Strict-Liability Statutory Offenses

CRIMINAL LAW
by

Douglas L. Grundmeyer, M.A., J.D.; W. A. Harrington, L.L.B.; David A.Hunter, J.D.; and Bill Wishard, J.D.

TOPIC SCOPE

This article discusses the general principles of criminal law and covers the nature and elements of criminal offenses, capacity to commit crime or to be tried or punished, participation in crime, criminal responsibility of one person for the acts of another, inchoate crimes of attempt and solicitation, defenses, including insanity, and rights of the accused.  Although, as indicated below, the article does not include comprehensive coverage of criminal procedure, it does discuss jurisdiction and venue in criminal cases, preliminary proceedings, interstate detainers, arraignment, pleas, nolle prosequi, dismissal, and discontinuance, arrest of judgement, and judgement and sentence.  Punishment and disabilities attending conviction are also discussed, as are such matters as the right of crime victims to reparation from state funds, and the liability of principals in a criminal proceeding, including the defendant, for the costs incurred therein.

B.  Strict-Liability Statutory Offenses [137-139]

Though the common-law concept of crime as constituted only from the concurrence of an evil-meaning mind with an evil-doing hand took deep and early root in this country, a completely different category of crimes has arisen under modern statutes, especially in the area of public welfare offenses.  These are crimes which depend on no mental element, but consist only of forbidden acts or omissions. 84  Where the legislature creates such an offense, criminal intent in any of its forms is not an element of the crime and need not be proved to justify a conviction, 85   although some courts reconcile this with the older law of crimes by saying that where a statute denounces the doing of an act as criminal, the law imputes criminal intent from the doing of the act. 86   The moral turpitude or purity of motive which prompted the act, and knowledge or ignorance of its criminal character, are immaterial on the question of guilt, and the only question is whether the prohibited act was done or the required act omitted. 87  In other words, it is immaterial that the defendant acted in good faith or did not know that he was violating the law, 88   since, in the interest of the public, the burden is placed upon the actor of ascertaining at his peril whether his deed is within the prohibition of any criminal statute. 89   

Footnote 84. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Footnote 85. People v McClennegen, 195 Cal 445, 234 P 91; People v Del Toro, 155 Colo 487, 395 P2d 357; People v Fernow, 286 Ill 627, 122 NE 155; State v Perkins, 143 Iowa 55, 120 NW 62; Hays v Schueler, 107 Kan 635, 193 P 311,  11 ALR 1433; Grand Rapids v Williams, 112 Mich 247, 70 NW 547; Haggerty v St. Louis Ice Mfg. & Storage Co., 143 Mo 238, 44 SW 1114; State v Hennessy, 114 Wash 351, 195 P 211.

Footnote 86. Hargrove v United States (CA5 Tex) 67 F2d 820; State v Zichfeld, 23 Nev 304, 46 P 802.

Where an act forbidden by law is intentionally done, the intent to do the act is the criminal intent necessary to be shown.  State v McLean, 121 NC 589, 28 SE 140.

Footnote 87. United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301; Rooney v North Dakota,  196 US 319,  49 L Ed 494,  25 S Ct 264; Borderland Constr. Co. v State, 49 Ariz 523, 68 P2d 207; People v Fernow, 286 Ill 627, 122 NE 155; Commonwealth v Anderson, 272 Mass 100, 172 NE 114; People v Snowberger, 113 Mich 86, 71 NW 497; State v Manos, 179 SC 45, 183 SE 582; Hunter v State, 158 Tenn 63, 12 SW2d 361; Boyd v State,  217 Wis 149, 258 NW 330.

While, in a certain sense, intent is essential to the commission of a crime and in some classes of cases it is necessary to show moral turpitude in order to make out a crime, there is a class of cases where purposely doing a thing prohibited by statute may amount to an offense, although the act does not involve turpitude or moral wrong.  Armour Packing Co. v United States,  209 US 56,  52 L Ed 681,  28 S Ct 428.

Footnote 88. United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301; State v Gaetano, 96 Conn 306, 114 A 82; Duncan v Commonwealth, 289 Ky 231, 158 SW2d 396; Commonwealth v Murphy, 165 Mass 66, 42 NE 504; State v Ryan, 70 NH 196, 46 A 49; State v Manos, 179 SC 45, 183 SE 582.

Although at common law crime, when committed by the individual, consists of acts done with an evil intent, in statutory offenses created in the exercise of the police power, unless a wrongful intent or guilty knowledge, commonly designated by the use of the word "wilfully" or "maliciously" is made an essential element of the prohibited act, the violator may be convicted and punished even if he had not designed to disobey the law. Commonwealth v New York C. & H. R. R. Co. 202 Mass 394, 88 NE 764.

Footnote 89. United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301; Troutner v State, 17 Ariz 506, 154 P 1048; State v Sterrett, 35 Idaho 580, 207 P 1071; People v Billardello, 319 Ill 124, 149 NE 781; State v Morton, 38 SD 504, 162 NW 155; Pappas v State, 135 Tenn 499, 188 SW 52; State v Hennessy, 114 Wash 351, 195 P 211.

Generally speaking, it is within the power of the legislature to declare an act criminal irrespective of the intent or knowledge of the doer. 90   Due process is not violated by the fact that mens rea is not a required element of a crime, 91  or the fact that a person is punished for an act in violation of the law, though ignorant of the facts making it so. 92   However, the legislature's power in this respect is not without limitations. 93   It is sometimes said that the legislature may not declare that to be a crime which in its nature is and must be under all circumstances innocent. 94   And it has been held that there is no power to declare an act criminal which could not be avoided by the utmost care and circumspection, 95  or the nonperformance of which is impossible. 96  It has also been held unconstitutional to punish for an act committed by another without the defendant's knowledge or consent. 97  And due process is violated where a mere failure to act is punished as criminal despite the fact that defendant's conduct was wholly passive, that he did not know of the duty to act, and that no showing was made of the probability of such knowledge. 98          

Felony provisions of Migratory Bird Treaty Act (MBTA), 16 USCS §  707(b), are, because it is a strict liability offense, unconstitutional; in order to be convicted of felony under MBTA, a crime unknown to common law which carries substantial penalties, Congress must require prosecution to prove defendant acted with some degree of scienter. United States v Wulff (1985, CA6 Mich) 758 F2d 1121.

It is proper for legislatures to enact laws making violation thereof matter of strict criminal liability without culpability requirement and to impose fine or imprisonment for violation of offense without offending due process. State v McDowell (1981, ND) 312 NW2d 301.

Footnote 90. Chicago, B. & Q. R. Co. v United States,  220 US 559,  55 L Ed 582,  31 S Ct 612; People v Del Toro, 155 Colo 487, 395 P2d 357; People v Johnson, 288 Ill 442, 123 NE 543; State v Hales, 256 NC 27, 122 SE2d 768,  90 ALR2d 804; Commonwealth v Junkin, 170 Pa 194, 32 A 617; Hunter v State, 158 Tenn 63, 12 SW2d 361; State v Labonte, 120 Vt 465, 144 A2d 792.

It is not unconstitutional to define a crime in such a way that it may be committed by an innocent mistake.  State v Shevlin-Carpenter Co., 99 Minn 158, 108 NW 935.

It has been suggested that although the legislature can make acts misdemeanors without regard to intent or knowledge, a different question might be presented if they were made felonies. Hershorn v People, 108 Colo 43, 113 P2d 680,  139 ALR 297 (superseded by statute as stated in Romero v Liquor & Beer Licensing Board (Colo App) 540 P2d 1152).

Footnote 91. United States v Greenbaum (CA3 NJ) 138 F2d 437.

Footnote 92. Williams v North Carolina,  325 US 226,  89 L Ed 1577,  65 S Ct 1092, 31 Ohio Ops 83,  157 ALR 1366, reh den  325 US 895,  89 L Ed 2006,  65 S Ct 1560; United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301.

Where the crime is statutory, the legislature is free to require or omit guilty knowledge as an element.  State v De Meo, 20 NJ 1, 118 A2d 1,  56 ALR2d 905.

