Crim Cases

 Acteus Reus
o Culpable Conduct
 Requirement of Voluntary Action
 Martin v. State (Alabama Court of Appeals, 1944, CRp221)
o Rule of Law
 Criminal liability may only be imposed when the unlawful conduct is committed voluntarily
o Facts
 Martin (defendant) was arrested at his home by police officers and placed in a police vehicle
where he was separately charged for being drunk and using loud and profane language on a
public highway.
 Martin was convicted under a state statute which held that any person who, while intoxicated
or drunk, appeared in “any public place where one or more persons are present, and manifests
a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on
conviction, be fined.”
 Martin appealed.
o Issue
 Can Criminal liability be imposed only when the unlawful conduct is committed voluntarily?
o Holding
 Yes
o Reasoning (Simpson)
 Under the plain language of the statute, one convicted of being drunk in a public place must
have voluntarily placed himself there.
 If the accused is taken involuntarily and forcibly carried to a public place by an arresting officer,
a charge of being drunk in a public place cannot stand.
 The judgment of conviction is reversed.
 People v. Newton (Cal Dist Ct of App 1970, CRp224)
o Rule of Law
 Where not self-induced, as by voluntary intoxication, unconsciousness is a complete defense to
a charge of criminal homicide.
o Facts
 Police officers stopped a vehicle driven by Huey P. Newton (defendant) and ordered him to get
out.
  There was conflicting evidence that Newton drew a gun and in the struggle for its possession by
Officer Frey, the gun fired and wounded another police officer, Heanes.
 The struggle continued while Heanes shot at Newton’s midsection.
 At some point, Newton wrestled the gun away and fired several shots at Frey, killing him.
 Newton then ran away and later appeared at a hospital emergency room seeking treatment for
a gunshot wound.
 Newton was charged with voluntary manslaughter.
 At his trial, Newton testified that he had not carried a gun.
 According to Newton, the struggle began when Officer Frey struck him for protesting the arrest.
 As Newton stumbled backwards, Frey drew his revolver. Newton testified that he then felt a
“sensation like…boiling hot soup had been spilled” on his stomach, heard an “explosion,” and
then a “volley of shots.”
 Newton testified that he remembered “crawling…a moving sensation,” but did not recall how he
got to the hospital.
 Newton stated that he was “unconscious or semiconscious” during this time leading to his
appearance at the hospital and only “regained consciousness” at a different hospital.
 The defense called Dr. Bernard Diamond as an expert who testified that Newton’s recollections
were “compatible” with the gunshot he had received.
 Diamond testified that it was common for a person to go into a reflex shock condition causing
loss of consciousness for short periods of time following a gunshot wound that penetrates the
abdominal cavity.
 The trial judge refused to instruct the jury on the subject of unconsciousness as a defense to
Newton’s offense.
 Newton was found guilty and he appealed.
o Issue
 Where not self-induced, as by voluntary intoxication, is unconsciousness a complete defense to
a charge of criminal homicide?
o Holding
 Yes
o Reasoning (Rattigan)
 Although the evidence surrounding the events is confusing and conflicting, some of it supports
the inference that Newton had been shot in the abdomen before he fired any shots himself.
 The sequence of events, supplemented by Newton’s and Diamond’s testimony, further supports
the inference that Newton was in a state of unconsciousness when Frey was shot.
  The term “unconsciousness” need not reach the physical dimensions commonly associated with
the term, such as a coma-like condition.
 Unconsciousness may exist where the subject physically acts but is not, at the time, conscious of
acting.
 Where evidence of involuntary unconsciousness has been produced in a homicide prosecution,
the refusal by the trial court to provide a requested instruction on the subject is prejudicial
error. The judgment of conviction is reversed.
o Omissions
 Jones v. United States (US CoA DC Circuit, 1962, CRp234)
o Rule of Law
 In order for a def to be convicted of a crime for the failure to act, the prosecution must prove that the def
was under a legal duty to act
o Facts
 Shirley Green (defendant) gave birth to Robert Lee in 1958.
 Because Green was unmarried, she left Robert with Jones (defendant), who agreed to care for him for $72
month.
 Jones claimed that Green stopped making payments after five months, which Green denied.
 In 1959, Green gave birth to Anthony Lee.
 Both Green and Anthony lived with Jones after the birth, but Green claims to have moved out after a few
weeks.
 Anthony suffered from jaundice.
 When Jones took Anthony to a doctor in July 1960, the doctor urged Jones to take the child to the hospital.
 Jones did not.
 Authorities went to Jones’s home in August 1960 and found Robert in a filthy, cage-like crib and Anthony in
a bassinet crawling with roaches.
 Officers removed the children and took them to the hospital.
 Anthony was malnourished and covered in lesions.
 Doctors fed Anthony multiple times and said he was very hungry, but he died the next day.
 Green and Jones were indicted for abusing and maltreating both children, but those charges were dismissed.
 The defendants were also charged with involuntary manslaughter for the failure to perform the legal duty to
care for Anthony.
 At trial, the defendants argued that Anthony’s jaundice caused him to be unable to assimilate food, but
doctors had found no underlying condition that would validate this.
 The jury found Green not guilty and convicted Jones.
  Jones appealed, arguing the state had failed to prove she was under a legal duty to care for Anthony.
o Issue
 In order for a defendant to be convicted of a crime for the failure to act, must the prosecution prove that
the defendant was under a legal duty to act?
o Holding
 Yes
o Reasoning (Wright)
 A defendant may only be convicted of a crime for the failure to act if the defendant was under a legal duty
to act.
 A conviction for manslaughter may only be based on the omission of a duty to provide care for the victim if
the defendant was under a legal or contractual obligation to provide that care, not simply a moral
duty. People v. Beardsley, 113 N.W. 1128 (1907).
 The law has recognized four situations in which a defendant’s failure to act will be deemed a breach of a
legal duty.
 A defendant may be convicted for an omission to act if:
o (1) the defendant was under a statutory obligation to care for the victim,
o (2) the defendant was in a sufficiently close relationship with the victim,
o (3) the defendant contractually agreed to provide care for the victim, or
o (4) the defendant voluntarily took on the care of the victim, such that the victim was
secluded from others who might have helped him.
 Here, the government asserts that Jones was under a legal duty based either on a contract with Green to
care for Anthony or the voluntary assumption of his care.
 Nevertheless, the trial judge failed to instruct the jury that Jones could only be convicted if there was proof
that she was under a legal duty to feed and provide medical care for Anthony.
 This is an essential element of the crime, and it was plain error for the trial judge not to instruct the jury as
such.
 Jones’s conviction must be reversed, and the case must be remanded.
 Pope v State (Maryland CoA 1979, CRp236)
o Rule of Law
 Criminal Liability may not be imposed upon an individual for failing to fulfill a moral, instead of a legal,
obligation
o Facts
 Melissa Norris suffered from a serious mental illness and often experienced episodes of violent religious
frenzy.
  Joyce Lillian Pope (defendant) took Norris and her three-month-old child into her house after church
because they had no other place to go.
 Over the course of a weekend, Pope fed them and looked after the child, but at no time was Norris away
from the child.
 On a Sunday afternoon, Norris had a violent episode where she believed she was God and that Satan had
hidden himself in the body of the three-month-old.
 In the presence of Pope, Norris severely beat the child.
 Pope did not try to intervene, did not call the authorities, or seek medical care for the child.
 The child died later that evening.
 Pope was charged with various offenses in a nine-count indictment.
 The third count charged Pope with first-degree child abuse while “having the temporary care, custody and
responsibility for the supervision” of the infant.
 The fifth count charged Pope with misprision of felony under common law alleging Pope willfully concealed
and failed to disclose Norris’ felony actions with the intent to obstruct justice and allow Norris to escape
unpunished.
 Pope was convicted on the two counts, and she appealed.
o Issue
 May criminal liability be imposed upon an individual for failing to fulfill a moral, instead of a legal,
obligation?
o Holding
 No
o Reasoning (Orth)
 Under the statute, a person may be convicted of first-degree felony child abuse if the evidence supports that
the person was either the parent of, adoptive parent of, or in loco parentis to, or responsible for the
supervision of a minor child under the age of 18, and caused abuse to the child in the form of physical injury
due to
 (1) cruel and inhumane treatment, or
 (2) malicious acts.
 Pope’s lack of attempt to prevent the numerous acts of abuse committed by Norris over a period of time
and her failure to seek medical treatment for the child constituted cruel and inhumane treatment within the
meaning of the statute.
 It would follow that Pope would be guilty of child abuse if her statute brought her within the class of persons
specified by the statute.
 However, Pope was neither the child’s parent nor adoptive parent.
  Further, there is no evidence to support that Pope had the “permanent or temporary care or custody” of the
child to be in loco parentis to the child.
 The sole question is whether she had the “responsibility for the supervision of” the child in the
circumstances.
 If yes, then the evidence was legally sufficient to find her guilty of child abuse as a principal in the
first degree.
 The state’s position would equate Pope’s acts of compassion, concern, and kindness for Norris and her child
into having the responsibility for the supervision of the child.
 Moreover, the state claims that once Pope assumed the tasks of housing, feeding, and caring for Norris and
the child, she fell into the class of persons envisioned by the statute.
 However, Norris was always present when the child was present.
 Pope had no right to usurp the role of the mother even to the extent of responsibility for the child’s
supervision.
 Despite Pope’s egregious failure to intervene into the fatal circumstances, she was under no legal obligation
to do so unless she had the responsibility for the supervision of the child as contemplated by the statute.
 The evidence is insufficient to prove that Pope fell within the class of persons to whom the child abuse
statute applied.
 Norris’ mental and emotional state does not change the result.
 There is no distinction that a person “has” responsibility for the supervision of a child if that person believes,
or has reason to believe, that a parent is not capable of caring for a child.
 There is no right to make such a subjective judgment in order to divest parents of their rights to raise their
children.
 Misprison of felony was a crime under the common law of England, but it is impractical and no longer
compatible with today’s laws and should only exist upon action by the legislature.
 The judgment of conviction is reversed.
 Status Relationships, Special Circumstances and the Problem of Distinguishing Omissions from Acts
 Barber v. Superior Court (California District Court of Appeal 1983, CRp253)
o Rule of Law
 A physician is under no legal duty to continue futile life-sustaining support absent objection
from a spouse and the withdrawal of such life-sustaining support with the consent of a spouse
does not support a charge of murder.
o Facts
 Following a surgical procedure, Clarence Herbert suffered a cardio-respiratory arrest while in the
recovery room. A team of physicians, including Barber (defendant), were able to revive Herbert
 and place him on life support. Over the following three days, it was determined that Herbert
suffered permanent brain damage, leaving him in a permanent vegetative, coma-like state.
Herbert’s physicians informed his family that Herbert’s chances for recovery were very poor.
Herbert’s family drafted a written request to hospital personnel requesting that all life-support
equipment be removed. Barber and another physician complied with the family’s request and
removed the respirator and other life-sustaining equipment. Herbert continued to breathe on
his own, but showed no other signs of improvement. After two more days had elapsed, the
physicians consulted Herbert’s family and subsequently removed the intravenous tubes
providing Herbert with hydration and nutrition. Herbert later died. Barber and the other
physician were charged with murder and conspiracy to commit murder which a magistrate
dismissed. The superior court set aside the magistrate’s order and reinstated the complaint.
Barber and the other physician then petitioned the court of appeal for review of the superior
court’s decision.
o Issue
 Is a physician under a legal duty to continue futile life-sustaining support absent objection from
a spouse and does the withdrawal of such life-sustaining support with the consent of a spouse
support a charge of murder?
o Holding and Reasoning (Compton, J.)
 No. Murder is the unlawful killing of a human being with malice aforethought. Malice is
presumed regardless of motive if Barber unlawfully and intentionally killed Herbert. The term
“unlawful” generally is meant to distinguish a criminal homicide from those homicides society
deems “excusable.” Euthanasia is not an excusable homicide in California. However, whereas
euthanasia is an affirmative act to cease life, the cessation of “heroic” life support measures is
not an affirmative act to cease life. Rather, it is a withdrawal or omission of further treatment.
