Criminal Law Questions
95 Exam Questions 14 & 15: Dan was driving his car at a normal rate of speed early one weekend morning. Although there was no apparent outdoor activity in the neighborhood, a child darted out from between two parked cars. Dan had been drinking and his blood alcohol level was slightly above the legal limit. Dan was cognizant that he was slightly drunk and made sure to drive as carefully as he could. A statute in the jurisdiction makes it a felony to drive while under the influence of alcohol. Another statute in jurisdiction provides as follows: "(B) Unlawful Act Involuntary Manslaughter. A killing that results from driving an automobile while under the influence of alcohol is involuntary manslaughter." Question 14. Because the alcohol had slowed his reactions, Dan was unable to stop in time and he killed the child. The best view is that Dan may be convicted of (A) felony murder. (B) depraved heart murder. (C) involuntary manslaughter. (D) A & C. (E) B & C. Question 15. If the child had darted out from between the parked cars so quickly that no other person in the circumstances would have been able to stop in time to avoid killing the child, Dan may be validly convicted of (A) felony murder. (B) involuntary manslaughter. (C) driving while under the influence. (D) A & C. (E) B & C.
14. C, 15. C
95 Exam Question 19. In which of the following cases is Defendant most likely to be found guilty of murder under the felony murder rule: (A) With gun drawn, Defendant walked into a liquor store and demanded that the elderly store clerk, who was obviously quite sickly and frail, hand over the cash in the cash register. The fright of hold-up caused the clerk to have a heart attack, collapse, and die. Startled at the clerk's collapse, Defendant ran away without taking anything from the store. Defendant is charged with felony murder based upon the attempted robbery. Robbery is defined as "the taking of property from the person of another by force or threat of force." (B) Ben told Defendant that unless he helped him rob the bank across the street, Ben, who displayed a loaded weapon, would kill Defendant. Defendant agreed to participate. Ben handed Defendant an unloaded handgun. In the course of the bank robbery, Ben's gun accidentally discharged, killing a teller. Ben and Defendant walk out of the bank, each carrying a sack of money. They are apprehended. Defendant is charged with the felony murder of the teller based upon the felony of armed robbery, which is defined to mean "the taking of property belonging to another from the person of another by force or threat of force." (C) Defendant convinced Van, an elderly man, to give her much of his life savings. Defendant told Van that she intended to use the money to build a shelter for abused children. In fact, Defendant pocketed the money as she intended to do along. A few weeks later, upon learning that Defendant pocketed the money, Van suffered a fatal heart attack. Defendant is charged with felony murder based upon the felony of false pretenses, i.e., "obtaining title to property of another by deception." (D) Defendant discovered her husband in bed with another woman. Enraged, she retrieved a revolver she and her husband kept in the bedstand and deliberately shot her husband in the head, killing him. Defendant is charged with felony murder based on the felony of voluntary manslaughter
A
In which of the following situations is Defendant most likely to be guilty of common-law murder? (A) Angered because his neighbor is having a noisy party, Defendant fires a rifle into the neighbor's house. The bullet strikes and kills a guest at the party. (B) During an argument, Harry slaps Defendant. Angered, Defendant responds by shooting and killing Harry. (C) Defendant drives his car through a red light and strikes and kills a pedestrian who is crossing the street. (D) Using his fist, Defendant punches Walter in the face. As a result of the blow, Walter falls and hits his head on a concrete curb, suffers a concussion, and dies.
A
John was fired from his job. Too proud to apply for unemployment benefits, he used his savings to feed his family. When one of his children became ill, he did not seek medical attention for the child at a state clinic because he did not want to accept what he regarded as charity. Eventually, weakened by malnutrition, the child died as a result of the illness. John has committed (A) murder. (B) involuntary manslaughter. (C) voluntary manslaughter. (D) no form of criminal homicide.
A
Kathy, a two-year-old, became ill with meningitis. Jim and Joan, her parents, were members of a group who believed fervently that if they prayed enough, God would not permit their child to die. Accordingly, they did not seek medical aid for Kathy and refused all offers of such aid. They prayed continuously. Kathy died of the illness within a week. Jim and Joan are charged with murder in a common-law jurisdiction. Their best defense to the charge is that (A) they did not intent to kill or to harm Kathy. (B) they were pursuing a constitutionally protected religious belief. (C) Kathy's death was not proximately caused by their conduct. (D) they neither premeditated nor deliberated
A
Martha's high school teacher told her that she was going to receive a failing grade in history, which would prevent her from graduating. Furious, she reported to the principal that the teacher had fondled her, and the teacher was fired. A year later, still unable to get work because of the scandal, the teacher committed suicide. Martha, remorseful, confessed that her accusation had been false. If Martha is charged with manslaughter, her best defense would be that she (A) committed no act that proximately caused the teacher's death. (B) did not intend to cause the teacher's death. (C) did not act with malice. (D) acted under extreme emotional distress.