Scienter is not, under the Constitution, a necessary element of an offense which is malum prohibitum.  People v Johnson, 288 Ill 442, 123 NE 543.

Footnote 93. Smith v California,  361 US 147,  4 L Ed 2d 205,  80 S Ct 215, 14 Ohio Ops 2d 459, reh den  361 US 950,  4 L Ed 2d 383,  80 S Ct 399.

Footnote 94. Gillespie v People, 188 Ill 176, 58 NE 1007; Lawton v Steele, 119 NY 226, 23 NE 878, reh den (NY) 23 NE 1151 and affd  152 US 133,  38 L Ed 385,  14 S Ct 499.

The knowing possession of contraband, as distinguished from knowledge of its illegal character, is necessarily an element of the offense of possessing it, since otherwise seeming "possession" by accident or the design of another, without the knowledge of the accused, would suffice, and it is not within the competency of the lawgiver to render that criminal which in its very nature is innocent and essentially nonculpable.  State v Labato, 7 NJ 137, 80 A2d 617.

Footnote 95. State v Strasburg, 60 Wash 106, 110 P 1020.

Compare Hays v Schueler, 107 Kan 635, 193 P 311, holding an ordinance requiring a taillight on a vehicle at night valid although wilfulness or wrongful intent is not required and although the light might go out in spite of the utmost care.

A statute making it a misdemeanor to buy or receive fittings which have been unlawfully removed from railway tracks or cars, without knowledge of the facts, is unconstitutional.  Kilbourne v State, 84 Ohio St 247, 95 NE 824.

A statute prohibiting the possession of certain weapons by any person who had been charged with a crime of violence was unconstitutional, since the mere bringing of charges against a defendant rendered the defendant in violation of the statute even though the defendant had no knowledge that any criminal charge had been brought against him, and the defendant, exercising the utmost care and circumspection, would be unable to avoid commission of the proscribed offense.  Application of Markham, 178 Neb 544, 134 NW2d 84.

Footnote 96. Commonwealth v O'Harrah (Ky) 262 SW2d 385.

Footnote 97. Campellsburg v Odewalt, 24 Ky LR 1717, 72 SW 316 (city ordinance making person in possession of premises liable to fine when liquor unlawfully sold or furnished on premises).

Footnote 98. Lambert v California,  355 US 225,  2 L Ed 2d 228,  78 S Ct 240, reh den  355 US 937,  2 L Ed 2d 419,  78 S Ct 410.

Compare United States v Juzwiak (CA2 NY) 258 F2d 844, cert den  359 US 939,  3 L Ed 2d 639,  79 S Ct 652, holding the rule of Lambert case to be inapplicable where defendant's conduct was not merely passive, but also involved a positive act, and where a showing of the probability of his knowledge was made.

Criminal intent is sometimes held not essential to statutory offenses, 99  although in other cases it may be expressly 1  or impliedly 2   required. Where the statutory language does not clearly indicate whether intent is an element of the offense, the question is whether the legislature has made the act criminal without regard to criminal intent. 3    The law on this question is neither settled nor static. 4    In determining the question the general rules of statutory construction are followed, 5   and the controlling factor is the intent of the legislature. 6   Some authorities state that legislative intention to dispense with the requirement of criminal intent must clearly appear. 7   

Some cases find an intent requirement in a statutory offense by reading the statute in the light of the common law. 8  And where the statute codifies a common-law offense, the intent required at common law remains an element if the statute does not specifically eliminate it. 9  However, it has been pointed out that where the statute merely adopts a common-law concept of crime, silence as to intent may warrant inferences quite contrary to those warranted by the same silence in creating an offense new to the general law, for whose definition courts have no guidance except the statute. 10    In the latter situation, it has been held that the legislature's silence as to the mental element of the offense indicates an intention that none should be required. 11    

Some cases take the view that a criminal intent not expressed in the statute will not be required where the offense is merely malum prohibitum, 12   or in case of misdemeanors created under the police power. 13    On the other hand, a criminal intent requirement will be implied, or is at least more likely to be implied, in the case of a statutory offense which is malum in se. 14    At least one case, however, has denied that interpretation of legislative intent as dispensing with knowledge and wilfulness is limited to minor or police offenses, differentiable by their relative lack of turpitude. 15

It has been said that intent requirements are omitted as a matter of policy in the case of "public welfare offenses." 16   Other factors which have been noted as favoring a strict-liability construction of statutory offenses are that the offense is capable of inflicting widespread injury, 17  or creates a danger or probability of injury which will be the same without regard to intent; 18    that an intent or scienter requirement would obstruct the purpose of the statute 19   or make it difficult of enforcement; 20  and that the accused, even if he does not will the violation, is usually in a position to prevent it with no more care than society might reasonably expect. 21     

Another distinction which has been suggested is that where the means of knowledge are available to the accused, or the act is such as to impose a duty on the actor to ascertain the facts at his peril, knowledge is not an essential element of the statutory offense unless the statute so provides, but that otherwise, proof of scienter is necessary even though the statute does not in terms require it. 22

In a prosecution for cruelty of animals against a landowner who purchased cattle but failed to provide them with adequate food and water, the trial court erred in instructing the jury that the crime of animal cruelty pursuant to RC § 959.13 was a strict liability crime which did not require a showing of intentional or reckless activity because; although RC § 959.13 does not specify a degree of culpability, and in such situations, RC § 2901.21(B) becomes relevant (which provides that if an offense does not specify a degree of culpability, then culpability is not required for conviction), prior case law has addressed the issue of animal cruelty and it has been determined that the requisite mens rea to sustain a conviction is recklessness. State v Lapping (1991, Trumbull Co) 75 Ohio App 3d 354, 599 NE2d 416, motion overr 63 Ohio St 3d 1441, 589 NE2d 45.

Footnote 99. United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301; Dill v People, 94 Colo 230, 29 P2d 1035, cert den and app dismd  292 US 609,  78 L Ed 1470,  54 S Ct 781; State ex rel. Lanz v Dowling, 92 Fla 848, 110 So 522; Mitchell v Black, 72 Mass 100; People v Sybisloo, 216 Mich 1, 184 NW 410,  19 ALR 133; State v Ryan, 70 NH 196, 46 A 49; State v Southern R. Co., 122 NC 1052, 30 SE 133.

Footnote 1. Noble v State, 248 Ind 101, 223 NE2d 755 (crime of false attestation as notary requires criminal intent); State v McLarty (Mo) 414 SW2d 315; State v Huffman, 131 Ohio St 27, 5 Ohio Ops 325, 1 NE2d 313.

Footnote 2. People v Welch, 71 Mich 548, 39 NW 747.

In some cases, when the prohibition in a statute against doing a certain act or series of acts is couched in general terms, courts have imported into the statute a proviso that the denoted act shall be done from a guilty mind. Burnam v Commonwealth, 228 Ky 410, 15 SW2d 256; State v Swett, 87 Me 99, 32 A 806; Faulks v People, 39 Mich 200; Pappas v State, 135 Tenn 499, 188 SW 52.

In the interpretation of federal criminal statutes courts attempt to discover by implication a requirement of scienter, where there is no reason to suppose that the Congress, by deliberate choice, omitted such a requirement.  Delaney v United States (CA1 Mass) 199 F2d 107,  39 ALR2d 1300.

It has been stated that ordinarily a criminal intent is essential to a statutory offense, even when not in terms required. State v Hefflin, 338 Mo 236, 89 SW2d 938; State v Shedoudy, 45 NM 516, 118 P2d 280.

Footnote 3. State v De Meo, 20 NJ 1, 118 A2d 1,  56 ALR2d 905.

Footnote 4. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Footnote 5. Halsted v State, 41 NJL 552.

Whether a criminal intent or guilty knowledge is a necessary element of a statutory offense is a matter of construction to be determined from the language of the statute in view of its manifest purpose and design.  People v McClennegen, 195 Cal 445, 234 P 91; State v Fulco, 194 La 545, 194 So 14; State v Hales, 256 NC 27, 122 SE2d 768,  90 ALR2d 804; Commonwealth use of Allegheny County v Weiss, 139 Pa 247, 21 A 10; State v Hennessy, 114 Wash 351, 195 P 211.

