Criminal 10-24

Which one of the following statements is not correct regarding the mental state requirement of conspiracy?

A common purpose among the conspirators to achieve an objective is not necessary. (page 664 of HB)

Which one of the following statements regarding the crime of embezzlement is true?

A defendant cannot be guilty of embezzlement if he converts property owned by the defendant. (Section 19.6(d) of HB)

Based on your reading of Stephens v. State, 734 P.2d 555 (Wyoming, 1987), which of the following statements best describes the court's reasoning in the case?

A defendant will not be liable as an accessory if it appears that the defendant acted from self-motivation and did not actively conceal the perpetrator. (Casebook page 909-912)

A majority of jurisdictions hold that:

A defender need not retreat when he reasonably believes the assailant will kill or inflict serious bodily harm to the defender. (page 578 of HB)

Which of the following statements is a generally accepted, complete list of the elements of false pretenses?

A false representation of a material present or past fact that causes the victim to pass title to his property to the wrongdoer who knows his representation to be false and intends thereby to defraud the victim. (Section 19.7 of HB)

Which of the following statements regarding false pretenses is true?

A is not guilty of false pretenses if he makes an intentional, materially false representation of fact that causes another to pass title to property to A, if A mistakenly believes the facts he stated in the misrepresentation were in fact true. (Section 19.7(f) of HB)

Which one of the following is not an element of the common law rule for duress?

A life-threatening event caused by natural physical forces. (United States v. LaFleur, casebook page 569)

Which one of the following statements best describes the "lawful possession" element of embezzlement?

A typical embezzlement statute will apply to an employee who misappropriates the property of the employer while the property is in the employee's possession. (Section 19.6(e) of HB)

Involuntary Intoxication includes several different kinds of intoxication. These include:

All of the above. (Casebook pages 492-493)

Many state statutes list the types of aid that can expose an individual to prosecution and conviction as an accessory after the fact. These acts typically include which of the following?

All of the above. (Harboring or concealing the criminal. Concealing, destroying or tampering with evidence. Warning the criminal of his impending discovery.) (Hornbook Sec 13.6(a)

The court in Bishop v. State decided that

Allowing persons to employ deadly mechanical devices imperils the lives of children. (page 536 of CB)

Which one of the following statements best describes the liability of an accessory after the fact for the crimes committed by the actual perpetrators of the crime?

An accessory after the fact is subject to punishment without reference to the penalty attached to the principle offense. (Hornbook Section 13.6)

In People v. Bowen, the appellate court held that the trial judge erroneously instructed the jury that it could convict the defendants if it found that the defendants came to or entered the victim's house with the intention of committing larceny. According to this case, what was missing from the instruction?

An overt act. (People v. Bowen, casebook page 679)

Modern state criminal codes respecting voluntary intoxication as a defense

Are divided as to whether to allow such a defense in any case. (Hornbook Sec. 9.5(a))

Which one of the following statements regarding mayhem is true?

At common law mayhem required the defendant to perform a violent act. (Section 16.5 of HB)

Which one of the following statements regarding mayhem is true?

At common law, a mayhem injury must have rendered the victim unable to fight. (Section 16.5 of HB)

Which one of the following statements regarding the trespass element of larceny is true?

At common law, generally there was no criminal liability for larceny regarding one co-owner taking property of the other co-owner because there was no taking of the property "of another." (Section 19.2 of HB)

Al, armed with a gun, tried to force Bob to have sexual intercourse with Cindy, but Bob's fright prevented him from being able to effectuate penetration. Bob should be able to avoid a conviction for attempted rape because

Bob's conduct was excused by duress. (HB Section 9.7)

Which of the following cases holds that involuntary intoxication can be an absolute defense if as a result of the intoxication the defendant is rendered legally insane at the time of the commission of the act?

CITY OF MINNEAPOLIS v. ALTIMUS, 306 Minn. 462, 238 N.W.2d 851.(1976) (Casebook pages 490-495)

A defendant in a criminal case, at the time he engaged in the conduct giving rise to the charges against him, may have been suffering from an abnormal mental condition that was not of a kind or character to afford him a successful insanity defense. In such a case, his mental condition:

Can be relevant to a mental state that is an element of the specific offense, but, nonetheless, evidence of mental condition may not be admissible for some such specific offenses. (Hornbook pages 475-476)

Which one of the following statements is not a reason that conspiracy is often referred to as the prosecution's advantage?

