Criminal Law – Smith
CRIMINAL LAW GENERALS
TYPES OF CRIMES
There are two kinds…
Malum in se – crimes which are inherently wrong; all have a mental state
Malum prohibitum – conduct which is criminal by statue
GENERAL ELEMENTS OF CRIMES
There are two kinds…
Mens rea – the mental state of actor (the guilty mind)
Actus reus – the actor’s physical act
This act must be voluntary (within the will and desire)
• There needs to be a concurrence between the act and mental state of the actor
• The “act” element may be replaced by an “omission”
◦ There may be a legal duty to act
▪ Rises from statue, contract, relationship to party, where the conduct
created the peril, or where a duty to care was volunteered and later
failed
MENTAL STATES
There are 4 common law mental states and then there are statutory mental states
Specific Intent – acting with the specific intention to commit that specific crime
• Such crimes: “theft”, inchoate crimes, burglary, robbery, assault
• Because of its specific nature, these crimes will qualify for defenses that are not
available to others
Malice – reckless disregard of a known risk
• Only common law crimes requiring such are murder and arson
◦ Murder requires malice aforethought and arson requires malice
Expressed malice – intends to kill
Implied malice – knows with substantial certainty that death will ensue
General Intent – this is the catch all category; there is an awareness of factor constituting crime
Ex. Battery
Strict Liability – these are “no intent” crimes; guilty from the mere fact that the crime was
committed and are never malum in se
There is no defense
Statutory Mental States/Responsibilities
Criminal Negligence – any conduct, except conduct intentionally harmful or recklessly
disregardful of an interest of others, which falls below the standard established by law for the
protection of others against unreasonable risk of harm
Knowledge (Scienter) – to know or should know
• Objective test can be used to determine if the reasonable person would have known
• Illinois has a subjective test
Willfulness – actor meant to do what he did
Unlawful Conduct – a general guilty mind can be inferred from the unlawful conduct
Ex. Involuntary manslaughter ( kill someone while hunting on others property without
permission)
Transferred Intent – intent to commit a specific crime against one but injures another
Ex. Intends to kill A but misses and kills B – with transferred intent, guilty of attempted
murder of A and murder of B
**DOES NOT apply to attempts
Motive – admissibility to show that D intended to commit the crime, but not necessary
Doesn’t serve as much of a defense. Statue language…”for purposes of”
Ex. Man Act – the transport of a women across state lines
Concurrence – the mental state and the act must concur; the wrongful state of mind with the
negative act; however if absence, look again because could be guilty of a negative act
CRIMINAL LAW OUTLINE
HOMICIDE
The general killing of one by other
MURDER
Common law: an unlawful killing of a human being with malice aforethought
Malice aforethought – the intent to kill, intent cause bodily harm, doing an act in wanton willful
disregard of the likelihood that the tendency of such behavior is to cause death or great bodily
harm; can be implied from the following
Felony Murder Doctrine – a killing, even accidental, will be murder if it was
caused during the commission of a predicate felony
1. Death of another must be foreseeable
2. Predicate felony must be dangerous
3. Felony must be independent (can’t be murder or invol/vol manslaughter)
Merger Doctrine – the lesser committed felony offense merges and
disappears into the greater offense felony
4) Murder must be caused during the predicate felony or immediate flight of the
crime
Safe Harbor rule – when not in the transaction of the offense or in route of
escape from the offense
Defenses
If D has any defense to the underlying felony, then there is a defense to felony
murder
Depraved Doctrine – when acts are in the face of an usually high risk that the conduct
will cause death or serious bodily harm (this shows IMPLIED malice)
Ex. Firing a gun into a crowned train car
Corpus dilecti
1) dead body 2) death caused by criminal agency 3) identity of the accused
Can be proven purely by circumstantial evidence when no body is ever found
Illinois Statue: kills an individual without lawful justification commits 1st degree murder if in
acting he… (doesn’t use the “malice aforethought”)
1. he either intends to kill or do great bodily harm
2. depraved heart doctrine
3. felony murder rule (he is attempting or committing ONLY a forcible felony other than a
2nd degree murder)
