Causal Connection - Voluntary Manslaughter

There must be a Causal Connection between the provocation, the passion and the act.

Involuntary Manslaughter

is unlawful and unintentional killing of a human being without malice aforethought and without the intent to kill. The killing may be committed by criminal negligence or during the commission of an unlawful act.

Criminal Negligence

something more than mere tort negligence; a gross deviation from the reasonable person standard.

Unlawful Act

One can also be guilty of involuntary manslaughter if the death occurred during the commission of a misdemeanor (misdemeanor-manslaughter rule) or a non-dangerous felony.

Battery

unlawful application of force to the person of another

Assault type 1

the attempt to commit a battery (unlawful application of force to the person of another)

Assault type 2

intentionally placing another in reasonable apprehension of an immediate battery
(elements: intentional, reasonable apprehension, actual ability)

vehicular manslaughter

the killing of another person through the negligent or unlawful use of a motor vehicle

gross negligence

the intentional failure to perform a duty with reckless disregard of the consequences

larceny

the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive

robbery

larceny from the person by force or fear

larceny by trick

the illegal taking of another's property with the intent to deprive the owner thereof and through means of deception.

embezzlement

the fraudulent conversion of personal property by a person to whom possession of property was entrusted either by or for the owner.

conversion - embezzlement

requires a serious act of interference with the owner's rights. movement of property w/o more is insufficient

entrust - embezzlement

to commit or surrender to another with a certain confidence regarding his care, use, or disposal of that which has been committed or surrendered.

false pretenses

obtaining possession and title to property by means of a material false representation with intent to defraud

Judge Phillips Four Rules

D has custody (or less control) and steals property = larceny
D has possession only and steals property = Embezzlement
D by fraud obtains possession only to property = larceny by trick
D by fraud obtains possession and title to property = false pretenses

malicious mischief

the malicious destruction of, or damage to the property of another, whether real or personal

forgery

the fraudulent making of a false writing having apparent legal significance

counterfeiting

the unlawful making in the similitude of the genuine of any false money or of any false obligation or other security of the U.S. or of any foreign government

Extortion

CL: the corrupt collection of an unlawful fee by an officer under the color of office, with no proof of threat. Force or duress is required.
Statuatory: either 1) the unlawful extraction of money or other value by means of an unlawful threat or 2) an unlawful threat made for that purpose

Rape (CL)

unlawful carnal knowledge (intercourse) with a woman, not his wife, without her consent by force or fear

Rape (CA 261)

sexual intercourse against will by force, violence, duress, menace or fear of great bodily injury

statuatory rape

unlawful sexual intercourse with a willing person under the age of consent

false imprisonment

the intentional unlawful confinement or restraint of another person without his consent

Kidnapping (CL)

the forcible abduction or stealing away of a man, woman, or child from his / her country and sending them to another

kidnapping (modern)

the unlawful confinement of another, accompanied by either a moving of the victim or secreting of him

Mayhem

(CL) Maliciously depriving another of the use of such of his members as may render him less able, in fighting, either to defend himself or annoy his adversary.
(Modern) Maliciously maiming or disfiguring another

dueling

fighting by previous agreement with deadly weapons

burglary

(CL) The breaking and entering of the dwelling of another in the nighttime with the intent to commit a felony. (BEtDONI
(CA 459) entry into a variety of structures with intent to commit grand or petty larceny or any felony. First Degree = an inhabited dwelling house. Second Degree = all other kinds

Arson

(CL) the malicious burning of the dwelling house of another
(CA 451) willful and malicious setting fire, burning, or causing to burn, or aiding, counseling, or procuring the burning of any structure, forest, land or property

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