Conspiracy is the one crime that does not require the prosecution to prove both an act and mental state. (pages 650 - 657 of HB)

Which of the following is true regarding the intent to steal?

D had the requisite intent to steal if he intended to deprive the owner of permanent possession of owner's property. (Section 19.5 of HB)

In Commonwealth v. Devlin, 366 Mass. 132, 314 N.E.2d 897 (1974), the court held that:

Defendant's knowledge of both the identity of the principal felon and knowledge of the particular felony which has occurred are both elements of the crime which the prosecution must prove beyond a reasonable doubt. (Casebook page 912)

Which one of the following statements regarding assault and battery is correct?

For battery, the force used need not be applied directly to the body of the victim. (Section 16.2 of HB)

Under the Model Penal Code, which one of the following statements is correct regarding conspiracy?

If a person guilty of conspiracy knows that a person with whom he conspires has conspired with another person(s) to commit the same crime, he is guilty of conspiring with such other person(s) to commit such crime, whether or not he knows their identity. (page 40 of CB Appendix, MPC section 5.03)

Which of the following statements regarding false representation of a material present or past fact is true?

If one states as fact that a stone is high grade gold, believing that it is "fools" gold, he is not guilty of false representations if the stone turns out to be high grade gold. (Section 19.7(b) of HB)

Under which of the following situations would the Model Penal Code most likely provide the actor with a valid defense to a conspiracy charge?

If the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose (Casebook page 787)

The rule in the majority of cases in America regarding a defendant charged with a crime requiring the mental state of recklessness - an awareness of risk his conduct creates- but who is so intoxicated at the time of his conduct as to be unaware of the risk is:

If the only reason why the defendant did not realize the risk is that he was too intoxicated he is guilty of recklessness. (Hornbook Sec 9.5©)

The authors of your Criminal Law hornbook take the position with respect to voluntary intoxication that

In any case the law should ask what intent or knowledge is required as an element of the offense and whether given the extent of intoxication the defendant entertained such an intent or in fact knew what the crime required he know. (Hornbook Sec 9.5(a))

Which one of the following statements is not correct regarding how the conduct of a supplier can be used to establish the supplier's participation in a conspiracy with the buyers of the supplies?

Intent may not be established through an inference that he intends to participate based on his special interest in the activity. (pages 737 of CB)

When the same group has planned or committed several crimes, simultaneous or successive violations of either the same statute or several different statutes, the issue exists as to whether there are only one or several conspiracies. How did the court in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942) resolve this issue?

It held that the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. (page 764 of the casebook)

Which one of the following statements regarding the conversion element of the crime of embezzlement is true?

It requires a serious act of interference with the property owner's right. (Section 19.6(b) of HB)

The difference between legal impossibility and factual possibility is that

Legal impossibility is a situation where the defendant did everything he intended to do but yet had not committed the completed crime, whereas factual impossibility is that in which the defendant is unable to accomplish what he intends because of some facts unknown to him. (page 630 of HB)

In which case did the court agree with a prior decision that the intent required to commit a conspiracy to commit murder is also sufficient to show the premeditation and deliberation element of first degree murder?

Mitchell v. State (page 729 of CB)

Adam asked Bill to help him rob a grocery store. Bill agreed and the two men both purchased ski masks. Is Adam likely to be convicted of attempted robbery?

No, because Adam did not take a substantial step towards the commission of the crime. (HB Section 11.4)

At common law, could a defendant be convicted of attempted assault?

No, because common law assault is an attempted battery and one cannot be convicted of attempting to attempt a crime. (CB Chapter 10, Section 2 - Notes & Questions on Attempting Attempts)

Can a defendant be convicted of attempted involuntary manslaughter for nearly killing a child while driving 55 mph in a 15 mph school zone while children are present?

No, because he did not have the requisite mental state. (HB Section 11.3)

Which one of the following statements regarding false pretenses is true?

