An Outline of Criminal Law

Yin Huang
May 1, 2010

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Contents
1 The Nature of Punishment 4
1.1 Kansas v. Hendricks . . . . . . . . . . . . . . . . . . . . . . . 4
1.2 Ewing v. California . . . . . . . . . . . . . . . . . . . . . . . . 5
1.3 Apprendi v. New Jersey . . . . . . . . . . . . . . . . . . . . . 6

2 The Actus Reus 7

2.1 Proctor v. State . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.2 Jones v. United States . . . . . . . . . . . . . . . . . . . . . . 8
2.3 United States v. Maldonado . . . . . . . . . . . . . . . . . . . 9
2.4 People v. Newton . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.5 Martin v. State . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.6 People v. Grant . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.7 Robinson v. California . . . . . . . . . . . . . . . . . . . . . . 12
2.8 Johnson v. State . . . . . . . . . . . . . . . . . . . . . . . . . 13

3 The Mens Rea 15

3.1 Regina v. Faulkner . . . . . . . . . . . . . . . . . . . . . . . . 15
3.2 Regina v. Prince . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.3 People v. Ryan . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.4 People v. Bray . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.5 United States v. Baker . . . . . . . . . . . . . . . . . . . . . . 19
3.6 Cheek v. United States . . . . . . . . . . . . . . . . . . . . . . 20
3.7 Commonwealth v. Twitchell . . . . . . . . . . . . . . . . . . . 21
3.8 Hendershott v. People . . . . . . . . . . . . . . . . . . . . . . 22
3.9 State v. Cameron . . . . . . . . . . . . . . . . . . . . . . . . . 23

4 Intentional Homicide 24
4.1 Francis v. Franklin . . . . . . . . . . . . . . . . . . . . . . . . 24
4.2 United States v. Watson . . . . . . . . . . . . . . . . . . . . . 25
4.3 People v. Walker . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.4 Ex Parte Fraley . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.5 Rowland v. State . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.6 People v. Berry . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.7 People v. Wu . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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5 Unintentional Homicide 31
5.1 Commonwealth v. Welansky . . . . . . . . . . . . . . . . . . . 31
5.2 State v. Williams . . . . . . . . . . . . . . . . . . . . . . . . . 32

6 Reckless Murder 33
6.1 Mayes v. People . . . . . . . . . . . . . . . . . . . . . . . . . . 33

7 Felony Murder 34
7.1 State v. Martin . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.2 People v. Hickman . . . . . . . . . . . . . . . . . . . . . . . . 35
7.3 People v. Gladman . . . . . . . . . . . . . . . . . . . . . . . . 36
7.4 People v. Cavitt . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.5 State v. Shock . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

8 The Death Penalty 40

8.1 Olsen v. State . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.2 McCleskey v. Kemp . . . . . . . . . . . . . . . . . . . . . . . . 41

9 Rape 43
9.1 Brown v. State . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.2 People v. Dorsey . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.3 People v. Barnes . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.4 State v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.5 In the Interest of M.T.S. . . . . . . . . . . . . . . . . . . . . . 47
9.6 State v. Moorman . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.7 Commonwealth v. Fischer . . . . . . . . . . . . . . . . . . . . 48

10 Conspiracy 50
10.1 Griffin v. State . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.2 United States v. Recio . . . . . . . . . . . . . . . . . . . . . . 51
10.3 People v. Lauria . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.4 United States v. Diaz . . . . . . . . . . . . . . . . . . . . . . . 53

11 Defensive Force, Necessity, and Duress 54

11.1 People v. La Voie . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.2 People v. Gleghorn . . . . . . . . . . . . . . . . . . . . . . . . 55
11.3 State v. Leidholm . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.4 People v. Goetz . . . . . . . . . . . . . . . . . . . . . . . . . . 57
11.5 The Queen v. Dudley & Stephens . . . . . . . . . . . . . . . . 59

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 11.6 People v. Unger . . . . . . . . . . . . . . . . . . . . . . . . . . 60

12 Insanity 61
12.1 People v. Serravo . . . . . . . . . . . . . . . . . . . . . . . . . 61

13 Attempt 63
13.1 State v. Lyerla . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.2 People v. Murray . . . . . . . . . . . . . . . . . . . . . . . . . 64
13.3 McQuirter v. State . . . . . . . . . . . . . . . . . . . . . . . . 65
13.4 People v. Rizzo . . . . . . . . . . . . . . . . . . . . . . . . . . 66
13.5 People v. Staples . . . . . . . . . . . . . . . . . . . . . . . . . 67
13.6 People v. Lubow . . . . . . . . . . . . . . . . . . . . . . . . . 68

14 Complicity 69
14.1 State v. Ochoa . . . . . . . . . . . . . . . . . . . . . . . . . . 69
14.2 State v. Tally . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
14.3 People v. Beeman . . . . . . . . . . . . . . . . . . . . . . . . . 73
14.4 Wilson v. People . . . . . . . . . . . . . . . . . . . . . . . . . 74
14.5 State v. Etzweiler . . . . . . . . . . . . . . . . . . . . . . . . . 75

1 The Nature of Punishment

1.1 Kansas v. Hendricks
1.1.1 Overview
Hendricks disputed his involuntary commitment to a mental institution under
Kansas’s Sexually Violent Predator Act.

1.1.2 Facts
Hendricks had been been imprisoned for a long history of child molestation.
At a previous trial, he admitted having an uncontrollable urge to molest
children and that the treatment he had received was ineffective. Shortly
before his release, Kansas enacted the Sexually Violent Predator Act, which
mandated the involuntarily commitment of repeat offenders. Kansas sought
to commit Hendricks under the Act, but Hendricks argued that the Act
violated the constitutional prohibition against double jeopardy and ex post
facto laws.

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1.1.3 Issue
(1) Does involuntary commitment under the Act constitute double jeopardy?
(2) Is the Act itself an ex post facto law?

1.1.4 Holding
(1) Involuntary commitment under the Act is not double jeopardy. (2) The
Act is not an ex post facto law.

1.1.5 Reasoning
It is important to realize that not all detainment constitutes punishment.
The Act addresses concerns fundamentally different from those of criminal
law. It does not serve purposes of retribution of deterrence. Persons absolved
of criminal responsibility may nonetheless be committed under it. The Act
bases involuntary commitment not on criminal intent but on the presence of
a mental abnormality or personality disorder.

1.2 Ewing v. California

1.2.1 Overview
Ewing was given a sentence of twenty-five years to life under a “three strikes”
law. He argued that the sentence amounted to cruel and unusual punishment
prohibited by the Eighth Amendment.

1.2.2 Facts
Ewing was on parole from a nine-year prison term when he stole several
golf clubs whose combined value amounted to well over $1,000. As a result,
he was convicted of felony grand theft. Having committed several felonies
before, including a robbery and several residential burglaries, the California
“three strikes” law mandated a sentence of twenty-five years to life.

1.2.3 Issue
Does the sentence Ewing received under the “three strikes” law amount to
cruel and unusual punishment?

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1.2.4 Holding
The sentence does not amount to cruel and unusual punishment.

1.2.5 Reasoning
The Supreme Court has long deferred to state legislatures in matters of crim-
inal punishment, and the Court should do so here. In general, a punishment
does not qualify as cruel and unusual unless it is grossly disproportionate to
the crime. Few challenges based on the Eighth Amendment grounds have
been successful outside the context of the death penalty. Ewing’s offense
consists not only of shoplifting golf clubs. Rather, one should take into ac-
count his long history of criminal behavior, and the state should be allowed
to exercise its discretion in setting policy with regard to criminal punishment.

1.3 Apprendi v. New Jersey

1.3.1 Overview
Apprendi claimed that a statute law authorizing lengthened sentences for
hate crimes violates the constitutional guarantee of due process.

1.3.2 Facts
Apprendi fired several shots into the home of an African-American family. He
pleaded guilty to second-degree possession of a firearm. During questioning,
Apprendi mentioned that the crime had been partly motivated by a desire to
drive blacks from the neighborhood, though he later retracted this statement.
The sentence for possession of the firearm was five to ten years, but a statute
mandated a sentence of ten to twenty years if that conduct also qualified as
a hate crime. The trial judge subsequently found by a preponderance of the
evidence that Apprendi was motivated by racial bias and accordingly handed
him the increased sentence.

1.3.3 Issue
Must any factor increasing the maximum sentence of a crime be proven to a
jury beyond a reasonable doubt in order to comport with the constitutional
guarantee of due process?

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1.3.4 Holding
Any such factor must be so proven to a jury.

1.3.5 Reasoning
The law has historically required the offense and the corresponding punish-
ment to be stated clearly so that the accused may have a fair opportunity to
build a defense. If the law authorizes a higher degree of punishment because
a crime was committed under particular circumstances, then the presence of
those circumstances must be proven beyond a reasonable doubt. Such is the
case here. An accusation of racial bias affects the mens rea and adds racial
motivation as an element of the crime. Like any other element, this element
must be proven beyond a reasonable doubt.

2 The Actus Reus

2.1 Proctor v. State
2.1.1 Overview
Proctor challenged a conviction for owning a premises with the intention to
sell liquor thereon.

2.1.2 Facts
Proctor was convicted under an Oklahoma statute that made it a crime to
keep a premises with the intention to sell alcoholic beverages thereon.

2.1.3 Issue
Is the statute void for failing to state conduct that constitutes a crime?

2.1.4 Holding
The statute is void for failing to state conduct that constitutes a crime.

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2.1.5 Reasoning
The Oklahoma legislature may not criminalize otherwise legal conduct by
coupling that conduct with some criminal intent. In order to define a crime,
a statute must declare a particular act unlawful. Here, the only act is the
admittedly lawful one of keeping a premises. Criminality turns entirely on the
intent to use the premises for an unlawful purpose at some undefined future
time. Although the intent to commit a crime may be as morally blameworthy
as the actual commission of the crime, the legislature nonetheless cannot
criminalize intent alone.

2.2 Jones v. United States

2.2.1 Overview
Jones argued that she could not be convicted for failing to take care of a
newborn child.

2.2.2 Facts
Jones had agreed to care for a child whose mother had given birth to him out
of wedlock. Several months later, the police removed the child to a hospital,
where he was diagnosed with malnutrition and severe diaper rash. Despite
feeding, the child died shortly thereafter. Jones argued that she could not
be convicted absent proof beyond a reasonable doubt that she owed a duty
of care to the child.

2.2.3 Issue
Does conviction for negligent omission require proof that the accused failed
to perform a legal duty?

2.2.4 Holding
Conviction for negligent omission requires such proof.

2.2.5 Reasoning
In general, one can be held criminally liable for a negligent omission (1) where
a statute imposes a legal duty to care for another, (2) where one has some

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special relationship to another, (3) where one has assumed a contractual
duty to care for another, and (4) where one has voluntarily assumed the
care of another and so secluded the helpless person as to prevent others from
rendering aid. Because critical facts relevant to these criteria have yet to be
determined, Jones is entitled to a new trial.

2.3 United States v. Maldonado

2.3.1 Overview
Maldonado appealed a conviction for possession of cocaine with the intent
to distribute.

2.3.2 Facts
Rafael Angel Zavala Maldonado (“Zavala”) was arrested during a drug deal
in which the other party, Santos, was an informant for the United States
government. Acting on behalf of a dealer named Palestino, Zavala had met
Santos in a hotel room. Santos arrived carrying a bag of cocaine, which he
intended to convey to Palestino. Despite that Zavala made several phone calls
urging Palestino to hurry to the room, Palestino did not appear. Seeing that
Santos was becoming anxious, Zavala suggested that they leave the cocaine
in the room so they could drink sodas. Zavala was subsequently arrested and
convicted.

2.3.3 Issue
May the doctrine of constructive possession be used to impute possession of
the cocaine to Zavala?

2.3.4 Holding
The doctrine of constructive possession may be used to impute possession of
the cocaine to Zavala.

2.3.5 Reasoning
Although Zavala did not have physical possession of the cocaine, he gained
control over it when Santos agreed to leave it in the hotel room. Even though

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his control was not complete, Zavala had the power to prevent Santos from
unilaterally leaving with the cocaine. The intent to distribute is shown by the
circumstances under which the events took place. Through his phone calls
to Palestino and his reassurances to Santos, Zavala showed a clear intent to
facilitate the sale of drugs.

2.4 People v. Newton

2.4.1 Overview
Newton appealed a conviction for possession of a firearm on the ground
that he did not enter voluntarily into the circumstances under which he was
arrested.

2.4.2 Facts
Newton, who had a physical disability, had boarded a plane in the Bahamas
while carrying a concealed pistol. At some time during the flight, he ap-
parently engaged in unruly behavior. The captain, who had become aware
that Newton was carrying a firearm, decided to land the plane at John F.
Kennedy International Airport in New York. The rationale for the landing,
however, was unclear; the landing was never specifically attributed to New-
ton’s behavior. Newton was then arrested by New York police and convicted
under a New York statute forbidding the possession of firearms.