Disconnecting life-support machines is comparable to withholding manually administered
injections or medications. Therefore, the use of nutrition and hydration administered
intravenously is the same as the use of a respirator or other forms of life-support. There is no
criminal liability for failure to act unless there is a legal to duty to do so. Here, Barber had no
legal duty to continue to provide treatment to Herbert once it was proved to be ineffective or
futile in the opinion of qualified physicians. However, determining who has the authority to
make the decision to withdrawal life-sustaining support is unclear. There are no precise
guidelines to guide a court in that respect. The patient’s interests and desires are of paramount
importance. If Herbert was incapable of making a medical decision for himself due to incapacity,
his wife was the proper person to act as his surrogate with the authority to decide issues
 regarding further treatment. There is no evidence that there was any disagreement between the
wife, children, and the physicians. Nor is there evidence that the family was motivated by
anything other than the best interests of Herbert. Barber’s omission to continue life-sustaining
treatment to Herbert under the circumstances, though intentional and with knowledge that
Herbert would die, was not an unlawful failure to perform a legal duty. The superior court erred
in determining that the evidence against Barber and the other physician supported charges of
murder and conspiracy to commit murder.
 Mens Rea
o Old Fashioned Generalized Mens Rea
 Regina v. Cunningham (QB Court of Criminal Appeal 1957, CRp260)
o Rule of Law
 The term malice in a criminal statute does not mean general wickedness; it means either (1) an actual
intention to do the particular kind of harm that was in fact done or (2) reckless disregard of a foreseeable
risk that the harm would result.
o Facts
 Roy Cunningham (defendant) ripped off the gas meter in the cellar of an unoccupied home and stole the
money inside. Cunningham did not turn off the gas, which seeped into an adjacent house where an elderly
woman named Sarah Wade was sleeping. Wade was partially asphyxiated. Cunningham pleaded guilty to
the charge of larceny for stealing the gas meter and the money. In addition, Cunningham was indicted under
§ 23 of the Offenses against the Person Act, 1861, which provides that it is a felony to “unlawfully and
maliciously” give or cause another person to take poison in a manner that endangers his or her life or causes
serious injury. The trial judge instructed the jury that the term “malice” in the statute meant “wicked,” and
that a person acted maliciously if he did “something which he has no business to do and perfectly well
knows it.” Cunningham was convicted, and he appealed to the Queen’s Bench.
o Issue
 Does wickedness satisfy a criminal statute’s mens rea requirement for malice?
o Holding
 No
o Reasoning (Byrne, J.)
 The term malice in a criminal statute means that the person acted with either
 (1) an actual intention to do the particular kind of harm that was in fact done or
 (2) reckless disregard of a foreseeable risk that the harm would result, meaning the person was
aware of the risk of harm and did the act anyway.
 In this context, malice does not mean mere wickedness as it does colloquially.
  In this case, the mens rea required by the statute was malice.
 The trial judge erred in defining malice as wickedness in his jury instruction.
 The judge basically instructed the jury to convict Cunningham of a felony for poisoning Wade and
endangering her life if the jury determined that Cunningham behaved wickedly when he stole the gas meter.
 There is no doubt that Cunningham behaved badly when he took the gas meter.
 However, the real issue here is whether Cunningham foresaw that taking the gas meter could seriously harm
someone but did it anyway.
 That question should properly have been submitted to the jury.
 There is no way to know whether a reasonable jury, instructed on the correct definition of malice, would
have convicted Cunningham. As a result, Cunningham’s appeal is allowed; the conviction is quashed.
 Regina v. Faulkener (Irelland, 1877,CRp262)
o A defendant who is in the process of committing a felony cannot be convicted for an accidental act collateral to the
felony that would have been a crime if done intentionally
 State v. Hazelwood (AK, 1997 CRp268)
o Rule of Law
 In Alaska, an ordinary negligence standard is constitutionally sufficient to impose criminal punishment for
conduct that society seeks to deter.
 Santillanes v. New Mexico (NM, 1993, CRp269)
o Rule of Law
 In NM, the mens rea element of negligence in the state's child abuse statute requires a showing of criminal
negligence, not ordinary negligence.
 Elonis v. United States (SCOTUS, 2015, CRp270)
o Rule of Law
 Criminal statutes generally include a requirement that a person is aware that he or she is committing a
crime, even if the statute does not explicitly contain such a mens rea requirement.
o Facts
 Elonis (defendant) posted violent language directed at his estranged wife online.
 The United States (plaintiff) charged Elonis with making interstate threats in violation of 18 U.S.C. § 875(c).
 Section 875(c) did not contain any required mens rea.
 Elonis argued he did not violate section 875(c) because he did not intend to threaten anyone.
 The district court instructed the jury to use a reasonable person standard in determining whether Elonis’s
postings constituted threats.
 The jury convicted Elonis.
  The court of appeals affirmed, holding that section 875(c) did not require intent to communicate a threat,
but rather only an intent to communicate words that a reasonable person would deem a threat.
 The United States Supreme Court granted certiorari.
o Issue
 Do criminal statutes generally include a requirement that a person is aware that he or she is committing a
crime, even if the statute does not explicitly contain such a mens rea requirement?
oHolding
 Yes
o Reasoning (Roberts)
 Criminal statutes generally include a requirement that a person is aware that he or she is committing a
crime, even if the statute does not explicitly contain such a mens rea requirement.
 A person’s thoughts about a given act are relevant to whether the person committed a crime.
 Criminal statutes do not use a negligence standard, as criminal statutes require a higher level of culpability
than negligence cases.
 In this case, Elonis’s conviction must be reversed.
 Although section 875(c) does not explicitly contain a required mens rea, it implicitly includes a requirement
that a person is aware that he or she is violating the statute.
 Elonis was found guilty of violating section 875(c) because of how a reasonable person would view his
postings.
 The reasonable person standard is suited for civil actions but is not appropriate for criminal statutes.
 The lower courts effectively reduced the culpability requirement for section 875(c) to a negligence standard.
 The conviction is reversed.
o Concurrence/Dissent (Alito)
 If a required mens rea is not explicit in a criminal statute, courts should not infer any requirement in excess
of recklessness.
o MPC and Mens Rea
 United States v. Jewell (9th Circuit, 1976, CRp280)
 Rule of Law
o “Knowingly” includes positive knowledge as well as a defendant’s awareness of the high probability of
an illegal act but purposely fails to investigate the presence of the illegal act in order to remain ignorant.
 Facts
o Jewell (defendant) was convicted of knowingly transporting 110 pounds of marijuana worth $6,250 in a
secret compartment between the trunk and the rear seat of an automobile, from Mexico into the United
States.
 o At trial, Jewell testified that he did not know the drugs were there.
o There was circumstantial evidence that showed Jewell had knowledge of the drugs and was therefore
lying.
o And there was also circumstantial evidence that showed although Jewell knew of the presence of the
secret compartment and that it likely contained marijuana, he deliberately avoided positive knowledge
of the presence of the drugs in order to avoid responsibility in the event he was caught.
o The trial judge refused Jewell’s request to instruct the jury that, in order to convict, Jewell must have
had to “absolutely, positively” know the marijuana was in the secret compartment. Jewell appealed the
conviction.
 Issue
o Does “knowingly” include positive knowledge as well as a defendant’s awareness of the high probability
of an illegal act but purposely fails to investigate the presence of the illegal act in order to remain
ignorant?
 Holding
o Yes
 Reasoning (Browning)
o The trial court instructed the jury that Jewell could have “knowingly” brought the marijuana into the
United States if the prosecution successfully showed that Jewell consciously chose not to learn the truth
of what the vehicle was carrying.
o Traditionally, a deliberate ignorance of the truth and having positive knowledge have been equally
culpable.
o Model Penal Code (MPC) § 2.02(7) states “when knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist.”
o Holding that “knowingly” requires positive knowledge would make deliberate ignorance a defense.
o It is probable that many who carry drugs from Mexico into the United States have no positive knowledge
of the load they carry.
o Here, Jewell likely had some knowledge that he probably was transporting marijuana.
o The judgment of conviction is affirmed.
 Dissent (Kennedy)
o Section 2.02(7) of the MPC requires an awareness of a high probability that a fact exists, not merely a
reckless disregard, or a suspicion followed by a failure to make further inquiry.
o The section also establishes knowledge as a matter of subjective belief, an important safeguard against
diluting the guilty state of mind required for conviction.
 o The section is a definition of knowledge, not a substitute for it.
o In light of the MPC’s definition, the “conscious purpose” instruction is defective for three reasons.
 First, the instruction fails to mention the requirement that Jewell had to have been aware of a
high probability that marijuana was in the vehicle. One is not criminally culpable if he forms a
conscious purpose to avoid learning the truth unless one is aware of facts indicating a high
probability of that truth.
 Second, the trial judge failed to inform the jury that Jewell could not be convicted of the crime if
he “actually believed” that there was no marijuana in the car. It is the subjective belief of the
defendant and not an objective belief that controls.
 Third, the jury instruction stated that Jewell could have been convicted even if found he was
“not actually aware” that the vehicle contained marijuana.
o This is unacceptable because true ignorance cannot provide a basis for criminal liability when the statute
requires knowledge.
o
o Mistake of Fact
o Regina v. Prince (Foreign court, 1875)
 Rule of Law
 When the legislature clearly intends to omit a mens rea requirement as to the victim’s age in a criminal
statute, a defendant’s honest, mistaken belief as to the victim’s age is not a defense.
 Facts
 Henry Prince (defendant) took away Annie Phillips, who was fourteen years old at the time, against the
wishes of her father.
 Prince was charged under an English statute that made it a misdemeanor to take an unmarried girl under
sixteen years old from the possession of her guardian without the guardian’s consent.
 At Prince’s trial, the jury concluded that Phillips looked much older than sixteen, she told Prince she was
eighteen, and Prince genuinely and reasonably believed her.
 Nevertheless, the jury convicted Prince.
 Prince appealed to the Court for Crown Cases Reserved, seeking to have the conviction quashed on the basis
of his reasonable mistake as to Philips’s age.
 Issue
 Is reasonable mistake of fact as to the victim's age a defense to a crime if the statute contained no explicit
mens rea requirement
 Holding
 No
 Reasoning (Bramwell)
 The general rule is that mens rea is a required element of a criminal offense.
 The statute does not include a requirement that the defendant know the victim’s age, and the word
knowingly should not be read into it.
 “The act forbidden is wrong in itself, if without lawful cause.”
 Taking a young girl without permission from her guardian is wrong, and the legislature placed the risk on
anyone doing so that the girl may turn out to be underage.
 The statute properly recognizes the principle of mens rea; the act to which the mens rea element applies is
“unlawfully and carnally knowing the girl.”
 Prince would have a valid defense if he mistakenly believed that he had the father’s consent, or if he did not
know that Phillips was under someone’s guardianship.
 The fact that Prince did not know Phillips’s age is irrelevant.
 This is consistent with precedent in other areas of law.
 For example, a conviction for assaulting a police officer was upheld even though the defendant did
not know the man was a cop.
 For these reasons, the conviction should be affirmed.
 Dissent (Brett)
 The jury concluded that if the facts were as Prince believed them to be, there would have been no crime.
 The assertion that Prince would still have been engaged in wrongful conduct had the facts been as he
believed is dubious.
 Though a father may be entitled to custody until the daughter turns twenty-one, there appears to be no
remedy if the girl is over sixteen and consents.
 No criminal or civil liability would attach to Prince’s conduct if Phillips had been eighteen.
 The fact that the word “knowingly” does not appear in the statute does not mean that no mens rea is
required.
 Rather, such an omission alters the burden of proof, effectively creating a presumption that the defendant
acted knowingly that the defendant can rebut with sufficient evidence.
 Though there have been convictions in the absence of mens rea, those cases have generally involved
protecting individual interests or revenue, such as an action for trespass to land.
 There must generally be a concurrence of guilty mind and act for a crime to occur under English law, and
mistake of fact will negate mens rea.
 Thus, a reasonable mistake of fact will be a defense if the defendant would have committed no crime if the
facts were as believed.