A
Rimm and Hill were fooling around with a pistol in Hill's den. Rimm aimed the pistol in Hill's direction and fired three shots slightly to Hill's right. One shot ricocheted off the wall and struck Hill in the back, killing him instantly. The most serious crime of which Rimm can be convicted is: (A) murder. (B) voluntary manslaughter. (C) involuntary manslaughter. (D) assault with a deadly weapon.
A
Tom had a heart ailment so serious that his doctors had concluded that only a heart transplant could save his life. They therefore arranged to have him flown to Big City to have the operation performed. Dan, Tom's nephew, who stood to inherit from him, poisoned him. The poison produced a reaction which required postponing the journey. The plane on which Tom was to have flown crashed, and all aboard were killed. By the following day, Tom's heart was so weakened by the poison that he suffered a heart attack and died. If charged with criminal homicide, Dan should be found (A) guilty. (B) not guilty, because his act did not hasten the deceased's death, but instead prolonged it by one day. (C) not guilty, because the deceased was already suffering from a fatal illness. (D) not guilty, because the poison was not the sole cause of death.
A
Siskel and Ebert discussed robbing a convenience store. They visited several stores, and decided on a particular one to rob the next day. The next day, Siskel and Ebert drove to the store. Siskel donned a ski mask and, with gun drawn, entered the store. Ebert waited outside in the car as lookout and driver. Siskel handed Clerk, who was operating the store, a paper bag and commanded that he fill it with cash. Clerk did so and placed the bag on the counter next to a nearly identical paper bag a previous customer had left on the counter. That bag, which the customer meant to throw away, contained trash from a fast food restaurant. Meanwhile, Siskel had become distracted by the blowing of the noon fire siren, which he at first thought to be an approaching police car. In his haste to leave, Siskel picked up the wrong bag. He exited the store, got into the waiting car, and he and Ebert sped away. The convenience store is located in the State of Green. A Green statute defines the criminal offense of burglary as "entering any building with the intent to commit a felony." Another Green statute defines the felony of armed robbery as "the taking of personal property in the possession of another, from his person or immediate presence, by use or threatened use of a firearm." Under Green law, the paper bag (and its contents) taken by Siskel would be regarded as abandoned property and not within the possession of another person. Green also applies generally accepted modern principles respecting liability on an aiding and abetting theory, attempts, conspiracy, and defenses to attempts and conspiracy. Question 4. In his haste to exit the scene, Ebert, without looking, backed the car out into the street at a high rate of speed. In doing so, Ebert drove over a sidewalk. He was aware that persons might be crossing the sidewalk, but did not care. Ebert struck and killed a pedestrian, whom Ebert did not see because Ebert was not looking. Ebert is charged with the homicide of the pedestrian. The most serious grade of homicide of which Ebert may be validly convicted is (A) felony murder. (B) involuntary manslaughter. (C) vehicular homicide. (D) voluntary manslaughter. (E) none of the above.
A, Ebert is an accomplice to burglary (felony), and killed a pedestrian in the commission of that felony
Multistate # 34. Phillips bought a new rifle and wanted to try it out by doing some target shooting. He went out into the country to an area where he had previously hunted. Much to his surprise, he noticed that the area beyond a clearing contained several newly constructed houses that had not been there before. Between the houses there was a small playground where several children were playing. Nevertheless, Phillips nailed a paper target to a tree and went to a point where the tree was between himself and the playground. He then fired several shots at the target. One of the shots missed the target and the tree and hit and killed one of the children in the playground. Phillips was convicted of murder. He appealed, contending that the evidence was not sufficient to support a conviction of murder. The appellate court should (A) affirm the conviction, as the evidence is sufficient to support a conviction of murder. (B) reverse the conviction and remand for a new trial, because the evidence is not sufficient for murder but will support a conviction of voluntary manslaughter. (C) reverse the conviction and remand for a new trial, because the evidence is not sufficient for murder but will support a conviction of involuntary manslaughter. (D) reverse the conviction and order the case dismissed, because the evidence is sufficient only for a finding of negligence and negligence alone cannot support a criminal conviction.