Footnote 6. Troutner v State, 17 Ariz 506, 154 P 1048; State v Tabasso Homes, Inc., 42 Del 110, 28 A2d 248.

Footnote 7. Masters v United States, 42 App DC 350; State v Shedoudy, 45 NM 516, 118 P2d 280.

In some jurisdictions it is the rule by statute that intent or criminal negligence is an invariable element of every crime, unless excluded expressly or by necessary implication.  People v Stuart, 47 Cal 2d 167, 302 P2d 5,  55 ALR2d 705.

Footnote 8. Masters v United States, 42 App DC 350; State v Shedoudy, 45 NM 516, 118 P2d 280.

Footnote 9. Seattle v Gordon, 54 Wash 2d 516, 342 P2d 604.

Footnote 10. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Footnote 11. Razete v United States (CA6 Ohio) 199 F2d 44, cert den  344 US 904,  97 L Ed 698,  73 S Ct 284.

Footnote 12. Kirkham v North Little Rock, 227 Ark 789, 301 SW2d 559,  64 ALR2d 1032; Duncan v Commonwealth, 289 Ky 231, 158 SW2d 396; State v Fulco, 194 La 545, 194 So 14; People v Sybisloo, 216 Mich 1, 184 NW 410; People v Treen,  33 Misc 2d 571, 225 NYS2d 787; Pappas v State, 135 Tenn 499, 188 SW 52; Seattle v Gordon, 54 Wash 2d 516, 342 P2d 604; State v Chesapeake & Potomac Tel. Co., 121 W Va 420, 4 SE2d 257.

Footnote 13. Kirkham v North Little Rock, 227 Ark 789, 301 SW2d 559,  64 ALR2d 1032; State v Striggles, 202 Iowa 1318, 210 NW 137; Duncan v Commonwealth, 289 Ky 231, 158 SW2d 396; Commonwealth v Closson, 229 Mass 329, 118 NE 653 (traffic ordinance).

Footnote 14. State v Shedoudy, 45 NM 516, 118 P2d 280; People v Treen,  33 Misc 2d 571, 225 NYS2d 787; Seattle v Gordon, 54 Wash 2d 516, 342 P2d 604.

Footnote 15. United States v Greenbaum (CA3 NJ) 138 F2d 437 (three months' imprisonment for introduction of adulterated food in interstate commerce upheld, although guilty knowledge was neither alleged nor proved).

Footnote 16. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Many instances of strict liability are to be found in regulatory measures where the emphasis of the statute is evidently upon the achievement of some social betterment rather than the punishment of crimes, as in cases of offenses mala in se.  United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301.

Footnote 17. United States v Greenbaum (CA3 NJ) 138 F2d 437.

Footnote 18. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Footnote 19. United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301; United States v Juzwiak (CA2 NY) 258 F2d 844, cert den  359 US 939,  3 L Ed 2d 639,  79 S Ct 652.

Compare Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240, stating that the purpose of every statute would be "obstructed" by requiring a finding of intent, if we assume that it had a purpose to convict without it, and that therefore the obstruction rationale does not help us to learn the purpose of the omission.

Footnote 20. United States v Greenbaum (CA3 NJ) 138 F2d 437; Hays v Schueler, 107 Kan 635, 193 P 311.

Footnote 21. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

In the interest of the larger good, such legislation puts the burden of acting at hazard upon a person otherwise innocent but standing in a responsible relation to a public danger.  United States v Dotterweich,  320 US 277,  88 L Ed 48,  64 S Ct 134, reh den  320 US 815,  88 L Ed 492,  64 S Ct 367.

The penalty for violating a police regulation enacted for the protection of the public health is imposed without regard to wrongful intention, in order to insure such diligence as will render a violation of the law virtually impossible.  State v Burnam, 71 Wash 199, 128 P 218.

Footnote 22. Toledo v Kohlhofer, 96 Ohio App 355, 54 Ohio Ops 360, 122 NE2d 20.

C.  Circumstances Tending to Negative Criminal State of Mind or Moral Responsibility [140-157]

1.  In General [140]

As a general rule, religious belief cannot be accepted as a justification of an act made criminal by the law of the land. 23    For example, acts which would otherwise constitute bigamy cannot be justified on the ground that they were sanctioned or required by the defendant's religious beliefs. 24   And the same is generally regarded as the rule in prosecutions growing out of failure to furnish medical attention where the defendant was under a duty to provide such attention or a statute made it an offense not to do so. 25   But where the crime is one in which representations as to religious beliefs were charged to have been fraudulent, it has been held that all questions as to the truth or falsity of such beliefs should be withheld from the jury. 26    

Practice Aids: The Cultural Defense in the Criminal Law. 99 Harv LR 1293, April, 1986.

Footnote 23. Reynolds v United States,  98 US 145,  25 L Ed 244; State v Cox, 138 Me 151, 23 A2d 634; Copeland v Donovan, 124 Misc 553, 208 NYS 765; Commonwealth v Palms, 141 Pa Super 430, 15 A2d 481.

As to acts committed under delusion of Divine command, see  § 41, supra.

Footnote 24. See 10 Am Jur 2d,  Bigamy § 24.

Footnote 25. Craig v State, 220 Md 590, 155 A2d 684; People v Pierson, 176 NY 201, 68 NE 243; Rex v Lewis, 6 Ont L 132, 7 Can Crim Cas 261; Rex v Brooks, 9 Brit Col 13.

Annotation:  100 ALR2d 514, § 24.

As to prosecutions for homicide, see 40 Am Jur 2d,  Homicide §§ 90,  118.

Footnote 26. United States v Ballard,  322 US 78,  88 L Ed 1148,  64 S Ct 882.

2.  Ignorance or Mistake of Fact [141]

Ignorance or mistake of fact, at least if reasonable, and not due to carelessness or negligence, is a defense if it negatives a mental state required as an element of the offense charged. 27   Since a guilty mind is a requisite of common-law crime, and even of most statutory offenses, at least those mala in se, 28   it is also the general rule that where criminal mind or intent is dependent on a knowledge of particular facts, ignorance or mistake as to these facts, honest and real, not superinduced by the fault or negligence of the party doing the wrongful act, absolves from criminal responsibility. 29   It has even been held that the necessary specific intent can be negatived by a showing of mistake, despite want of proper care. 30

It is said that ignorance or mistake of fact, guarded by an honest purpose, affords at common law a sufficient excuse for a supposed criminal act. 31   To put it conversely, at common law an honest and reasonable belief in the existence of circumstances which, if true, would have made the act done innocent, is a good defense. 32   And it has been held that the same applies to statutory offenses unless excluded expressly or by necessary implication. 33  However, the extent to which this is true seems to depend on the elements of the offense charged.  Thus, mistake of fact has been regarded as of no significance where the crime charged requires neither intent nor knowledge. 34   And an act malum prohibitum is not excused by ignorance or mistake of fact where the specific act is made punishable irrespective of motive or intent. 35    Moreover, despite some authorities to the contrary, 36  it appears to be the general rule that if a statute commands an act to be done or omitted which, in the absence of the statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation. 37    But the rule is otherwise where the statute makes the act punishable only if knowingly done. 38  

In a large class of cases where it is deemed necessary, for the protection of the public, to require everyone to ascertain the facts at his peril, ignorance or mistake of fact is not a defense. 39  A familiar example, in the realm of the more serious offenses, is the age of the female in cases of prostitution 40   or statutory rape, although judicial opinion is not unanimous with respect to the latter. 41   One court has explained cases of this type on the ground that there was a measure of wrong in the act, even as defendant understood it, and has refused to apply the same principle where the act, as defendant understood it, was completely innocent and proper. 42   However, this qualification is by no means universally accepted, as may be seen from the fact that there is a split of authority as to whether an honest and reasonable belief that a prior marriage has been terminated by divorce, or by the death of the former spouse, is a defense to a bigamy charge. 43    Ignorance or mistake of fact will not avail in the case of strict-liability offenses. 44   Statutes providing for strict criminal liability may be regarded as putting the actor under a strict duty to ascertain the facts in order to guard against a possible violation. 45    For example, a seller of food is generally held to be under a duty to ascertain at his peril whether what he sells conforms to the standards fixed by law. 46  

Practice Aids: Fletcher, mistake in the Model Penal Code: A False Problem. 19 Rut LJ 649, Spring, 1988.