2.4.3 Issue
Should the conviction be overturned on the ground that Newton did not
enter New York voluntarily?

2.4.4 Holding
The conviction should be overturned.

2.4.5 Reasoning
The flight was not intended to land in the United States or to traverse terri-
tory subject to jurisdiction of the United States. The landing was an inter-
ruption that cannot be attributed to voluntary action by Newton.

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2.5 Martin v. State
2.5.1 Overview
Martin appealed a conviction for unruly conduct.

2.5.2 Facts
Martin was arrested at home. While en route to the police station in a police
car, he manifested a drunken condition by using loud and profane language.
Martin was convicted for being drunk on a highway, but he challenged the
conviction on the ground that he did not commit the crime voluntarily.

2.5.3 Issue
Should Martin’s conviction be overturned because his conduct was not vol-
untary?

2.5.4 Holding
The conviction should be overturned.

2.5.5 Reasoning
Martin was forcibly carried onto the highway by the police.

2.6 People v. Grant

2.6.1 Overview
Grant appealed convictions for aggravated battery and for obstructing a po-
lice officer on the ground that his actions were involuntary.

2.6.2 Facts
Grant was drinking at a bar when a fight between two other patrons broke
out. The police were called to the scene, where they arrested the brawling
patrons. As the patrons were being led outside, a large group of remaining
patrons formed around the arresting officers and cheered for the arrested
patrons. Grant, who was among the crowd, suddenly attacked Officer Von-
derahe, whereupon he was subdued and arrested by Officer Yarcho. After

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Grant was taken to the county jail, he suffered a grand mal convulsive seizure
and required treatment at a hospital. Grant later testified that he remem-
bered nothing of the attack on Officer Vanderohe. Officer Yarcho testified it
took him great force to restrain Grant at the scene of the bar brawl, though
it took four men to wrestle Grant into the ambulance during his seizure at
the jail. Officer Yarcho also testified that Grant appeared to be lucid at the
time of arrest. A psychiatrist testifying for Grant stated that Grant suffered
from a form of epilepsy that may have prevented him from controlling his
actions. The jury was instructed only on the defense of insanity, not on the
defense of involuntary action.

2.6.3 Issue
Should Grant’s conviction be overturned on the ground that the jury was
not properly instructed as to the defense of involuntary action?

2.6.4 Holding
Grant’s conviction should be overturned.

2.6.5 Reasoning
It is possible for a defendant to lack voluntary control over his actions without
being insane. Grant’s attack on Officer Vonderahe may have occurred during
an episode of automatism brought on by his condition. If such is the case,
then his conviction by the court below cannot be sustained. A finding that
Grant is susceptible to automatism does not, however, automatically absolve
him of all responsibility. Rather, Grant should be entitled to a new trial,
where a jury may determine whether he was indeed acting involuntarily.
Even if the jury finds Grant’s actions to be involuntary, the trial court may
nonetheless convict him on the ground that he had voluntarily aggravated
his propensity for involuntarily violence through heavy drinking.

2.7 Robinson v. California

2.7.1 Overview
Robinson appealed a conviction under a statute that criminalizes drug ad-
diction.

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2.7.2 Facts
Robinson was arrested after a police officer noticed track marks on his body
and heard him admit to occasional use of narcotics. He was subsequently
convicted under a statute criminalizing drug addiction.

2.7.3 Issue
Should Robinson’s conviction be overturned on the ground that the status
of drug addiction is not a valid crime?

2.7.4 Holding
Robinson’s conviction should be overturned.

2.7.5 Reasoning
Drug addiction should be treated as a disease rather than a “continuous” of-
fense as envisioned by the state. It is hardly conceivable that any state would
attempt to convict a person for being mentally ill or having some other dis-
ease, and there is no sound basis for distinguishing these recognized diseases
from drug addiction. Although drug addiction might call for quarantine or
other kinds of confinement, it certainly does not merit punishment.

Justice Harlan, concurring. In convicting Grant, the state has attempted

to punish the bare desire to commit a criminal act.

Justice White, dissenting. The conviction was for the regular, repeated,
or habitual use of narcotics immediately prior to Grant’s arrest. It should
be upheld.

2.8 Johnson v. State

2.8.1 Overview
Johnson appealed a conviction for delivering cocaine to her newborn son via
the umbilical cord.

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2.8.2 Facts
Johnson gave birth to a son. She admitted to having used cocaine the pre-
vious night. Shortly after the birth, a toxicology test indicated that the
newborn’s blood contained a breakdown product of cocaine. Testimony from
the obstetrician showed that the umbilical was functioning normally during
delivery and that it continued to deliver blood to the infant for sixty to ninety
seconds following birth, until it was clamped. The state prosecuted Johnson
on the theory that she had “delivered” cocaine to her newborn son via the
umbilical cord.

2.8.3 Issue
Has Johnson delivered a controlled substance to a child within the meaning
of the law?

2.8.4 Holding
Johnson has not delivered a controlled substance to a child.

2.8.5 Reasoning
The evidence does not show that any cocaine derivatives passed from mother
to child during the sixty- to ninety-second period between the delivery of the
child and the clamping of the umbilical cord. There is no support for the
theory that any person-to-person delivery of drugs within in the meaning of
the statute took place. Furthermore, there is also no evidence to suggest that
Johnson timed her doses of cocaine in such a way as to convey the drug to her
son. Upholding the conviction in this case would also contradict the policy
underlying the law. The legislature has expressly stated that the statute is
not intended to authorization prosecution for the birth of a drug-dependent
child. Although the problem of drug-addicted mothers is serious, it should
not be remedied through piecemeal prosecution.

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3 The Mens Rea
3.1 Regina v. Faulkner
3.1.1 Overview
Faulkner appealed a conviction for burning down a ship.

3.1.2 Facts
Faulkner, a seaman aboard a ship, had sneaked into a cargo hold to steal
some rum. He was attempting to stopper a hole he had drilled in a rum cask
when a lighted match, which he was using to illuminate the dark hold, ignited
the rum. The fire then spread throughout the ship, ultimately causing it to
sink.

3.1.3 Issue
Should Faulkner’s conviction be overturned on the ground that he had no
intention of burning down the ship?

3.1.4 Holding
Faulkner’s conviction should be overturned.

3.1.5 Reasoning
Barry, J. The Crown has proposed that one who commits a crime should
be liable for all consequences stemming from the criminal act regardless of
whether those consequences were intended. This construction is too broad,
and no authority has ever been cited to support it.

Fitzgerald, J. In order to convict a person for the consequences of a crim-

inal act, it should be shown that those consequences were the necessary or
likely results of the act. There is no reason to hold that a defendant should
be liable for every consequence of his criminal conduct.

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O’Brien, J. The law plainly states that intent is a prerequisite to con-
viction. In a prior case, it was held that a person who throws a rock with
the intent to strike a person but whose bad aim causes that rock to break a
window instead is not criminally liable for breaking the window.

Keogh, J. The conviction should stand. Faulkner burned down the ship
while committing a crime, and he should be held liable.

3.2 Regina v. Prince

3.2.1 Overview
Prince appealed a conviction for taking an underage girl from the possession
of her father.

3.2.2 Facts
Prince tried to elope with a girl under the age of sixteen. There is no doubt as
to the facts supporting the conviction, but Prince argued that his conviction
should be overturned on the ground that he mistakenly believed the girl to
be older than sixteen.

3.2.3 Issue
Does Prince’s belief that the girl was older than sixteen constitute a defense
to the crime?

3.2.4 Holding
Prince’s belief does not constitute a defense.

3.2.5 Reasoning
Blackburn, J. It is difficult to believe that the legislature intended the
conviction to depend on the defendant’s knowledge as to whether his actions
constituted a crime. The point of the statute is to punish those who have
relations with underage girls.

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Bramwell, B. The conviction should be upheld. Prince’s actions were not
only unlawful but morally wrong. Anyone who takes a young girl from her
father does so at the risk that she will later turn out to be underage.

Denman, J. Although Prince might have a defense if he had taken the

girl away in order to protect her from abuse or some other danger, no such
justification is present here. Having violated the statute, he cannot now
claim that he should be acquitted simply because he did not know that the
girl was underage.

Brett, J. In general, a defendant should assume the risk that a potentially

unlawful action will indeed turn out to be unlawful.

3.3 People v. Ryan

3.3.1 Overview
Ryan appealed a conviction for knowingly possessing a certain amount of
hallucinogenic drugs.

3.3.2 Facts
Ryan had purchased some hallucinogenic mushrooms. The mushrooms were
to be delivered by a courier service. An investigator learned of the trans-
action and intercepted the package, delivering it to Ryan while posing as
an employee of the courier service. Ryan was arrested immediately after
accepting the package. Subsequent chemical analysis of the mushrooms re-
vealed that a sample contained more than 796 milligrams of psilocybin, the
hallucinogenic ingredient. Ryan was convicted under a statute that made
it a felony to “knowingly and unlawfully possess” more than 625 milligrams
of any hallucinogen. Ryan appealed on the ground that he did not know
whether the psilocybin content exceeded the statutory limit.

3.3.3 Issue
Should the term “knowingly” be applied to the weight of the hallucinogenic
substance as well as the possession of the mushrooms themselves?

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3.3.4 Holding
The term should be so applied.

3.3.5 Reasoning
In general, a criminal statute should be construed to apply the requirement
of mens rea to every element of a crime unless the statute plainly indicates
otherwise. This principle is meant to avoid the inadvertent imposition of
strict liability, and it has been expressly adopted by the state legislature.
This interpretation also harmonizes with the evident rationale underlying
the criminal law, which categorizes similar offenses based on the amount of
drugs possessed. The state’s argument that proving knowledge with regard
to weight would frustrate prosecution holds little water. Knowledge of weight
can be inferred from a buyer’s discussion of quantity and other aspects of
the drug.

3.4 People v. Bray

3.4.1 Overview
Bray appealed a conviction for being a felon in possession of a concealable
firearm.

3.4.2 Facts
Bray had been convicted in Kansas for being an accessory after the fact to
a crime. In that incident, he had unwillingly become involved in the crime
after he drove a friend away from the crime scene. He cooperated fully with
the investigation and completed probation. The evidence shows that Bray
had lingering uncertainties about whether the conviction was a felony. On
multiple occasions, he answered written questions about his criminal history
by offering a detailed explanation of the circumstances. At some point, Bray
purchased two handguns. He was subsequently convicted for being a felon in
possession of firearms.

3.4.3 Issue
Should Bray’s conviction be overturned because of his doubt as to whether
he was a felon?

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3.4.4 Holding
Bray’s conviction should be overturned.

3.4.5 Reasoning
Knowledge that one is a felon becomes relevant where there is doubt that
the defendant knew he had committed a felony. It would be unreasonable to
expect Bray to know his status, as even the prosecutor was hard-pressed to
determine whether the Kansas offense had been a felony or misdemeanor.

3.5 United States v. Baker

3.5.1 Overview
Baker appealed a conviction for trafficking in counterfeit goods.

3.5.2 Facts
Baker was convicted of selling counterfeit Rolex watches. He did not dispute
that he intentionally dealt in the watches or that he knew the watches were
fake. He challenged the conviction solely on the ground that he did not know
that his conduct amounted to a criminal offense.

3.5.3 Issue
Should Baker’s conviction be overturned because he did not know that the
sale of counterfeit watches was a crime?

3.5.4 Holding
Baker’s conviction should not be overturned.

3.5.5 Reasoning
The statute requires only that Baker knew he was dealing in counterfeit
goods. It does not require the specific knowledge that such conduct amounts
to a crime.

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3.6 Cheek v. United States
3.6.1 Overview
Cheek appealed a conviction for tax evasion.

3.6.2 Facts
For several years, Cheek had been increasingly delinquent in paying his taxes.
He had initially claimed more and more allowances to reduce his tax burden,
but eventually he failed to file his taxes altogether. At trial, he testified
that he had attended seminars given by a group that believed that income
taxes were unconstitutional and that the Sixteenth Amendment authorized
only taxes on profits as opposed to income. Cheek claimed that he held a
good-faith belief that his refusal to pay taxes was lawful. He argued that his
acts did not have the willfulness necessary to support a conviction.

3.6.3 Issue
Should Cheek’s good-faith belief in the lawfulness of his actions, if accepted
by the jury, be accepted as a defense?

3.6.4 Holding
Such good-faith belief should be accepted as a defense.

3.6.5 Reasoning
Because the tax code is so complex, Congress has allowed leniency for in-
dividuals who fail to pay taxes because of good-faith misunderstandings. If
a jury finds that Cheek really did believe that the Internal Revenue Code
did not treat wages as taxable, then any pertinent part of the conviction
should be overturned. It is not necessary that a claim of good-faith belief
be objectively reasonable. By contrast, Cheek’s claim that certain taxes are
unconstitutional should be treated differently. This claim is a studied con-
clusion and reveals full knowledge of the provisions at issue. If Cheek had
wanted to dispute the constitutionality of his taxes, he should have filed first
and then taken up the issue with a tax court.

20
3.7 Commonwealth v. Twitchell
3.7.1 Overview
Twitchell appealed a conviction for the involuntary manslaughter of his child.