Forcible felonies include…
Treason, 1st degree murder, 2nd degree murder, rape of a child, robbery, burglary,
arson, kidnapping, aggravated battery
• Illinois DOES NOT allow attempted felony murder
VOLUNTARY MANSLAUGHTER (a LIO of murder)
By statue 2nd degree Murder (because there is no such thing as attempted voluntary
manslaughter- can argue attempt 2nd degree murder though)
Common Law: unlawful killing of a person without malice upon a sudden heat of passion due to
reasonable provocation
Elements
1. provocation (an aroused sudden and intense passion causing loss of self control) –
objective standard applied
1. must be in fact provoking
2. there wasn’t sufficient time between the provocation and killing for a reasonable
person to cool off
3. there was no cooling off in fact
4. words are not sufficient to cause provocation EXCEPTION is where…
▪ words of information predicated on the actual provocation action
(resurrected the provocation)
▪ mere words plus simple battery
• Adequate provocation includes: mutual combat, assault, adultery, rape, kidnapping,
aggravated battery (NOT simple battery)
• Provocation is also valid when this action done in the realm of immediate family
members
Illinois Statue: where the 1st degree murder elements with a present mitigating factor
Either…
1. When there is provocation by the individual killed or another individual whom the
offenders endeavors to kill but negligently cause the death of the individual killed
2. Mistaken Justification – at the time of the killing he believes in justified
Ex. In defense of person, necessity, self- defense, peace officers arrest
INVOLUNTARY MANSLAUGHTER (a LIO of murder)
Common Law: where a death is caused by criminal negligence or caused by an unlawful act
(misdemeanor/manslaughter rule)
Criminal Negligence
1. a high and unreasonable risk of death of another existed
2. awareness of that risk
Misdemeanor/manslaughter rule
1. predicate offense must be malum in se
2. predicate offense must be an unlawful act other than a dangerous felony
Illinois Statue: an unintentionally killing without justification in acting in a lawful act done
recklessly or unlawful matter which will cause death or is likely to cause death ( only place
where “recklessly” is used in the statue)
ARSON
Common law: malicious burning of the dwelling house of another
Damage is required – evidence of smoke is not enough
Illinois Statue: when by means of fire or explosive, he knowingly damages any real property or
personal property with a value over $150 or more: or has the intent to defraud an insurer of
similar property
LARCENY ( a LIO of robbery)
By statue Theft (NOT a LIO of robbery)
Common law: a taking and carrying away (asportation) of tangible personal property of another
with possession by trespass with the intent to permanently deprive that person of his/her interest
in the property
Elements:
1. trespassory (without consent or larceny by trick)
• The property can not properly be in the possession of the offender, if so then no larceny
because there is no trespassory taking. Ex. If possession is granted, but refuses to return
2. taking and carrying away (of only tangible property)
• Requires only the slightest movement away of the property; needs to secure dominion
over it. At common law, larceny was limited to goods ands chattels.
3. intent to permanently deprive another of their property
• Must be the property of another. Co-owners cannot commit larceny against themselves.
There is no need to have an intent to covert the property of oneself.
• State of mind can be inferred from an act or acts
Ex. Possession of recently stolen property
Note: the title remains with the owner; when title passes, the crime becomes false pretenses
If taking property in the belief that it is yours, then no common law larceny
Illinois Statue: Theft – umbrella statue – covers all of other common law crimes such as
larceny, financial exploitation of an elderly person, theft from a coin operated machine, theft of
lost or mislaid property, false report of theft, theft of labor or services, larceny by trick,
embezzlement, false pretenses
KNOWINGLY exercising unauthorized control over the property of another
• Can be committed through instrumentality
Defenses
◦ Intent to return can be (The intent to permanently deprive is missing and
therefore no larceny)
◦ Intent to repay can not
◦ Good faith mistake of fact and NOT mistake of law
◦ Joint owner – cannot be guilty of larceny
• If one honestly believes that the property was theirs or that the owner gave them
possession, they are not guilty of larceny
• **Remember the D’s conduct and specified state of mind must coincide.