Fact that gun was unloaded as affecting criminal responsibility.  68 ALR4th 507.

Propriety of instruction of jury on "conscious avoidance" of knowledge of nature of substance or transaction in prosection for possession or distribution of drugs.  109 ALR Fed 710.

In prosecution under 18 USCS §  2241, trial court is not required to give instruction on affirmative defense of reasonable mistake unless and until defendant introduces some evidence, direct or circumstantial, of reasonable basis for having made mistake. United States v Norquay (1993, CA8 Minn) 987 F2d 475.

Although persons incapable of committing a crime include those who commit an act under an ignorance or mistake of fact, which disproves any criminal intent (Pen. Code, § 26, subd. 3), a defendant charged with assault with a deadly weapon on an Amtrak conductor (Pen. Code, § 245.2) could not assert the defense predicated on his alleged belief he was being followed by enemies and that he assaulted the conductor on the train in order to be publicly arrested and thus shielded from his enemies. As a matter of law, defendant could not establish that his conduct was legally justified under the doctrine of necessity; even if the circumstances which confronted defendant entitled him under the doctrine of necessity to resort to some criminal act for his own protection, he was obligated to utilize the least costly alternative. Because he selected an inappropriate means for attaining safety, defendant was foreclosed from taking shelter in the doctrine of necessity. People v Raszler (1985, 3d Dist) 169 Cal App 3d 1160, 215 Cal Rptr 770.

One accused of intimidation in violation of RC § 2921.03(A) was properly convicted of same upon evidence that sanitation facility inspector was assaulted and threatened by accused while inspecting an improperly installed facility on accused's property, according to accused because he mistook the inspector for a peeping tom. State v Troutman (1991, Lorain Co) 71 Ohio App 3d 755, 595 NE2d 414, motion overr 62 Ohio St 3d 1408, 577 NE2d 361.

Footnote 27. Gordon v State, 52 Ala 308; People v Wells, 33 Cal 2d 330, 202 P2d 53, cert den  338 US 836,  94 L Ed 510,  70 S Ct 43 (by statute); State v O'Neil, 147 Iowa 513, 126 NW 454.

The principle of the criminal law, "Ignorantia facti excusat," applies with great force where a business is recognized as lawful. Haynes v State, 118 Tenn 709, 105 SW 251.

In a prosecution for injury to a child based on defendant's burning of her granddaughter in hot bath water, defendant's testimony that she mistakenly believed that the temperature of the bath water was normal, was sufficient to entitle her to an instruction on the defense of mistake of fact; the trial court's refusal to give a charge that applied the law of mistake of fact to the very facts of the case, over defendant's objection and in the face of a properly requested charge, was reversible error. Beggs v State (Tex Crim) 597 SW2d 375.

An honest mistake of the defendant as to his title to property is a defense to an indictment for unlawfully taking it, but not to a civil action for converting it.  Stone v United States,  167 US 178,  42 L Ed 127,  17 S Ct 778.

Footnote 28.  §§ 129 et seq., supra.

Footnote 29. Dotson v State, 62 Ala 141; State v Welch, 73 Mo 284; Reg. v Tolson (Eng) LR 23 QB Div 168.

The rule allowing a defense to a crime considered malum in se because of a mistake of fact is subject to the qualification that the mistake must not be due to the negligence or carelessness of the defendant.  State v Dizon 47 Hawaii 444, 390 P2d 759.

Footnote 30. One who takes another's property under the honest belief that it is his own does not commit larceny, even though he may have acted carelessly.  People v Devine, 95 Cal 227, 30 P 378; Green v State, 153 Tex Crim 442, 221 SW2d 612.

Footnote 31. State v Powell, 141 NC 780, 53 SE 515; Farrell v State, 32 Ohio St 456.

Footnote 32. People v Vogel, 46 Cal 2d 798, 299 P2d 850; People v Cohn, 358 Ill 326, 193 NE 150; Commonwealth v Bollinger, 197 Pa Super 492, 179 A2d 253.

Footnote 33. People v Vogel, 46 Cal 2d 798, 299 P2d 850.

Footnote 34. People v Young,  11 NY2d 274, 229 NYS2d 1, 183 NE2d 319.

Footnote 35. People v Treen,  33 Misc 2d 571, 225 NYS2d 787.

Footnote 36. Stern v State, 53 Ga 229; State v Powell, 141 NC 780, 53 SE 515; Farrell v State, 32 Ohio St 456.

Footnote 37. Ford v State, 85 Md 465, 37 A 172; State v Cornish, 66 NH 329, 21 A 180; Haynes v State, 118 Tenn 709, 105 SW 251; State v Gilmore, 80 Vt 514, 68 A 658; State v Welch,  145 Wis 86, 129 NW 656.

It is no defense to a prosecution under a statute making criminal an act unobjectionable from a moral point of view that the accused acted honestly and in good faith under a mistake of fact. State v Cornish, 66 NH 329, 21 A 180.

Knowledge of the age of the person named in the complaint is not essential to the violation of a statute forbidding the owner, keeper, or manager of a dance house to permit any person under 21 years of age to be or remain therein, when not so provided by the statute.  State v Rosenfield, 111 Minn 301, 126 NW 1068.

Footnote 38. People v Flumerfelt, 35 Cal App 2d 495, 96 P2d 190 (defendant not guilty of knowingly selling stocks without permit if she relied in good faith on erroneous information that permit had been obtained); State v Welch,  145 Wis 86, 129 NW 656.

Footnote 39. Redmond v State, 36 Ark 58; Brown v State (Sup) 23 Del 159, 74 A 836; Nies v District Court, 179 Iowa 326, 161 NW 316; Commonwealth v Murphy, 165 Mass 66, 42 NE 504; State v Welch, 73 Mo 284; Territory v Harwood, 15 NM 424, 110 P 556 (not followed State v Bazan (App) 90 NM 209, 561 P2d 482, cert den 90 NM 254, 561 P2d 1347); State v Sasse, 6 SD 212, 60 NW 853.

The principle that ignorance of the law is no defense applies whether the law is a statute or a duly promulgated and published regulation.  United States v International Minerals & Chemical Corp.,  402 US 558,  29 L Ed 2d 178,  91 S Ct 1697.

Footnote 40. See 63 Am Jur 2d,  Prostitution § 1.

Footnote 41. See People v Hernandez, 61 Cal 2d 529, 39 Cal Rptr 361, 393 P2d 673,  8 ALR3d 1092, holding that reasonable belief that a girl had reached the age of consent was a defense to statutory rape, and overruling prior cases.  The traditional view, however, has been to the contrary.  See 65 Am Jur 2d Rape § 36.

Footnote 42. State v Audette, 81 Vt 400, 70 A 833.

See also 2 Am Jur 2d,  Adultery and Fornication §§ 4,  14,  15.

Footnote 43. See 10 Am Jur 2d,  Bigamy §§ 18-20.

Footnote 44.  § 137, supra.

Footnote 45. State v Welch,  145 Wis 86, 129 NW 656.

Footnote 46. See 35 Am Jur 2d,  Food § 77.