3.7.2 Facts
Twitchell and his wife practiced Christian Science. Among the beliefs of
Christian Science were that illnesses should be cured through spiritual healing
rather than ordinary medicine. When their son fell ill as a result of compli-
cations from an anomaly known as Meckel’s diverticulum, they attempted to
cure him using spiritual healing. As a result of the lack of medical attention,
the child developed peritonitis and died. Twitchell argued that a conviction
would be unfair because he and his wife had relied on a statement of the
Attorney General of Massachusetts, which facially precluded prosecution for
failure to provide medical attention.

3.7.3 Issue
Is reliance on an official statement of the law a defense to involuntary manslaugh-
ter?

3.7.4 Holding
Such reliance is a defense to manslaughter.

3.7.5 Reasoning
The relevant statute provides no complete protection against a charge of
involuntary manslaughter. It shields individuals from prosecution only for
negligent conduct, not the wanton or reckless conduct underlying involun-
tary manslaughter. Twitchell, however, has meritoriously contended that the
portions of the statute he read failed to give a fair warning as to the crime.
That excerpt contained no clear statement regarding criminal liability for
involuntary manslaughter, and it is likely that Twitchell would have acted
differently had he known of this possibility. Twitchell was attempting to
comply with the law insofar as his religious beliefs would allow.

21
3.8 Hendershott v. People
3.8.1 Overview
Hendershott appealed a conviction for third-degree assault.

3.8.2 Facts
Hendershott had been living in the rooming house of Patricia Styskal when
problems developed in his relationship with Styskal. Annoyed by his heavy
drinking, Styskal finally ordered him to move out. The same night, he re-
turned to the house and assaulted Styskal by striking, kicking, and choking
her. During trial, Hendershott offered evidence that he suffered from adult
minimal brain dysfunction, which prevented him from having the requisite
awareness required to cause harm “knowingly” or “recklessly.” The trial
court refused to admit this evidence on the ground that such mental states
were required only for specific-intent crimes. Because third-degree assault
was not a specific-intent crime, the trial court concluded that the evidence
was unnecessary.

3.8.3 Issue
Should evidence of a defendant’s impaired mental state be admitted even
though the crime does not require specific intent?

3.8.4 Holding
Such evidence should be admitted.

3.8.5 Reasoning
To bar the evidence that Hendershott has offered would prevent him from
raising a defense on the issue of his mental state and thereby create a pre-
sumption of liability as to that element of the crime. The result is an imper-
missible lightening of the prosecution’s burden to prove the mental element
of the crime beyond a reasonable doubt. The prosecution cannot argue that
this defense would tread on territory reserved for the insanity defense, as its
burden of proof cannot be lightened simply because the defendant is legally
sane. There is no merit to the prosecution’s argument that psychiatric evi-
dence presents evidentiary problems. Finally, the prosecution cannot argue

22
that Hendershott should not be acquitted because he is mentally impaired.
Any mental impairment could be treated outside the criminal justice system.

3.9 State v. Cameron

3.9.1 Overview
Cameron appealed a conviction for second-degree aggravated assault, posses-
sion of a weapon with intent to use it unlawfully, and fourth-degree resisting
arrest.

3.9.2 Facts
The victim had been playing cards with some friends on an empty lot when
Cameron approached them and disrupted their game. The card players
moved their card table to a different part of the lot. Cameron, however,
followed them and overturned the table. The players righted the table and
resumed the game. Cameron then attacked the victim with a broken bottle,
causing injuries requiring thirty-six stitches. When the police were sum-
moned to the scene, she threw a bottle at their vehicle, shouted obscenities,
and tried to fight them off. Cameron argued that her conviction should be
overturned on the ground that she was too drunk to form the intent necessary
for the crimes.

3.9.3 Issue
Should Cameron’s conviction be overturned because of her voluntary intoxi-
cation?

3.9.4 Holding
The conviction should not be overturned.

3.9.5 Reasoning
In general, voluntary intoxication negates the mens rea required for specific-
intent crimes, such as those for which Cameron was convicted. Here, however,
there was insufficient evidence to show credibly that Cameron was so drunk
as not to be able to form specific intent. Although she was carrying a quart of

23
wine at the time of the crime, she admitted that she drank relatively little of
the wine and that she gave away a substantial amount. Her testimony as to
her own intoxication amounts to little more than conclusory descriptions of
her condition. Cameron’s own detailed account of the assault shows that her
intoxication, if any, was insufficient to negate the element of specific intent.

4 Intentional Homicide
4.1 Francis v. Franklin
4.1.1 Overview
Francis appealed a conviction for second-degree murder.

4.1.2 Facts
Francis, a prisoner, was visiting a dentist’s office under the supervision of
prison guards when he escaped and managed to seize a gun from one of the
guards. Taking the dentist’s assistant hostage, he unsuccessfully attempted
to find an escape vehicle. Francis and his hostage eventually ended up at the
front door of Franklin, the victim. Francis knocked on Franklin’s door while
pointing the pistol at the door. When Franklin answered and saw the gun, he
slammed shut the door, whereupon the gun discharged. The bullet traveled
through the door, struck Franklin in the chest, and killed him. Seconds later,
the gun discharged again, but this time the bullet went into the ceiling of
the Franklin residence. At the time of his arrest, Franklin made a formal
statement that he had accidentally fired the gun in response to the slamming
door. He challenged his conviction on the ground that the trial court had
improperly instructed the jury by stating that intent was to presumed unless
that element was specifically rebutted.

4.1.3 Issue
Did the trial court give an improper jury instruction in stating that intent
was to be presumed?

4.1.4 Holding
The trial court gave an improper jury instruction.

24
4.1.5 Reasoning
The trial court’s instruction stated that “[t]he acts of a person of sound mind
and discretion are presumed to be the product of the person’s will, but the
presumption may be rebutted. A person of sound mind and discretion is
presumed to intend the natural and probable consequences of his act, but
the presumption may be rebutted.” These instructions could mislead a rea-
sonable jury to believe that the element of intent was automatically satisfied
unless specifically disproved by the defense. The result is an impermissible
lightening of the prosecution’s burden to prove the element of intent beyond
a reasonable doubt. Even if the instruction is understood as a mandatory
rebuttable presumption as opposed to a conclusive assertion, it would still
improperly shift the burden of proof from the prosecution to the defense.

4.2 United States v. Watson

4.2.1 Overview
Watson appealed a conviction for premeditated murder.

4.2.2 Facts
Watson was sitting in a parked stolen car when two police officers investigat-
ing the theft of the car ordered him to halt. Watson bolted from the vehicle
and fled into an apartment, where he made a phone call to ask whether the
police were still pursuing him. Shortly thereafter, Officer Lunning entered
the room to arrest Watson. As Lunning was about to handcuff Watson, Wat-
son broke free and caused Lunning’s gun to drop to the floor. The two then
wrestled for several moments, until Watson managed to pin Lunning to the
floor. Watson then picked up the gun and pointed it at Lunning, whereupon
Lunning pleaded twice that “[i]t wasn’t worth it.” Watson then shot and
killed Lunning.

4.2.3 Issue
Do Watson’s actions allow a reasonable jury to draw an inference of premed-
itation?

25
4.2.4 Holding
Watson’s actions allow such an inference.

4.2.5 Reasoning
Premeditation consists of deliberating whether to kill and the subsequent
decision to do so. Although a defendant need not have considered a killing
for a specific amount of time, that time must be long enough to show that the
killing was not carried out impulsively or in the heat of a fight. Here, Watson
had the opportunity to decide whether to kill Officer immediately after he
pinned Lunning to the floor and after Lunning had pleaded “[i]t wasn’t worth
it.” That Watson chose to shoot even though there was nothing to prevent his
escape also suggests that Watson deliberately chose to kill Lunning. These
facts allow an inference of premeditation.

4.3 People v. Walker

4.3.1 Overview
Walker appealed a conviction for murder.

4.3.2 Facts
Walker was chatting with some friends on a front porch when the deceased,
McClinton, approached them and demanded that they gamble with him.
When Walker and his friends refused, McClinton became belligerent, threat-
ening the group with a knife. Eventually Walker and another from the group
managed to force McClinton off the porch despite that McClinton was swing-
ing his knife all the while. Eventually Walker threw a brick and knocked down
McClinton. Walker then took McClinton’s hand, which was still holding the
knife, and thrust the knife into McClinton’s throat. Walker argued that his
actions constituted voluntary manslaughter, not murder.

4.3.3 Issue
Do Walker’s actions support a conviction for voluntary manslaughter as op-
posed to murder?

26
4.3.4 Holding
Walker’s actions support a conviction for voluntary manslaughter.

4.3.5 Reasoning
Walker was justifiably provoked into killing McClinton. McClinton was
threatening one and all. The affray was a continuous one.

4.4 Ex Parte Fraley

4.4.1 Overview
Fraley petitioned for a writ of habeas corpus for the purpose of being released
on bail while awaiting a charge of murder.

4.4.2 Facts
Fraley had evidently been nursing a grudge against Parker, the deceased,
because Parker had killed his son nine or ten months before. One night,
when Parker was leaning against the railing in the front of a drugstore, Fraley
approached him and shot him twice in quick succession. Fraley then fired
several more shots into Parker before turning around and walking away. After
going some distance, Fraley then turned back and snapped the head of the
now-deceased Parker while saying, “I told you I’d kill you.” Fraley argued
that his grudge against Parker had been festering for some time and that the
killing was done in the heat of passion.

4.4.3 Issue
Does provocation nine to ten months before a killing make that killing an
instance of voluntary manslaughter as opposed to murder?

4.4.4 Holding
Such past provocation does not make the killing an instance of voluntary
manslaughter.

27
4.4.5 Reasoning
The courts have held that as little as fifteen minutes is enough to serve as ad-
equate “cooling time” following provocation. At any rate, whether adequate
cooling time has elapsed should be determined relative to the amount of time
necessary for a reasonable person’s temper to cool. Nine or ten months was
certainly enough time for Fraley to cool off.

4.5 Rowland v. State

4.5.1 Overview
Rowland appealed a conviction of murder.

4.5.2 Facts
Rowland’s wife was staying with a friend. When he went to visit her one
night, he noticed that the horse of another man, Thorn, was hitched at the
door. He then heard his wife and another man talking in the back room.
His suspicions aroused, he tried to enter through the back door but found it
latched. Rowland then entered through the front door. Upon reaching the
room where his wife was staying, he found her with Thorn. She and Thorn,
startled, ran from the house. As they were fleeing, Rowland’s wife blew out
the lamp. Rowland, firing his gun in the dark and intending to hit Thorn,
shot and killed his wife instead.

4.5.3 Issue
Was Rowland adequately provoked so that his actions constituted voluntary
manslaughter as opposed to murder?

4.5.4 Holding
Rowland was adequately provoked.

4.5.5 Reasoning
There is no doubt that Rowland’s wife and Thorn were engaging in adultery.
In some states, the courts have held that a man who kills his unfaithful wife

28
or the paramour cannot be convicted at all. It would be unreasonable to
expect Rowland not to have been provoked.

4.6 People v. Berry

4.6.1 Overview
Berry appealed a conviction for murder on the ground that his emotional
state reduced the crime to voluntary manslaughter.

4.6.2 Facts
Berry had married Rachel Pessah, the victim, but their relationship quickly
turned sour. Three days after the marriage, Pessah went to Israel for some
weeks. When she returned, she told Berry that she had fallen in love with
another man, Yako, during her visit to that country. Pessah then persistently
taunted Berry by alternately offering and withdrawing her intimacy. Her
conduct enraged Berry, who finally strangled her with a telephone cord.

4.6.3 Issue
In light of the circumstances, should the trial court have instructed the jury
on voluntary manslaughter?

4.6.4 Holding
The trial court should have instructed the jury on voluntary manslaughter.

4.6.5 Reasoning
The “heat of passion” necessary to reduce murder to voluntary manslaughter
need not consist specifically of anger or rage. Rather, it can be any violent,
intense, high-wrought, or enthusiastic emotion. Here, the evidence suggests
that Berry was indeed aroused to such a heat of passion by Pessah’s continued
provocation. The prosecution’s argument that Berry had sufficient cooling
time is flawed. Berry’s actions were the culmination of a sustained course of
provocation.

29
4.7 People v. Wu
4.7.1 Overview
Wu appealed a conviction for murder on the ground that the trial court failed
to instruct the jury as to her cultural background.

4.7.2 Facts
Helen Wu (“defendant”) was already divorced following her first marriage
when she met Gary Wu (“Wu”). Sometime thereafter, Wu told contacted
defendant and told her that his own marriage was unsatisfactory. The two
then discussed the possibility of marrying, and defendant was led to be-
lieve that Wu would marry her. Wu subsequently divorced his wife, and he
and defendant evidently conceived the victim, Sidney, before marrying. The
prospects of marriage then dimmed, and defendant returned to Macau while
Sidney stayed with Wu in the United States. Following their separation, de-
fendant and Wu engaged in several disputes as to Sidney’s living situation.
During these exchanges, defendant gained information that led her to be-
lieve that Wu was not treating Sidney well. These suspicions came to a head
during a subsequent visit with Sidney, during which Sidney himself told her
that Wu was favoring the children of a new girlfriend. Desperate that the
death of Sidney’s paternal grandmother would leave no one to care for him,
defendant strangled him.
At trial there was evidence tending to show that defendant’s mental state
had been influenced by Chinese views of illegitimate children. The trial court,
however, refused to tell the jury that it may consider cultural influences.