o People v. Olsen (Cal 1984, CRp294)
 Rule of Law
 Reasonable mistake as to the victim’s age is not a defense to a charge of committing a lewd or lascivious act
on a child under the age of 14.
 Facts
 Shawn M., a female under the age of 14, slept in her family’s camper parked in the driveway while out-of-
town guests stayed in her room.
 On the third night, Shawn was awakened by the sound of barking dogs and by her “boyfriend,” Garcia
(defendant), standing over her with his hand over her mouth and a knife by his side.
 Garcia then told Olsen (defendant) to come into the camper and instructed Shawn to have sexual
intercourse with Olsen or he would stab her.
 Shawn’s father walked in on Olsen having sex with his daughter and attempted to pull him off of her when
he was stabbed by Garcia.
 Garcia was charged with assault with a deadly weapon and both Garcia and Olsen were charged with
burglary, forcible rape, lewd or lascivious acts upon a child under the age of 14 by use of force, and of
violating § 288 of California’s Penal Code, which stated: “[A]ny person who shall willfully and lewdly commit
any lewd or lascivious act…upon or with the body, or any part of member thereof, of a child under the age of
14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such
person or of such child, shall be guilty of a felony…”
 At trial, Shawn testified that she was good friends “off and on” with Olsen and that during one three-month
period she spent nearly every day at Olsen’s house.
 Shawn also admitted that she told both Garcia and Olsen that she was over 16-years-old.
 Garcia testified that on the day prior to the incident, he and Shawn had sex in the camper.
 Garcia then testified that Shawn invited him back the following night.
 When Olsen and Garcia showed up at the camper, Garcia testified that Shawn let them in the camper and
that she wanted to “make love” to Olsen first.
 Garcia denied threatening Shawn with a knife.
 The jury found Garcia guilty of assault with a deadly weapon and found both Garcia and Olsen guilty of
violating § 288 of the state’s penal code.
 The jury also found Garcia and Olsen not guilty of burglary, forcible rape, and lewd or lascivious acts upon a
child under the age of 14 by use of force.
 Garcia and Olsen appealed, arguing that a good faith belief as to the age of the victim is a defense to a § 288
charge.
 Issue
  Is reasonable mistake as to the victim’s age a defense to a charge of committing a lewd or lascivious act on a
child under the age of 14?
 Holding
 No
 Reasoning (Bird)
 There exists strong public policy to protect children of “tender years,” to which Shawn would be included.
 Section 288 of the state’s penal code was enacted for that very purpose.
 In People v. Hernandez, 393 P.2d 673 (Ca. 1964), the court overturned precedent and held that a
defendant’s good faith, reasonable belief that a victim was 18-years-old or over was a defense to a charge of
statutory rape.
 Other jurisdictions have refused to adopt that holding. However, the Hernandez court specifically recognized
that such a defense would not be acceptable in cases where the victim was of “tender years.”
 Further, the legislature’s enactment of § 1203.066(a)(3), which makes probation eligible to certain
individuals convicted of lewd or lascivious conduct who “honestly and reasonably” believed that the victim
was over the age of 14, supports the conclusion that lawmakers did not intend “reasonable mistake of age”
to be a defense to a § 288 charge.
 A court’s recognition of such a defense would essentially nullify § 1203.066(a)(3).
 It is significant that a violation of § 288 carries a much harsher penalty than that for statutory rape.
 The judgment of conviction is affirmed.
 Concurrence/Dissent (Grodin)
 While § 1203.066(a)(3) is persuasive evidence of a legislative intent not to allow reasonable mistake of age a
defense to a § 288 crime, it is troubling that a person who acted with a mistaken, yet reasonable belief as to
a person’s age may not only be convicted, but sent to prison, only to find out that he is eligible for probation
when it is learned that his mistaken belief as to age did not accord with reality.
 That smacks of cruel and unusual punishment. The standard for what may be considered “reasonable” must
be set relatively high in order to accomplish the legislative purpose of protecting persons of “tender years”
like Shawn.
 At some point the belief becomes reasonable by any legitimate standard.
 B (a minor) v. Director of Public Prosecutions (House of Lords, 2000, CRp298)
o Rule of Law
 It is a defense to a criminal offense that the defendant had an honest belief regarding an essential fact
related to the criminal act.
o Facts
  B (defendant), a 15-year-old boy was charged with inciting a child under the age of 14 to commit an act of
gross indecency, in violation of § 1(1) of the Indecency with Children Act 1960 (the Act) after he repeatedly
asked a 13-year-old girl to perform oral sex.
 At trial, evidence showed that B honestly believed that the girl was over the age of 14. However, the trial
justices ruled that B’s mistake did not constitute a defense.
 Consequently, B changed his plea from not guilty to guilty, preserving his right to appellate review.
o Issue
 Is it a defense to a criminal offense that the defendant had an honest belief regarding an essential fact
related to the criminal act?
o Holding
 Yes
o Reasoning (Nicholls)
 Because § 1(1) of the Indecency with Children Act 1960, does not mention anything about the mental
element, the starting point for a court is the established common law presumption that a defendant’s mens
rea at the time of the act is an essential element unless Parliament has either expressly or implicitly
indicated a contrary intention.
 Traditionally, a defendant’s mental state did not rise to a defense unless the mistake was made on
reasonable grounds.
 This “reasonable belief” standard was commonplace for a number of years until courts began placing a
renewed emphasis on the subjective nature of the mental element in criminal offenses.
 Courts since have rejected the reasonable belief approach in favor of the “honest belief” approach, which
states that if a defendant honestly believed a fact involved in the act, its unreasonableness is irrelevant in
determining guilt or innocence. If B genuinely believed that the girl was over 14, he did not intend to commit
a grossly indecent act with a girl under the age of 14.
 The conduct required in § 1(1) may be depraved or relatively innocuous in private between two young
people.
 These factors reinforce, rather than negate, the application of the mens rea presumption in this case.
 Consequently, the necessary mental element regarding the age ingredient in § 1(1) is the absence of a
genuine belief by the accused that the victim was 14 or above.
 The appeal is allowed.
o Concurrence (Steyn)
 The modern trend in criminal law is to judge a defendant on the facts as he or she believed them to be.
 Parliament has neither expressly nor by necessary implication removed the mens rea requirement from this
statutory offense.
  Also, the prosecution should bear the burden of proving that the defendant honestly believed that a victim
was under 14 years old.
 Garnett v. State (CoA MD 1993 CRp300)
o Rule of Law
 Courts should not read a mens rea requirement into a statutory rape law unless the legislature clearly
intended for one.
 US v. Balint (1922)
o Conviction of D for selling narcotic drugs without a license is upheld because public policy suggests proving
knowledge is not required – act at your own peril
 US v. Dotterweich (1943)
o Conviction upheld because statute had no mens rea requirement and the statute was regulatory in nature, designed
to protect people from bad conduct they cannot protect themselves from
 D violated law against shipping mislabeled products by accident
 Drugs touch all phases of life and people and they cannot protect
themselves against bad conduct
 This kind of regulatory criminal statute places the burden of
preventing harm with the party best able to bear it
 Morrissette v. US (SCOTUS, 1952, CRp 305)
o Rule of Law
 Acts which are bad in themselves, including larceny, require the element of mens rea and any similar strict liability
statute will not be construed as eliminating the mens rea element.
o Facts
 A scrap metal and junk dealer, Morissette (defendant), entered an Air Force bombing range and took several spent
bomb casings that had been lying around for years exposed to the weather and rusting.
 Morissette subsequently flattened the casings out and sold them for an $84 profit.
 Morissette was indicted for violating 18 U.S.C. § 641 which made it a crime to “knowing convert” government
property.
 At trial, Morissette admitted he knew he was taking Air Force property but honestly believed the government had
abandoned the casings.
 The trial judge rejected Morissette’s defense and instructed the jury that “[t]he question on intent is whether or not
he intended to take the property.”
 Morissette was convicted and he appealed.
 The court of appeals affirmed and made the assumption that Congress meant for the term “knowingly convert” to
mean simply an intentional exercise of dominion over property not belonging to the individual.
 The U.S. Supreme Court granted certiorari to review.
o Issue
  Do acts which are bad in themselves, including larceny, require the element of mens rea and will any similar strict
liability statute not be construed as eliminating the mens rea element?
o Holding
 Yes
o Reasoning (Jackson)
 The relationship between an intrinsically harmful act and some mental element has given way to a legislative
scheme creating absolute, or strict, liability to cover many public welfare offenses.
 Public welfare laws require a person to exercise care, or not act, when a specific duty is imposed.
 Many violations of these laws result in no direct or immediate injury to person or property, but merely create the
danger or probability of it which the law seeks to minimize.
 As a result, regardless of the intent of the violator, the injury and consequences are the same.
 Even if a violator “did not mean to” violate the law, he can be found guilty.
 Thus, strict liability legislation does not specify intent as a required element.
 Section 641 at issue here is such a statute.
 However, stealing, larceny, and its variants were among the earliest offenses known to the law that existed prior to
enactment of the legislation and state courts have consistently required intent in larceny-type offenses.
 Congressional silence as to the mental element in § 641 will not be construed as eliminating that element from the
crimes denounced.
 Here, the trial judge wrongly instructed the jury that it was not allowed to consider Morissette’s honest belief that
he thought the casings were abandoned as a defense.
 The judgment of conviction is reversed.
 Staples v. United States (SCOTUS, 1994, CRp309)
o Rule of Law
 Absent a clear statement from Congress that there is no mens rea requirement, federal felony statutes should not be
interpreted to eliminate the mens rea element.
o Facts
 Staples (defendant) possessed a semi-automatic rifle that originally had a metal piece preventing it from firing
automatically.
 Staples filed down the metal piece.
 As a result, the rifle met the statutory definition of a firearm under the National Firearms Act, 26 U.S.C. § 5861(d).
 Staples did not register the weapon as required by the act.
 The United States (plaintiff) charged Staples under the act, which makes possession of an unregistered firearm
punishable by up to ten years in prison.
 Staples claimed he did not know the rifle could be fired automatically.
 The trial judge refused to give Staples’s requested jury instruction, which stated that the government was required
to prove that Staples was aware that the gun would fire automatically.
  Instead, the judge instructed the jury that to sustain a conviction Staples only needed to know that he had a
dangerous device that should have alerted him to the possibility of regulation.
 Staples was convicted, and the court of appeals affirmed.
 The United States Supreme Court granted certiorari.
o Issue
 Absent a clear statement from Congress that there is no mens rea requirement, should federal felony
statutes be interpreted the eliminate the mens rea element?
o Holding
 No
o Reasoning (Thomas)
 Absent a clear statement from Congress that there is no mens rea requirement, federal felony statutes
should not be interpreted to eliminate the mens rea element.
 A mens rea element is generally required for conviction of a federal crime, absent a clear intent to eliminate
it by Congress.
 The act makes it unlawful to possess an unregistered firearm.
 The question is whether the possessor must know the weapon has the characteristics of a firearm to violate
the act.
 The default rule is that a mens rea of scienter is required for any crime.
 The fact that Congress did not specifically state the required mens rea does not mean it intended to
dispense with the element.
 Public policy disfavors criminal statutes with no mens rea requirement.
 In this case, the government argues that the statute is a public welfare regulation that imposes strict liability
with no knowledge requirement.
 The Court has held that if a defendant knows he is dealing with a dangerous device, the defendant
should be aware of the likelihood of regulation.
 The burden is on the defendant to determine whether the defendant's activities are subject to the
statute.
 The Court has upheld dispensing with the mens rea requirement under the act for possessing
grenades without knowing they were unregistered because the defendant could not have thought
possessing such dangerous devices innocent.
 The government argues that guns are dangerous devices and owners are on notice that they may be
subject to regulation by the act.
 Nevertheless, the Court has been careful not to interpret statutes as eliminating the mens rea requirement
where seemingly innocent conduct, such as gun ownership, would be criminalized.
  The appellate court below correctly concluded that it was unthinkable that Congress meant to subject law-
abiding citizens to lengthy prison sentences for unknowingly possessing automatic weapons.
 There must be a clear intent on the part of Congress that mens rea is not a required element of the crime;
otherwise courts should not interpret felony statutes as eliminating the mens rea requirement on the basis
of public welfare.
 The conviction is vacated.
o Concurrence (Ginsburg)
 The issue in this case is not whether but what level of knowledge is required.
 The possible levels include
 “(1) knowledge simply of possession of the object;
 (2) knowledge, in addition, that the object is a dangerous weapon; or
 (3) knowledge, beyond dangerousness, of the characteristics that render the object subject to
regulation.”
 The government’s contention that the second level is appropriate does not take into consideration the
“widespread lawful gun ownership” in this nation.
 Congress only demands registration of the most dangerous firearms, and thus other guns are not sufficiently
dangerous to put owners on notice of possible regulation.
 In this case, in order to sustain a conviction under the act, Staples must have known that he possessed an
unregistered machine gun.
o The Basic Doctrine that Knowledge of the Law is not required for criminal liability unless the law so specifies
 People v. Marrero (NY, 1987, CRp326)
o Rule of Law
 One who violates a statute may not raise a good faith mistaken belief as to the meaning of the law as a
defense.
o Facts
 Marrero (defendant), a federal corrections officer, was arrested in Manhattan at a social club for unlicensed
possession of a loaded .38 caliber pistol in violation of state law.
 Penal Law § 265.02(a)(1)(a) expressly exempted “peace officers,” from the statute. The term “peace
officers” was defined by the statute to include “correction officers of any state correctional facility or of any
penal correctional institution.”
 Marrero’s pretrial motion to dismiss the indictment was granted by the trial court on the ground that he was
a “peace officer” as defined under the law.
 The appellate division reversed and reinstated the indictment, holding that Marrero was not a “peace
officer” within the meaning of the exemption.
  Marrero was thereafter tried by jury and found guilty.
 The trial court rejected Marrero’s request for a jury instruction that would have allowed the jurors to
consider his reasonable belief that the statutory exemption for peace officers applied to him as a defense.
 The appellate division affirmed the conviction and Marrero appealed.
o Issue
 May one who violates a statute raise a good faith mistaken belief as to the meaning of the law as a defense?
o Holding
 No
o Reasoning
 In Gardner v. People, 62 N.Y. 299 (1875), the defendants misread a statute and mistakenly believed that
their conduct was legal.
 The court insisted that defendants’ “mistake of law” was not a defense to their criminal conduct.
 Shortly thereafter, Justice Oliver Wendell Holmes noted, “[I]t is no doubt true that there are many cases in
which the criminal could not have known that he was breaking the law, but to admit the excuse at all would
be to encourage ignorance where the lawmaker has determined to make men know and obey, and justice to
the individual is rightly outweighed by the larger interests on the other side of the scales.” Holmes, The
Common Law, at 48 (1881).
 Drafters of New York’s law adhered to this logic when it rejected a mistake of law defense in § 15.20(2) of
the penal law, which states: “[A] person is not relieved of criminal liability for conduct because he engaged
in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless
such mistaken belief is founded upon an official statement of the law contained in (a) a statute…(d) an
interpretation of the statute…”
 Marrero argues that his mistaken belief about his conduct was founded upon an “official statement” of the
law contained in the statute itself.
 Marrero argues that his mistaken interpretation of the statute was reasonable in view of the ambiguous
wording of the “peace officer” exemption and that his “reasonable” interpretation of an “official statement”
is sufficient to satisfy the requirements of (2)(a).
 The prosecution argues that Marrero cannot claim a mistake of law under the exemption simply by
misconstruing the meaning of the statute, but rather, must establish that the statute relied on actually
permitted his conduct and was only later found to be erroneous or invalid.
 Citizens should be encouraged to read and rely on official statements of the law and not to have individuals
personally question the validity and interpretation of the law and act on that basis.
 If the statute was later held to be invalid, a person who mistakenly relied on the authorizing statute would
be relieved of criminal liability.
  If the court accepted Marrero’s argument, mistakes about the law would be encouraged.
 There would be an indefinite number of mistake of law defenses which could be devised from a good-faith,
perhaps reasonable but mistaken, interpretation of criminal statutes.
 Such would not serve the ends of justice. The order of the appellate division is affirmed.
o Dissent (Hancock)
 The maxim that “ignorance of the law is no excuse” is antiquated and does not fit with the modern deluge of
laws enacted by various legislatures.
 Here, it is difficult to envision a case more squarely within the meaning of § 15.20(2)(a).
 Marrero’s mistaken belief that, as a federal corrections officer, he could legally carry a loaded weapon
without a license was based on the “peace officer” provision to include those corrections officers “of any
penal correctional institution.”
 Marrero’s mistaken belief, based in good faith, is precisely the “mistaken belief” founded upon an “official
statement” of the law in a statute.
 The majority construes § 15.20(2)(a) as requiring a defendant to show the statute permitted his conduct, not
merely that the defendant believed that it did.
 Such an interpretation by the majority essentially rules out any defense based on mistake of law and defeats
the only possible purpose for the statute’s enactment.
 Cheek v. United States (SCOTUS 1991, CRp336)
o Rule of Law
 Whether a purportedly good-faith misunderstanding of the law will negate the specific intent requirement
of willfulness under criminal tax laws is a question of fact for the jury; there is no legal requirement that the
belief be objectively reasonable.
o Facts
 John Cheek (defendant) was involved with an anti-tax advocacy group that claimed that federal tax laws
were unconstitutional.
 Based on the group’s advice, Cheek stopped filing federal tax returns.
 Cheek was charged with several counts willfully failing to file a federal income tax return for a number of
years in violation of 26 U.S.C. § 7201 and 26 U.S.C. § 7203(1), which are specific intent crimes.
 At trial, Cheek’s defense rested on his sincerely held belief that he owed no taxes on his wages.
 The trial judge instructed the jury that an “honest but unreasonable belief is not a defense and does not
negate willfulness.”
 The jury was also instructed that a “persistent refusal to acknowledge the law does not constitute a good
faith misunderstanding of the law.”
  Cheek was convicted, and he appealed. The court of appeals affirmed his conviction, and the United States
Supreme Court granted certiorari to review.
o Issue
 Must a purportedly good-faith misunderstanding of the law be objectively reasonable to negate the specific
intent requirement of willfulness under criminal tax laws?
o Holding
 No
o Reasoning (White)
 There is no requirement that a good-faith mistake about federal tax laws be objectively reasonable to
negate the willfulness requirement.
 Ignorance or a mistake of the law is generally no defense to criminal prosecution.
 The complexity of federal tax regulations has made it difficult for average citizens to keep up.
 Consequently, Congress made specific intent to violate the law an element of criminal offenses.
 A defendant will satisfy the willfulness requirement if she made a “voluntary, intentional violation of a
known legal duty.”
 This means that the defendant must
 (1) know about the duty and
 (2) purposely violate it.
 The issue of whether a good faith but mistaken belief about the law will negate the knowledge requirement
is a question of fact for the jury.
 The belief need not be objectively reasonable, as this would convert the issue into a question of law.
 That said, a jury is less likely to find that the defendant was unaware of a duty if the belief is outrageous or
unreasonable.
 Here, Cheek argues that his good faith belief that the federal tax laws were unconstitutional negates the
willfulness requirement needed for a criminal conviction.
 Such a finding is completely inappropriate here.
 Cheek knew about the duty and ignored his obligation.
 The purpose of the specific intent requirement was to ensure that taxpayers who attempted to
comply with the tax code would not be convicted of crimes for innocent mistakes, not to allow
taxpayers to ignore known duties imposed by the tax code.
 Cheek was free to challenge the law, but he chose not to file returns instead.
 A trial judge may instruct a jury that it should not consider claims like Cheek’s that the tax code is