3.  Ignorance or Mistake of Law [142-145]

That ignorance or mistake of law will not excuse an act in violation of the criminal laws is a principle so universally accepted as to be axiomatic. 47  It has been said that chaos and impossibility of law enforcement would ensue without this rule. 48   The law, in this respect, makes a sharp distinction between honest mistakes of fact, which generally excuse, and honest mistakes of law, which generally do not. 49    However, there are crimes which require a particular evil condition of the mind, existing in actual fact.  Ignorance or mistake of law, if it makes that particular state of mind impossible, takes away the offense. 50    Thus a bona fide mistake of law may negative wilfulness 51   or malice 52  where these are required elements of the particular offense.  On the other hand, where the statute punishes only one who "intentionally" violates its provision, it has been held that a mistake of law is not a defense. 53     Mistake of law may also negative specific criminal intent. 54  Thus, one who takes property under a bona fide but erroneous claim of right does not commit larceny, although his error may have been one of law. 55    And one jurisdiction has held that a person who, before doing the act for which he was ultimately prosecuted, made a diligent effort to ascertain the law relevant to that act and to abide by it, adopting the best means available to him for that purpose, ought not to be convicted of an offense which requires general criminal intent. 56   And a person's reasonable belief that his conduct does not constitute an offense is a defense if the offense is defined by an administrative regulation or order which is not known to him and has not been published or otherwise made reasonably available to him, and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him. 57  

The hardship which may arise from enforcing against innocent parties general laws so long in disuse as to be no longer known to exist has been pronounced only an ameliorating factor in their enforcement which does not bear on the continuing validity of such laws. 58   

In prosecution for violation of 18 USCS §  1001 court is not obliged to give instruction on ignorance of law where court concludes that no evidence was presented to warrant such type of instruction inasmuch as defendant did not contend that he was not required to state material on form which form specifically requested. United States v Cox (1983, CA11 Ga) 696 F2d 1294.

It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof. Of course, it is based on a fiction, because no man can know all of the law, but it is a maxim that the law itself does not permit anyone to gainsay. It is expected that where it is shown that the defendant actually was ignorant of the law and innocent of any intention to violate it, the jury and the court will give the defendant the benefit of the fact, and will impose only a light penalty. The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. People v Costa (1991, 6th Dist) 1 Cal App 4th 1201, 2 Cal Rptr 2d 720, 91 CDOS 10011, 91 Daily Journal DAR 15766.

Footnote 47. Lambert v California,  355 US 225,  2 L Ed 2d 228,  78 S Ct 240, reh den  355 US 937,  2 L Ed 2d 419,  78 S Ct 410; Hunter v State, 158 Tenn 63, 12 SW2d 361,  61 ALR 1148; Medrano v State, 32 Tex Crim 214, 22 SW 684.

An intention of the accused to keep within the law, but to get as near the line as possible, will not help him if in fact he violates the law.  Horning v District of Columbia,  254 US 135,  65 L Ed 185,  41 S Ct 53.

As to failure to take affirmative action, required under criminal sanctions, where defendant has no knowledge of the requirement, see  § 6, supra.

As to ignorance of law as defense in case of child charged with simple misdemeanor, see  § 28, supra.

Footnote 48. State v De Meo, 20 NJ 1, 118 A2d 1,  56 ALR2d 905.

Footnote 49. People v Flumerfelt, 35 Cal App 2d 495, 96 P2d 190 (reliance on attorney's misstatement of fact); People v McCalla, 63 Cal App 783, 220 P 436, error dismd  267 US 585,  69 L Ed 799,  45 S Ct 461 (reliance on attorneys misstatement of law), and (disapproved on other grounds People v Elliot 54 Cal 2d 498, 6 Cal Rptr 753, 354 P2d 225 (ovrld on other grounds People v Pompa-Ortiz 27 Cal 3d 519, 165 Cal Rptr 851, 612 P2d 941)); People v Cohn, 358 Ill 326, 193 NE 150; Hunter v State, 158 Tenn 63, 12 SW2d 361.

Footnote 50. People v Goodin, 136 Cal 455, 69 P 85.

As to belief that actions are legal as defense to kidnapping, see 1 Am Jur 2d,  Abduction and Kidnapping § 27.

Footnote 51. United States v Murdock,  290 US 389,  78 L Ed 381,  54 S Ct 223.

Footnote 52. A public officer, in obeying a regulation which has not been tested in the courts, does not act "maliciously," even if the regulation is illegal.  Fears v State, 33 Ariz 432, 265 P 600.

Footnote 53. If one intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.  Ellis v United States,  206 US 246,  51 L Ed 1047,  27 S Ct 600; Borderland Constr. Co. v State, 49 Ariz 523, 68 P2d 207.

Footnote 54. Long v State (Sup) 44 Del 262, 65 A2d 489.

Footnote 55. See 50 Am Jur 2d,  Larceny § 41.

Footnote 56. Long v State (Sup) 44 Del 262, 65 A2d 489.

Footnote 57. 1962 Ford Thunderbird v Division of Narcotic Control of Dept. of Public Safety, 49 Ill App 2d 8, 198 NE2d 155,  10 ALR3d 554.

Footnote 58. District of Columbia v John R. Thompson Co.,  346 US 100,  97 L Ed 1480,  73 S Ct 1007, on remand 93 App DC 373, 214 F2d 210.

Violation of a valid criminal statute cannot be excused on the ground that the defendant believed in good faith that the statute was unconstitutional, 59   even though he acted on advice of counsel.  A claim of belief in the unconstitutionality of a statute is a plea of ignorance of the law and therefore inadmissible. 60   On the other hand, despite the general theory that an unconstitutional statute is void and hence affords no protection, 61  reliance on a statute later held unconstitutional is frequently held to be a good defense. 62   The theory is that a legislative act is presumptively valid and entitled to obedience until held unconstitutional by competent authority. 63   Thus a public officer cannot be criminally punished for obeying a statute later held invalid. 64   And, on the ground that a veto is also a legislative act and presumptively valid, it has been held that one cannot be penalized for failing to obey a vetoed statute in reliance on the constitutionality of the veto, even though it is later held that the veto was invalid and that the statute took effect. 65   And where a criminal statute has been repealed and the repealing act has been upheld by an intermediate court, it has been held unjust to punish a citizen for violating the original statute in reliance on the repealer, even if the latter should be deemed unconstitutional and therefore ineffective to repeal the original act. 66   On the other hand, it has been held that prosecution under a general criminal statute is not precluded by the fact that defendant's act would have been authorized under a later amendment, which the court held void. 67

Footnote 59. Warren v United States (CA10 Kan) 177 F2d 596, cert den  338 US 947,  94 L Ed 584,  70 S Ct 485; Hunter v State, 158 Tenn 63, 12 SW2d 361.

Footnote 60. Hunter v State, 158 Tenn 63, 12 SW2d 361.

Footnote 61. See 16 Am Jur 2d (Rev) Constitutional Law § 256.

Footnote 62. Texas Co. v State, 31 Ariz 485, 254 P 1060; State v Godwin, 123 NC 697, 31 SE 221.

Footnote 63. Texas Co. v State, 31 Ariz 485, 254 P 1060.

Footnote 64. State v Godwin, 123 NC 697, 31 SE 221.

Footnote 65. Texas Co. v State, 31 Ariz 485, 254 P 1060.

Footnote 66. East Lake Lot Owners Asso. v Prince's Lakes, 246 Ind 333, 205 NE2d 821 (lack of saving clause in repealed criminal statute as terminating prosecutions thereunder); Lutwin v State, 97 NJL 67, 117 A 164.

Footnote 67. Commonwealth v Malco-Memphis Theatres, Inc., 293 Ky 531, 169 SW2d 596.  See also Carolina-Virginia Racing Asso. v Cahoon (CA4 NC) 214 F2d 830 (refusing to enjoin enforcement of criminal statute).