A, I guess
Damon is charged with adultery for having sexual relations with Edna. A statute in the jurisdiction defines adultery as "knowingly having sexual relations with a person who is married to another." The offense is punishable by a term of imprisonment of up to five years. In which of the following situations is a defense of mistake of law or fact most likely to exculpate Damon: (A) Damon believed Edna when she hold him that she was divorced, although she was in fact married. (B) Damon was unaware that adultery is a criminal offense in the jurisdiction. (C) Damon was aware that adultery is a criminal offense but, based upon his own reasonable reading of U.S. Supreme Court cases addressing arguably analogous issues, believed that such an offense may not be constitutionally enforced. (D) Although Damon knew that Edna was married, he was unaware that he was still legally married when he engaged in sexual relations with Edna because his Mexican divorce had no legal effect.
A, he lacked the knowledge she was married.
95 Exam Question 21. Under general principles of criminal law, which of the following felonies is least likely to support an application of the felony murder rule: (A) Arson. (B) Vehicular homicide. (C) Robbery. (D) Burglary.
B
A state statute divides murder into degrees. First degree murder is defined as murder with premeditation and deliberation or a homicide in the commission of arson, rape, robbery, burglary, or kidnaping. Second degree murder is all other murder at common law. In which of the following situations is Defendant most likely to be guilty of first degree murder? (A) Immediately after being insulted by Robert, Defendant takes a knife and stabs and kills Robert. (B) Angered over having been struck by Sam, Defendant buys rat poison and puts it in Sam's coffee. Sam drinks the coffee and dies as a result. (C) Intending to injure Fred, Defendant lies in wait and, as Fred comes by, Defendant strikes him with a broom handle. As a result of the blow, Fred dies. (D) Defendant, highly intoxicated, discovers a revolver on a table. He picks it up, points it at Alice, and pulls the trigger. The gun discharges, and Alice is killed
B
Alan, who was already married, went through a marriage ceremony with Betty and committed bigamy. Carl, his friend, who did not know of Alan's previous marriage, had encouraged Alan to marry Betty and was the best man at the ceremony. If Carl is charged with being an accessory to bigamy, he should be found (A) not guilty, because his encouragement and assistance was not the legal cause of the crime. (B) not guilty, because he did not have the mental state required for aiding and abetting. (C) guilty, because he encouraged Alan, and his mistake as to the existence of a prior marriage is not a defense to a charge of bigamy. (D) guilty, because he was present when the crime occurred and is thus a principal in the second degree.
B
At a party, Diane and Victor agreed to play a game called "spin the barrel." Victor took an unloaded revolver, placed one bullet in the barrel, and spun the barrel. Victor then pointed the gun at Diane's head and pulled the trigger once. The gun did not fire. Diane then took the gun, pointed it at Victor, spun the barrel, and pulled the trigger once. The gun fired, and Victor fell over dead. A statute in the jurisdiction defines murder in the first degree as an intentional premeditated killing or one occurring during the commission of a common-law felony, and murder in the second degree as all other murder at common law. Manslaughter is defined as a killing in the heat of passion upon an adequate legal provocation or a killing caused by gross negligence. The most serious crime for which Diane can properly be convicted is (A) murder in the first degree, because the killing was intentional and premeditated and, in any event, occurred during commission of the felony of assault with a deadly weapon. (B) murder in the second degree, because Diane's act posed a great threat of serious bodily harm. (C) manslaughter, because Diane's act was grossly negligent and reckless. (D) no crime, because Victor and Diane voluntary agreed to play a game and each assumed the risk of death.
B
Defendant is charged with assault and battery. The state's evidence shows that Victim was struck in the face by Defendant's fist. In which of the following situations is Defendant most likely to be not guilty of assault and battery? (A) Defendant had been hypnotized at a party and ordered by the hypnotist to strike the person he disliked the most. (B) Defendant was suffering from an epileptic seizure and had no control over his motions. (C) Defendant was heavily intoxicated and was shadow boxing without realizing that Victim was near him. (D) Defendant, who had just awakened from a deep sleep, was not fully aware of what was happening and mistakenly thought Victim was attacking him.