unconstitutional.
  Cheek’s beliefs that wages did not constitute income and that he was not a taxpayer should have been put
to the jury.
 The judgment of conviction is vacated, and the matter is remanded. [On retrial, the jury was instructed to
consider “whether the defendant’s stated belief about the tax statute was reasonable as a factor in deciding
whether he held that belief in good faith.” Cheek was convicted. United States v. Cheek, 3 F.3d 1057 (7th Cir.
1993)].
o Lambert v. California (SCOTUS 1957, CRp344)
 Rule of Law
 In accordance with due process, an individual may not be convicted of a criminal offense requiring a duty to register as
a convicted person unless it is shown that the individual had actual knowledge of the duty, or should have known, as
well as the consequences for failing to comply.
 Facts
 A Los Angeles, California city ordinance required any individual, living within the city limits, convicted of an offense
“punishable as a felony” in the state or who would otherwise be punishable in the state if convicted in a different state,
to register with the Chief of Police.
 No element of willfulness was included in the ordinance.
 Lambert (defendant) was charged with violating the ordinance.
 At trial, Lambert attempted to show that she had no knowledge of the requirement, but the trial judge refused to allow
the evidence.
 Lambert was found guilty by a jury, fined $250, and sentenced to three years probation.
 Lambert appealed. The U.S. Supreme Court granted certiorari to determine whether the registration requirement
violated due process where it applied to a person who did not have actual knowledge of the requirements and where no
showing was made of the probability of such knowledge.
 Issue
 May an individual be convicted of a criminal offense requiring the individual to register as a convicted person if the
individual did not know, nor should have known, of the duty or the consequences for failing to comply?
 Holding
 No
 Reasoning (Douglas)
 Not only does the city ordinance require any convicted person to register with the Chief of Police, it makes it
unlawful for such a person to be or remain within the city limits for a period of more than five days without
registering.
 If any convicted person enters Los Angeles on five occasions within a 30-day period, the person must register.
 The conduct required by the ordinance was purely passive; a mere failure to register brought criminal sanctions.
 It is true that “ignorance of the law will not excuse” is deeply engrained in U.S. law.
 However, due process places limits on that principle.
  One such limit is the requirement of notice.
 Notice is often required before property interests may be disturbed and before assessments and
penalties may occur.
 Notice is required in a number of situations where a penalty or forfeiture might be suffered for mere
failure to act.
 Registration laws are common across the country, but the present ordinance is different.
 A convicted person’s mere presence in Los Angeles invokes imposition of criminal punishment.
 At most the ordinance is a law enforcement technique to keep tabs on criminal offenders.
 When Lambert was first made aware of the registration requirement, she was not afforded the opportunity to
comply and avoid criminal punishment.
 Instead she was immediately arrested.
 If a person does not know of a duty to register as a convicted felon in accordance with a state law or city
ordinance, and where there is no proof of the likelihood that the person had such knowledge of the
requirement, she may not be convicted consistently with due process.
 The judgment of conviction is reversed.
 Dissent (Frankfurter)
 Many federal and state laws, under their “police power,” across the country require its citizens to do things or not to do
things without awareness on those to whom the laws apply.
 The majority draws an unattainable constitutional line between a state’s requirement of doing and not-doing.
 Homicide
o Premeditation
 Commonwealth v. Carroll (PA 1963, CRp452)
o Rule of Law
 There is no set length of time necessary to form the intention to kill for first-degree murder
o Facts
 Donald Carroll (defendant) got married while he was serving in the Army.
 Within a few years, Carroll’s wife insisted that he be transferred back to the United States from an overseas
assignment.
 This eventually led to Carroll having to resign from the Army.
 Carroll’s wife suffered a brain injury and was diagnosed as a schizoid personality type who sometimes felt like
hurting their children and disciplined the children violently.
 In January 1962, Carroll went to an electronics school out of the state for nine days.
 This caused a serious argument.
 Carroll’s wife asked Carroll to place a loaded handgun on the windowsill near their bed, to feel safe.
 When Carroll returned, he told his wife that he had been assigned to teach at a school out of town for ten weeks.
  This would require Carroll to be away from home four out of seven nights each week for that period.
 Carroll and his wife argued for hours, from dinner into the early morning.
 Carroll’s children had also been injured; one had bruises on his feet, and the other had four stitches on his chin.
 Between 3:00 and 4:00 a.m., Carroll’s wife was lying with her back to Carroll and making comments to him.
 Carroll’s wife said she would leave him if he agreed to the teaching post.
 About five minutes after Carroll’s wife made her last statement, Carroll reached up, retrieved the gun, and shot her
twice in the head.
 Carroll attempted to hide the murder by removing the body in a blanket and leaving it near a trash dump.
 The state (plaintiff) charged him with first-degree murder.
 Upon his arrest, Carroll stated that he grabbed the pistol and shot her twice in the back of the head.
 At trial, Carroll presented evidence that he was a hard worker with a very good reputation among his neighbors.
 A psychiatrist testified Carroll’s actions were likely the result of rage, desperation, and panic.
 The psychiatrist believed the shooting was more an impulsive reflex than an intentional premeditated act.
 The trial court convicted Carroll, and he appealed.
o Issue
 Is there a set length of time necessary to form the intention to kill for first-degree murder?
o Holding
 No
o Reasoning
 There is no set length of time necessary to form the intention to kill for first-degree murder.
 Premeditation may be found from a defendant’s words or conduct or from the circumstances and may be
inferred from the intentional use of a deadly weapon on a vital part of the body.
 Carroll argues that the time required for premeditation should be extended in his case because he is a good
man.
 This is based on a quote from an older case that no time is too short for a wicked man to frame in his mind
his scheme of murder.
 However, the law is clear that there is no set amount of time required to find premeditation.
 The only requirement is that the killing was intentional, willful, deliberate, and premeditated.
 Additionally, the psychiatrist’s opinion does not preclude a finding of premeditation.
 The factfinder is free to credit all, some, or none of the testimony.
 Also, the psychiatrist’s opinion was based on Carroll’s statements.
 Finally, the facts presented at trial are inconsistent with this opinion.
 Carroll’s statement and testimony show that he remembered the gun, deliberately took it down, and
deliberately shot his wife twice.
 The facts show that this was a willful, deliberate, and premeditated murder.
 The trial court’s judgment is affirmed.
 State v. Guthrie (WV CoA, 1995, CRp456)
o Rule of Law
 To constitute first-degree murder, the defendant must have had some period of time between the development of
the intent to kill and the actual killing to indicate that the act was premeditated and deliberate and not impulsive.
o Facts
 Dale Edward Guthrie (defendant) worked as a dishwasher at a restaurant.
 One evening, several of his co-workers began poking fun at him, including Steven Todd Farley who snapped
Guthrie with a dishtowel several times.
 After Farley snapped Guthrie in the nose with the dishtowel, Guthrie became enraged, took a knife out of his
pocket and stabbed Farley in the neck, killing him.
 Guthrie suffered from a host of psychiatric problems, including panic attacks, chronic depression and borderline
personality disorder.
 Guthrie’s father testified that his son also obsessed about his nose and would stand in front of a mirror on a daily
basis staring at his nose.
 Guthrie testified he suffered an “intense” panic attack immediately before the stabbing.
 The trial judge instructed the jury in instruction 8 that “…to constitute a willful, deliberate, and premeditated
killing, it is not necessary that the intention to kill should exist for any particular length of time prior to the actual
killing; it is only necessary that such intention should have come into existence for the first time at the time of such
killing, or at any time previously.”
 Also, the judge gave jury instruction 10 which stated “…in order to constitute a “premeditated murder an intent to
kill need exist only for an instant.”
 Jury instruction 12 stated “[w]hat is meant by the language willful, deliberate, and premeditated is that the killing
be intentional.”
 The jury convicted Guthrie of first-degree murder and he appealed, arguing that the collection of instructions was
improperly given to the jury.
o Issue
 To constitute first-degree murder, must the defendant have had some period of time between the development of
the intent to kill and the actual killing to indicate that the act was premeditated and deliberate and not impulsive?
o Holding
 Yes
o Reasoning
 The jury instructions given by the trial judge failed to adequately inform the jury of the difference between
first-degree murder, which requires premeditation and deliberation, and second-degree murder, which may
only require an intent to kill.
 To allow the prosecution to prove premeditation and deliberation by only showing that the intent came
“into existence for the first time at the time of such killing” eliminates the distinction between the two
degrees of murder.
  Although there is no specifically-defined period of time which distinguishes between the two, there must be
a period of time between the formation of the intent to kill and the actual killing to constitute first-degree
murder.
 Such period of time indicates the killing was calculated and by design.
 There must be an opportunity for some reflection on the intention to kill after the intent is formed by the
accused.
 An elaborate plan or scheme is not needed for first-degree murder, only that there be evidence that the
defendant considered and weighed his decision to kill.
 Any other spontaneous, but intentional, killing is second-degree murder.
 The judgment of conviction is reversed and the matter is remanded for a new trial.
 § 210.1. Criminal Homicide.
o (1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of
another human being.
o (2) Criminal homicide is murder, manslaughter or negligent homicide.
 § 210.2. Murder.
o (1) Except as provided in Section 210.3(1 )(b), criminal homicide constitutes murder when:
 (a) it is committed purposely or knowingly; or
 (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human
life. Such 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.
o (2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as provided
in Section 210.6].
o Two main approaches to provocation
 Mitigation to Manslaughter
o The Concept of Provocation
 Girouard v. State (MD, 1991, CRp462)
 Rule of Law
 For provocation to be adequate to mitigate murder to manslaughter, the provocation must
be calculated to inflame the passion of a reasonable person and tend to cause him to act for
the moment from passion rather than reason.
 Facts
 Steven Girouard (defendant) and his wife Joyce had been married for about two months
when they got into a heated argument.
  During the argument Joyce, who was just over five feet tall and weighed 115 pounds,
repeatedly insulted Steven, who was over six feet tall and weighed over 200 pounds. Joyce
told Steven she did not love him and had never wanted to marry him, and she demanded a
divorce. Joyce also informed Steven that she had filed charges against him for abuse with his
commanding officer in the Army and told him he would probably be court-martialed.
 Steven lunged at Joyce with a kitchen knife and stabbed her 19 times, killing her. Steven was
immediately distraught at what he had done. When the police arrived, they found Steven
wandering around outside his apartment building stating that he could not believe what he
had done.
 At trial, a psychologist testified that Steven had mental issues including an inability to
understand his own capacity to express hostility and a need for acceptance and love.
 Steven was convicted of second-degree murder.
 He appealed, arguing that Joyce’s provocation should mitigate his murder conviction to
manslaughter.
 Issue
 For provocation to be adequate to mitigate murder to manslaughter, must the provocation
be calculated to inflame the passion of a reasonable person and tend to cause him to act for
the moment from passion rather than reason?
 Holding
 Yes
 Reasoning
 Voluntary manslaughter is an intentional homicide committed in a sudden heat of passion,
caused by adequate provocation, before a reasonable opportunity for the passion to cool.
 Some factors may mitigate murder to manslaughter because they constitute adequate
provocation. For provocation to be adequate to mitigate murder to manslaughter, the
provocation must be calculated to inflame the passion of a reasonable person and tend to
cause him to act for the moment from passion rather than reason.
 Under the reasonable-person standard, the defendant's individual mental issues may not be
taken into account in determining whether provocation was adequate.
 Traditionally, factors constituting adequate provocation have included only extreme assault
or battery upon the defendant, mutual fighting, the defendant’s illegal arrest, injury or
serious abuse of a close relative of the defendant, or the sudden discovery of a spouse’s
adultery.
  In general, words alone are not adequate provocation, although words may be sufficient if
accompanied by conduct that demonstrates the intention and ability to cause bodily harm
to the defendant.
 In this case, although Joyce provoked Steven, the provocation was insufficient to cause a
reasonable man to stab his provoker 19 times.
 Under the reasonable-person standard, Steven's unique mental issues are irrelevant to
whether the provocation was adequate.
 Furthermore, even assuming that words may constitute adequate provocation if
accompanied by the intent and ability to cause the defendant physical harm, the size
disparity between Joyce and Steven indicates that she did not have the ability to harm him.
 It cannot be the case that one spouse may kill the other to end a verbal dispute and be
convicted only of manslaughter.
 The judgment of conviction is affirmed.
 Maher v. People (MI, 1862, CRp464)
 Rule of Law
 A criminal charge of murder may be reduced to manslaughter if the intentional killing is
committed in the heat of passion produced by a reasonable provocation before a
reasonable time has lapsed for the passion to cool.
 Facts
 Maher (defendant), believing that his wife and Patrick Hunt were having an affair, followed
the pair as they entered the woods together.
 When Hunt and his wife returned a half hour later, Maher followed Hunt to a saloon.
 Just prior to entering the saloon, a friend told Maher that his wife and Hunt had sexual
intercourse the day before.
 Maher entered the saloon, approached Hunt, said something unintelligible to him, and shot
him in the left ear.
 Maher was charged with assault with intent to kill.
 At trial, the judge refused to allow evidence of the facts leading up to the shooting as
tending to show proof of provocation.
 Maher was found guilty and he appealed.
 Issue
 May a criminal charge of murder be reduced to manslaughter if the intentional killing is
committed in the heat of passion produced by a reasonable provocation before a
reasonable time has lapsed for the passion to cool?
 Holding
 Yes
 Reasoning
 Maher argues that the evidence of the interaction between his wife and Hunt as well as the
discussion with his friend prior to entering the saloon was improperly rejected.
 Was the evidence properly excluded?
 The answer depends on whether the evidence would have reduced a charge of
murder to manslaughter, had Maher killed Hunt.
 If the homicide would have been found to be manslaughter, then Maher could not
be guilty of assault with intent to murder, but only of simple assault and battery.
 Murder is often committed with some degree of coolness and deliberation and
prompted by a wicked, depraved, or malignant mind.
 However, if the act of killing is intentional, but done so in the heat of passion
produced by some reasonable provocation and before a reasonable time has
elapsed for the passion and reason to cool, then murder is deemed to be
manslaughter.
 What is sufficient provocation?
 The general rule is that, at the time of the act, reason should be disturbed or
obscured by passion to an extent which might render average men to act without
reflection and from passion rather than judgment.
 But simply because a state of excitement has followed from an act will not render it
sufficient provocation.
 The “average man” standard will be utilized to determine whether provocation is
sufficient in any given case unless the defendant has some specific weakness of
mind and shall be left to a jury to determine.
 What amount of time to “cool down” is required?
 Naturally, the situation will depend on the facts of a given case and should equally
be left to the jury to determine.
 A trial court may define to the jury the principles upon which the question is to be
decided, and leave them to determine whether the time was reasonable under all
the circumstances.
 Here, the facts indicate sufficient provocation that should have been sent to the jury
to decide.
 The judgment of conviction is reversed and the matter is remanded for a new trial.
  Dissent (Manning)
 The evidence was properly excluded.
 The cause of the provocation itself must be given in the presence of the defendant
committing the homicide.
 It would be very mischievous to let passion engendered by something one has heard enter
into and determine the nature of the crime committed.
o The Model Penal Code’s Replacement of Provocation and Reasonableness Requiremement
 The Model Penal Code Approach
o People v. Casassa (NY 1980, CRp479)
 Rule of Law
 A New York defendant may reduce a charge of murder to manslaughter if he is able to show
“extreme emotional disturbance” and that there was a reasonable explanation or excuse for his
actions as determined by the court from both a subjective and objective analysis.
 Facts
 Victor Casassa (defendant) lived in the same apartment complex as Victoria Lo Consolo. Shortly
after they met, they began dating socially for a brief period.
 After Lo Consolo told Casassa that she was not “falling in love” with him, Casassa became
devastated and undertook bizarre acts such as breaking into her apartment while she was away
and lying in her bed naked for a while.
 During the break-in, Casassa was in possession of a knife “because he knew that he was either
going to hurt Victoria or Victoria was going to cause himself to commit suicide.”
 After Lo Consolo rejected Casassa’s last attempt to win her over, he took out a knife and stabbed
her several times.
 Casassa then dragged her body into the bathroom and submerged her in a tub full of water to
“make sure she was dead.” Casassa was charged with second-degree murder and waived his right
to a jury trial.
 The sole issue at trial was whether, at the time of the killing, he acted under the influence of
“extreme emotional disturbance.”
 Defense counsel presented one witness, a psychiatrist who testified that Casassa became obsessed
with Lo Consolo.
 The prosecution produced several rebuttal witnesses including a psychiatrist who said that
although Casassa was emotionally disturbed, he was not under the influence of “extreme
emotional disturbance.”
 The trial court concluded that the appropriate test to determine whether Casassa was under the
influence of “extreme emotional disturbance” was to examine the totality of the circumstances
from the perspective of Casassa as well as from the point of view of a reasonable person.
  The court found Casassa’s emotional reaction at the time of the killing was so peculiar that it
could not be considered reasonable so as to reduce the charge of second-degree murder to
manslaughter.
 Casassa was convicted of second-degree murder and he appealed.
 Issue
 May a New York defendant reduce a charge of murder to manslaughter if he is able to show
“extreme emotional disturbance” and that there was a reasonable explanation or excuse for his
actions as determined by the court from both a subjective and objective analysis?
 Holding
 Yes
 Reasoning
 Under New York law it is an affirmative defense to the crime of second-degree murder if a
defendant can prove that he “…acted under the influence of extreme emotional disturbance
for which there was a reasonable explanation or excuse.”
 An individual acting under “extreme emotional disturbance” does not necessarily mean that
a defendant engaged in a spontaneous action.
 Rather, it is quite possible that significant mental trauma affected a defendant’s mind over a
period of time.
 In People v. Patterson, 39 N.Y.2d 288 (1976), the court noted that while the extreme
emotional disturbance defense is permitted if a defendant shows that his actions were
caused by a mental infirmity not reaching the level of insanity, not all mental infirmities
constitute extreme emotional disturbance.
 The drafters of the defense as stated in the Model Penal Code (MPC), from which the state’s
law was modeled, noted that
 (1) the particular defendant must have acted under the influence of extreme
emotional disturbance, and
 (2) there must have been a reasonable explanation or excuse for such disturbance.
 To determine “reasonableness,” the court views the defendant’s situation from both a
subjective and objective stance.
 One requirement involves a determination that the particular defendant did act under
extreme emotional disturbance and not a sham.
 The other component involves a determination of whether there is a reasonable explanation
or excuse for the emotional disturbance.
 The determination of whether there was a reasonable explanation or excuse involves both a
subjective analysis, viewing the internal situation in which the defendant found himself and
 the circumstances as he perceived them to be however illogical or inaccurate, and an
objective standpoint to determine whether the explanation for the disturbance was
reasonable.
 Here, the trial court correctly applied the objective and subjective tests to Casassa’s extreme
emotional disturbance defense.
 The judge accepted that Casassa killed Lo Consolo while under the influence of “extreme
emotional disturbance.”
 Then the court considered other mitigating factors offered by Casassa, but found that the
excuse was so peculiar to him that it was unworthy of reducing the charge of murder to
manslaughter.
 The judgment of conviction is affirmed.
 