Where a criminal statute has been first held unconstitutional by the court of last resort and then later held constitutional, a person who committed the prohibited act during the interval between the two decisions is not liable to punishment. 68   And where a decision holding a criminal statute inapplicable has been overruled, the same rule is applied. 69  Some courts take the view that the opposite result would make the later decision, at least in substance, an ex post facto law, 70  or would amount, under the circumstances, to cruel and unusual punishment. 71    Others simply take the view that the court has exercised, and under such circumstances should exercise, the power to give its overruling decision a solely prospective effect. 72

There is some authority to the effect that reliance on a lower court decision is no defense. 73  It has been held, however, that one is entitled to rely on an express decision of unconstitutionality by any competent court of general jurisdiction having authority to decide that question, at least where the act would be only malum prohibitum should the statute subsequently be upheld by a higher court. 74  

Where an injunction against the enforcement of a criminal statute has been sought on the ground of its unconstitutionality, and a temporary injunction has been granted, it has been held that the purpose of the latter order is to preserve the status quo pending a decision on constitutionality, not to decide the rights of the parties.  Accordingly, one who violates the statute while the temporary injunction is in effect does so at his peril and he may be punished if the injunction is later dissolved and the statute upheld. 75 

Footnote 68. Chavers v Harrell, 122 Fla 669, 166 So 261, adhered to 122 Fla 670, 166 So 262 and reh den 122 Fla 700, 166 So 574; State v O'Neil, 147 Iowa 513, 126 NW 454; State v Stout, 90 Okla Crim 35, 210 P2d 199.

Footnote 69. Commonwealth v Trousdale, 297 Ky 724, 181 SW2d 254; State v Longino, 109 Miss 125, 67 So 902; State v Jones, 44 NM 623, 107 P2d 324.

Footnote 70. State v Longino, 109 Miss 125, 67 So 902.

Footnote 71. State v Longino, 109 Miss 125, 67 So 902.

As to what constitutes cruel and unusual punishment, see  §§ 625 et seq., infra.

Footnote 72. State v Jones, 44 NM 623, 107 P2d 324; State v Bell, 136 NC 674, 49 SE 163.

Footnote 73. Leon v United States (Mun Ct App Dist Col) 136 A2d 588; State v Striggles, 202 Iowa 1318, 210 NW 137.

Footnote 74. State ex rel. Williams v Whitman, 116 Fla 196, 150 So 136, later op 116 Fla 198, 156 So 705,  95 ALR 1416.

Footnote 75. State v Wadhams Oil Co.  149 Wis 58, 134 NW 1121.

Compare Marysville v Cities Service Oil Co., 133 Kan 692, 3 P2d 1060, holding injunction restraining enforcement of a city ordinance to be complete defense to prosecution for its violation during the life of the injunction suit where the ordinance was regulatory in its nature, where its validity depended on facts which could be established only through judicial inquiry, and where the injunction suit was prosecuted promptly and in good faith.

As a general rule, it is no defense to a criminal prosecution that the defendant acted in good faith, relying on the advice of counsel. 76  This situation is considered to fall within the general rule that ignorance or mistake of law will not excuse. 77    However, advice of counsel may be shown where it tends to disprove the intent requisite to the particular offense. 78   Thus, where the offense is one which requires a fraudulent intent, 79    an evil motive or bad purpose, 80  or malice, 81  the advice of reputable counsel, 82  given on full disclosure of the facts and followed in good faith, 83    though not an absolute defense, may be shown as tending to rebut the mental element requisite to the particular offense.  And one jurisdiction has gone so far as to hold that even general criminal intent may be rebutted by showing, not merely that defendant relied on advice of counsel, but that his conduct throughout in seeking to ascertain the law and relying on the advice received manifested good faith and diligence beyond reproach. 84   However, advice of counsel is of no avail where the statute forbids an act regardless of intent. 85

Footnote 76. Miller v United States (CA4 SC) 277 F 721; Barnett v State, 89 Ala 165, 7 So 414; Staley v State, 89 Neb 701, 131 NW 1028; Smith v State, 46 Tex Crim 267, 81 SW 936.

The fact that defendant public officers followed the official opinions of the state attorney general shows absence of wrongful intent, but does not excuse.  Lindquist v State, 213 Ark 903, 213 SW2d 895.

Belief, supported by advice of counsel, in the unconstitutionality of a statute, is no defense in a prosecution for its violation.  Hunter v State, 158 Tenn 63, 12 SW2d 361.

Footnote 77. People v McCalla, 63 Cal App 783, 220 P 436, error dismd  267 US 585,  69 L Ed 799,  45 S Ct 461 and (disapproved on other grounds People v Elliot 54 Cal 2d 498, 6 Cal Rptr 753, 354 P2d 225 (ovrld on other grounds People v Pompa-Ortiz 27 Cal 3d 519, 165 Cal Rptr 851, 612 P2d 941)); Staley v State, 89 Neb 701, 131 NW 1028.

Footnote 78. Reed v State, 248 Ala 196, 27 So 2d 25.

As to advice of counsel as defense to perjury charge, see 60 Am Jur 2d,  Perjury § 48.

Footnote 79. Bisno v United States (CA9 Cal) 299 F2d 711, cert den  370 US 952,  8 L Ed 2d 818,  82 S Ct 1602, reh den  371 US 855,  9 L Ed 2d 94,  83 S Ct 51; Shushan v United States (CA5 La) 117 F2d 110,  133 ALR 1040, cert den  313 US 574,  85 L Ed 1531,  61 S Ct 1085, reh den  314 US 706,  86 L Ed 564,  62 S Ct 53 and cert den  313 US 574,  85 L Ed 1532,  61 S Ct 1086 and (ovrld on other grounds United States v Cruz (CA5 Fla) 478 F2d 408, reh den (CA5 Fla) 478 F2d 1403 and cert den  414 US 910,  38 L Ed 2d 148,  94 S Ct 231,  94 S Ct 258,  94 S Ct 259); Wacksman v United States (Mun Ct App Dist Col) 175 A2d 789.

Footnote 80. United States v Phillips (CA7 Ill) 217 F2d 435 (income tax evasion).

Footnote 81. Krasner v State, 248 Ala 12, 26 So 2d 526 (criminal libel).

Footnote 82. Wacksman v United States (Mun Ct App Dist Col) 175 A2d 789.

Footnote 83. Shushan v United States (CA5 La) 117 F2d 110,  133 ALR 1040, cert den  313 US 574,  85 L Ed 1531,  61 S Ct 1085, reh den  314 US 706,  86 L Ed 564,  62 S Ct 53 and cert den  313 US 574,  85 L Ed 1532,  61 S Ct 1086 and (ovrld on other grounds United States v Cruz (CA5 Fla) 478 F2d 408, reh den (CA5 Fla) 478 F2d 1403 and cert den  414 US 910,  38 L Ed 2d 148,  94 S Ct 231,  94 S Ct 258,  94 S Ct 259).

Footnote 84. Long v State (Sup) 44 Del 262, 65 A2d 489.

Footnote 85. People v Aresen, 91 Cal App 2d 26, 204 P2d 389, reh den 91 Cal App 2d 38, 204 P2d 957.

4.  Absence of Choice or Volition [146-153]

Generally one does not commit a crime unless some feasible and lawful alternative was open to him.  Thus, nonperformance cannot be made a crime where performance is impossible. 86  And nonperformance should not be treated as criminal where performance would have violated some other law 87  or a court order. 88   And it has been held that one should not be penalized for following police instructions, though it later develops they had no legal basis. 89

The criminality of an act cannot be made to depend on the happening of a subsequent event which may not have been in the actor's contemplation at the time of the act and which may be brought about by others against his will. 90   

Practice Aids: Justification defenses and just convictions, 24 Pac LJ 1233 (1993).

Automobiles: necessity or emergency as defense in prosecution for driving without operator's license or while license is suspended,  7 ALR5th 73.

Footnote 86. Port Huron v Jenkinson, 77 Mich 414, 43 NW 923.

Footnote 87. People v Kent, 151 Mich 134, 114 NW 1012 (property owner cannot be held criminally liable for condition he had no right to abate).

Footnote 88. A litigant should not be exposed to punishment for not doing an act commanded by statute where a court, acting within its jurisdiction and authority, has issued an injunction commanding him to refrain from doing it.  State v Chicago, M. & St. P. R. Co. 130 Minn 144, 153 NW 320.

Footnote 89. Schiff v People, 111 Colo 333, 141 P2d 892.