4.7.3 Issue
Is cultural background a valid consideration for the purposes of determining
whether a person was adequately provoked to kill?

4.7.4 Holding
Cultural background is a valid consideration.

30
4.7.5 Reasoning
The prosecution argues that defendant killed Sidney out of her desire to exact
revenge on Wu. There is, however, an equally valid alternative interpretation
of her motives. Expert testimony from the trial shows that it is entirely pos-
sible that defendant killed Sidney during a fit of despair. The determination
of her mental state entails the consideration of any cultural influences that
might have contributed to her view of the situation.
The court should also have instructed the jury on the defense of uncon-
sciousness. There is evidence tending to show that defendant was unaware
of her actions at the time of the killing.

5 Unintentional Homicide
5.1 Commonwealth v. Welansky
5.1.1 Overview
Welansky appealed a conviction for involuntary manslaughter.

5.1.2 Facts
Welansky had operated his nightclub for nine years prior to the incident in
question. Shortly before the incident, he was hospitalized after suddenly
falling ill. During his stay in the hospital, he assumed that the operation of
the nightclub would continue as usual. A few days later, an employee of the
nightclub lit a match in order to find and replace a broken light bulb. The
match inadvertently set fire to an artificial palm tree, and the fire spread
rapidly throughout the building. Although several emergency exits existed,
those exits were either locked or blocked by heavy objects. Unable to escape
the building, 492 patrons died, many of them piled up against the exits.

5.1.3 Issue
Does Welansky’s operation of the nightclub constitute wanton and reckless
conduct?

31
5.1.4 Holding
Welansky’s operation of the nightclub constitutes wanton and reckless con-
duct.

5.1.5 Reasoning
Conduct rises to the level of wantonness or recklessness when the actor
chooses to engage in that conduct despite knowing that it poses a signifi-
cant risk of harm to others. This standard is both subjective and objective.
It is subjective in that a defendant who in fact knew of the danger cannot
escape liability even if that danger would not have been apparent to the aver-
age person. It is objective in that a defendant is presumed to know of dangers
that would be obvious to the average person even if the defendant was in fact
too foolish to realize that danger. Here, it does not matter that Welansky
was not responsible for starting the fire. Rather, his duty was to protect his
patrons from fires started for any reason. By allowing the emergency exits
to be blocked, he engaged in wanton and reckless conduct.

5.2 State v. Williams

5.2.1 Overview
Williams appealed a conviction for statutory manslaughter following the
death of his infant child.

5.2.2 Facts
Williams and his wife had an infant child. Neither he nor his wife were
educated, he having only a sixth-grade education and she having only an
eleventh-grade education. The child began to suffer a toothache about two
weeks before his death. During that time, William and his wife noticed
swelling and discoloration of the cheek. Although they gave their son aspirin,
they were hesitant to consult a doctor for fear that the appearance of the
child would lead authorities to suspect abuse. The autopsy revealed that an
abscessed tooth had become infected and gangrenous. The child’s inability
to eat because of the bad tooth led to malnutrition, which weakened his
immune system and caused him to develop the pneumonia that killed him.
The evidenced showed that there was a space of about five days during which

32
the symptoms of gangrene were apparent and when prompt treatment would
have saved the child.

5.2.3 Issue
Does the conduct of Williams and his wife support a conviction for statutory
manslaughter?

5.2.4 Holding
Their conduct supports such a conviction.

5.2.5 Reasoning
Any person whose negligence proximately causes the death of another may
be convicted of statutory manslaughter. Negligence here means only the
failure to take the caution that a reasonable person would take under similar
circumstances. Although this standard should not be taken to suggest that
every refusal to take a child to a hospital constitutes negligence, Williams
and his wife knew that medical care was available yet refused to take their
child to a doctor despite his continuing symptoms.

6 Reckless Murder
6.1 Mayes v. People
6.1.1 Overview
Mayes appealed a conviction for reckless murder.

6.1.2 Facts
Mayes had come home drunk. His mother, wife, and daughter were home
when he arrived, and he behaved belligerently toward them. After throwing
a tin quart measure at his daughter, his wife and daughter started to head
for the bedroom. Mayes then threw a beer glass at his wife, which struck the
oil lamp she was carrying. The burning oil from the lamp splashed onto her
body, and Mayes apparently did nothing to help her. His wife died a week
later from the burns.

33
6.1.3 Issue
Do the facts support a conviction for reckless murder?

6.1.4 Holding
The facts support a conviction for reckless murder.

6.1.5 Reasoning
Mayes was acting with malicious intent, and such intent makes his action
murder. It does not matter that he may not have been targeting anyone in
particular when he threw the beer glass. He knew that the action was likely
to cause injury regardless of the specific outcome, and he should be held
liable for the consequences if they include the death of another. This is not
a case in which the death can be characterized as accidental.

7 Felony Murder
7.1 State v. Martin
7.1.1 Overview
Martin appealed a conviction for felony murder.

7.1.2 Facts
Martin had arrived at a party already intoxicated from beer and marijuana.
At the party, he and several friends continued to drink until one of his com-
panions was embroiled in an altercation with another guest. The host then
demanded that Martin and his group leave. On the way out, Martin lit a fire
that eventually engulfed the building, killing a guest who had fallen asleep
after becoming drunk. Although there was some question as to how the fire
was started, it was established at trial that Martin was responsible. The
trial court convicted Martin of felony murder, and Martin appealed on the
ground that the jury was not given the appropriate instructions.

34
7.1.3 Issue
Do the facts require a jury instruction as to whether Martin’s conduct gave
rise to the “probable consequence” of the death of another guest?

7.1.4 Holding
The facts require such an instruction.

7.1.5 Reasoning
Legislatures and courts have historically been reluctant to make decisions
that might give rise to strict-liability crimes. To that end, the New Jersey
Code and the Model Penal Code allow a conviction for felony murder only
when the victim’s death is a “probable consequence” of the principal crime.
Although neither set of rules gives a precise meaning for “probable conse-
quence,” the term has been interpreted to mean something close to the idea
of “reasonable foreseeability” in civil torts. The point is that there are some
deaths so remote from the principal crime that the perpetrators cannot be
held liable for them. Whether liability should attach must be determined by
evaluating the connection between the death and the crime as a whole. At
one extreme, a robber cannot be held liable if a bank teller is electrocuted
while activating the alarm. At the other extreme, a robber is liable for the
death of an innocent bystander even if that bystander is killed by the defen-
sive gunfire of the shop owner. Here, the trial court should have instructed
the jury not to convict Martin if it found that the death was too remote from
Martin’s conduct.

7.2 People v. Hickman

7.2.1 Overview
Hickman appealed a conviction for a felony murder committed during the
course of a burglary.

7.2.2 Facts
Hickman and an accomplice were surprised by the police when they emerged
from a building they had just burglarized. The pair fled into nearby bushes.
A police officer then gave chase but lost sight of the suspects. Several seconds

35
thereafter, the officer saw a person emerging from some bushes while carrying
a gun. When the person failed to comply with the officer’s command to
halt, the officer opened fire with his shotgun and killed the person. The
person turned out to be a detective. Hickman was convicted of causing the
detective’s death.

7.2.3 Issue
Should felony murder in Illinois be extended to include situations in which
the criminal does not directly inflict the fatal harm on the victim?

7.2.4 Holding
Felony murder should be so extended.

7.2.5 Reasoning
The relevant statute states that “A person who kills an individual without
lawful justification commits murder if, in performing the acts which cause
death . . . [h]e is attempting or committing a forcible felony other than
voluntary manslaughter.” The accompanying legislative comments show that
the statute is intended to apply not only to instances of direct killing but also
to situations in which the perpetrator, in committing the felony, creates a
situation that proximately results in the death of another. Although Hickman
adverts to a case in which one robber was not held liable for the death of his
accomplice, that case is not relevantly similar to the current one because the
person killed there was not an innocent bystander.

7.3 People v. Gladman

7.3.1 Overview
Gladman appealed a conviction for a felony murder committed during the
course of a robbery.

7.3.2 Facts
Gladman had solicited a ride to a shopping center, where he used a gun to
rob a deli. He walked away from the scene of the robbery and proceeded

36
to a bowling alley located about half a mile away. In the meantime, the
robbery was reported to the police, which responded by dispatching police
cars to nearby intersections and to the vicinity of the crime scene. While in
the parking lot of the bowling alley, Gladman saw a police car approach and
hid under a parked car. Patrolman Rose, the sole passenger of the police car,
then ordered Gladman to come out from hiding and drop his gun. Gladman
shot Rose, who died at the scene.

7.3.3 Issue
Was the jury properly allowed to conclude that Gladman committed the
homicide during immediate flight from the robbery?

7.3.4 Holding
The jury was properly allowed to reach that conclusion.

7.3.5 Reasoning
Earlier rules established felony murder by considering circumstances such as
whether the robber had abandoned his loot or whether he had escaped from
the crime scene. These distinctions have resulted in inconsistent criteria.
Under current principles, the jury should determine whether a robber was
still fleeing at the time of a homicide. The jury, of course, should consider
factors such as whether the police were in pursuit, how far the robber had
fled, an so forth. Here, the shooting occurred less than fifteen minutes and
less than half a mile away from the scene of the crime. Gladman, seeing
the police car, apparently believed that the police were on his trail. Under
these circumstances, the jury could properly conclude that the homicide was
committed in the course of Gladman’s flight.

7.4 People v. Cavitt

7.4.1 Overview
Cavitt appealed a conviction for a felony murder committed in the course of
a burglary.

37
7.4.2 Facts
Cavitt and an accomplice planned to burglarize the home of one Betty McK-
night. With the cooperation of Mianta McKnight, Betty’s stepdaughter, the
duo entered the home and tied up Betty, leaving her on a bed when they
left with the loot. Before they left, they also tied up Mianta to make it look
as if she were also a victim. By the time Mianta freed herself, Betty had
already died from asphyxiation. At trial, Cavitt produced evidence to show
that Mianta may have had her own motives to asphyxiate Betty.

7.4.3 Issue
Was Cavitt properly convicted even though there was an alternative expla-
nation for the death of the victim?

7.4.4 Holding
Cavitt was properly convicted.

7.4.5 Reasoning
Conviction for a felony murder requires a (1) temporal, (2) causal, and (3)
logical connection between the murder itself and the underlying felony. The
point of this requirement is that there must be something more than a mere
coincidence of time and place between the crime and the killing before a
conviction can be sustained. Even so, the standard does not require that the
killing directly further the felony; all that is necessary is some connection
beyond mere coincidence. Here, Cavitt and his accomplice tied up Betty
McKnight as a planned part of the crime. Cavitt cannot be exonerated
simply because one of his cohorts might be blamed for the death.

7.5 State v. Shock

7.5.1 Overview
Cavitt appealed a conviction for first-degree murder.

38
7.5.2 Facts
Cavitt beat the child of a relative so viciously that the child died several
days afterwards. He challenged a jury instruction stating that he may be
convicted of first-degree murder even though he intended to inflict upon the
victim only serious bodily injury as opposed to death.

7.5.3 Issue
May Cavitt be convicted of first-degree murder despite a lack of intent to
kill?

7.5.4 Holding
Cavitt may not be convicted of murder.

7.5.5 Reasoning
The relevant statute states specifically that a murder, as opposed to a homi-
cide, committed during the course of another crime shall be considered a
first-degree murder. The text of the statute indicates that the killing itself
must evidence the intent necessary for murder. Here, the jury instruction
suggests that some crime other than murder has been committed, but no
crime exists.

Henry, J., concurring. The trial court’s construction of the statute would
create convictions for first-degree murder in situations that would not other-
wise support such a conviction. If upheld, the trial court’s ruling would allow
almost any crime resulting in death to be converted to first-degree murder.

Norton, J., dissenting. A defendant should be held liable for any death
resulting from injury he intentionally inflicts.

Note The court is saying that where a set of facts will “directly” support
a conviction for murder as well as a lesser crime, then the conviction should
only be for the lesser crime. In other words, the felony murder doctrine
does not apply unless the facts of the predicate felony are so different from
those necessary to directly support murder that they, acting alone, would not

39
support a murder conviction in the absence of an incidental death. Otherwise,
all sorts of lesser crimes would be converted to murder.

8 The Death Penalty

8.1 Olsen v. State
8.1.1 Overview
Olsen appealed the imposition of the death penalty following a conviction
for capital murder.

8.1.2 Facts
Olsen robbed a bar. During the course of the robbery, he told the owner and
two patrons to lie face-down on the floor and then shot all three. Following
the robbery, he called his mother and told her of the murders. Olsen was
arrested several hours thereafter. The jury convicted him of first-degree
murder, and the conviction was not disputed. Olsen contended that the
evidence did not support a finding of aggravating circumstances and that
the jury instructions given during trial were flawed.