B
In which of the following situations is Defendant's claim of intoxication most likely to result in his being found not guilty? (A) Defendant is charged with manslaughter (defined as "recklessly killing another human being") for a death resulting from an automobile accident. Defendant, the driver, claims he was so drunk he was unable to see the other care involved in the accident. (B) Defendant is charged with assault with intent to kill (defined as intentionally threatened another person with imminent violence with the intent to kill) Watts as a result of his wounding Watts by shooting him. Defendant claims he was so drunk that he did not realize anyone else was around when he fired the gun. (C) Defendant is charged with armed robbery (defined as taking another's property from his person by use or threatened use of a firearm). He claims he was so drunk he did not know the gun was loaded. (D) Defendant is charged with statutory rape (defined as sexual penetration of a girl below the age of 16) after he has sexual intercourse with a girl aged 15 in a jurisdiction where the age of consent is 16. Defendant claims he is so drunk that he did not realize the girl was a minor.
B
Which of the following is LEAST likely to be the underlying felony in a prosecution for felony murder? (A) Arson. (B) Manslaughter. (C) Attempted rape. (D) Burglary.
B
Which of the following is most likely to be found a strict liability offense? (A) A federal statute making it a crime, punishable by a fine and up to one year imprisonment, "to embezzle, steal, or purloin government property." (B) A state statute making it a misdemeanor for "any person to sell liquor to a minor below the age of 16." (C) A local ordinance that make "the knowing sale or distribution of impure food" a misdemeanor. (D) A federal statute that makes it a felony to make false statements to a governmental official in connection with a housing loan.
B
In which of following situations is defendant most likely to be guilty of common law murder? (A) During an argument in a bar, Norris punches Defendant. Defendant, mistakenly believing that Norris is about to stab him, shoots and kills Norris. (B) While committing a robbery of a liquor store, Defendant accidentally drops his revolver, which goes off. The bullet strikes and kills Johnson, a customer in the store. (C) While hunting deer, Defendant notices something moving in the bushes. The bullet strikes and kills Griggs, another hunter. (D) In celebration of the Fourth of July, Defendant discharges a pistol within the city limits in violation of a city ordinance. The bullet richochets off the street and strikes and kills Abbott.
B, FMR
Dutton, disappointed by his 8-year-old son's failure to do well in school, began systematically depriving the child of food during summer vacation. Although his son became seriously ill from malnutrition, Dutton failed to call a doctor. He believed that as a parent he had the sole right to determine whether the child was fed or received medical treatment. Eventually the child died. An autopsy disclosed that the child had suffered agonizingly as a result of the starvation, that a physician's aid would have alleviated the suffering, and that although the Child would have died in a few months from malnutrition, the actual cause of death was an untreatable form of cancer. The father is prosecuted for murder, defined in the jurisdiction as "unlawful killing of a human being with malice aforethought." The father should be (A) acquitted, because of the defendant's good faith belief concerning parental rights in supervising children. (B) acquitted, because summoning the physician or feeding the child would not have prevented the child's death from cancer. (C) convicted, because the father's treatment of his son showed reckless indifference to the value of life. (D) convicted, because the child would have died from malnutrition had he not been afflicted with cancer.
B, because cause in fact is lacking.
At a party for coworkers Defendant's home, Victim accused Defendant of making advances toward his wife. Victim and his wife left the party. The next day at work, Defendant saw Victim and struck him on the head with a soft-drink bottle. Victim fell into a coma and died two weeks after the incident. The jurisdiction defines aggravated assault as an assault with any weapon or dangerous implement and punishes it as a felony. It defines murder as the unlawful killing of a person with malice aforethought or in the course of an independent felony. Multistate # 101. Defendant may be found guilty of murder (A) only if the jury finds that Defendant intended to kill Victim. (B) only if the jury finds that Defendant did not act in a rage provoked by Victim's accusations. (C) if the jury finds that Defendant intended either to kill or to inflict serious bodily harm. (D) if the jury finds that the killing occurred in the course of an aggravated assault.