Footnote 90. United States v Fox,  95 US 670,  24 L Ed 538, holding that the fact that fraudulently obtaining goods on credit occurs within three months before commencement of either voluntary or involuntary bankruptcy proceedings is not ground for making it a federal offense.

There is some authority to the effect that an act done from compulsion or necessity is not a crime. 91   But the necessity or compulsion which will excuse a criminal act must be clear and conclusive and must arise without negligence or fault on the part of the defendant. 92   The case does not become one of necessity unless all other alternatives have been exhausted. 93   And in a prosecution for an offense not requiring intent, it has been held that the defense of necessity is not available, at least where the defendant could have avoided the emergency by taking advance precautions. 94   Specific aspects of the law of necessity, such as self-defense, 95  defense of other persons, 96  defense of habitation, 97  and defense of property 98  are treated elsewhere.  Economic necessity is not a justification for a positive criminal act, such as larceny, 99  but it has been held that failure to act cannot be made criminal where indigence would make compliance impossible. 1

Practice Aids: Reeve, Necessity: The Right to Present a Recognized Defense. 21 N Eng LR 779, 1985-1986.

Commonwealth v. Hutchins [575 N.E.2d 741 (Mass. 1991)]: a defendant is denied the right to present a medical necessity defense, 27 New Eng LR 1101 (1993).

Bayles, Reconceptualizing Necessity and Duress. 33 Wayne LR 1191, Summer, 1987.

Levitin, Putting the Government on Trial: The necessity defense and social change. 33 Wayne LR 1221, Summer, 1987.

Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense,  8 ALR5th 713.

Driving while intoxicated: "choice of evils" defense that driving was necessary to protect life or property. (See also 7A Am Jur 2d, Automobiles and Highway Traffic § 296.)  64 ALR4th 298.

Trespass: state prosecution for unauthorized entry, or occupation, for public demonstration purposes, of business, industrial, or utility premises.  41 ALR4th 773.

In a prosecution for trespass, the trial court did not err in barring the defense of necessity. Defendants' offer of proof, that they had no choice but to trespass on the premises of a defense contractor to distribute leaflets protesting the development of a certain missile, because they believed that their presence would bring about an end to the threat of nuclear holocaust, was legally insufficient, the most obvious deficiency being their failure to present legally sufficient evidence that they lacked an adequate alternative to criminal trespass. Defendants' theories that development of the missile violated international law, and that adequate alternatives did not exist in that defendants had tried lawful leafletting, political campaigning, and other courses of action without successfully averting the threat of nuclear war, were insufficient. In a free society, neither the political process nor the avenue of lawful protest is an exhaustible remedy for an unwise policy decision, and compliance with international law must be sought through the ballot box, or, where appropriate, by court action. Illegal conduct designed to influence policies cannot be considered necessary where such lawful avenues are available. In re Weller (1985, 1st Dist) 164 Cal App 3d 44, 210 Cal Rptr 130.

Although persons incapable of committing a crime include those who commit an act under an ignorance or mistake of fact, which disproves any criminal intent (Pen. Code, § 26, subd. 3), a defendant charged with assault with a deadly weapon on an Amtrak conductor (Pen. Code, § 245.2) could not assert the defense predicated on his alleged belief he was being followed by enemies and that he assaulted the conductor on the train in order to be publicly arrested and thus shielded from his enemies. As a matter of law, defendant could not establish that his conduct was legally justified under the doctrine of necessity; even if the circumstances which confronted defendant entitled him under the doctrine of necessity to resort to some criminal act for his own protection, he was obligated to utilize the least costly alternative. Because he selected an inappropriate means for attaining safety, defendant was foreclosed from taking shelter in the doctrine of necessity. People v Raszler (1985, 3d Dist) 169 Cal App 3d 1160, 215 Cal Rptr 770.

In a prosecution of three persons for engaging in criminal conduct while participating in antiabortion demonstrations outside a medical clinic, defendants were not entitled to have the jury instructed on the defense of necessity. There was no justification for defendants to commit crimes for the purpose of interfering with the exercise by others of their constitutional rights to an abortion, recognized by the state and federal constitutional rights to privacy. People v Garziano (1991, 2nd Dist) 230 Cal App 3d 241, 281 Cal Rptr 307, 91 CDOS 3669, 91 Daily Journal DAR 5869.

In prosecution for unlawful possession of knife by inmate, trial court did not err in finding that inmate failed to produce sufficient evidence to warrant instruction on affirmative defense of necessity, where unsubstantiated events about which inmate testified could have taken place any time between 1987 and discovery of knife in 1989, and thus did not support finding of specific and immediate threat. People v Kite (1992) 153 Ill 2d 40, 178 Ill Dec 769, 605 NE2d 563.

The defense of "necessity," which provides that where a person reasonably believes that he or she is in danger of physical harm he or she may be excused for some conduct which ordinarily would be criminal, would be recognized in Mississippi. Under the doctrine of necessity, the question is not whether an explicit threat was made, but whether a reasonable person under all of the circumstances would feel threatened for his or her personal safety. Knight v State (1992, Miss) 601 So 2d 403.

The trial court committed reversible error by refusing to instruct the jury on the defense of necessity where the defendant, charged with driving with a suspended license, testified that he did so because his 6-month pregnant wife had developed pains in her back and stomach, that he did not have a telephone, that the neighbor who did have a telephone was out, and that he was thus required to drive to the nearest telephone to call for assistance. State v Cole (1991) 304 SC 47, 403 SE2d 117.

Footnote 91. United States v Ashton (CC Mass) F Cas No 14470 (mutiny held justifiable where vessel was unseaworthy and captain refused to put into port); Browning v State, 31 Ala App 137, 13 So 2d 54 (motorist attempting to escape from officers who were shooting at him to make unlawful arrest not guilty of reckless driving).

The rule that a person voluntarily doing an act which the law forbids will be charged with criminal intent does not apply to acts done under compulsion or necessity.  Chesapeak & O. R. Co. v Commonwealth, 119 Ky 519, 84 SW 566.

A criminal statute ought not to be given an application which, though within its literal language, would take away a person's natural right of self-defense, or a parent's natural right to defend his child.  State v Jackson, 71 NH 552, 53 A 1021.

As to necessity as defense in homicide cases, see 40 Am Jur 2d,  Homicide § 112.

As to bad prison conditions or fear of illtreatment by custodian as defense to charge of escape, see 27 Am Jur 2d,  Escape, Prison Breaking, and Rescue § 16.

Practice Aids: Arnolds & Garland, Defense of Necessity in Criminal Law. 1974, 65 J Crim L & Criminology 289.

Tiffany & Anderson, Legislating the Necessity Defense in Criminal Law. 1975, 52 Denver L J 839.

Footnote 92. Ross v State, 169 Ind 388, 82 NE 781.

Footnote 93. United States v Holmes (CC Pa) F Cas No 15383; People v Whipple, 100 Cal App 261, 279 P 1008 (escape not justified by bad prison conditions and inhuman treatment, especially where no attempt has been made to obtain relief by lawful means).

State prison inmate, who was convicted of introducing contraband after he was found to be in possession of a knife, was properly denied an instruction on the choice of evils defense where he alleged only a general fear of injury as his reason for retaining the knife and could not point to definite, specific, and imminent threat to his person.  People v Robertson, 36 Colo App 367, 543 P2d 533.

Footnote 94. Commonwealth v New York C. & H. R. R. Co., 202 Mass 394, 88 NE 764.

But see Chesapeak & O. R. Co. v Commonwealth, 119 Ky 519, 84 SW 566, holding that the fact that precautions could have been taken is not determinative.

Footnote 95. See 6 Am Jur 2d,  Assault and Battery §§ 69-80; 40 Am Jur 2d,  Homicide §§ 139-141.

Footnote 96. See 6 Am Jur 2d,  Assault and Battery § 63; 40 Am Jur 2d,  Homicide §§ 170-173.

Footnote 97. See 6 Am Jur 2d,  Assault and Battery § 82; 40 Am Jur 2d,  Homicide §§ 174-179.