8.1.3 Issue
(1) Was there sufficient evidence to support the jury’s finding of the aggravat-
ing circumstance that the murders were especially atrocious or cruel, being
unnecessarily torturous to the victims? (2) Was there sufficient evidence to
support the jury’s finding of the aggravating circumstance that Olsen know-
ingly created a great risk of death to two or more persons? (3) Did the court
give proper jury instructions concerning mitigating circumstances?

8.1.4 Holding
(1) There was insufficient evidence to characterize the murder as especially
atrocious or cruel. (2) There was insufficient evidence to find that Olsen
knowingly created a great risk of death to two or more persons. (3) The jury
instructions did not adequately state the law of mitigating circumstances.

40
8.1.5 Reasoning
(1) Although all killings are cruel to some extent, there is no evidence to
support the argument that Olsen deliberately inflicted physical or mental
anguish on his victims. While a degree of mental anguish almost certainly
existed in the victims, this evidence alone does not establish that Olsen was
especially atrocious or cruel. (2) Precedent suggests that the concept of
“great risk of death to two or more persons” is intended to apply only to
innocent bystanders. Here, the killing amounted to a straightforward multi-
ple homicide, and states that recognize multiple homicide as an aggravating
factor have set forth the rule as a separate statutory provision. The lack of
such a provision here shows that the death of multiple victims alone is not
an aggravating circumstance. (3) The trial court erred in telling the jury
that Olsen might have the possibility of parole if granted a reprieve from the
governor. It should have stated unambiguously that Olsen would not have
been eligible for parole if imprisoned for life.

8.2 McCleskey v. Kemp

8.2.1 Overview
McCleskey appealed the imposition of the death penalty following a convic-
tion for murder.

8.2.2 Facts
McCleskey, who was black, had killed a white police officer. He was subse-
quently sentenced to death. He argued that the death penalty was imposed in
violation of the Fifth and Eighth Amendments because it was disproportion-
ately used on black defendants. To support his argument, McCleskey pro-
duced scholarly research analyzing over 2,000 instances of the death penalty
in Georgia. The study suggested, among other things, (1) that the death
penalty is imposed more often when the victim is white and (2) that black
defendants tend to receive the death penalty more often than white defen-
dants.

41
8.2.3 Issue
Is the evidence sufficient to support a finding that the death penalty is im-
posed with an unconstitutional racial bias?

8.2.4 Holding
The evidence is insufficient.

8.2.5 Reasoning
McCleskey first contends that the system imposing the death penalty is
flawed because it allows for discretion in sentencing. This argument lacks
merit because discretion was introduced to allow leniency to defendants.
Under the current regime of punishment, a defendant may be removed from
consideration for the death penalty for any number of reasons whereas the
death penalty cannot be imposed unless certain statutory requirements are
met. McCleskey has failed to show that the imposition of the death penalty
is so irregular as to be arbitrary or capricious.
McCleskey also contends that the death penalty is unconstitutional in
application even if it is constitutional in theory. Although any punishment
carries with it the risk that it will be applied with bias, McCleskey has not
shown that such risk has become sufficiently great to invalidate the death
penalty on constitutional grounds. The authors of the statistical evidence
presented by McCleskey themselves conceded that it does not conclusively
show racial bias. This, combined with the fact that the criminal law places
the presumption in favor of the defendant in many instances, suggests that
McCleskey has not made his case.
Finally, allowing McCleskey to prevail would start the courts down a slip-
pery slope. Punishments for other crimes would probably be challenged for
apparent racial bias. Indeed, such bias need not even concern race. Perhaps
a defendant might allege that the jury was biased because of his or her gender
or even facial features. McCleskey has made no suggestion as to how this
line-drawing problem should be solved.

42
9 Rape
9.1 Brown v. State
9.1.1 Overview
Brown appealed a conviction for rape.

9.1.2 Facts
Edna Nethery, Brown’s sixteen-year-old neighbor, was walking across his
farmland as she had done many times before. She encountered Brown, who
was tending to some hogs. After the two exchanged some words, Brown
allegedly seized her and forced her to the ground. He then removed her
clothing and had sexual intercourse with her. Nethery said at trial that she
“tried as hard as [she] could to get away” and “screamed as hard as [she]
could.” It was later found, however, that Brown had no marks upon his body
that would have indicated a struggle.

9.1.3 Issue
Was there sufficient evidence to convict Brown of rape?

9.1.4 Holding
There was not sufficient evidence.

9.1.5 Reasoning
Rape will not be found unless the woman showed utmost resistance. This
rule is intended to protect defendants from false allegations of rape. There
must have been “the most vehement exercise of every physical power to resist
the penetration of her person, and this must be shown until the offense is
consummated.” Here, Nethery has fallen short of that standard. She has not
so much resisted as retreated from the threat of force.

43
9.2 People v. Dorsey
9.2.1 Overview
Dorsey appealed a conviction for rape.

9.2.2 Facts
The complainant, a forty-one-year-old woman, had entered an elevator in
her apartment building. Dorsey followed her into the elevator. In an ap-
parent malfunction, the elevator stopped between floors while Dorsey and
the complainant were still inside. According to the complainant’s testimony,
Dorsey was manipulating the buttons on the elevator when the malfunction
occurred. Dorsey then demanded that the complainant remove her clothes.
She complied, and Dorsey engaged in sexual intercourse and sodomy with
her during the next ten to fifteen minutes. Afterward, Dorsey restarted the
elevator, leaving before the complainant did.

9.2.3 Issue
Did the behavior of the complainant support a finding of rape?

9.2.4 Holding
The behavior of the complainant supports a finding of rape.

9.2.5 Reasoning
The old standard of “utmost resistance” is outdated. It tended to place the
victim on trial alongside the defendant. The New York legislature has since
enacted the new standard of “earnest resistance,” which requires a woman
only to offer resistance that is reasonable under the circumstances. This
change was brought about in part by the recognition that the law should not
expect a woman to resist a rapist when doing so could put her at risk of serious
injury or death. Here, the complainant could not have been expected to do
anything other than to comply with Dorsey’s demands. She was trapped in
an elevator, where no help could reach her. Dorsey was significantly taller
and heavier than she was. It was plain that Dorsey could have forced her to
comply had she resisted.

44
9.3 People v. Barnes
9.3.1 Overview
Barnes appealed a conviction for rape.

9.3.2 Facts
Barnes had convinced Marsha M. to come to his home. When Marsha ar-
rived, she stated that she wanted to buy some marijuana from him and leave.
Barnes eventually convinced her to join him inside, where he made physical
advances on her. Marsha, growing uncomfortable, then left the building.
She reached the front gate, but it had been latched using a mechanism she
did not know how to operate. Marsha asked Barnes to open the door, but
Barnes made no response. The two then argued for some minutes before
Marsha rejoined Barnes inside his home. Once inside again, Barnes attacked
Marsha by grabbing her collar and threatening other violence. Marsha tried
to leave, suggesting that they head to her apartment instead, but Barnes
held shut the front door. Barnes then demanded that they had sex. Marsha
acquiesced, offering no resistance.

9.3.3 Issue
Should the conviction be upheld despite the lack of overt resistance from
Marsha?

9.3.4 Holding
The conviction should be upheld.

9.3.5 Reasoning
The California legislature has amended the statutory definition of rape so
that it no longer includes resistance as an element of the crime. The court
below plainly erred in applying the outdated standard, which did advert to
resistance, as opposed to the current one. This change was made in light of
research showing that some women tend to “freeze” when confronted with the
possibility of rape and that resistance may actually aggravate the violence
of the crime. The absence of resistance therefore cannot be taken as an
indication of consent. Here, Marsha maintained from the beginning that she

45
wanted to purchase marijuana from Barnes and leave immediately thereafter.
She joined him inside only after he had talked her into doing so, and she
resisted his initial advances. Barnes then prevented her from leaving the
premises by refusing to open the front gate. Given that Barnes had become
agitated, Marsha was justified in believing that he would use violence if she
did not comply with his demand for sex. Barnes’s conduct therefore amounts
to rape.

9.4 State v. Smith

9.4.1 Overview
Smith appealed a conviction for rape.

9.4.2 Facts
The victim, T, had accompanied a friend to a bar. She met Smith at the bar,
and her friend met another male acquaintance. The four then ate dinner at
a restaurant. Until this point, there had been no incident. Following dinner,
the four agreed to meet at Smith’s apartment. T’s friend and her companion
then rode off on a motorcycle while T and Smith walked to the apartment
on foot. After they entered the apartment, Smith began to make physical
advances on T. T refused and spat in his face when he tried to kiss her.
Smith then threatened T by saying that “he could make it hard on [her]” if
she refused to have sex with him. T then relented, and the two engaged in
sexual intercourse.

9.4.3 Issue
Does the lack of consent in this case support a conviction for rape?

9.4.4 Holding
The lack of consent supports a conviction.

9.4.5 Reasoning
Consent is to be determined by the objective manifestations that would be
recognized as such by an ordinary person. Here, T’s actions plainly show

46
that she never consented to having sex with Smith. She spat in his face and
relented only when he made implied threats of physical violence. There is no
reasonable argument to be made that there was indeed consent despite these
actions on T’s part.

9.5 In the Interest of M.T.S.

9.5.1 Overview
M.T.S. appeals a conviction for rape.

9.5.2 Facts
M.T.S. had been living at the home of C.G., the victim, for five days prior to
the incident. During the night of the incident, C.G. had already gone to sleep
when M.T.S. went up to her room. The parties offered differing accounts of
the events that then ensued, but their testimony showed that M.T.S. had
sex with C.G. even though she had not consented to the act. C.G. evidently
slapped M.T.S. during the encounter but otherwise mustered no appreciable
resistance.

9.5.3 Issue
Does the lack of affirmative consent support a conviction for rape?

9.5.4 Holding
Lack of affirmative consent supports a conviction for rape.

9.5.5 Reasoning
Legislative reform has been directed at changing the traditional requirement
of “utmost resistance” as an essential prerequisite to showing force. This
requirement often framed the perpetrator’s force in terms of the victim’s
behavior and tended to “put the victim on trial” alongside the defendant.
The legislature has framed rape as a type of criminal battery, in which any
use of force may be used to support a conviction. Here, it is necessarily only
to show that C.G. did not freely give her consent to the sexual act. Since
the prosecution has carried that burden, the conviction should stand.

47
9.6 State v. Moorman
9.6.1 Overview
Moorman appealed a conviction for rape.

9.6.2 Facts
The victim, a female college student, had gone to bed and fallen asleep.
Sometime thereafter, she awoke to find herself being penetrated by Moorman.
She tried to sit up, but Moorman pushed her back down. Fearing physical
injury, she offered no additional resistance. Moorman claimed a mistake of
fact, stating that he believed the victim to be another girl, who lived in the
same room.

9.6.3 Issue
May sexual intercourse with a sleeping person amount to rape?

9.6.4 Holding
Sexual intercourse with a sleeping person may amount to rape.

9.6.5 Reasoning
The common law has long held that inability to resist the sexual advances
of another, whether as a result of intoxication or some other disability, is
equivalent to the elements of force and lack of consent. The conviction should
therefore be upheld.

9.7 Commonwealth v. Fischer

9.7.1 Overview
Fischer appealed a conviction for rape.

9.7.2 Facts
Fischer and the victim had already engaged in sexual contact prior to the
incident in question. During the previous encounter, he and the victim had
engaged in at least kissing and fondling, though there was a factual dispute

48
as to whether additional sexual contact occurred. Several hours later, the
victim and Fischer went to his room. The victim stated that Fischer then
held her down and tried to force his penis into her mouth. He then blocked
her from leaving the room until she used her knee to strike him in the groin.
Fischer characterized the beginning of the encounter as essentially consen-
sual. According to his account, the victim expressed objections only later,
whereupon he ceased sexual activity. Fischer appealed on the ground that
his trial counsel had been ineffective because of its failure to request a jury
instruction concerning mistake of fact.

9.7.3 Issue
Do the circumstances support a conviction for rape?

9.7.4 Holding
The circumstances support a conviction for rape.

9.7.5 Reasoning
Fischer raises several compelling arguments as to the necessity of a jury in-
struction as to mistake of fact. Mistake of fact has long been recognized as
an affirmative defense for most other crimes. Given the legislative broad-
ening of the definition of force to include “intellectual, moral, emotional, or
psychological force,” there is a good argument for giving the jury instruction
in most cases. Fischer, however, is not entitled to the instruction because his
actions fall under the common-law definition of force. Although there may
have been a genuine mistake as to consent, he nonetheless used physical force
on the victim. Furthermore, he cannot prevail on the theory of ineffective
counsel. The counsel cannot be found ineffective for failing to request an
instruction for which there was no precedent.

49
10 Conspiracy
10.1 Griffin v. State
10.1.1 Overview
Griffin was involved in a brawl in which multiple assailants injured two police
officers.