C
Spring '95 Exam Question 6. In which of the following cases is Defendant most likely to be validly convicted of first-degree premeditated murder? (A) Upon hearing Violet shout an obscenity at him, Defendant flew into a rage and hit Violet in the head with a hammer he happened to be carrying. Violet was killed instantly. (B) Vera, who has a rare blood type, desperately needed a blood transfusion. Doctors approached Defendant, Vera's ex-boyfriend, who is the only person known to them to have Vera's blood type. They told Defendant that unless he agreed to donate his blood within two hours, Vera would surely die. Defendant reflected on the matter for an hour, and then declined to donate. Vera died as a result. (C) Defendant hired Carl to kill Vincent. Defendant gave Carl explicit and carefully crafted instructions about how to kill Vincent. Carl then killed Vincent in the planned manner. (D) Defendant planned to kill Vic and waited for him on a city sidewalk. Vic, who did not know of Defendant's plans, attacked Defendant with a knife. In response, Defendant instinctively drew and fired the loaded gun he was carrying. Vic was killed by the first and only shot
C
On a camping trip in a state park, Rose discovered metal signs near a rubbish heap stating, "Natural Wildlife Area -- No Hunting." She took two of the signs and used them to decorate her room at home. She is charged with violation of a state statute which provides, "Any person who appropriates to his own use property owned by the state shall be guilty of a crime, and shall be punished by a fine of not more than $1,000, or by imprisonment for not more than five years, or by both such fine and imprisonment." At trial, Rose admits taking the signs but says she believed they had been thrown away. In fact, the signs had not been abandoned. Rose should be found (A) guilty, because this is a public welfare offense. (B) guilty, because she should have inquired whether the signs were abandoned. (C) not guilty if the jury finds she honestly believed the signs were abandoned. (D) not guilty unless the jury finds that the state had taken adequate steps to inform the public that the signs had not been abandoned.
C, b/c she would lack the knowledge that the property belonged to the state.
95 Exam Question 12. In which of the following cases is Defendant least likely to be validly convicted of involuntary manslaughter? (A) Defendant's son was badly injured. Although the injuries were obviously very severe and Defendant would have realized this in normal circumstances, Defendant on this night was too drunk to realize the life-threatening nature of the injuries. He told his son to go to bed. By the next morning the child was dead. Prompt medical attention would have saved the child's life. (B) To celebrate the Fourth of July, Defendant pointed his gun in the air and fired. The gun misfired. Defendant was unaware that there was anything wrong with the gun. Schrapnel from the gun severely injured Defendant and killed a person standing in the yard next to Defendant's. An ordinance makes it a misdemeanor to discharge a weapon within city limits. Defendant was within city limits when he fired the gun. (C) Defendant, a railway repair worker, removed a section of railway ties to do some repair work on the track bed beneath. He knew that a passenger train was scheduled to cross the track in an hour and that the repair job would ordinarily take an hour and a half. Just before starting his work day, however, Defendant had taken medication that a doctor had just prescribed. The doctor had not warned him of the possibility of any side effects but, in fact, the medication caused him to have feelings of omnipotence, exaggerated self-importance, and invulnerability. As a result of these uncontrollable feelings and perceptions, he concluded that he would be able to finish the repair job in half the time it would normally take. Also as a result of the unanticipated effects of the medication, he concluded, erroneously, that unless he undertook immediate and valiant efforts to repair the track, the passenger train would crash. Defendant failed to finish the job within an hour. The passenger train derailed and numerous persons were killed as a result. (D) Defendant owns and maintains a five-story apartment building. The city code makes it a misdemeanor to fail to install fire escapes on the outside of the building. Although Defendant was aware of the dangers of not having fire escapes, he delayed installing them because of the cost. As a result of one his tenant's smoking in bed, the building caught fire and several persons living on the upper floors were killed. Many of the victims could have escaped if they had access to a fire escape.
C. This a clear case of involuntary intoxication which negates general intent.
Dobbs, while intoxicated, drove his car through a playground crowded with children just to watch the children run to get out of his way. His car struck one of the children, killing her instantly. Which of the following is the best theory for finding Dobbs guilty of murder? (A) Transferred intent (B) Felony murder, with assault with a deadly weapon as the underlying felony (C) Intentional killing, since he knew that the children were there and he deliberately drove his car at them (D) Commission of an act highly dangerous to life, without an intent to kill but with disregard of the consequences
D
In a jurisdiction that has abolished the felony-murder rule, but otherwise follows the common law of murder, Sally and Ralph, both armed with automatic weapons, went into a bank to rob it. Ralph ordered all the persons in the bank to lie on the floor. When some were slow to obey, Sally, not intending to hit anyone, fired about 15 rounds into the air. One of these ricocheted off a stone column and struck and killed a customer in the bank. Sally and Ralph were charged with murder of the customer. Which of the following is correct? (A) Sally can be convicted of murder, because she did the act of killing, but Ralph cannot be convicted of either murder or manslaughter. (B) Neither can be guilty of murder, but both can be convicted of manslaughter based upon an unintentional homicide. (C) Sally can be convicted only of manslaughter, but Ralph cannot be convicted of murder or manslaughter. (D) Both can be convicted of murder.