One who secretly forges a deed and causes it to be recorded is not guilty of false pretenses. (Section 19.7(c) of HB)

Which of the following is not a correct statement of the law under the Model Penal Code? Lying in wait may constitute a substantial step in a criminal attempt. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time. Reconnoitering the place contemplated for the commission of the crime may constitute a substantial step. One's abandonment of his effort to commit the crime or otherwise prevent its commission under circumstances manifesting a complete and voluntary renunciation of his criminal purpose is not an affirmative defense to attempt liability.

One's abandonment of his effort to commit the crime or otherwise prevent its commission under circumstances manifesting a complete and voluntary renunciation of his criminal purpose is not an affirmative defense to attempt liability. (MPC Section 5.01, pages 38 and 39 of Appendix in CB)

The majority of the courts that have held that evidence of mental condition not amounting to insanity is admissible have done so to allow a defendant to negate:

Premeditation or deliberation required for conviction of first degree murder. (Hornbook Sec 9.2(b))

The Model Penal Code's view of abandonment as a defense to a charge of attempt

Requires that a defendant's abandonment occur under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. (page 644 of HB)

In People v. Superior Court, 41 Cal.4th 1, 58 Cal.Rptr.3d 421, 157 P.3d 1017 (2007), the court reasoned that:

Solicitation to murder, in combination with a completed agreement to hire a professional killer and further conduct implementing the agreement, can constitute an attempted murder. (Casebook page 811)

In State v. Hobson, which of the following is not a rationale given by the court for refusing to honor the common law rule allowing the right to use force to resist an unlawful arrest?

State public defenders are better informed than they used to be regarding police procedures and unlawful arrest. (page 551 of CB)

In which case did the court decide that forcible resistance to unlawful arrest is now a substantially less effective response?

State v. Hobson (page 550-551 of CB)

In which case did the court hold that a conspiracy may exist where one of the two conspirators only pretended to agree to commit the illegal objective?

State v. St. Christopher (page 723 of CB)

In which of the following cases did the court decide that as to the defendant's right to use force in self-defense there is no reason to make a distinction between cases in which the assailant is an intruder in the defendant's home and those where the assailant is a co-habitant of the home?

State v. Thomas (page 513 of CB)

What physical act is required for the crime of attempt?

Substantial step towards the commission of an offense. (HB Section 11.4)

Where D took and consumed a six pack of owner's beer on owner's premises, but did not pay for the beer, which of the following statements regarding intent to steal would likely be D's best defense to a larceny charge?

That D believed he had the owner's permission to consume the beer when he took and consumed it. (Section 19.5 of HB)

Which one of the following statements regarding assault and battery is correct?

The MPC defines assault to include both assault and battery. (Section 16.1 of HB)

In order to be found guilty as an accessory after the fact, the prosecution must prove that (1) a completed felony was committed and (2) that the person giving aid must have known of the perpetration of the felony by the one he aids. Which of the following statements best describes the third requirement?

The aid must have been given to the felon personally for the purpose of hindering the felon's apprehension, conviction or punishment. (Hornbook Section 13.6)

Which one of the following most accurately states how the Model Penal Code addresses the required mental state for accomplice liability?

The assistance or encouragement to the principle must have had the purpose of promoting or facilitating the commission of an offense (Section 13.2(d) of the Hornbook)

The majority view regarding the authority of law enforcement to affect an arrest does not include

The authority to arrest without a warrant if the arresting officer has reasonable grounds to believe a misdemeanor has been committed by the person arrested (page 591 of HB)

The court in Tennessee v. Garner decided that

The common law view regarding using deadly force to prevent the escape of an unarmed suspected felon is no longer followed by most police departments. (page 542 of CB)

If defendant formed the intention to commit a crime, and then drinks in order to gain the nerve to commit the crime and or to prepare himself for the defense of intoxication, then

The defendant cannot claim the defense of intoxication even if at the time the crime is committed he has become too intoxicated to form the requisite intent. (Hornbook Sec 9.5(a)

Which of the following is correct regarding the amount of force one may use in self-defense?