10.1.2 Facts
Griffin had evidently crashed his car into a ditch. Officers Vines and Ed-
erington were called to the scene, where a crowd had gathered. After the
officers asked Griffin about the circumstances surrounding the crash, Grif-
fin became belligerent and attacked Vines. Vines tried to subdue Griffin
with chemical mace and then with physical force, but Griffin kept attacking.
Members of the crowd joined the attack on Vines, assaulting him from all
directions. Forced to the ground and feeling that his life was in jeopardy,
Vines shot Griffin to halt the attack and to disperse the crowd. Meanwhile,
other members of the crowd had attacked Ederington, who was fighting off
those attackers when he heard Vines’s gunshots. Griffin was later convicted
of engaging in a conspiracy to attack the officers.

10.1.3 Issue
May the conviction for conspiracy stand despite the lack of direct evidence
that members of the crowd cooperated in the attack?

10.1.4 Holding
The conviction may stand.

10.1.5 Reasoning
It is not necessary to support a conviction for conspiracy with direct evidence
of cooperation among multiple perpetrators. In this case, it would be nearly
impossible to prove that any two members of the crowd expressly agreed to
attack the officers. All that is necessary is to show circumstances that allow
an inference that two or more people each committed part of a crime.

50
10.2 United States v. Recio
10.2.1 Overview
Recio appealed a conviction for conspiracy on the theory that the object of
the conspiracy had become impossible to attain.

10.2.2 Facts
The police had stopped a truck carrying drugs. With the help of the truck’s
drivers, the police set up a sting operation in which the truck acted as bait.
When Recio took possession of the truck and started driving it away, the
police arrested him. He was later convicted of conspiring to distribute the
drugs.

10.2.3 Issue
May the conviction for conspiracy stand even though the object of the con-
spiracy had been rendered impossible to attain because of seizure of the
drugs?

10.2.4 Holding
The conviction may stand.

10.2.5 Reasoning
The court below has erred in holding that a conspiracy is automatically ter-
minated because law enforcement has rendered the object of that conspiracy
impossible to attain. This view conflicts with the Supreme Court’s interpre-
tation of the crime. The crux of conspiracy is the agreement to commit an
unlawful act. The conspirators are not released from liability simply because
their plans, unbeknownst to them, have already been foiled by the police.
Recio’s contention that the reasoning behind his conviction would lead to
uncontainable liability lacks merit. Improper convictions based on conspir-
acy are already barred by the prohibition of entrapment. To overturn the
conviction here would interfere with many legitimate police operations.

51
10.3 People v. Lauria
10.3.1 Overview
The People appealed the decision of the trial court to set aside the indictment
of Lauria for conspiracy to commit prostitution.

10.3.2 Facts
Lauria operating a “call-answering service.” The service received phone calls
and took messages for its clients, many of whom were prostitutes. Lauria
knew of these prostitutes and tolerated their presence. Following a sting
operation that led to his arrest, Lauria admitted that he had gone so far
as to use the services of one of the prostitutes. On appeal, Lauria argued
that mere knowledge that his clients included prostitutes was insufficient to
support a conviction for conspiracy.

10.3.3 Issue
May knowledge of a crime be used to infer intent to conspire in committing
that crime?

10.3.4 Holding
Knowledge of a crime generally should not be used to infer intent to conspire
in committing that crime.

10.3.5 Reasoning
The case law suggests an important boundary between knowledge and in-
tent. In Falcone, a seller of sugar, yeast, and cans was found not liable for
participating in the production of moonshine. In Direct Sales, a wholesaler
who had supplied abnormally large amounts of morphine to a physician was
found liable for conspiring to deal in drugs. These cases suggest that knowl-
edge can support an inference of intent to further the crime, but only when
the facts are such as to permit few other inferences. Thus, manufacturing
loaded dice, operating illegal wire services for bookmaking operations, and
publishing directories listing prostitutes give rise to an inference of intent
because these acts can serve no legitimate purpose. Likewise, renting rooms

52
to prostitutes at a grossly inflated rate can also amount to implicit intent be-
cause the owner of the premises has thereby acquired a stake in the criminal
venture. Furthermore, doing business primarily with criminals would also
give rise to an inference of intent.
Here, there is no question that Lauria knew that his service was being used
by prostitutes. His knowledge, however, is not of the type that would support
an inference of intent. There are many legitimate uses for call-answering
services, and there is no evidence to suggest that Lauria attempted to profit
from its criminal dimension by charging increased rates to prostitutes. There
is also no evidence to suggest that prostitutes comprised a significant portion
of his total clientele. Although the crime of misprision of felony has existed
for a long time, liability for tolerating criminal behavior should be limited
only to felonies. It should not be extended to misdemeanors, as the one that
has been committed here.

10.4 United States v. Diaz

10.4.1 Overview
Diaz appealed a conviction for use of a firearm in connection with conspiracy
to commit another crime.

10.4.2 Facts
An undercover DEA agent had managed to negotiate a deal in which Diaz
would sell to the agent a kilogram of cocaine. Diaz and several accomplices,
including one Pereillo, were present when the deal was executed. As soon
as the drugs had been exchanged for money, the agent gave the signal to
arrest the dealers. A shootout then ensued. Although Diaz himself carried
no firearm during the deal, Pereillo’s use of a gun was imputed to him.

10.4.3 Issue
May the use of a firearm by one criminal be imputed to a conspirator?

10.4.4 Holding
The use of a firearm may be so imputed.

53
10.4.5 Reasoning
The Pinkerton doctrine allows the acts of respective conspirators to be im-
puted to one another. Here, it was foreseeable that a firearm would be used
during the drug deal.

11 Defensive Force, Necessity, and Duress

11.1 People v. La Voie
11.1.1 Overview
The People appealed a directed verdict in favor of La Voie. The verdict had
been granted on the ground that La Voie had acted in self-defense.

11.1.2 Facts
La Voie was driving home from work after midnight. As he was driving, a
car approached from his rear and rammed his vehicle. The ramming vehicle
was occupied by four drunk men. Although La Voie applied the brakes in an
effort to stop his car, the force of the ramming car was still sufficient to push
his car forward, causing all four wheels to leave skid marks on the road. The
ramming vehicle pushed La Voie’s car through a red light. After coming to
a stop, La Voie got out of his car, carrying a revolver with him. The four
drunken men got out of their car and began to threaten La Voie. When one
of them advanced toward La Voie, La Voie shot him.

11.1.3 Issue
Should La Voie be acquitted because he was acting in self-defense?

11.1.4 Holding
La Void should be acquitted.

11.1.5 Reasoning
It is a settled principle that one should be acquitted when he has reasonable
grounds for believing that he is in imminent danger of being killed or suffering

54
great bodily harm. Here, La Voie was driving home after midnight. The four
men in the other car were strangers to him. Under these circumstances, La
Voie had a right to defend himself by shooting a potential assailant.

11.2 People v. Gleghorn

11.2.1 Overview
Gleghorn appealed a conviction for assault on the ground that he had been
acting in self-defense.

11.2.2 Facts
Gleghorn and another tenant, Fairall, lived in rooms they had rented from
Ms. Downes. When Fairall arranged his lease with Downes, he gave to
Downes his stereo. There was a misunderstanding as to the nature of the
exchange. Downes apparently thought that Fairall had intended the stereo to
act as payment whereas Fairall thought he was merely loaning it to Downes.
When Fairall learned that Downes had sold the stereo, he took out his anger
by vandalizing her car and her room. Gleghorn, having learned of the inci-
dent, evidently decided to take matters into his own hands. One night at
3 o’clock, Fairall entered Gleghorn’s room. Fiarall then attempted to beat
Fairall and succeeded in setting fire to his bed. Fairall then produced a bow
and arrow he kept in the room and shot Fairall with an arrow. Enraged by
the injury, Fairall beat Gleghorn and inflicted upon him serious injuries. At
trial Fairall claimed that his initial provocation of Gleghorn did not warrant
a self-defensive attack and, therefore, that Gleghorn should be considered
the aggressor. He argues that he should have been granted a jury instruction
to that effect.

11.2.3 Issue
Do the circumstances permit the conclusion that Gleghorn was actually act-
ing in self-defense?

11.2.4 Holding
The circumstances do not permit that conclusion.

55
11.2.5 Reasoning
One who uses force in self-defense is justified in that use of force if the
assailant has manifested an intent to cause him serious bodily injury. The
assailant cannot escape liability for his conduct by claiming later that he
secretly had no intention of hurting the other party. The original assailant
may claim self-defense only if he first desists from the fight and finds that
the other party continues to attack. Here, the jury could have found that
Fairall had reasonably concluded that his life was in danger. Even if Fairall
was not justified in this conclusion, Gleghorn would still not be excused since
he continued to beat Fairall long after Fairall had been subdued.

11.3 State v. Leidholm

11.3.1 Overview
Leidholm appealed a conviction for manslaughter on the ground that she was
acting in self-defense.

11.3.2 Facts
Leidholm’s marriage had been deteriorating. By the time of the incident in
question, the relationship had already spiraled into violence and alcohol abuse
on the part of both partners. During the night of the incident, Leidholm and
her husband had attended a gun-club party, at which they both consumed
copious amounts of alcohol. Upon arriving home, they began to argue with
each other. The argument eventually escalated into physical violence, with
the husband knocking Leidholm to the ground multiple times. After her
husband had gone to sleep that night, she got a knife from the kitchen and
stabbed him to death. At trial, expert testimony was presented on the issue
of ‘battered-wife syndrome” and its possible effects on a woman in Leidholm’s
position. Leidholm appealed on the ground that she was not granted a proper
jury instruction as to self-defense.

11.3.3 Issue
Should Leidholm have been granted a jury instruction on the subjective
standard of self-defense?

56
11.3.4 Holding
Leidholm should have been granted such an instruction.

11.3.5 Reasoning
One who seeks to show that her conduct is justified or excused on the ground
of self-defense must convince the trier of fact that she held a (1) sincere and
(2) reasonable belief that her actions were necessary to prevent imminent
bodily harm. The question here is whether reasonableness should be deter-
mined according to an “objective” or “subjective” standard. The objective
standard would compare the actor’s conduct to the conduct of a hypothet-
ical reasonable person in a similar situation. By contrast, the subjective
standard asks the trier of fact to determine whether a person with qualities
relevantly similar to those of the actor could reasonably have been induced
to believe that the conduct in question was necessary as self-defense. Be-
cause the North Dakota statute does not disclose any preference, express or
implied, as to which standard should be applied, one should follow precedent
and apply the subjective standard.
The trial court therefore erred in failing to instruct the jury specifically to
consider the relevant characteristics of Leidholm in determining whether she
was justified in stabbing her husband. Furthermore, the trial court should
also have given the jury an instruction as to how the possibility of battered-
wife syndrome would affect the subjective reasonableness of Leidholm’s ac-
tions. Although battered-wife syndrome does not create a presumption of
innocence, the jury should be notified of this factor so that it may consider
it alongside any other circumstances in determining guilt.

11.4 People v. Goetz

11.4.1 Overview
The People appealed the decision of a lower court to quash indictments of
Goetz for attempted murder and assault. The lower court had ruled that
Goetz had acted in self-defense.

57
11.4.2 Facts
Goetz had boarded a subway train. He was carrying an unlicensed pistol, as
he had been doing for three years. Four youths—Canty, Cabey, Ramseur,
and Allen—were riding in the same car. Sometime thereafter, Canty, and
possibly Allen, approached Goetz and demanded that Goetz give them five
dollars. Neither youth displayed a weapon. Goetz responded by pulling out
his gun and firing one shot at each of the four youths. Having missed Cabey
the first time, he fired a second shot, which severed Cabey’s spinal cord. At
trial Goetz testified that he had been mugged before and that he had started
carrying the gun in order to ward off muggers. He also testified that he
believed the youths to be “playing with [him]” when they approached him
and that the youths posed a threat of physical injury. Goetz testified that
he had contemplated the order in which he would shoot the youths and that
he would have shot Cabey in the head if he had been calm enough to do so.
Finally, Goetz testified that he would have fired more shots if he had not
run out of ammunition. The lower court then quashed the indictments for
attempted murder and assault on the ground that the grand jury had been
incorrectly instructed on the objective standard of self-defense.

11.4.3 Issue
Should the objective standard of reasonableness be applied in evaluating in
Goetz’s claim of self-defense?

11.4.4 Holding
The objective standard should be applied.

11.4.5 Reasoning
The court below misconstrued the statute concerning self-defense. The statute
provides that one may use force in self-defense when “he reasonably believes”
that he is in immediate danger of suffering serious bodily harm. The court
below has apparently placed the emphasis on “he” as opposed to “reason-
ably.” In doing so, it effectively applied a subjective, rather than an objec-
tive, standard of self-defense. The history of the statute does not support
this interpretation. Although it is based on substantially similar language
from the Model Penal Code, the legislature was careful to specify that the

58
actor should have a “reasonable” belief, as opposed to an unqualified belief,
that he was about to suffer harm. To refuse to apply the objective standard
here would allow the acquittal of any actor who claimed self-defense even if
the actor had no rational basis for believing that defensive force was neces-
sary. Goetz’s contention that the objective standard would fail to take into
account his previous experience with muggings lacks merit. The objective
standard already implicitly includes such factors.