D
Suffering from painful and terminal cancer, Willa persuaded Harold, her husband, to kill her to end her misery. As they reminisced about their life together and reaffirmed their love for each other, Harold tried to discourage Willa from giving up. Willa insisted, however, and finally Harold held a gun to her head and killed her. The most serious degree of criminal homicide of which Harold can be legally convicted is (A) no degree of criminal homicide. (B) involuntary manslaughter. (C) voluntary manslaughter. (D) murder.
D
The most generally accepted basis on which a court will hold that X has a legal duty to aid another is the recognition by X that there is immediate danger of serious harm to (A) another human being from a stranger's wrongful conduct. (B) his neighbor from a stranger's wrongful conduct. (C) his cousin from a stranger's wrongful conduct. (D) another human being from X's own nonnegligent conduct
D
Which of the following is most likely to be found a strict liability offense? (A) A city ordinance providing for a fine of not more than $200 for shoplifting. (B) A federal statute making it a felony to possess heroin. (C) A state statute making it a felony to fail to register a firearm. (D) A state statute making the sale of adulterated milk a misdemeanor
D
. An unreasonable mistake of fact is most likely to be a permissible defense to some element of which of the following offenses: (A) knowing possession of a concealed weapon. (B) offensive contact with another. (C) giving knowingly false testimony. (D) offensive contact with another with intent to cause humiliation. (E) willful destruction of another's property.
D, bc it has a specific intent element (intent to cause humiliation).
A state statute requires any person licensed to sell prescription drugs to file with the State Board of Health a report listing the types and amounts of such drugs sold if his sales of such drugs exceed $50,000 during a calendar year. The statute makes it a misdemeanor to "knowingly fail to file" such a report. Nelson, who is licensed to sell prescription drugs, sold $63,000 worth of prescription drugs during 1976 but did not file the report. Charged with committing the misdemeanor, Nelson testifies that he did a very poor job of keeping records and did not realize that his sales of prescription drugs had exceeded $50,000. If the jury believes Nelson he should be found (A) guilty, because this is a public welfare offense. (B) guilty, because he cannot be excused on the basis of his own failure to keep proper records. (C) not guilty, because the statute punishes omissions and he was not given fair warning of his duty to act. (D) not guilty, because he was not aware of the value of the drugs he had sold
D, offense requires knowledge of sales over 50k, and he was ignorant of the revenue that he had generated.
Fall '95 Question 1. Colin Williams, the three year old son of Teresa and Michael Williams, died of the consequences of peritonitis caused by perforation of the bowel. The condition could have been quickly diagnosed and corrected by surgery with a high success rate. Colin was in considerable distress and his condition was life-threatening. The Williams, who were of average intelligence and without any recognized psychological or psychiatric disorder, nonetheless did not seek medical attention. In accordance with their religious beliefs, which reject conventional medical treatment in favor of spiritual healing, they prayed for healing. The praying continued for a few days until Colin died. Which of the following would constitute the Williams' best argument for avoiding a conviction of involuntary manslaughter? A) Criminal liability may not be predicated upon their failure to act. B) There was no causal connection between their acts of praying and the death. C) Their religious beliefs precluded them from recognizing the moral wrongfulness of their conduct,+ thus rendering them legally insane. D) They genuinely believed that the praying would certainly heal their son.+ E) Their purpose in not seeking medical attention was not the death of their son nor were they practically certain that death would result.++
D, they were not subjectively aware of the risk
Dunbar and Balcom went into a drugstore, where Dunbar reached into the cash register and took out $200. Stone, the owner of the store, came out of a back room, saw what had happened, and told Dunbar to put the money back. Balcom then took a revolver from under his coat and shot and killed Stone. Dunbar claims that Stone owed her $200 and that she went to the drugstore to try to collect the debt. She said that she asked Balcom to come along just in case Stone made trouble but that she did not plan on using any force and did not know that Balcom was armed. If Dunbar is prosecuted for murder on the basis of felony murder and the jury believes her claim, she should be found (A) guilty, because her companion, Balcom, commited a homicide in the course of a felony. (B) guilty, because her taking Balcom with her to the store created the risk of death that occurred during the commission of a felony. (C) not guilty, because she did not know that Balcom was armed and thus did not have the required mental state for felony murder. (D) not guilty, because she believed that she was entitled to the money and thus did not intend to steal.
D. Under the common law, taking property under a good faith claim of right is not larceny, which is the underlying basis of the FMR theory.
D is charged with the first degree FM of V based upon the second degree depraved heart murder of V. Does merger apply? Why or why not?
Merger does not apply b/c DPH is already an existing homicide offense, and existing homicide offenses do not elevate to Felony Murder.