• No larceny, when found lost property with the intent to return but later decide to keep
Larceny by trick (statutory creation)
Obtaining possession by fraud
Ex. Changing a price tag – can’t be common law larceny because there is no carrying away
Larceny by Continuing Trespass (statutory creation)
The trespass must occur in the original taking. Where one’s takes up a property believing it to be
his (through mistake) or knows it’s not his; Then the taking must be of a mentally bad type rather
than an innocent minded one. So mistaken belief won’t be a continuing trespass; However the act
of knowing it isn’t yours but intent to use it and then return it and later decide to steal IS a
continuing trespass
Abandoned Property
Property which has been intentionally cast away, therefore having no owner CANNOT
be subject to larceny
Lost or Mislaid Property
Needs a clue the ownership exists (knows and as reason to believe will find owner) and
an intent to steal at the time property is found in order to be subject to larceny
ROBBERY
Common law: a felonious taking of personal property in the possession of another, from his
person or immediate presence and against he will accomplished by means of force or fear with
the intent to permanently deprive him of it
• Larceny elements plus the use of force or threat of immediate force and taken from
the person or the presence of the person (larceny is the LIO)
• Not robbery where force is applied to immobilize an owner, while your confederate
takes the owner’s property in a building miles away
• Pickpocket in most cases would not be guilty of robbery. However, if in the process, he
jostles the owner – then there is the force needed to satisfy robbery
• Specific Intent crime
• Title remains with the owner
Illinois Statue: when he or she takes property from a person or presence of another by the use of
force or by threatening the imminent use of force
• No mental state written in (read in from Section 4)
• Theft is not necessary an LIO
Concurrence issue
Conduct and state of mind must coincide. There is no robbery if steals but without violence or
intimidation. What if there is a use of violence and only after seeing the victim immobilize, there
is the decision to steal…can really argue this both ways
ASSAULT
Common law: an attempt to commit a battery or the intentional creation of a reasonable
apprehension in the mind of the other of imminent bodily harm
These were common law misdemeanors
Elements
1. Intent to commit battery
2. With apparent present ability to complete that attempt
There are two forms
The attempt to commit a battery (tried to hit but missed)
Specific intent crime
The intentional placing of another in fear of a battery (threat)
General intent crime
• Common law: there was never such a thing as “attempted assault” because it would
mean it was an attempted attempted battery
Illinois Statue: when without lawful authority a person engages in conduct which places another
in reasonable apprehension of receiving a battery or attempted battery (this needing the specific
intent)
Essentially the same as the common law definition
• Aggravated assault – the above with the use of a deadly weapon
Manifests extreme indifference to the value of human life
(also included where an assault on a person over 60yrs, police officer, or teacher)
• Assault is not a strict liability crime
• Assault is an attempted battery
• If a battery occurs but wasn’t intend, there is NO assault (because lacks the specific
intent)
BATTERY
Common law: an unlawful application of force to the person of another resulting in either bodily
injury or offensive touching
These were common law misdemeanors
• Distinguished from assault, when there has been an actual touching can only be a battery
• Even in it’s aggravated form, CAN NOT led to felony murder (???- because also listed
as a forcible felony)
• No injury is required
• The application of force can be indirect or direct
• This is a general intent crime
Defenses
Consent (IL does not recognize this though)
Illinois Statue: intentionally or knowingly without legal justification and by any means causes
bodily harm to an individual or makes physical contact of an insulting or provoking nature with
an individual
• A battery need not be intentional. It is sufficient with a showing of criminal negligence
• Aggravated battery – a battery which causes great bodily harm or permanent disability