11.5 The Queen v. Dudley & Stephens

11.5.1 Overview
Dudley and Stephens argued that a killing was justified because of necessity.

11.5.2 Facts
Dudley, Stephens, Brooks, and the seventeen- or eighteen-year-old decedent
were serving as crew members on a yacht when they were swept overboard
in a storm. The four managed to climb into a small boat belonging to the
yacht. At that point, they were likely more than a thousand miles from land.
They had no food save for a few small cans of turnips and small they had
caught. They had no fresh water except for the rainwater they occasional
managed to catch. By the time of the incident, the four had spent more than
eighteen days adrift. Their supply of food and water had been exhausted
for at least five days. On more than one occasion, Dudley and Stephens
had discussed killing the decedent so that they could cannibalize him for
survival. Brooks steadily refused to go through with the plan. Ultimately,
Dudley cut the decedent’s throat with a knife. At the point the decedent
had been so weakened by thirst and hunger that he could offer no resistance.
The remaining survivors fed on the decedent’s flesh. Four days thereafter,
they were rescued.

11.5.3 Issue
Was the killing justified by necessity?

11.5.4 Holding
The killing was not justified by necessity.

59
11.5.5 Reasoning
The law is clear that it recognizes only self-defense as a justification for killing.
While some authorities to the contrary exist, they should not be considered
the law of England. Here, there was no evidence that the decedent had done
anything that would have given Dudley and Stephens an adequate excuse for
carrying out the killing. The decedent committed no act of violence toward
the remaining survivors. Indeed, the decedent was so weak that he was
incapable of resisting the killing. Although the evidence produced at trial
suggests that Dudley and Stephens would not have survived until rescue had
they not cannibalized the decedent and that the decedent would not have
survived until rescue in any case, these circumstances still do not justify the
killing. They might have been rescued sooner, in which case the killing would
have been unnecessary. Alternatively, they might never have been rescued at
all. Although the temptation to kill may have been strong, this temptation
cannot be treated as justification; otherwise, all sorts of killings might be
excused on the basis of necessity.

11.6 People v. Unger

11.6.1 Overview
Unger appealed a conviction for escaping from prison.

11.6.2 Facts
Unger had been sentenced to a one- to three-year term for auto theft. About
two months after he began serving the sentence, he was transferred to the
“honor farm,” the prison’s minimum-security section. According to Unger’s
testimony, he had been threatened by an inmate. After the transfer, a knife-
wielding inmate attempted to force him to perform sexual acts. Sometime
thereafter, he was molested by three inmates. Afterward, he received a phone
call threatening him with death because someone apparently believed that he
had reported the attack to authorities. Fearing for his safety, Unger walked
off the honor farm.

11.6.3 Issue
May the escape be excused on the basis of compulsion or necessity?

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11.6.4 Holding
The escape may be excused on the basis of necessity.

11.6.5 Reasoning
The law recognizes a distinction between compulsion and necessity. Compul-
sion is generally considered to arise from an imminent threat of harm from a
human being. Necessity, by contrast, arises from the forces of nature. Here,
Unger should be considered to have been driven by necessity. There was no
evidence that his escape was motivated by an immediate attack. No other
prisoner directly compelled him to escape. Rather, Unger chose the lesser
of two evils. Unger’s testimony that he feared reprisal from other inmates
was sufficient to warrant an instruction on the excuse of necessity. The trial
court erred in refusing the instruction.
Although other courts have held that the excuse of necessity is applica-
ble only when certain factors are present, such factors should be considered
factual issues to be weighed by a jury. The courts should not treat them as
foreclosing the possibility of a defense based on necessity.

12 Insanity
12.1 People v. Serravo
12.1.1 Overview
The People appealed the acquittal of Serravo on the ground that the defense
of insanity protected him from conviction for first-degree murder and first-
degree assault.

12.1.2 Facts
Serravo returned from a meeting of his labor union after midnight. He went
upstairs to the bedroom where his wife slept and stabbed her in the shoulder
with a knife. After his wife awoke, Serravo told her that she had been stabbed
by an intruder. Police officers were summoned to the scene, and Serravo also
told them that an intruder had entered the house. Only later did his wife
discover, after reading some letters that Serravo had hidden, that Serravo
himself had been responsible for the stabbing.

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 At trial, the prosecution’s expert testified that he had the delusional belief
that God had commanded him to build a sports complex for the purpose of
showing people the path to perfection. Serravo apparently believed that his
wife was standing in the way of this divine purpose, and he felt that the
only way to overcome the problem was to stab her. The expert testified
that Serravo probably suffered from damage to the left temporal lobe or
paranoid schizophrenia, either of which would explain his belief that he had
a privileged relationship with God. Finally, the expert testified that Serravo
was probably aware that stabbing his wife was against the law.
Serravo produced testimony from four experts, which also suggested he
was suffering from paranoid schizophrenia or a similar disorder. Although the
experts differed as to the details of the diagnosis, they agreed that Serravo
was probably incapable of distinguishing right from wrong. One expert then
suggested that Serravo had lied to police because he feared that they would
fail to understand the moral reasoning he had used to justify the stabbing.

12.1.3 Issue
(1) Should the definition of insanity turn on the ability to perceive moral
right and wrong or legal right and wrong? (2) Did the trial court err in
failing to explain this standard in the jury instruction?

12.1.4 Holding
(1) The definition should turn on moral right and wrong. (2) The trial court
erred in failing to explain this standard.

12.1.5 Reasoning
The M’Naghten rule makes it clear that the insanity defense should turn
upon the ability to differentiate between right and wrong in moral terms,
not right and wrong in legal terms. It would be legal formalism to hold
the accused responsible for an act simply because he knew it to be legally
prohibited but not that it was morally wrong. A person who commits an
act that is morally wrong ought to be held responsible regardless of whether
he realized it was legally prohibited as well. Contrariwise, a person who
commits an act without realizing its moral wrongness should not be held
responsible even though he may have known it was prohibited by law. This
rule is well-supported by precedent.

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 The M’Naghten rule addresses two cases: (i) where the defendant is “in-
sane” in the limited sense that he recognizes that a particular violation is
morally wrong but nonetheless believes it will redress some grievance; and
(ii) where the defendant is so delusional as to be incapable of recognizing
any distinction between moral right and wrong. These cases are reconcilable
with each other in that the former assumes an essentially working perception
of morality whereas the latter does not.
It is also important to apply an “objective” standard of morality in deter-
minations of sanity. A person’s understanding of morality essentially grows
from the system of behavior that is approved by society. Under this stan-
dard, a person may still be found insane if he personally believed the action
in question to be morally right, even if knew that it was legally prohibited
and frowned upon by society. Furthermore, it is unnecessary to recognize a
“deific decree” exception to the societal standard of morality. Delusional de-
ific decrees, such as those under which Serravo was acting, are not so much
an exception as an essential element in the understanding of morality. If
one’s judgment is clouded by the belief that God has given him a mandate
to do certain acts, then he would almost certainly be incapable of perceiving
the true morality or immorality of those acts.
The trial court therefore erred by giving an instruction on the insanity
defense that was too vague and which failed to specify the societal standard
of morality. The instruction, as given, could easily have misled the jury
into believing that the standard of morality to be applied was to be the
defendant’s own subjective standard.

13 Attempt
13.1 State v. Lyerla
13.1.1 Overview
Lyerla appealed a conviction for attempted second-degree murder.

13.1.2 Facts
Lyerla was driving on an interstate highway when he encountered the pickup
truck driven by the victims. The two vehicles passed each other several
times. When Lyerla then attempted to pass the victims’ pickup, the victims

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accelerated to prevent him from doing so. Lyerla then pulled off the interstate
and loaded his gun. The victims’ pickup evidently waited for him near the
on-ramp while he did so. When Lyerla returned to the interstate, the victims
again tried to pass him, whereupon he fired three shots at their truck. Two of
the bullets missed the victims, but a third killed the driver. Lyerla testified
that he believed the victims to have been taunting him and that he feared
for his life. He was convicted on one count of second-degree (i.e., reckless)
murder and two counts of attempted second-degree murder.

13.1.3 Issue
Do the two missed shots constitute attempted second-degree murder?

13.1.4 Holding
The missed shots do not constitute attempted second-degree murder.

13.1.5 Reasoning
Lyerla has been charged with attempting to commit a reckless murder, which
is a logical impossibility. An actor may not be held responsible for attempting
a criminal act if he lacks the requisite specific intent associated with that
act. The very definition of reckless murder, however, is that the killing lacks
any specific intent. It would be absurd to hold that Lyerla was capable of
attempting a reckless act.

Sabers, Justice, dissenting. The majority has construed the concept of

intent too broadly. Here, the only “intent” that should matter is that Lyerla
voluntarily fired at the victims’ truck.

13.2 People v. Murray

13.2.1 Overview
Murray appealed a conviction for attempt to enter an incestuous marriage.

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13.2.2 Facts
Murray had declared that he intended to marry his niece. He had gone so
far as to elope with the niece and to find a magistrate willing to perform the
ceremony.

13.2.3 Issue
Do Murray’s actions amount to an attempt to enter an incestuous marriage?

13.2.4 Holding
Murray’s actions do not amount to such an attempt.

13.2.5 Reasoning
Although Murray’s conduct shows his intention to go through with the mar-
riage, the conduct must evidence something more than intention before it can
qualify as an attempt. Murray’s conduct is comparable to that of a man who
buys and loads a gun with the intention of shooting his neighbor but who
takes no further steps to that end. Murray would be guilty of the attempt
only if his plans had progressed to such an extent that he and his niece would
have taken their vows but for timely intervention.

13.3 McQuirter v. State

13.3.1 Overview
McQuirter appealed a conviction for attempted assault with intent to rape.

13.3.2 Facts
Mrs. Allen, a white woman, was walking home with her two children and a
neighbor’s daughter when she passed a pickup truck in which McQuirter, a
black man, was sitting. As they passed McQuirter, he muttered something
indistinct and exited the vehicle. He apparently began following Allen and
the children. Upon noticing his presence, Allen told the children to run to a
neighbor’s house and notify the neighbor of the situation. When the neighbor
came outside, McQuirter stopped following Allen. He did, however, loiter
outside her house for another thirty minutes before leaving. After he was

65
arrested, McQuirter admitted that he had gone to town with the intention
of “getting” a white woman.

13.3.3 Issue
Does McQuirter’s conduct amount to attempted assault with intent to rape?

13.3.4 Holding
The conduct amounts to such an attempt.

13.3.5 Reasoning
In determining whether McQuirter indeed intended to carry out a crime,
the jury may consider social conditions and customs founded upon racial
differences. Having done so, the jury has left no reversible error.

13.4 People v. Rizzo

13.4.1 Overview
Rizzo appealed a conviction for attempted robbery.

13.4.2 Facts
Rizzo and three accomplices had decided to rob a man carrying the payroll
for the United Lathing Company. They planned to ambush the man as he
was delivering the payroll. The four men, two of whom were armed, drove
around to look for their target. After arriving at a building, the posse noticed
that they were being followed by the police. They were arrested as they tried
to flee. They never found their target.

13.4.3 Issue
Do the actions of Rizzo and his accomplices amount to an attempt to commit
robbery?

13.4.4 Holding
The actions do not amount to such an attempt.

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13.4.5 Reasoning
The conduct of Rizzo and his accomplices amount only to preparation to
commit a crime. In order for conduct to qualify as an attempt, it must be
such as to result naturally in the completion of the crime but for intervention
by some external cause. To be guilty of attempted robbery, the posse would
at least need to have located their target and made some motion toward
forcibly taking the money. In actuality, Rizzo and his men never even found
their target. Their conduct is like that of a burglar merely looking for a
building to burglarize or a murderer looking for his intended victim. In these
latter examples, the defendant would not be guilty of the attempted crime.

13.5 People v. Staples

13.5.1 Overview
Staples appealed a conviction for attempted burglary.

13.5.2 Facts
Staples decided to steal from a bank by drilling his way into its vault. He
rented an office located above the bank vault. Prior to the rental period,
he moved certain equipment for the crime into the office. This equipment
included drilling tools, two acetylene gas tanks, a blow torch, a blanket, and
a linoleum rug. The landlord, who had ordered repair work to be done during
the same period, noticed the equipment when he was supervising the repair
work. Staples then began drilling, though he abandoned his plans before
he reached the vault. When the lease expired, the landlord reported the
suspicious tools to the police. Staples later told police that he had become
ambivalent about the plan, thinking on the one hand that it was absurd but
on the other hand that he did not want his investment to go to waste.

13.5.3 Issue
Does Staple’s conduct amount to attempted burglary?

13.5.4 Holding
The conduct amounts to attempted burglary.

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13.5.5 Reasoning
The drilling constitutes the commencement of the crime. It indicates that
Staples went beyond mere preparation. Although Staples was not interrupted
in the act of drilling, the landlord’s reporting of the suspicious tools to the
police constitutes intervention. Because Staples has attempted the crime, he
is guilty regardless of whether he abandoned his plan out of fear or a change
of heart.