B. Unintentional killing 
Involuntary manslaughter 
o READING ASSIGNMENT 14: (Prev : Next : TOC)
 Casebook pp. 490-509;
 MPC: 210.3 (1) (a), 210.4
 
Key Ideas Outstanding Questions
 
 
 
Case Name Commonwealth v. Welansky SCO.MA 1944 490 Dance Hall Fire

Legal Issue If a defendant owes a duty of care for the safety of business visitors invited to premises
controlled by the defendant, does the defendant act wantonly or recklessly if the defendant
intentionally fails to take appropriate care in disregard of the probable harmful consequences to
the business visitors, even if the defendant did not subjectively foresee the risk posed by the
unsafe conditions?

Holding Yes. Wanton or reckless conduct is intentional conduct, by way either of commission or
and Facts omission where there is a duty to act, which involves a high degree of likelihood that substantial
harm will result to another. Generally, wanton or reckless conduct consists of an affirmative act
committed in disregard of probable harmful consequences to others, such as reckless driving or
discharging a loaded gun. But if there is a duty of care for the safety of visitors to a business,
wanton or reckless conduct may additionally consist of an intentional failure to take reasonable
measures to protect those visitors from probable harmful consequences. The standard for what
 constitutes wanton or reckless conduct is both objective and subjective. A person does not
need to subjectively foresee the deadly consequences of his omission to engage in wanton and
reckless behavior. Rather, it is enough that the person is subjectively aware of conditions that
would cause a reasonable person to foresee a high likelihood of deadly consequences. In this
case, to convict Welansky, the prosecution was not required to prove that he caused the fire by
some wanton or reckless conduct. It was sufficient for the prosecution to prove that death
resulted from Welansky’s wanton and reckless disregard of the safety of the patrons. Although
Welansky was not present at the nightclub on the night of the fire, he still controlled its
management. He also was aware of the unsafe nature of the nightclub, including its lack of a
sufficient number of accessible exits and its inoperative fire doors. Welansky did not need to
specifically foresee the risk of death caused by the unsafe conditions, so long as a reasonable
person in his place would have foreseen it. A reasonable person in Welansky's position would
have foreseen the risk. Accordingly, the judgment of conviction is affirmed.

Rule If a defendant owes a duty of care for the safety of business visitors invited to premises
controlled by the defendant, the defendant acts wantonly or recklessly if the defendant
intentionally fails to take appropriate care in disregard of the probable harmful consequences to
the business visitors, even if the defendant did not subjectively foresee the risk posed by the
unsafe conditions.
 
Case Name People v. Hall SCO.CO 2000 496 Skiing too Fast Downhill

Legal May a person be charged with felony reckless manslaughter if the person caused the death of
Issue another and consciously disregarded a substantial and unjustifiable risk of death to another?

Holding Yes. A conviction for reckless manslaughter requires the prosecution to show that a person
and Facts consciously disregarded a substantial and unjustifiable risk that he would cause another
person's death. A substantial risk is not based on a “more likely than not” standard. A risk of
death that has less than a 50 percent chance of occurring may still be substantial depending on
the circumstances. To determine whether a risk is substantial, the court must assess both the
likelihood of the risk and the magnitude of the potential harm. To determine whether a risk is
unjustifiable, the court must assess the nature and purpose of the actor's conduct compared to
how substantial the risk is. In order to find that conduct is reckless, the risk must be something
so serious that disregarding the risk would be a gross deviation from the standard of care
exercised by a reasonable person. Furthermore, the prosecution must show that the actor
consciously disregarded the risk, i.e., that he knew of the risk but chose to act anyway. In this
case, several witnesses noted that Hall was skiing too fast for the conditions, was skiing straight
down the fall line, and was back on his skis with his ski tips in the air and his arms out to his
sides to maintain balance. Hall admitted that when he first saw Cobb, he was unable to stop. A
reasonable person could conclude that Hall’s conduct of skiing at high speeds with such lack of
control created a substantial and unjustifiable risk of death to another. With respect to whether
Hall's conduct was a gross deviation from the standard of care that a reasonable trained ski
racer would have observed under the circumstances, Colorado law creates a minimum standard
 of care for skiers and includes a rebuttable presumption that a skier is at fault whenever he
collides with other skiers on the slope below him. An extreme violation of this duty would be a
gross deviation from the standard of care. Here, Hall’s conduct was extreme enough to
constitute this type of gross deviation. Finally, a reasonably prudent person could have found
that Hall consciously disregarded the present substantial and unjustifiable risk of death to
another. Hall is a trained skier and ski-resort employee who had been coached about skiing
safely and in a controlled way. His training and experience gives rise to a reasonable inference
that he was aware of the possibility that his skiing too fast for the conditions and out of control
might result in a collision with, and death of, another person on the slope. The prosecution thus
presented sufficient evidence to establish probable cause that Hall’s conduct resulted in the
reckless manslaughter death of Cobb. Therefore, the county court should not have dismissed
the charge. The district court's decision is reversed.

Rule A person may be charged with felony reckless manslaughter if the person caused the death of
another and consciously disregarded a substantial and unjustifiable risk of death to another.
 
Case Name State v. Williams COA.WA 1871 499 Native Parents’ Baby Dies of Toothache

Legal Issue If a person commits ordinary negligence, i.e. fails to exercise ordinary caution that a reasonable
person would exercise under the same or similar circumstances, and such negligence
proximately causes the death of another, is the person guilty of involuntary manslaughter?

Holding Yes. If an individual fails to take the kind of caution that a reasonable person would exercise
and Facts under similar circumstances, regardless of his ignorance, good intentions and good faith, he is
guilty of ordinary negligence. If such negligence proximately causes the death of another, then
the individual is guilty of manslaughter. Here, Walter and Bernice failed to take the kind of
caution that a reasonable person would exercise under similar circumstances. The remaining
issue is whether their failed actions proximately caused the death of their child. If Walter and
Bernice's duty to seek medical attention for the infant was not activated until after it was too late
to save the infant's life, then failure to furnish medical care could not be said to have
proximately caused the child’s death. Timeliness in the furnishing of medical care also must be
considered in terms of “ordinary caution.” A reasonable amount of discretion is afforded to
parents in conducting the welfare of their children. Parents do not need to seek medical
attention for every sniffle. The standard is at what time would an ordinarily prudent person in the
same situation deem it necessary to seek medical attention for an ill child. People v. Pierson, 68
N.E. 243 (1903). Here, the infant’s infection lasted for about two weeks. During that period of
time, Walter and Bernice had noticed that the child was fussy, could not keep food down, and
that the child's cheek was swelling and eventually turned a “bluish” color. Walter and Bernice
gave the child aspirin during this critical two-week period thinking that the swelling would go
down. The evidence produced at trial showed that the Williamses did not understand the
seriousness of the infant’s symptoms. Further, there was no evidence that they were physically
or financially unable to obtain the services of a physician to treat the child. There was, however,
sufficient evidence to prove that Walter and Bernice were sufficiently put on notice concerning
 the child’s symptoms and lack of improvement during the two-week period to have required
them to obtain medical care for the child. Their failure to do so is ordinary negligence. The
judgment of conviction is affirmed.

Rule If a person commits ordinary negligence, i.e. fails to exercise ordinary caution that a reasonable
person would exercise under the same or similar circumstances, and such negligence
proximately causes the death of another, the person is guilty of involuntary manslaughter.
Introduction
Began w/M1 v. M2
M and VMS 
All intentional
Now we turn our attention to unintentional killings
The conduct was intended, but the killings were not intentional
Unintentional killing liability
No liability
Tort liability
IVMS - involuntary just to indicate the killing was unintentional
Murder
Today our focus is the difference between Tort liability and IVMS
Reasons for difference between tort liability and IVMS (ask for board notes)
Against sanctions for MS
We don’t want to criminalize mistakes at large, especially for Drs or taxi drivers, or truck drivers. 
We might need some individualized tort standard
Weight the justifications that ppl have for their actions
For sanctions for MS
Fairness
Overdeterrence
More than ordinary negligence is required for MS and criminal liability
Welansky (Club Fire)
The conduct is an omission, instead of affirmative conduct
The conduct was intentional, but the result was not. 
It was not an accident that the doors were locked. 
The C says the standard is recklessness, but then in the last paragraph on 492a and b they give two ways by which
liability could be imputed and one of those ways is a negligence standard.
This case is pre MPC so there is little distinction between reckless and negligent. At that time they were struggling to
differentiate between reckless and negligence.
In contemporary language we would call this standard gross negligence.
 EQ: How are they distinguishing tort liability in negligence from gross criminal negligence?
They distinguish the two based on the “gravity” of the situation. Grave danger is the critical difference between
civil negligence and criminal negligence.
Grave danger = high probability. High probability wrt what?
There being a fire that night in particular?
There being a fire in general
People being able to get out safely in the event of a fire
Bateman and Barnett 494
Bateman not very helpful
Barnett its gotta be a gross departure
Holding: criminal negligence
Hall (Skiing Accident)
Procedural
Charge = felony reckless murder
No conviction here. They could not get an indictment
Instruction was that change of death has to be higher than a coin flip
Look at statute 496 P3
What does SCO.CO say about greater than 50%?
Risk of death less than 50% can still be substantial given the activity
Why do they say the facts support a reasonable inference?
Is there enough evidence to uphold a conviction?
Procedurally can you appeal a failed indictment?
Yes. “Jeopardy did not attach” at that stage, because there was no trial. You cannot appeal a trial which led to
an acquittal, but you can appeal a motion to dismiss or lack of indictment by a judge
Analysis
Was the risk substantial? See 496 P6
Was the risk unjustified? See 497 P2
Whether it is a gross departure from the SOC? See 497 P4
Did D consciously disregard the risk? See 498 P1 complete
They found that a reasonable jury COULD infer that each of these elements were met
Do we think the MPC does a better job than common law?
Williams (Native Parent’s Baby Dies of a Toothache)
Procedural Posture
Bench trial
What is the standard here?
Ordinary negli
 Would this have turned out differently had the standard been criminal negli?
Maybe/Maybe not
Does C take into account the cultural differences?
No and they didn’t take into account the reasons the parents made their choice i.e. justification
See 500 for standard
Awareness of the risk
Aware of risk
but didn’t get care bc of risk of losing the child to CPS
Concerned for child’s welfare in CPS
Not aware at all
Which of the above two would make their case better or worse?
1a because it actually looks like recklessness
1b might support their case because they were engaged in the calculus of risk - risk associated with a
toothache vs. risk associated with being in “care”
Are the parents blameworthy?
How can we take into account cultural differences?
Use Hart’s analysis on capability?
Use MPC actor’s situation standard?
 
 
Manslaughter versus murder 
o READING ASSIGNMENT 15: (Prev : Next : TOC)
 Casebook pp. 509-17 (up to “2. The Felony-Murder  Rule”; 
 MPC: 210.2 (1) (b)
 
Key Ideas Outstanding Questions
 
 
Case Name Commonwealth v. Malone SCO.PA 1946 509

Legal Issue If an individual commits an act of gross recklessness for which he must reasonably anticipate
that death to another is likely to result, does he exhibit that wickedness of disposition and
cruelty which proves he possessed malice?

Holding Yes. At common law, the “grand criterion” distinguishing murder from any other killing was
and Facts malice on the part of the defendant. Malice did not necessarily require intent to harm a specific
individual, but instead “any evil design in general.” When an individual commits an act of gross
 recklessness, for which he could reasonably anticipate that death to another is likely to result,
he exhibits that cruelty, recklessness of consequences, and a mind regardless of social duty.
Here, Malone intentionally committed an act in reckless and wanton disregard of the
consequences that might result. Thus, Malone’s killing of Long was murder, for malice in the
sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in
callous disregard of its likely harmful effects on others. The fact that Malone possessed no
motive for killing Long does not exculpate Malone. In a trial for murder, motive is relevant but
never necessary. The judgment of conviction is affirmed.

Rule If an individual commits an act of gross recklessness for which he must reasonably anticipate
that death to another is likely to result, he exhibits that wickedness of disposition and cruelty
which proves he possessed malice.
 
Case Name US v. Fleming 4th Cir. COA 1984 513

Legal Issue Does a murder conviction require malice aforethought which may be established by evidence of
conduct which is reckless and wanton and a gross deviation from a reasonable standard of
care warranting an inference that the defendant was aware of a serious risk of death or serious
bodily harm?

Holding Yes. Fleming argues that, at the most, he should have been convicted of manslaughter
and Facts because he did not have the requisite malice aforethought needed to support a verdict of
murder. Malice aforethought as provided in the statute is the distinguishing characteristic which,
when present, makes a homicide murder rather than manslaughter. The existence of malice
may be established by evidence of conduct which is “reckless and wanton and a gross
deviation from a reasonable standard of care, of such a nature that a jury is warranted in
inferring that defendant was aware of a serious risk of death or serious bodily harm.” As a
result, the government need only prove that Fleming intended to operate his car in a reckless
manner in disregard for the safety of others to sustain a murder conviction. The difference
between malice, which will support conviction for murder, and gross negligence, while will
permit conviction for manslaughter, is one of degree rather than of kind. Here, Fleming not only
exhibited reckless behavior by deciding to drive while drunk, but he further drove his car in a
manner that could be taken to indicate depraved disregard for human life. The evidence
regarding Fleming’s conduct was adequate to sustain a finding that he acted with malice
aforethought. The judgment of conviction is affirmed.