The defendant must have a reasonable belief in the necessity of using force to prevent harm to himself. (page 570 of HB)

At common law there was an obligation imposed on the community and individuals to report their knowledge of a crime. Failure to do so would subject the individual to punishment for misprision of felony. Which one of the following is the most likely situation where a statute will impose on defendant a duty to report knowledge of a crime?

The defendant must report if he has reason to believe a child has been subjected to abuse. (Casebook page 920)

Which of the following is not a test for whether the physical act for attempt has occurred?

The defendant took a substantial step towards forming the intent to commit the crime. (HB Section 11.4)

Which of the following is incorrect regarding the defense of another?

The defender must stand in a personal relationship to the one in need of protection. (pages 582 - 583 of HB)

Where an employer gives an employee control of the employer's property to allow the employee to perform duties of employment, which of the following statements regarding theft is true?

The employer has constructive possession for purpose of the employee's criminal liability and if the employee received the property from the employer but keeps the property for his own use, he will be criminally liable. (Section 19.2 of HB)

Which one of the following statements is a generally accepted, complete list of the elements of embezzlement?

The fraudulent conversion of the property of another by one who is already in lawful possession of it. (Section 19.6 of HB)

What mental state is required for the crime of attempt?

The intent to commit some other crime. (HB Section 11.3)

Which of the following is the best rationale for the crime of attempt?

The law of attempt is needed to stop, deter, and reform a person who has the intent to commit a crime. (HB Section 11.2)

At common law, where D finds property lost by its owner, which of the following statements is true?

The owner still has constructive possession of the property and D may be viewed as taking the property by trespass. (Section 19.2 of HB)

Which of the following is correct regarding a schoolteacher's use of force upon a minor student for promoting the minor student's education or maintaining reasonable discipline in the school?

The privilege is not a delegation to the teacher of the parent's right to punish the child. (page 568 of HB)

Which one of the following statements regarding the property element of embezzlement is true?

The property element is generally defined the same as it is for larceny. (Section 19.6(c) of HB)

Which of the following statements is not correct regarding penalties for attempt crimes?

The punishment for attempt may never be the same or higher than the punishment for the completed crime. (page 646 of HB)

Which one of the following statements best states the reason why the court in Bailey v. United States, 416 F.2d 1110 (D.C. Cir. 1969) reversed the trial court and directed entry of a judgment of acquittal?

The totality of that evidence could only conjecturally support a finding that appellant associated himself with the criminal venture, that he participated in it as in something that he wished to bring about, and that he sought by his action to make it succeed. (Casebook page 826)

Which of the following statements is correct regarding impossibility?

There are no degrees of impossibility. (page 693 of CB)

An acquittal or similar disposition of one co-conspirator is a bar to prosecution of the other co-conspirator(s) only if

There is but one remaining untried co-conspirator. (Section 12.4 of the Hornbook)

According to State v. McVey, the diminished capacity defense serves as a defense to what type of crime?

Those crimes requiring specific intent as an essential element of the offense. (Casebook Page 436)

In which case follow the rule that the government need not prove an express agreement between the alleged conspirators in order to prove the necessary agreement existed?

United States v. James (page 717 of CB)

It is commonly held that:

Voluntary intoxication is no defense where the offense is of the general intent type but it may be properly asserted if the crime requires a specific intent. (Casebook 478-481, 487)

Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes that do not merge. A defendant may be convicted of both and sentenced separately on both. However, an exception to this rule exists. Where a plurality of parties is necessary to commit the substantive offense which is the goal of the conspiracy, there cannot also be liability for conspiracy for those parties whose conduct was essential for the commission of the substantive offense. This exception is known as:

Wharton's Rule (Casebook page 792)

According to United States v. LaFleur, which of the following is not a correct explanation of the defense of duress?

When a defendant acts under duress, he effectively loses the mental capacity to commit the crime. (United States v. LaFleur, casebook page 570)

In general one may not be found to be an aider and abettor, and thus guilty as a principal, solely because he is present when a crime is committed. It will still be necessary, in order to have that effect, that it be shown that the defendant said or did something showing his consent to the criminal purpose and contribution to its execution. When can acquiescence in a crime combined with presence be most clearly a basis for imposing accomplice liability?

When it is reasonable for the criminal law to impose a duty upon the defendant to act such as that of a parent on behalf of a child. (Casebook page 818)

Which one of the following statements regarding criminal assault and battery is correct?