13.6 People v. Lubow

13.6.1 Overview
Lubow appealed a conviction for solicitation of grand larceny.

13.6.2 Facts
Lubow owed to one Silverman more than $30,000 for diamonds purchased
on credit. Silverman eventually approached Lubow and demanded repay-
ment of the debt, explaining that he was about to go bankrupt for lack
of the money he was owed. In response, Lubow proposed that Silverman
join a scheme. Explaining the scheme, Lubow said that Silverman was first
to purchase diamonds on credit. The diamonds would then be sold, with
Lubow, Silverman, and another accomplice pocketing the proceeds. When
the creditors inevitably demanded payment for the diamonds, Silverman was
to declare bankruptcy and explain that he had lost all his money through
gambling. Silverman reported the scheme to the district attorney. He was
then equipped with a tape recorder and captured a conversation between
himself and Lubow outlining the scheme. Lubow was then convicted.

13.6.3 Issue
Does Lubow’s conduct amount to solicitation to commit grand larceny?

13.6.4 Holding
Lubow’s conduct amounts to such solicitation.

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13.6.5 Reasoning
Lubow’s conduct evidences his intention to convince Silverman to join the
criminal scheme. He is therefore guilty of solicitation.

14 Complicity
14.1 State v. Ochoa
14.1.1 Overview
Ochoa, Avitia, and Velarde appealed a conviction for complicity in second-
degree murder.

14.1.2 Facts
The eviction of one Navarro from his home had provoked the anger of the
community. When Navarro was later arrested after attempting to break into
his old dwelling, members of the community organized a meeting, at which
they unsuccessfully demanded Navarro’s release. As the sheriff and several
officers were transporting Navarro from jail to a hearing, they encountered a
crowd of about 125 people. When the crowd was denied entry to the small
courtroom, it became agitated. Various members of the crowd pounded on
the courthouse doors and pressed against its windows with enough force to
crack them.
At the conclusion of the hearing, the officers transporting Navarro had de-
termined that it would be too dangerous to leave through the front entrance
to the courthouse and confront the crowd. The officers therefore decided
to take Navarro through a rear exit and into an alley. When they reached
the rear exit, however, the crowd had already gathered there. Although
the officers managed to push their way through the crowd for some dis-
tance, violence broke out in the alley. Evidence at trial showed that Boggess
was knocked unconscious by an unidentified member of the crowd and that
Ochoa and Avitia began beating and kicking him immediately thereafter.
At almost the same time, two shots fired from elsewhere struck and killed
Sheriff Carmichael. Although there was some suggestive evidence as to the
gun that killed Sheriff Carmichael, the murder weapon was never definitively
identified.

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14.1.3 Issue
Are any of the three defendants guilty of complicity in the murder of Sheriff
Carmichael?

14.1.4 Holding
Ochoa and Avitia were complicit. Velarde was not complicit.

14.1.5 Reasoning
A person may not be held liable as an accomplice to a crime unless he ev-
idences the same intent or purpose as the principal. Even if a person con-
templates aiding the commission of the crime, that contemplation does not
support a conviction unless it is accompanied by overt action. Here, Velarde’s
actions fail to establish complicity on his part. Although he was a member
of the crowd, he was not seen to take any suspicious actions following the
outbreak of violence. By contrast, Avitia and Ochoa indicated their intent
to abet the murder by attacking Deputy Boggess after he had been knocked
down. Even if they did not know that anyone had intended to kill the sheriff,
they gained that knowledge as soon as the first shot was fired. They also
continued to attack Boggess even after Sheriff Carmichael had been shot.
This fact allows the jury to infer that Avitia and Ochoa attacked Boggess
with the purpose of preventing him from coming to Carmichael’s aid. The
conduct of Avitia and Ochoa can therefore be viewed as having provided
purposeful aid to the commission of the killing itself.

14.2 State v. Tally

14.2.1 Overview
Tally appealed a conviction for complicity in murder.

14.2.2 Facts
Judge John Tally was a brother-in-law to four brothers, the Skeltons, who
committed the murder. The victim, R. C. Ross (“Ross”), had provoked the
wrath of Tally and the Skeltons by carrying on an affair with a sister of
the Skeltons. Ross had evidently learned that the Skeltons intended to kill
him in retaliation. On the morning of the murder, Ross was already fleeing

70
in a carriage traveling from Scottsboro to Stevenson. The Skeltons, having
learned of Ross’s flight, decided to chase him down and to shoot him when
they caught him. There was no evidence to show that Ross knew he was
being chased despite his early departure.
Soon after the chase was underway, it became the talk of the town. The
consensus was that tragedy would unfold. Meanwhile, Tally was waiting
at the telegraph office in Scottsboro “to see if anyone if anybody sent a
telegram”—apparently referring to any telegram intended to warn Ross of the
attempt on his life. By that point, the fear of violence was sufficiently great
that one Dr. Rorex suggested to Tally that someone call for a doctor to be sent
to Stevenson in anticipation of bloodshed or, alternatively, that officials in
Stevenson be notified so that they may arrest the attackers. Tally dismissed
both suggestions. As it turned out, E. H. Ross, a relative of the victim,
did arrive at the office to send a telegram intended to provide such warning.
Tally, who was standing close by as the message was given to the telegraph
operator, apparently gathered that such was its purpose. Tally brought up
the possibility of bullying the telegraph operator into not sending the message
to Judge Bridges, who was also present at the office. Bridges, however,
dissuaded Tally from doing so. Tally then decided to send a telegram of his
own, which instructed the telegraph operator in Stevenson, one Huddleston,
not to deliver the warning to Ross.
Tally’s telegram proved effective. When Huddleston had received the tele-
gram of E. H. Ross but before Tally’s telegram had been sent, Huddleston
had immediately gone with the message to a nearby hotel, apparently with
the hope of finding Ross there. Because Ross had not yet arrived, Huddleston
returned to his office. By that time, Tally’s telegram had arrived. Shortly
thereafter, Huddleston saw the carriage carrying Ross in the distance. Al-
though he had ample time to meet the carriage on the road and deliver the
warning, Tally’s telegram had evidently changed his mind sufficiently that
he decided to delay by sending someone to find a marshal and to converse
with a relative of Tally in the meantime.
When the carriage arrived in Stevenson, Ross was immediately ambushed
by three of the four Skelton brothers. Ross was shot in the leg and took cover
behind a building. Unbeknownst to him, however, the fourth Skelton brother
was lying in wait for him and shot him in the head.

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14.2.3 Issue
(1) Did Tally perform any act intended to further the murder? (2) Is it
essential that any such action contributed to the death of Ross? (3) Did the
said action in fact contribute to the death of Ross?

14.2.4 Holding
(1) Tally’s sending the telegram to Huddleston amounted to an act intended
to further the murder. (2) It is essential that Tally’s actions contributed to
the death of Ross, though such an action need not be the but-for cause of
the death. (3) Tally’s actions did in fact contribute to the death of Ross.

14.2.5 Reasoning
(1) There is no doubt that Tally knew of the attempt on Ross’s life and that
he intended to facilitate the murder by preventing any warning of danger from
reaching Ross. The revenge killing was already the talk of the town when
the chase was underway. Tally knew that the Skeltons were heavily armed
whereas Ross was unaware of the danger. When Dr. Rorex suggested sending
for physicians or law enforcement, Tally refused the suggestions, apparently
with the desire that the plot should continue uninterrupted. Although Tally’s
telegram to Huddleston was worded rather ambiguously, its only possible
meaning under the circumstances was that Huddleston should avoid warning
Ross of any danger.
(2) Tally must have contributed to the death of Ross, though any such
contribution need not be a but-for cause of the death. Rather, all that any
such contribution must do is to facilitate the commission of the crime. In
the current case, Tally’s actions would suffice if they deprived Ross of some
opportunity to escape death.
(3) Tally’s telegram to Huddleston did in fact contribute to the murder
by depriving Ross of information that might have saved his life. The evi-
dence shows that Huddleston had already attempted to deliver the warning
to Ross immediately upon receiving it. Only after this first delivery at-
tempt did Huddleston receive the Tally’s telegram, whereupon his attitude
changed markedly. Rather than approaching Ross’s carriage to warn him of
the danger, Huddleston instead delayed by sending for the marshal, whose
whereabouts were unknown, and conversing with a relative of Tally. The
result was that Ross was left completely unaware that he was being pursued

72
by four men with guns. While it is true that Ross may have been killed even
if he had received the warning, it may be inferred that he would have reacted
differently to the shooting if he had known the full extent of the plot against
him. As it was, Ross knew at best that three men were attacking him when
the gunfire began. He sought cover behind the nearest building, not knowing
that a fourth man was lying in wait there. Had Ross been warned that four
men were trying to kill him, it is likely that he would have fled to a nearby
hotel or someplace where he would have been less susceptible to ambush.
Ross’s failure to receive the warning therefore deprived him of information
that would have increased his chance of surviving.

14.3 People v. Beeman

14.3.1 Overview
Beeman appealed a conviction for aiding and abetting a robbery.

14.3.2 Facts
James Gray and Michael Bork had robbed Beeman’s sister-in-law of more
than $100,000 in jewelry. Sometime thereafter, Beeman was arrested in con-
nection with the crime. Beeman and the two robbers gave entirely different
accounts of the crime, with the robbers testifying that Beeman had actively
supplied them with information on the victim’s home and advice on carrying
out the robbery. Beeman’s testimony contradicted that of Gray and Bork
in almost every material respect. The trial court refused to instruct the
jury that purpose was the mental state required for liability for aiding and
abetting.

14.3.3 Issue
Should the trial court have instructed the jury that Beeman could be con-
victed only if he was shown to have helped the robbers with purpose?

14.3.4 Holding
The trial court should have so instructed the jury.

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14.3.5 Reasoning
It is a settled law that purpose is the requisite mens rea for aiding and abet-
ting. Although an accomplice’s knowledge of the crime combined with his
actions may sometimes give rise to an inference of purpose, the jury instruc-
tion given suggests that knowledge itself is sufficient to support a conviction.
Although Beeman admits having given information to the robbers, he con-
tends that he did so without any awareness of their criminal purpose. When
plans for the robbery became apparent, Beeman tried to dissuade the duo
from carrying out the crime and thought it was doubtful that they would.
Beeman also claims that he took the stolen jewelry in an attempt to return
it to the owner. Given that the jury expressed confusion as to the standard
of liability for aiding and abetting, the trial court erred in refusing to given
an instruction on purpose.

14.4 Wilson v. People

14.4.1 Overview
Wilson appealed a conviction for complicity in a burglary.

14.4.2 Facts
Wilson was eating at a local cafe when Pierce, the principal perpetrator,
approached him. The two began chatting. Pierce had been drinking, and
he asked Wilson where he could find more liquor. The two then purchased
some liquor and returned to the cafe to drink it. By that point, Wilson had
noticed that his watch had gone missing, and he accused Pierce of having
stolen it. Pierce adamantly denied any such theft, and the argument became
so heated that they were told to leave the cafe. They continued arguing at
another cafe; Wilson later testified that he thought they would be thrown
out from the second cafe as well.
At some point during the discussion of the watch, Pierce evidently men-
tioned that he had committed burglaries before and that he and Wilson
should burglarize a local drugstore. The two proceeded to the drugstore,
where Wilson helped Pierce gain entry by boosting him through a transom.
As soon as Pierce was inside, Wilson notified the police, who arrested Pierce.
Wilson also admitted to the police that he had helped Pierce break into the
premises.

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14.4.3 Issue
Should Wilson be held liable as an accomplice to the burglary?

14.4.4 Holding
Wilson should not be held liable as an accomplice.

14.4.5 Reasoning
The law is clear that one cannot be held liable as an accomplice unless he
shares the criminal intent of the principal. Here, there is evidence to support
Wilson’s contention that he aided Pierce only for the purpose of bringing
about Pierce’s arrest. The trial court erred by giving a jury instruction that
declare, as a matter of judicial fiat, that anyone who lends assistance to the
principal, regardless of his mental state, is guilty as an accomplice. The trial
court should have explained to the jury the requirement of intent.

14.5 State v. Etzweiler

14.5.1 Overview
Etzweiler appealed a conviction for complicity in negligent homicide.

14.5.2 Facts
Etzweiler had driven to work with Bailey, one of his colleagues. Upon reach-
ing the destination, Etzweiler went to work, leaving his car for Bailey to use.
Bailey, who was intoxicated, drove off. About ten minutes later, he collided
with another car and killed two passengers in the other car.

14.5.3 Issue
Should Etzweiler be liable for complicity in negligent homicide?

14.5.4 Holding
Etzweiler should not be liable for complicity in negligent homicide.

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14.5.5 Reasoning
The relevant statute provides that one cannot be guilty of complicity in a
crime unless he assists the principal with the purpose of furthering the crime.
The requirement of intent is at odds with the definition of negligent homicide.
By definition, a negligent homicide is one in which the principal does not
know the risk of death. It would absurd to say that Etzweiler intentionally
helped to bring about a death whose occurrence he could not even foresee.
In any case, Etzweiler’s conduct is too remote from the accident to make him
liable. He was not in the car when Bailey collided with the other vehicle. All
that Etzweiler did was to let Bailey use the car.

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