Rule A murder conviction requires malice aforethought which may be established by evidence of
conduct which is reckless and wanton and a gross deviation from a reasonable standard of
care warranting an inference that the defendant was aware of a serious risk of death or serious
bodily harm.
Review of Homicide Exercise 1
Review:
 Walker 508
Are the religious beliefs a justification?
Shld religious beliefs be included in the RPP standard wrt the determining negligence?
Did they lack the capacity to understand the risk given their faith?
Depraved Heart Murder (Malone)
Malice Aforethought 
Purpose
Knowledge
Extreme recklessness showing indifference to the value of human life
MR to commit a felony
In sum these are different ways of being callous
Extreme recklessness showing indifference to the value of human life
M2 charge
D contends the fact as a MOL the facts only support a conviction for MS
Pulled trigger three times
Put the bullet in the chamber to the right of the fire
What is C discussing here in terms of MR?
Recklessness because they talk about being aware of a risk
C emphasizes the high level of the risk
60% certain from his thrice attempted to discharge
Murder v. Manslaughter
Magnitude of risk
Probability → 60% in this case
Gravity of the outcomes → death 
Justification → was there a compelling reasons to take this risk
Awareness of the risk → the the person know there was a risk
Are all three of the factors necessary?
High probability?
The probability doesn’t have to be high as in over 50% it just has to be there. It may not be necessary but
it could be sufficient. 
They are a TOC test
Is awareness necessary?
Does Malone require awareness?
In order to actually disregard the risk you’d have to actually be aware of it.
Penultimate paragraph - must reasonably anticipate death to another is likely the result
 
 Fleming
Does Fleming court require awareness of the risk?
Juries can infer awareness from conduct
There is not going to be much of a practice difference because its a jury question and the jury will
likely infer or believe D was aware of the risk. Especially if you are thinking of the RPP. 
Awareness will matter only when there is actual evidence that D was not aware
What does Fleming say about how the law treats intoxication?
MPC says if the actor would have been aware had he been sober than we will impute awareness
onto the actor regardless.
Common law is waffling on the requirement of awareness. 
Fleming some thoughts
Conduct of “such a nature that the jury i warranted in inferring that D was aware of the serious risk
of death or serious bodily harm
Difference between gross negli and malice is one of kind and not degree
In most drunk driving cases D doesn’t act with purpose of intentionally endangering others. 
CA, Secs 187-189 ?????
By statute, CA has eliminated the awareness requirement. Must have been aware because you got
there. 
Watson 514 midway down
MPC 
Says if you are not aware of the risk, it is not murder.
Inadvertent risk creation cannot be murder
But if you are drunk, no awareness required
Impact of awareness is generally minimal
Awareness is an evidentiary point because juries will infer that the person on trial knew cause everyone
knows

 
o Felony Murder
 The Basic Doctrine
o Regina v. Serne (Central Criminal Court, 1887, CRp517)
o Rule of Law
o If a person commits a felonious act known to be dangerous to life and likely to cause death to another person,
and death results, it is murder.
o Facts
 o Leon Serné (defendant) and his wife, two daughters, two sons, and a servant, John Henry Goldfinch
(defendant) lived in Serné’s home which had an attached shop.
o Serné was penniless and decided, along with Goldfinch, to set fire to the premises to collect insurance
proceeds.
o Witnesses saw several fires break out in different areas of the house at the same time soon after Serné and
Goldfinch were seen in the shop together.
o The fires spread quickly, igniting highly flammable material nearby.
o Serné, his wife, and the daughters escaped to the roof where they were rescued.
o Goldfinch was rescued from a window.
o However, the two sons died in the fire.
o Issue
o If a person commits a felonious act known to be dangerous to life and likely to cause death to another person,
and death results, is it murder?
o Holding
o Yes
o Reasoning
o If a person commits a felonious act known to be dangerous to life and likely to cause death to another
person, and death results, it is murder.
o The definition of “murder” is committing an unlawful homicide with malice aforethought.
o The terms “malice aforethought” are technical and must be construed according to precedent.
o Some cases have interpreted “malice aforethought” to mean the killing of another person by an act
done with an intent to commit a felony.
o Other cases have interpreted “malice aforethought” as an act committed with the knowledge that the
act will probably cause the death of another person.
o The two interpretations are unacceptably broad and should be narrowed to include only those felonious
acts known to be dangerous to life and likely to cause death.
o Here, Serné knew, according to any reasonable person standard, that his actions were placing the lives
of his family members at risk of death.
o If Serné and Goldfinch set fire to the house when the family was still in it, and if the boys were killed as a
result, then they are guilty of murder.
o After receiving the judge's instructions, the jury found Serné and Goldfinch not guilty.
o People v. Stamp (Cal. App 1969, CRp520)
o Rule of Law
o In California, a defendant may be convicted of murder if, during the attempt or actual commission of an
inherently dangerous crime, a killing occurs.
o People v. Washington (Cal. 1965)
o The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them
strictly responsible for killings they commit
o Agency Rule
o State v Canola (NJ 1977)
o Rule of Law
o A defendant is not subject to the application of the felony-murder rule when a death of a co-
felon results from a resisting victim.
o Facts
o Canola (defendant) and three others were in the process of robbing a jewelry store when the
store owner and an employee engaged in a physical skirmish with one of the four robbers in an
attempt to resist the robbery. Another robber began shooting and the store owner returned
fire. Both the owner and co-felon, Lloredo, were fatally shot in the exchange. Canola and two
others were indicted on two counts of murder, one count of robbery, and one count of armed
robbery. The murder counts were based on the deaths of both Lloredo and the store owner.
Canola was found guilty and sentenced to concurrent terms of life imprisonment. The appellate
division affirmed. The Supreme Court of New Jersey granted petition for certification to review.
o Issue
o Is a defendant subject to the application of the felony-murder rule when a death of a co-felon
results from a resisting victim?
o Holding
o No
o Reasoning
o The traditional view of the felony-murder rule is that it does not extend to a killing if directly
attributable to the act of one other than the defendant or those associated with him in the
unlawful enterprise. This rule is sometimes rationalized on the “agency” theory of felony
murder. The contrary view would attach liability under the felony-murder rule for any death
which is proximately caused from the unlawful activity, even the death of a co-felon. The
proximate cause theory was set forth in Commonwealth v. Almeida, 68 A.2d 595 (Penn. 1949).
There, a police officer was shot and killed by another officer attempting to apprehend robbers.
Nearly ten years later, the Pennsylvania Supreme Court additionally held in Commonwealth v.
Redline, 137 A.2d 472 (Penn. 1958), that in order “to convict for felony-murder, the killing must
have been done by the defendant or by an accomplice or confederate or by one acting in
furtherance of the felonious undertaking.” Modern criminal jurisprudence favors restriction
 rather than expansion of the felony-murder rule. Thus, it would be regressive to extend
application of the felony-murder rule beyond the traditional limitation to acts by the defendant
and his accomplices, to lethal acts of third persons not performed in furtherance of the
felonious scheme. The judgment of the appellate division is modified so as to strike the
conviction and sentencing of the defendant for murder of the co-felon Lloredo
 Restrictions of the Felony Murder Rule
o The "Inherently Dangerous Felony" Limitation
 People v. Phillips (Cal. 1966, CRp530)
o Rule of Law
o Only felonies that are inherently dangerous to life may serve as underlying felonies to the felony-
murder rule.
o Facts
o Phillips (defendant), a doctor of chiropractics, persuaded the parents of an eight-year-old child with
terminal cancer to forgo surgery that would have saved her life and instead utilize Phillips’
treatment designed to “build up her resistance.”
o The parents paid $700 to Phillips for treatment and medicine, but the child died six months later.
o Phillips was charged with murder.
o The trial judge instructed the jury that it could convict Phillips of murder if it found that he had
committed theft by deception, i.e. grand theft, and that the child died as a proximate result.
o Phillips was convicted of felony murder and he appealed.
o Issue
o Are only felonies that are inherently dangerous to life able to serve as underlying felonies to the
felony-murder rule?
o Holding
o Yes
o Reasoning
o The felony-murder doctrine is an artificial concept that should not be extended beyond its intended
application of supporting only inherently dangerous felonies.
o The prosecution, admitting that grand theft is not inherently dangerous, asks the court to expand
the doctrine which the court declines to do.
o To break down Phillips’ “course of conduct” so that the felony-murder rule would apply if any
portion of his conduct could be considered inherently dangerous to life would expand the rule
beyond calculation.
 o In People v. Williams, 406 P.2d 647 (Cal. 1965), the court noted that it is the elements of the felony
in the abstract, not as committed, that determine inherent dangerousness.
o Here, the trial judge should not have given the felony-murder instruction to the jury and its mention
worked prejudice upon Phillips.
o The instruction withdrew from the jury the issue of malice, permitting a conviction upon the sole
showing that the girl’s death proximately resulted from the conduct of Phillips amounting to grand
theft.
o The judgment of conviction is reversed.