or disfigures ( committed with a deadly weapon, done to a police officer, or in a public
place)
RAPE
By statue “Aggravated Criminal Sexual Assault”
Common law: unlawful sexual penetration of a woman without her consent
Elements
1. Carnal knowledge of the immoral act (any man 14 or older)
2. Unlawful (sex without marriage)
3. Without consent
By force, by threats, by fraud and incapacity to give consent
Illinois Statue: same nature of common law however now D can be male or female. The age is
now 13 or older and now can be guilty of rape against one’s spouse
• A showing of reasonable mistake as to age or a showing of voluntary consent is
irrelevant since it is a strict liability crime
BURGLARY
Common law: breaking and entering into the dwelling place of another in the nighttime with the
intent to commit a felony
Elements
1. breaking and entering (actual or constructive entry)
◦ instrument used for purposes of entry, then the entry is not complete
◦ instrument used for purposes of committing a theft, then entry is complete
◦ At the common law, needed the creation of a breach or opening; mere trespass
was not sufficient. Preexisting opening by the dweller did not constitute a
breaking
◦ Cannot be a common law breaking, where the premises was open to the public
(because an invite to enter was made)
◦ Constructive breaking would apply in instances where entry was gained by
fraud (misrepresentation to get inside), threat of force or force, and conspiracy
(get someone with authority to let you in)
◦ Entering is satisfied once any portion of the intruder’s body enters (even if
momentary)
◦ If breaking but NO entry, then just ATTEMPTED burglary
◦ Constructive entry can occur by utilizing another individual and through means
of instrumentality
2. the dwelling house of other
◦ when regularly used for sleeping; remains a dwelling if there is temporary leave
◦ A place of business could be considered a dwelling house, where the owner or
employee usually sleeps there (likewise, a hotel room)
◦ Buildings not used for habitation might still be considered a dwelling house,
where they are attached to house
3. with the intent to commit a felony
◦ if intent forms after entry, then NO burglary
◦ Makes no difference as to whether the felony was successful. If the intent
formed is for anything else other than a felony, no burglary
4. at NIGHT
Illinois Statue: when without authority, he knowingly enters or without authority remains within
a building with the intent to commit therein a felony or theft
• Modern law, do away with the breaking, dwelling house, felony, and night requirements
of common law
• Residential burglary – knowingly and without authority enters a dwelling place of
another with the intent to commit therein a felony or theft
• Mens Rea: Knowledge and intent (intent can be inferred)
EMBEZZLEMENT
Common Law: DID NOT EXIST
Illinois Statue: the fraudulent conversion of personal property of another by a person in lawful
possession of that property
Elements
1. a trust relationship
2. possession or control of property by virtue of that relationship
3. a fraudulent appropriation of the property
4. intent to use in the unlawful execution of the trust
intent to return does not matter
Custody vs. Possession
A mere employer has custody and so would be just larceny
A manager has possession and so would be embezzlement because he holds a significant
authority over the property
• Larceny and embezzlement are mutually exclusive crimes
• Title remains owner. Offender only gets possession
FALSE PRETENSES
Common Law: obtaining title to personal property of another by intentional false statement of an
existing fact with intent to defraud the other
Illinois Statue: same as common law
Referred to as theft by deception
Elements
1. misrepresentation of a material fact (must be of a present or past fact)
Can’t be a future fact (a promise)
2. reliance of the misrepresentation
3. intent to defraud and knowledge of the falsity of the misrepresentation
4. title is passed (determined by evaluating where the person who delivers the property
intended to give title OR possession)
FORGERY
Illinois Statue: making or altering a writing with apparent legal significant so that it is false with
the intent to defraud
Elements
1. a writing with legal significance
2. a making or altering of such writing making it false
3. intent to defraud