Where A throws a rock at B, but misses, A must have intended to hit B in order to be convicted of attempted battery. (Section 16.3(a) of HB)

Which one of the following statements of law was approved by the court in Hicks v. United States, 150 U.S. 442, 14 S.Ct. 144, 37 L.Ed. 1137 (1893)?

Where an accomplice is present for the purpose of aiding and abetting in a murder but refrains from so aiding and abetting because it turned out not to be necessary for the accomplishment of the common purpose, he is equally guilty as if he had actively participated by words or acts of encouragement if there is also evidence of a previous conspiracy or agreement to murder. (Casebook page 817)

Which of the following statements regarding false pretenses is true?

Which of the following statements regarding false pretenses is true? (Section 19.7(e) of HB).

What is the primary difference between duress and necessity?

With duress, a threat comes from a person, but with necessity the threat comes from natural physical forces. (HB Section 10.1)

The Model Penal Code's view on parents punishing a child for wrongdoing

combines both the objective and subjective views. (page 567 of HB)

In the commission of each criminal offense there may be several persons or groups that play distinct roles before, during and after the offense. An accessory before the fact is one who

counsels, encourages, or otherwise aids and abets another to commit a felony but who is not present at the commission of the offense (Section 13.1(c) of the Hornbook)

In the commission of each criminal offense there may be several persons or groups that play distinct roles before, during and after the offense. A principal in the first degree is one who, with the requisite mental state

engages in the act or omission constituting the crime. (Sec 13.1(a) of the Hornbook)

As an act of revenge, Art locked Ben in a cellar. Later, Art was happily surprised to learn that confining Ben was required to save Carl's life. Art's necessity defense to false imprisonment would be

invalid because he must believe his act was necessary to avoid a greater harm. (HB Section 10.1)

Under the usual requirement that the accomplice must intentionally assist or en-courage the commission of the crime, ordinarily

it is not sufficient that he intentionally engage in acts which, as it turned out, did give assistance or encouragement to the principle. The accomplice must also have the mental state required for the crime of which he is to be convicted on an accomplice theory. (Section 13.2(c) of the Hornbook)

In conspiracy trials

most convictions are based on circumstantial evidence. (page 653 of HB)

Most states provide that the object of a criminal conspiracy

must be some crime or some felony or action to defraud (Sec 12.3(a) of the Hornbook)

According to the court in People v. Lubow, 29 N.Y.2d 58, 323 N.Y.S.2d 829, 272 N.E.2d 331(1971) to complete the crime of solicitation

nothing need be done in furtherance of the solicitation to constitute the offense. (Casebook page 805)

In the commission of each criminal offense there may be several persons or groups that play distinct roles before, during and after the offense. A principal in the second degree is one who is present at the commission

of a criminal offense and aids, counsels, commands, or encourages the principal in the first degree in the commission of that offense. (Section 13.1(b) of the Hornbook)

Ann and Betty were standing atop a precipice when an earthquake caused Ann to stumble against Betty, throwing Betty over the cliff to her death. Ann should be able to avoid a criminal conviction because

one cannot be guilty of a crime of action without an act (HB Section 10.1)

The court's decision in U.S. v. Peterson

relied on the principle that the "castle" doctrine may only be invoked by one who is without fault in bringing the conflict on. (page 510 of CB)

The basic statutory definition of criminal solicitation is

that with intent that another person shall engage in conduct constituting a crime the accused solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct. (Casebook page 804)

Considerable confusion exists as to what the accomplice's mental state must be in order to hold him accountable for an offense committed by another. When a court must determine whether an accomplice has the required mental state sufficient to hold the accomplice liable for the acts of another, which one of the following has not been identified as a relevant factor?

the accomplice's prior criminal record. (Section 13.2(b) of the Hornbook)

Most crimes must be prosecuted within some period of time after their completion. A conspiracy continues up to and is not completed until

the conspiracy has been abandoned or successful. (Section 12.3(c) of the Hornbook)

In order for one to be entitled to use force in self-defense against an assailant, it is necessary that the assailant's force be

unlawful (page 570 of HB)