o Attempts
 Mens Rea
o Smallwood v. State (MD 1996, CRp644)
o Rule of Law
o An intent to kill may be permissibly inferred by the trier of fact if the defendant’s natural and probable acts,
conduct, and words directly led to the death of the victim.
o Facts
o Smallwood (defendant) was convicted in a non-jury trial on three counts of assault with intent to murder three
rape victims based on evidence that despite his awareness of his HIV-positive status and that he needed to
practice “safe sex,” he did not use a condom in any of his sexual assaults.
o Smallwood pled guilty to the rape and armed robbery charges, but appealed the attempted murder convictions.
o Issue
o May the trier of fact infer an intent to kill if the defendant’s natural and probable acts, conduct, and words
directly led to the death of the victim?
o Holding
o Yes
o Reasoning
o Smallwood argues that his engaging in unprotected sex while HIV-positive is insufficient to infer an intent to
kill those he sexually assaulted.
o The state disagrees and claims that Smallwood’s HIV-positive status is like a deadly weapon.
o Courts and medical experts have noted that HIV eventually destroys the body’s ability to ward off disease.
o Medical studies have indicated that most people who carry the virus will progress to AIDS.
o In State v. Earp, 319 Md. 156, 167 (1990), the court said “[t]he required intent in the crimes of assault with
intent to murder and attempted murder is the specific intent to murder.”
o Therefore, Smallwood was properly found to be guilty of attempted murder if there was sufficient
evidence at trial that he had a specific intent to kill at the time he assaulted the three women.
 o The trier of fact may infer the existence of the required intent via circumstantial evidence such as the
surrounding circumstances like “the accused’s acts, conduct and words.”
o In many cases, an intent to kill may be inferred from the use of a deadly weapon directed at a vital part of the
human body. State v. Raines, 326 Md. 582, 591 (1992).
o In Raines, the defendant, while driving on the highway, fired a pistol into the driver’s side of a truck
with knowledge that a driver was sitting where the pistol was aimed.
o Consequently, Raines’s conviction was upheld, because he knew his weapon was deadly and that he
was firing at someone’s head.
o The state uses the same reasoning here to support its argument that Smallwood knew his HIV-positive status
might lead to death and that he would be exposing his victims to the risk of HIV transmission through
unprotected sex.
o However, the inference drawn in Raines rests upon the rule that “[i]t is permissible to infer that ‘one intends
the natural and probable consequences of his act.’”
o When a deadly weapon has been fired at someone's head, the risk of killing the victim is so high that it is
reasonable to assume that the defendant intended death.
o While the risk of HIV transmission should not be minimized, the state has failed to present any evidence to
infer that death by AIDS is a probable result of Smallwood’s actions to the same extent that death was the
probable result of Raines’ firing a pistol at the head of the truck driver.
o Without such evidence, it cannot be fairly concluded that death by AIDS was sufficiently probable to support
an inference that Smallwood intended to kill his victims.
o The other cases cited by the state to advance its argument that Smallwood intended to kill his victims contain
wholly different circumstances.
o In those cases, the defendants either made explicit statements demonstrating an intent to infect their victims or
there was other evidence indicating the defendants intended to kill.
o Here, however, the state would allow the jury to infer an intent to kill based solely upon the fact that
Smallwood exposed his victims to the risk that they might contract HIV.
o The judgments of conviction are reversed.
o
o Preparation vs Attempt
 People v. Rizzo (NY 1927, CRp652)
o Rule of Law
o A defendant may not be convicted of attempt unless the defendant intentionally commits an act tending to the
commission of a crime, which is so near to accomplishment of the crime that in all reasonable probability the crime
itself would have been committed but for timely interference.
o Facts
o Charles Rizzo (defendant) and three other men intended to rob Charles Rao of a payroll valued around $1,200.
o Rizzo was supposed to point out Rao to the other men, who would then commit the actual robbery.
 o The men, two of whom had guns, drove around town in a car looking for Rao, but they were never able to find
him.
o The men drove to the bank where Rao was supposed to pick up the payroll, as well as to various buildings being
constructed by the company for which Rao was carrying the payroll.
o During the men's search, nearby police became suspicious and followed the vehicle.
o Rizzo jumped out of the car and ran into a building, and police arrested all four men.
o Although the men never found Rao, and nobody with a payroll was located at the buildings where the men stopped,
the men were charged with attempted robbery.
o After a trial, a jury convicted Rizzo and the others of attempted first-degree robbery.
o Rizzo appealed.
o The appellate court affirmed the conviction, and Rizzo appealed to the New York Court of Appeals.
o Issue
o May a defendant be convicted of the crime of attempt if the defendant has not committed an act tending to the
commission of a crime, which is so near to accomplishment of the crime that in all reasonable probability the crime
itself would have been committed but for timely interference?
o Holding
o No
o Reasoning
o A defendant may not be convicted of attempt unless the defendant intentionally commits an act tending to
the commission of a crime, which is so near to accomplishment of the crime that in all reasonable
probability the crime itself would have been committed but for timely interference.
o Attempt is defined by New York statute as “[a]n act, done with intent to commit a crime, and tending but
failing to effect its commission. . . .”
o The word tending is very indefinite.
o Tending means to exert activity in a particular direction.
o Any act taken in preparation to commit a crime can be said to be “tending” towards its
accomplishment.
o But only those acts which advance very near to the accomplishment of the intended crime will
support an attempt conviction.
o In other words, the act must have a "dangerous proximity" to successful commission of the crime.
o Here, Rizzo and the other men were looking for Rao to rob him of the payroll, but they were never able to
even locate him.
o Rizzo and the others had the intent to commit the crime, but they never had the opportunity.
o Their acts are too remote to support a conviction for attempted first-degree robbery.
o Accordingly, Rizzo's judgment of conviction is reversed.
 McQuirter v. State (AL CoA 1953)
o Rule of Law
o Intent is a question to be determined by the jury from the facts and circumstances produced at trial as well as
consideration of social conditions and customs founded upon racial differences.
o Facts
o Around 8:00 p.m., Mrs. Allen, a white woman, was walking home from a restaurant with her children when she
passed McQuirter (defendant), a black man, sitting in a truck.
o As she passed by, McQuirter said something unintelligible to Allen, got out of the truck, and began walking behind
her down the street.
o Shortly thereafter, Allen turned into a friend’s driveway and McQuirter walked passed her to the end of a street
where he leaned against a stop sign.
o After about 30 minutes, Allen saw McQuirter walk back towards the truck and Allen went home.
o McQuirter was later arrested for attempt to commit an assault with the intent to rape.
o At trial, the chief of police testified that McQuirter told him he had “made up his mind that he was going to get the
first woman who walked by…carry her to the cotton patch and if she hollered he was going to kill her.”
o McQuirter testified that he was sitting in the truck when he decided to go to the “Front”—the black section of town
—to look for a colleague.
o McQuirter started walking up the street when he saw Allen and the children.
o Once McQuirter reached the intersection, he testified that he sat there for a few minutes, decided to go to the Front,
stayed at the Front for about 30 minutes and then came back to the truck.
o McQuirter denied that he was following Allen for any illegal purpose or to do her any harm.
o McQuirter was convicted of attempt to commit an assault with the intent to rape and he appealed, arguing that the
trial court erred in refusing the general affirmative charge and in denying his motion for a new trial on the ground
that the verdict was contrary to the evidence.
o Issue
o Is intent a question to be determined by the jury from the facts and circumstances produced at trial as well as
consideration of social conditions and customs founded upon racial differences?
o Holding
o Yes
o Reasoning
o Under Alabama law, a conviction for an attempt to commit assault with intent to rape will be upheld if the jury is
satisfied beyond a reasonable doubt that the defendant intended to have sexual intercourse with the victim against
her will, by force or putting her in fear.
o Intent is a question to be determined by the jury from the facts and circumstances gleaned at trial.
o If there is evidence produced at trial from which it may be inferred that at the time of the attempt McQuirter
intended to commit the attempt, then the jury question is presented.
 o In determining intent, the jury may consider social conditions and customs founded upon racial differences, i.e. that
Allen was a white woman and McQuirter was a black man.
o Here, there was sufficient evidence to warrant the submission of the question of McQuirter’s guilt to the jury.
o The judgment of conviction is affirmed.
 United States v. Jackson (2nd Cir, 1977)
o Rule of Law
o The crime of attempt requires a defendant to have acted with a criminal intent and have engaged in acts
constituting a substantial step toward commission of the intended crime.
o Facts
o Vanessa Hodges recruited Martin Allen (defendant) to rob a bank.
o Allen agreed and on June 11, 1976, he and Robert Jackson (defendant) arrived in a car with shotguns, ammunition,
masks, and other items.
o The three then picked up William Scott (defendant) and drove to the bank.
o Allen walked into the bank to check for surveillance cameras. Jackson installed a fake cardboard license plate on
the car.
o Scott then entered the bank, but returned to the car and informed the others that there were too many customers
inside.
o They decided to commit the robbery at a later date.
o Before the date came, Hodges was arrested for an unrelated offense and decided to cooperate with police.
o She told FBI agents that the group had planned the robbery for June 21, 1976.
o On that date, the three men drove to the bank in the same car.
o The cardboard license plate was affixed to the car while the group drove around the bank and then stopped a few
blocks away.
o After waiting for a period, they began driving toward the bank when FBI agents surrounded the vehicle and
arrested Jackson, Scott, and Allen (collectively “defendants”).
o In the back seat of the car were the same guns, ammunition, and masks.
o The defendants were charged with conspiring to commit armed robbery and two counts of attempted armed
robbery of the bank.
o The trial court found the defendants guilty on all charges and they appealed, arguing that the court erred in finding
that their conduct crossed the line which separates “mere preparation” from “attempt.”
o Issue
o Does the crime of attempt require a defendant to have acted with a criminal intent and have engaged in acts
constituting a substantial step toward commission of the intended crime?
o Holding
o Yes
o Reasoning
 o To determine whether the defendants crossed the line from “mere preparation” to commit a crime to an
“attempt” to commit the crime, the trial judge correctly applied the two-tiered inquiry from United States v.
Mandujano, 499 F.2d 370, 376 (5th Cir. 1974).
o There, the court said a defendant may be convicted of an attempt if
o (1) he acted with the kind of culpability otherwise required for the commission of the crime
which he is charged with attempting and
o (2) that the defendant engaged in conduct constituting a substantial step toward
commission of the crime.
o The Mandujano court said that a substantial step must be conduct strongly corroborative of the
firmness of the defendant’s criminal intent.
o There being no statutory framework in which to determine a precise definition of “attempt” in federal law,
the Mandujano test conforms closely to the sensible definition created by the drafters of § 5.01 of the Model
Penal Code.
o The draftsmen of that section noted the importance of the defendant committing a “substantial
step” in a course of conduct designed to accomplish the crime.
o Here, the defendants were seriously dedicated to robbing the bank and would have done so if not
for being stopped by the FBI agents.
o The judgments of conviction are affirmed.
o Complicity
 Mens Rea for Actions of the Principal
o Hicks v. United States (SCOTUS, 1893)
 Rule of Law
 1. A person who is present at the scene of a crime committed by someone else, and who says or does
something that encourages the other person to commit the crime, is not guilty as an accessory to a crime
unless the person intended his or her words or acts to aid and abet.
 2. A person who previously conspired with another to commit a crime is guilty as an accessory if he was
present when the other person committed the crime, even if he did nothing at the scene to aid or abet.
 Facts
 John Hicks (defendant) and Andrew Colvard were riding on horseback.
 Hicks and Colvard saw Stand Rowe (defendant) sitting on his horse with a rifle in his lap.
 Colvard rode up to Rowe, leaving Hicks 30 to 40 feet behind.
 Colvard and Rowe had a discussion.
 During that time, Rowe raised his rifle, pointed it at Colvard, and then lowered it on two different occasions
while Hicks laughed aloud.
  Then, according to witnesses, Hicks said to Colvard, “[T]ake off your hat, and die like a man.”
 Rowe then raised his rifle a third time and pointed it at Colvard.
 Rowe fired the rifle, and Colvard was killed.
 Rowe and Hicks rode off together.
 Both Hicks and Rowe were charged with murder, but Rowe was killed prior to trial.
 At trial, Hicks testified that he had not encouraged Rowe to shoot Colvard and, in fact, that he had tried to
discourage Rowe from shooting.
 Additionally, Hicks testified that the only reason he rode away with Rowe was out of fear for his own life.
 The trial judge instructed the jury that Hicks's presence at the time and place of the killing was not enough,
on its own, to find him guilty of murder.
 However, if the jury found that Hicks was present at the shooting and aided, abetted, or encouraged Rowe
in some way, then he could be found to be a participant in the crime the same as if he had actually fired the
shot that killed Colvard.
 The judge further instructed the jury that if Hicks was present at the shooting with the purpose of aiding,
abetting, advising, or encouraging the shooting, but he did not actually do any of those things because his
assistance was unnecessary, he could still be found guilty.
 With respect to Hicks's statements at the time of the killing, the trial judge told the jury that if someone's
"deliberate and intentional use of words" had the effect of encouraging someone to kill another person,
then the law would presume the speaker intended the words to have that effect, and the speaker would
therefore be responsible.
 Hicks was convicted, and he appealed.
 Issue
 1. Is someone who is present at the scene of a crime committed by someone else, and who says or does
something that encourages the other person to commit the crime, but who lacks the intent to aid or abet
the crime, guilty as an accessory?
 2. Is someone who previously conspired with another to commit a crime guilty as an accessory if the person
was present when the other committed the crime but did nothing at the scene to aid and abet?
 Holding/Reasoning (Shiras)
 No
0. A person who is present at the scene of a crime committed by someone else, and who says or does
something that encourages the other person to commit the crime, is not guilty as an accessory to a
crime unless the person intended his or her words or acts to aid and abet.
a. Here, the jury instruction failed to state that Hicks’s words used during the encounter must have
been stated with an intent to encourage Rowe to shoot Colvard.
 b. Hicks's words could have been used for a number of different purposes and, nevertheless, had the
actual effect of inciting Rowe to commit the killing.
c. But the jury was left to determine the effect of Hicks’s words without ascertaining Hicks’s intent.
d. The portion of the jury instruction regarding the "deliberate and intentional use of words" was also
defective because it confuses the intentional use of words themselves with the result the words are
supposed to produce.
e. It is clear that Hicks meant to use the words he did, but it is not clear that he intended that the
words were to be understood by Rowe as an encouragement to shoot or kill Colvard.
 Yes
0. A person who previously conspired with another to commit a crime is guilty as an accessory if he
was present when the other person committed the crime, even if he did nothing at the scene to aid
or abet.
a. For example, if two defendants had agreed to commit a murder, they both could be found guilty of
the murder even if one of the defendants was only present at the scene but never participated in
the actual killing because his participation was ultimately unnecessary.
b. However, the evidence must support a finding that there was actually some sort of agreement or
conspiracy between the defendants.
c. Otherwise, a defendant could be improperly convicted as an accomplice based on his mere presence
during the killing.
d. Here, the trial judge erroneously charged the jury that Hicks could be found guilty if he was present
at the killing for the purpose of aiding, abetting, advising, or encouraging Rowe, but he did not
actually engage in those activities because it was not necessary.
e. There was no evidence on which to base this instruction.
f. The evidence showed no facts from which the jury could have properly found that the encounter
was the result of any previous conspiracy or arrangement.
g. Consequently, the jury could have convicted Hicks merely because, pursuant to the court’s
instruction, he was present at the time and place of the murder even though he had no prior
arrangement with Rowe and had not contributed by word or action to the crime.
h. Therefore, the judgment of the court below is reversed, and the matter is remanded with directions
to set aside the verdict and award a new trial.
 