**Can issue, deliver, possession with the intent to issue knowing it has been altered
CRIMINAL LAW INCHOATE CRIMES
Note: no person shall be convicted of both the inchoate and the principle offense
ATTEMPT
Attempt to do what (THERE MUST BE SOME OBJECTIVE CRIME SOUGHT)
Always a malum in se crime
Common Law: taking a sufficient step toward the completion of a crime, if done with the
requisite intent may be crime itself
• Needs both the mens rea and the actus reus
◦ Mens rea – must intend to perform an act which would obtain a criminal result
if the act is achieved
◦ Actus reus – must commit an act beyond mere preparation for the offense; the
act must be dangerously close to successful completion of the crime
Illinois Statue: need the intent to commit a specific offense and any act which takes a substantial
step towards the completion of that offense
• Under Illinois, “attempt” merges with the completed crime
• Need a present ability and that is why the IMPOSSIBILITY defenses come into
discussion
Defenses
• Legal impossibility is not a defense in Illinois (IS IN COMMON LAW)
• Factual impossibility is not a defense (BOTH common or Illinois)
• Mistake of Fact, however, IS a defense- difference from factual impossibility as it
negates the mental state
• Withdrawal or ABANDONMENT (only discuss with attempt) is not a defense where
the D had the intent and committed the a substantial step to completion (NEVER USE –
OVERT ACT)
SOLICITATION
Solicitation to do what
Common Law: urging someone to do the crime and with the intent that the person solicited
commits the crime
Illinois Statue: same as the common law for all crimes except murder
• Such acts include: the inciting, authorizing, requesting, encouraging, counseling,
advising, or command of another to commit a crime
• An agreement does not have to be reached
(even if the party refuses, there was still a solicitation)
• Once the approached person agrees, the act of solicitation ENDS and becomes
conspiracy
• Solicitation merges into attempt and conspiracy
Defenses
Withdrawal is not a defense
CONSPIRACY
Conspiracy to do what (must be an unlawful act)
Common Law: an agreement to commit a crime
Elements
1. intent to enter into an agreement
◦ intent must be by at least 2 people to achieve the objective of the agreement
◦ must agree to accomplish the same objective by mutual action
2. an agreement (which can be implied)
Illinois Statue: same as common law with the additional requirement of an act of furtherance
Elements
1. intent to enter into an agreement
2. an agreement
3. act in furtherance (any act, DOES NOT need to be one of a substantial step)
• Biggest difference between common law and modern law is the additional showing in
modern law of an “act in furtherance”
• Illinois recognizes unilateral conspiracy ( one can conspire with themselves)
Ex. Conspiring with an undercover cop – technically, there are not 2 guilty minds
• No one can be convicted, in Illinois, unless an act in furtherance is alleged or proven to
be performed by one of the parties
• The act will make you guilty of conspiracy even if you never do the agreed upon crime
Accountability Doctrine (causation theory)
At the moment of the agreement, a D is accountable for all of the action while in the
commission of the original crime, even if he doesn’t agree to those actions
Eligibility of such crimes require that those crimes are…
1. crimes committed in furtherance of the objective of the conspiracy
2. crimes committed were foreseeable
One is not accountable if…
1. is the victim of the offense committed
2. ??the offense is so defined
3. before the commission of the offense, he terminates efforts to promote or facilitate by
1. wholly depriving his prior efforts
2. gives timely warning to the proper law enforcement authorities
3. or otherwise makes a proper effort to prevent the commission of the crime
Defenses
◦ Impossibility is not a defense
◦ WITHDRAWAL is not a defense to the “conspiracy” itself however may be to
be a defenses to the crimes committed in furtherance of the conspiracy
▪ In order to withdraw, the conspirator MUST perform an affirmative
duty that notifies all members of the conspiracy of his withdrawal
Wharton’s Rule (abolished in Illinois)
Prohibits the conviction of both the substantive offense and conspiracy to commit that
offense, if the substantive offense necessarily requires the cooperation of two person
(adultery, bribery, etc)
CRIMINAL LAW MISC TERMS/DEFENSES
NEGATIVE ACTS
When there is a duty which is not uphold leading in harm
Failure to act will impute an act (may not have the wrongful mind but the negative act
substitutes that mental state requirement)
Duty arises…
Previous relationship (marriage), imposed by law, where a duty was voluntary
assumed and then abandoned, where one injures another and has a duty to get or
give proper care
This CAN NOT be an intervening superseding offense
AGENCY
Instrumentality Theory
An agent’s actions can be imputed to another
Ex. Employee and Employer
PARTIES TO CRIME
Aiding and Abetting
• Rendering aid with an intent or purpose of committing or encouraging the commission
of the target offense
CAUSATION
A proximate cause of the injury to the victim
• A criminal result can be the product of the interaction of two independent acts from two
different parties
There can also be the issue of an “intervening superseding action”
• Illinois uses the “year and one day” rule…after which the crime will not apply
INFANCY
Common law: under 7, no criminal liability and under 14, there is a rebutable presumption of no
criminal liability; rebutable treated as an adult at 14
Illinois Statue: accountable at 13
INSANITY
Four standards
1. M’Naghten- D is entitled to acquittal if he had mental disease or defect that caused him
to either 1) not know that his act was wrong 2) not understand the nature and quality of
his action
2. Irresistible Impulse Test- under this test a D is entitled to acquittal only if because of
mental disease or defect, he lack capacity to control his actions or conform to the law
3. Durhim Rule- the conduct was a product of a mental illness
4. ALI (American Law Institue) – D is entitled to acquittal if he had a mental disease or
defect and as a result he lacked the substantial capacity to either 1) appreciate the
criminality (wrongfulness) of his conduct or 2) conforms his conduct to the requirement
of the law
◦ Illinois follows this view
• The insanity must be present at the time of the offense
• Burden of proof is on the D to prove by a clear and convincing amount evidence
INTOXICATION
• Two kinds: involuntary and voluntary
• Can only be a defense where the criminal intent is negated
• Voluntary intoxication can NEVER be a defense
CONVERTURE
• Under common law, if a women committed a crime in the presence of her
husband…then he is guilty of the crime (The man was responsible for the crimes of his
wife)
MISTAKE
Mistake of Fact applies according to mental state
• Any type of mistake for specific intent
• Only reasonable mistakes for malice or general intent crimes
• No mistake of facts apply for strict liability
Mistake of Law
• Rarely a defense – only to malum prohibitum crimes
• Ex. Relying on an administrative interpretation which was overruled
NECESSITY
• Commits a crime to avoid a greater offense
CONSENT
• This is almost never a defense to criminal liability
• May be in cases of assault or battery (acceptance of the risk)
• Larceny- could negate the trespassory taking
• If gained by fraud or force, consent is VOID
GUILTY OF INJURED
• Normally, no defense
• However, if the injured parties’ conduct provides an intervening superseding offense,
then may be used as a defense
CONDONATION
• No defense
• Victim’s forgiveness after the crime is not a defense
DEFENSES
CRIMINAL LAW QUICKIES
FALSE IMPRISONMENT
Common Law and Illinois Statue: the intentional, unlawful confinement or restraint of another
person
Elements
1. use of force or threats of force
2. there is no legal authority to confine
KIDNAPPING
Common Law: the forcibly abducting of a person from one country to another country
Modern statues: no longer a requirement of moving country to country
MAYHEM
The disabling, disfiguring, or rendering useless a part of another’s body
Elements
1. the actual harm
2. intent to disable
DUELING
EXHORTATION (BLACKMAIL)
Different from robbery by two distinctions…
There doesn’t have to be anything taken from the person or his presence
The threat of violence is of FUTURE harm
RECEIPT OF STOLEN PROPERTY
Elements
1. acceptance of property after it has been wrongfully taken from another
2. intent to deprive an owner of property known to be stolen
3. title remains with owner
• If it is recovered by owner or police, the property is NO longer stolen
• Knowledge of stolen nature does not have to come from personal observation, it can be
inferred from circumstances