o State v. Gladstone (Wash. 1970)
 Rule of Law
  Mere communication to the effect that another might or probably would commit a criminal offense does not amount to
aiding or abetting should the offense ultimately be committed.
 Facts
 Thompson was hired by the Tacoma Police Department to purchase marijuana from Bruce Gladstone (defendant).
 While at Gladstone’s residence, Thompson asked to purchase marijuana, but Gladstone replied that he did not have enough
to sell.
 Instead, Gladstone suggested Thompson purchase the marijuana from Kent.
 Gladstone gave Thompson the address for, and a map to, Kent’s home. Thompson subsequently purchased marijuana from
Kent at his residence.
 There was no evidence of any communication between Gladstone and Kent.
 However, Gladstone was found guilty of aiding and abetting Kent in the unlawful sale of marijuana.
 Gladstone appealed.
 Issue
 Is mere communication to the effect that another might or probably would commit a criminal offense amount to aiding or
abetting should the offense ultimately be committed?
 Holding
 No
 Reasoning
 Gladstone is not charged with aiding and abetting Thompson’s purchase of the marijuana from Kent.
 Instead, Gladstone is charged with aiding and abetting Kent’s sale of the marijuana to Thompson.
 However, the record contains no evidence, no nexus, no communication by word, gesture or sign, between Gladstone and
Kent, from which it could be inferred that Gladstone counseled, encouraged, hired, commanded, induced or procured Kent
to sell marijuana to Thompson.
 There is no aiding or abetting unless one “in some sort associates himself with the venture, that he participate in it as in
something that he wishes to bring about, that he seek by his action to make it succeed.” Nye & Nissen v. United States, 336
U.S. 613, 619 (1949).
 Although an aider and abettor need not be physically present at the commission of a crime to be found guilty as a principal,
it must be shown that the defendant did something in association with the principal to accomplish the crime. See United
States v. Peoni, 100 F.2d 401, 402 (2nd Cir. 1938).
 Here, there is no evidence whatsoever that Gladstone did anything to aid or assist Kent in selling marijuana to Thompson.
 The judgment of conviction is reversed.
o Rosemond v. United States (SCOTUS, 2014)
 Rule of Law
 Under federal law, a person is liable for aiding and abetting a crime if the person takes an affirmative act in furtherance of
that crime, with the intent of facilitating the crime’s commission.
 Facts
 Justus Rosemond (defendant) took part in an attempted drug deal.
 Rosemond and two other people drove to an agreed-upon place to sell marijuana to a third-party buyer.
  The buyer, upon being given the marijuana to inspect, grabbed the drugs and ran.
 Someone in Rosemond’s party fired several shots at the buyer as he fled.
 It was unclear from the evidence whether it was Rosemond or another person who fired the shots.
 Rosemond was charged with aiding and abetting the use of a gun in connection with a drug-trafficking offense.
 The district court judge instructed the jury that Rosemond should be found guilty of aiding and abetting the crime if: “(1)
the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively
participated in the drug trafficking crime.”
 The jury convicted Rosemond.
 Rosemond appealed, arguing that the jury instructions were not specific enough regarding Rosemond’s involvement in the
use of the firearm.
 The United States Court of Appeals for the Tenth Circuit affirmed.
 The United States Supreme Court granted certiorari.
 Issue
 Under federal law, is a person is liable for aiding and abetting a crime if the person takes an affirmative act in furtherance of
that crime, with the intent of facilitating the crime’s commission?
 Holding
 Yes
 Reasoning (Kagan)
 Under federal law, a person is liable for aiding and abetting a crime if the person takes an affirmative act in
furtherance of that crime, with the intent of facilitating the crime’s commission.
 In the context, then, of aiding and abetting the use of a gun in connection with a drug-trafficking offense, a
defendant must:
 (1) take an affirmative act in furtherance of the use of a gun in connection with drug trafficking,
 (2) with the intent of facilitating the crime of the use of a gun in connection with drug trafficking.
 Under the first prong, it is not required that a defendant participate in each element of the predicate offense.
 However, under the second prong, a defendant’s intent must encompass the entire offense.
 A defendant must participate in the crime with full knowledge of the extent and character of the crime.
 And this knowledge must come in advance, at a point while the defendant is still able to walk away from the
crime.
 In this case, Rosemond can—and does—meet the first prong of this test by taking an affirmative act in furtherance
of either the drug trafficking crime or the use of a gun in connection with that crime.
 And under the second prong, Rosemond’s affirmative act must be done with the intent of facilitating: (1) the use of a
gun (2) in connection with drug trafficking.
 Rosemond must have known in advance that one of his co-criminals would carry a firearm.
 Here, the district court judge’s jury instructions did not properly capture this requirement under the second prong.
  The jury instructions did not specify that to be found guilty, Rosemond needed to have full, advance knowledge of
the presence of a gun during the commission of the drug deal to meet the intent requirement.
 Accordingly, Rosemond’s conviction is vacated, and the case is remanded.
 Concurrence/Dissent (Alito)
 The Court’s finding regarding the burden of proof with respect to whether the defendant had an opportunity to avoid
engaging in the charged aiding and abetting conduct was improper.
 Affirmative defenses such as necessity and duress must be proven by the defendant.
 In addition, “advance knowledge” should be construed to include knowledge obtained while the underlying crime is in
progress.
o Mens Rea for Results and Attendant Circumstances
 State v. McVay (RI 1926, CRp714)
 Rule of Law
 An individual may be charged as an accessory before the fact to manslaughter even though manslaughter is a
sudden and unpremeditated act resulting in death.
 Facts
 McVay (defendant) was the captain for the steamer ship Mackinac which carried several hundred passengers
from Pawtucket to Newport via Narragansett Bay.
 Even though he and the ship’s engineer, Grant, had knowledge that the vessel’s boiler producing steam was
unsafe, they continued on to Newport.
 During the voyage, the boiler exploded, killing three passengers.
 McVay and Grant were charged with manslaughter for causing the deaths of the three passengers.
 Another individual, Kelley, was charged as an accessory before the fact for feloniously and maliciously aiding and
abetting McVay and Grant.
 The trial court certified a question for the Rhode Island Supreme Court to review, namely “[m]ay a defendant be
indicted and convicted of being an accessory before the fact to the crime of manslaughter arising through
criminal negligence as set forth in the indictment?”
 Issue
 May an individual be charged as an accessory before the fact to manslaughter even though manslaughter is a
sudden and unpremeditated act resulting in death?
 Holding
 Yes
 Reasoning
 Kelley argues that because manslaughter is an act committed “without malice” and “involuntary,” in a sudden
and unpremeditated manner, he cannot be found guilty as an accessory before the fact.
  While it is true that that there can be no accessory before the fact when there is a sudden and unpremeditated
death, it cannot be said that premeditation is inconsistent with every charge of manslaughter.
 The crime of manslaughter may be committed if an unintentional killing occurs as a result of gross negligence
and a person who aids and abets another in such gross negligence may certainly be guilty as an accessory before
the fact of the resulting death.
 Here, Kelley intentionally directed and counseled the grossly negligent act which resulted in the deaths of three
passengers.
 Involuntary manslaughter means that the defendants exercised no conscious volition to take life but their
negligence was of such a character that criminal intention can be presumed.
 The negligent act was choosing to create steam which the boiler could not safely carry.
 McVay and the others are charged with consciously and voluntarily choosing to negligently create the steam
with knowledge that the boiler was unsafe.
 The facts set forth in the indictments, if true, are such that a jury could find that Kelley, with knowledge of the
possible danger to human life, recklessly and willfully advised, counseled, and commanded McVay and Grant to
take a chance by negligent action or failure to act.
 The questions certified on each indictment are answered in the affirmative.
 Commonwealth v. Roebuck (PA. 2011, CRp 715)
 Rule of Law
 A defendant can be convicted as an accomplice to third-degree murder if the accomplice acted with the culpable
mental state required of the principal actor, and intentionally aids the principal actor in the commission of the
crime.
 Facts
 Roebuck (defendant) and others lured a man into an apartment complex where they ambushed and shot the
man.
 The man died.
 Roebuck helped to plan the ambush, but did not actually shoot the man.
 Roebuck was charged and convicted of third degree murder as an accomplice.
 The superior court affirmed.
 Roebuck appealed on the grounds that a third degree murder is an unintentional killing, so he cannot be held
guilty as being an accomplice because a person cannot be guilty of intending to aid an unintentional act.
 Issue
 Can a defendant be convicted as an accomplice to third-degree murder?
 Holding
 Yes
  Reasoning
 Every crime has multiple elements that individually must be established to establish guilt.
 The culpability requirement—i.e., purposely, knowingly, recklessly, or negligently—for each of the elements is
not necessarily the same.
 The culpability requirement for accomplice liability is not necessarily tied to the result of the principal act.
 Put another way, to be guilty as an accomplice, a defendant does not necessarily have to intend the results that
are essential to the principal act.
 Rather, the focus is on the defendant’s conduct.
o For example, to be guilty as an accomplice to murder, a defendant does not necessarily have to intend
that the victim dies.
o It is enough that the defendant acted with the culpable mental state required of the principal actor, and
intentionally aided the principal actor in the commission of the crime.
 In this case, the culpable mental state required for third degree murder is recklessness.
 This culpability requirement is not tied to the result, i.e. the unintentional killing of the victim.
 It is enough that Roebuck acted with recklessness.
 Roebuck’s claim that he cannot be held guilty of intending to aid an unintentional act fails because the focus is
on his conduct, not on the result.
 Roebuck’s conduct was reckless, regardless of the result of that conduct, and he aided the principal actor in the
commission of the murder.
 Accordingly, Roebuck’s conviction is affirmed.
 Concurrence
 Third degree murder is not necessarily an unintentional killing; it is a killing where the prosecution did not prove
that the defendant acted with intent to kill.
 People v. Russell (NY 1998, CRp719)
 Rule of Law
 Multiple defendants can be charged with depraved indifference murder committed by only one defendant if
each defendant intentionally aided the defendant who committed the murder.
 Facts
 During the course of a gun battle between Russell (defendant) and two other individuals on the streets of
Brooklyn, New York, Patrick Daly was shot and killed.
 The State of New York (plaintiff) charged all three engaged in the gun battle with second-degree murder.
 Each defendant argued that only one bullet killed Daly and it was not known whose gun fired the fatal shot.
 Ballistics tests were not able to confirm whose gun fired the fatal shot.
  The prosecution's theory was that each defendant acted with the mental culpability required for the commission
of the crime and that each intentionally aided the individual who fired the fatal shot.
 The trial judge instructed the jury that if they found that the defendants joined in the venture and unnecessarily
created a zone of danger, then each was responsible and that it made no difference which bullet murdered Daly.
 The jury convicted Russell and the other two defendants and each appealed.
 The appellate court affirmed the convictions and each defendant appealed.
 Issue
 Can multiple defendants be charged with depraved indifference murder committed by only one defendant if
each defendant intentionally aided the defendant who committed the murder?
 Holding
 Yes
 Reasoning
 Multiple defendants can be charged with depraved indifference murder committed by only one defendant if
each defendant intentionally aided the defendant who committed the murder.
 Depraved indifference murder requires conduct to be wanton, morally deficient, devoid of regard for the lives of
others, and blameworthy enough to warrant the same criminal liability as an intentional murder.
 In this case, each defendant argues that only one bullet killed Daly and it was not known whose gun fired the
fatal shot.
 However, the prosecution was not required to prove which defendant fired the shot that killed Daly because the
evidence was sufficient to establish that each defendant acted with the mental culpability required for depraved
indifference murder.
 Each defendant set out to injure or kill the other and engaged in mutual combat that caused Daly’s death.
 Such conduct was wanton and morally deficient and warrants the same criminal liability as an intentional
murder.
 Each defendant intentionally aided the defendant who fired the fatal shot.
 In People v. Abbott, 445 N.Y.S.2d 344 (N.Y. App. Div. 1981), Abbott and Moon engaged in a drag race on a
residential street.
o Abbott lost control of his vehicle, struck another car, and killed three people.
o The other driver, Moon, insisted that he should not have been found guilty of criminally negligent
homicide because he did not actually cause the deaths.
o The court held that although Moon did not cause the deaths, he intentionally participated with Abbott
in an inherently dangerous and unlawful activity and thus shared Abbott’s culpability.
 Here, the jurors were instructed properly.
  There was adequate proof to find that Russell and the other two defendants guilty of depraved indifference
murder.
 The judgments of conviction are affirmed.
o The natural and probable consequences theory
 People v. Luparello (Cal App 1987)
 Rule of Law
 A defendant may be found guilty as an aider and abettor or co-conspirator of a crime he intended to facilitate or
encourage, and also for any additional crimes which are reasonably foreseeable.
 Facts
 In an attempt to locate a former girlfriend, Luparello (defendant) enlisted several friends to obtain her
whereabouts “at any cost” from Mark Martin.
 The friends, armed with a gun and sword, went to Martin’s house, lured him outside and then one of the men
shot Martin, killing him.
 Luparello was charged with murder.
 The trial court instructed the jury that Luparello could be found guilty under an aiding-and-abetting theory.
 The jury convicted Luparello and he appealed, arguing that he could not be considered an aider and abettor in
Martin’s murder if the crime was an unplanned and unintended act of a co-conspirator.
 Issue
 May a defendant only be found guilty as an aider and abettor or co-conspirator of a crime he intended to
facilitate or encourage?
 Holding
 No
 Reasoning
 Luparello argues that the trial court improperly imposed “mens rea” upon him in the killing of Martin.
 He argues he did not share the killer’s intent and thus cannot be held equally liable.
 While it is true that only the perpetrator must manifest the mens rea required for the commission of the crime,
an equivalent mens rea may be premised on the theory of accomplice liability.
 Under accomplice liability, the individual must be found to have intentionally encouraged, assisted or influenced
the illegal act.
 Thus, to be a principal to crime, the aider and abettor must intend to commit the offense or to encourage or
facilitate its commission.
 Liability is extended to reach the actual crime committed, rather than the planned or “intended” crime, on the
policy that aiders and abettors should be responsible for the criminal harms they have naturally, probably, and
foreseeably put in motion.
  In People v. Croy, 710 P.2d 392 (Ca. 1985), the California Supreme Court stated that the aider and abettor’s
liability is vicarious: “[h]e is guilty not only of the offense he intended to facilitate or encourage, but also of any
reasonably foreseeable offense committed by the person he aids and abets….”
 Consequently, the trial court properly instructed the jury that Luparello could be found guilty of first-degree
murder under an aiding-and-abetting theory of criminal responsibility.
 The judgment of conviction is affirmed.
 Concurrence (Wiener)
 The problem with the “foreseeable consequence” doctrine established by Croy is that it places the mental state
of the perpetrator and/or circumstances of the crime upon the actor not directly involved.
 Here, Luparello’s liability is not based on his own mental state, but rather on the mental state of the shooter
who intentionally killed Martin while “lying in wait.”
 If the circumstances of Luparello’s participation were exactly the same, but the shooter did not “lie in wait,”
Luparello could have only been found guilty of second-degree murder.
 The “foreseeable consequence” doctrine and the felony-murder rule are both founded on outmoded and
logically indefensible propositions that if a person exhibits some intent to violate the law, the court should not
be concerned that the contemplated crime was far less serious than the actual crime.
 Roy v. United States (DC App 1995)
 Rule of Law
 Under the natural and probable consequences doctrine, a defendant may not be convicted as an aider and
abettor of a crime that would not be expected to occur in the ordinary course of things.
 Facts
 Peppi Miller, an informant for the United States Bureau of Alcohol, Tobacco, and Firearms (BATF), participated in
an undercover operation to purchase a handgun from Tony Roy (defendant).
 Roy agreed to procure a handgun and ammunition for Miller in exchange for $400.
 Miller obtained the money from federal agents of the BATF and Federal Bureau of Investigation (FBI) and was
equipped with a tape recorder and transmitter.
 Miller then met with Roy, who instructed Miller to wait for Steve Ross to bring the handgun and ammunition.
 When Miller met with Ross, Roy was nearby, but was not directly involved in the transaction.
 Ross gave Miller the handgun and almost immediately asked for it back.
 Miller returned the handgun.
 Ross then loaded the gun, pointed it at Miller, and robbed him of the $400. Ross and Roy were arrested and
convicted of armed robbery.
 Roy moved for a judgment of acquittal, arguing that he did not participate in the armed robbery.
 The trial court denied Roy’s motion. Roy appealed.
o Acteus Reus For Complicity
 Encouragement
 Wilcox v. Jeffery (King's Bench 1951, CRp727)
 Rule of Law
o A person in a crowd whose deliberate presence encourages another to commit an illegal act is guilty of
aiding and abetting that act.
 Facts
o Hawkins, an American saxophone player, played at a concert in London with four French musicians in
violation of Article 18(s) of the Aliens Order of 1920.
o Herbert William Wilcox (defendant) was a reporter for a British magazine called Jazz Illustrated who was
covering the performance.
o Wilcox covered the arrival of Hawkins and the others at the airport, purchased a concert ticket, and
attended the performance.
o There was no evidence that Wilcox actually applauded Hawkins’ playing, nor any evidence that he
protested the performance.
o Subsequently, Wilcox wrote an article for the magazine, praising the event.
o A magistrate found that Wilcox had aided and abetted Hawkins’ violation of the Aliens Order, and he
appealed.
 Issue
o Is a person in a crowd whose deliberate presence encourages another to commit an illegal act guilty of
aiding and abetting that act?
 Holding
o Yes
 Reasoning
o A person in a crowd whose deliberate presence encourages another to commit an illegal act is guilty of
aiding and abetting that act.
o Here, Wilcox argues that his mere presence at an illegal act is not evidence of aiding and abetting the
crime.
o However, Wilcox was not at the concert by mistake or accident.
o Wilcox purchased a concert ticket and attended the performance with full knowledge that Hawkins was
violating the Aliens Order by playing any instrument.
o It might have been different had Wilcox gone there and protested.
o The judgment of conviction is affirmed.
 The Materiality of the Aid
 State v. Tally Judge (Aka 1894, CRp730)
 Rule of Law
o An individual is guilty of a crime as an accomplice if he knows of another’s intention to commit the
crime, commits an act intended to further the other’s intention, and the act should and does contribute
to the commission of the crime.
 Facts
o R.C. Ross seduced and was “criminally intimate” with the sister of the Skeltons and of Mrs. Tally.
o Subsequently, it was well known in the town that the Skeltons were in pursuit of Ross to exact revenge.
o Early one morning, Ross fled town for Stevenson, Alabama with the Skeltons in pursuit on horseback.
o Although knowing that the Skeltons wanted revenge, Ross did not know that the Skeltons had followed
him that particular morning.
o Later that morning, Judge John Tally, Mrs. Tally’s husband, having seen the Skeltons leave that morning
heavily armed, went to the telegraph office.
o A witness saw him there and, knowing that the Skeltons were in pursuit of Ross, told Tally that someone
should send a telegram to have all of the parties arrested.
o Tally ignored this statement, but said that he was waiting in the office to see if anybody was going to
send such a telegram.
o Soon after, a relative of Ross came into the telegraph office and sent a telegram to Stevenson for Ross,
warning that four men on horseback with guns were chasing him down.
o In response to this, Tally sent a telegram to Huddleston, the operator in Stevenson, saying “Do not let
the party warned get away.”
o He also added, “Say nothing.”
o When Ross arrived in Stevenson, Huddleston had an opportunity to give Ross the telegram from his
relative before he got out of his carriage, but Huddleston chose not to do so, allegedly because he had
received the subsequent telegram from Tally.
o When Ross got out of the carriage, he was shot at from a distance by three of the Skeltons.
o He then escaped to behind a building where he was ambushed by the fourth Skelton and killed.
o The state attorney general brought a judicial impeachment proceeding before the Alabama Supreme
Court accusing Judge Tally of aiding and abetting in Ross's murder.
 Issue
o For an accomplice to be found guilty of the principal crime, is it necessary that the crime would not have
been committed but for the accomplice’s actions?
 Holding
o No
  Reasoning
o An individual is guilty of a crime as an accomplice if he knows of another’s intention to commit the
crime, commits an act intended to further the other’s intention, and the act should and does contribute
to the commission of the crime.
o In this case, Tally certainly knew that the Skeltons intended to kill Ross, as he knew their severe problem
with Ross and had seen them mount their horses heavily armed on the morning in question.
o Moreover, by standing guard at the telegraph office and sending a telegram to Huddleston ordering him
not to let Ross get away, there is no question that Tally intended to help the Skeltons murder Ross.
o Finally, it is important to note that the aid given need not be the but for cause of the commission of the
crime; it only need make the crime easier to accomplish.
o Therefore, even though the murder may have been committed without Tally’s assistance, Tally is guilty
as an accomplice if his preventing the warning from getting to Ross made the Skeltons killing him easier.
o The court determines that it did.
o The initial gunfire on Ross came from a distance and from only three of the four Skeltons.
o If Ross had known that anyone was following him, he would have had an opportunity, albeit brief, to
make an escape in Stevenson.
o Moreover, if he had known specifically that there were four Skeltons after him, he would have seen only
three shooting and been alert that another Skelton was somewhere waiting for an ambush.
o Ross’s complete ignorance of the situation—which came about due to Tally’s actions—made the
Skeltons’ murder easier and more definite.
o Judge Tally aided and abetted in Ross's murder, and he is therefore guilty of murder.
o Judgment will be entered removing him from office.
o