Footnote 98. See 6 Am Jur 2d,  Assault and Battery §§ 81-89; 40 Am Jur 2d,  Homicide §§ 180-182.

Footnote 99. State v Moe, 174 Wash 303, 24 P2d 638.

Footnote 1. Commonwealth v O'Harrah (Ky) 262 SW2d 385; Port Huron v Jenkinson, 77 Mich 414, 43 NW 923.

Though coercion does not excuse taking the life of an innocent person, 2   it does excuse most, if not all, other offenses. 3    In order to constitute a defense, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious personal bodily injury if the act is not done, 4    particularly where the defense is asserted by a participant in the offense. 5   Apprehension of loss of property, or of slight or remote personal injury, is no excuse. 6   Furthermore, the danger must be continuous throughout the time when the act is being committed and must be one from which the defendant cannot withdraw in safety. 7   The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. 8    And threat or fear of future injury is not sufficient. 9  

In cases involving prosecutions for robbery, larceny, or related crimes, claims of coercion, compulsion, or duress have been raised in a variety of factual circumstances. 10    By far the largest number of cases have involved claims by defendants that they committed robberies, larcenies, or related crimes as a result of a threat or fear of personal injury or death.  Although not going so far as to hold that a threat or fear of personal injury or death excused the defendants from being held criminally liable, courts in a number of cases have determined that evidence of such a threat or fear was sufficient to raise a question as to the defense of coercion, compulsion, or duress. 11    However, the defense has been held not established under the circumstances of other cases involving claims by defendants that they committed robberies, larcenies, or related crimes as a result of a threat or fear of personal injury or death. 12   In a number of cases, defendants charged with robbery, larceny, or related crimes have sought to escape criminal liability by claiming that they acted out of fear based on a threat of injury or death to other persons, generally relatives or close friends. 13    Although it has been determined under the circumstances presented in a few cases that the defense of coercion, compulsion, or duress was properly raised by evidence of threats against persons other than the defendant, 14    the defense has been held not established under the circumstances of other cases involving claims by defendants that they were forced to commit robberies, larcenies, or related crimes because of threats against third persons. 15    Finally, the courts have rejected claims by defendants charged with robbery, larceny, or related crimes that they acted under coercion, compulsion, or duress resulting from miscellaneous facts or circumstances, 16     including an asserted threat to ruin a defendant's reputation, 17  a fear of prosecution for an earlier criminal act, 18  and a need to obtain money to provide for a drug habit 19  or family necessities. 20

The defense of coercion, compulsion, or duress is generally considered to be an affirmative defense, 21  and, therefore, once the defendant has properly raised it by presenting some evidence, the state must overcome it by proof beyond a reasonable doubt to sustain a conviction; the determination of the issue is a matter for the trier of fact alone. 22   But the defendant must establish the defense by a preponderance of the evidence to win an acquital. 23   The facts or circumstances that are sufficient to establish the defense of coercion, compulsion, or duress are for determination by the jury. 24   Since the essence of the jury question generally is whether the defendant reasonably believed, under all the circumstances present, that he was faced with imminent danger of death or bodily harm at the time he committed the criminal act, any evidence relevant to a resolution of that question is admissible. 25    In jurisdictions in which the defense of coercion, compulsion, or duress requires an objective test to determine whether the defendant felt that his life was in danger, evidence of the defendant's subjective mental state may not be admissible. 26

Practice Aids: Bakker, The Defense of Obedience to Superior Orders: The Mens Rea Requirement. 17 Am J Crim L 55, Fall, 1989.

Duress: A philosophical account of the defense in law, 37 Ariz LR 1:251 (1995).

Murder, attempted murder, and the defence of duress: some objections to the present state of the law, 25 Bracton LJ 15 (1993).

Hauhart, The Involuntary Action Defense to a Criminal Indictment. 11 No Ky LR 321, 1984.

Bayles, Reconceptualizing Necessity and Duress. 33 Wayne LR 1191, Summer, 1987.

Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense.  8 ALR5th 713.

"Choice of evils," necessity, duress, or similar defense to state or local criminal charges based on acts of public protest.  3 ALR5th 521.

Defense of necessity, duress, or coercion in prosecution for violation of state narcotics laws.  1 ALR5th 938.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime.  1 ALR4th 481.

Availability of defense of duress or coercion in prosecution for violation of federal narcotics laws.  75 ALR Fed 722.

In prosecution for carrying weapon, court properly refused to instruct jury on defense of coercion or duress where defendant, working at store, leaped counter to confront three persons who had no apparent weapons, and then did not withdraw, holding persons captive at gunpoint; facts that court at defendant's first trial on same charge instructed jury on defense gave defendant no right to same instruction where, at second trial, there was no factual basis. United States v Agard (1979, CA2 NY) 605 F 2d 665.

Heroin distribution conspiracy defendant should have been provided with tape recording of his telephone conversation with informant but new trial was not required since record as whole belied defendant's claim of duress. United States v Stevens (1993, CA2 NY) 985 F2d 1175.

To extent charges against defendant require government to prove that criminal acts were one with criminal intent, government should from outset bear burden of disproving duress beyond reasonable doubt once defendant has introduced sufficient evidence concerning each element of defense; there is, however, no constitutional bar to placing burden upon defendant to prove affirmative defense of duress by preponderance of evidence where crime charged contains no requirement of mens rea. United States v Santos (1991, CA3 Pa) 932 F2d 244, cert den (US)  116 L Ed 2d 617,  112 S Ct 592.

Denial of motion to produce witnesses to support defense of duress was proper, since defense would not be available to bank-robbery defendants who claimed that they acted under mental defect resulting from pressure of threat from head of their prison gang that they would be killed if they did not escape from prison and commit crimes for gang's benefit, where neither defendant sought protection of law or tried to surrender once outside prison, where once outside prison threat of death was not imminent, and where defendants' testimony that they would kill one another if gang rules were disobeyed did not prove immediacy of threat or explain failure to surrender. United States v Campbell (1982, CA6 Tenn) 675 F2d 815, cert den (US)  74 L Ed 2d 99,  103 S Ct 112.

Once defendant presents evidence on defense of compulsion state must disprove defense beyond reasonable doubt, thus where defendant testified he took part in two murders upon threat of death, refusal of trial court to instruct on defense required reversal and retrial of both of defendant's convictions for murder, notwithstanding statute which provide that compulsion is not defense if defendant has been convicted of murdering two or more individuals, in view of fact that case interpreting statute to prohibit defense had not been decided at time of crime at issue. United States ex rel. Reed v Lane (1985, CA7 Ill) 759 F2d 618, cert den (US)  89 L Ed 2d 577,  106 S Ct 1268 and cert den (US)  89 L Ed 2d 589,  106 S Ct 1282.

Trial judge did not commit error in refusing to give coercion instruction where, although defendant claimed her sale of cocaine to undercover agent was motivated by threats from her brother, produced evidence of threats by her brother, and claimed that her brother had violent temper and was pressuring her to sell cocaine for him, defendant left and returned to rendezvous point several times before transaction was complete, demonstrating that she had ample opportunity to discontinue her criminal activity and avoid any feared injury. United States v Feldhacker (1987, CA8 Iowa) 820 F2d 279.

In prosecution for aiding and abetting armed bank robbery and aiding and abetting use of firearm in commission of violent felony, reasonable jury could have concluded that live-in girlfriend was not coerced, where she dropped her boyfriend off at hotel after bank robbery and returned to pick him up next day, and where she testified at trial to lying under oath concerning coercive nature of her relationship with her boyfriend at his pretrial detention hearing. United States v Simpson (1992, CA8 Minn) 979 F2d 1282, cert den (US)  122 L Ed 2d 727,  113 S Ct 1345.

Defendant in prosecution for participation in heroin distribution scheme was not entitled to duress instruction where record demonstrated he was nervous and depressed due to $4,000 extortion demand following involvement in accident, but defendant failed to use reasonable avenue of escaping his danger by reporting situation to police. United States v Hernandez (1979, CA9 Cal) 608 F 2d 741.

Jury could decline to accept defendant's story that he was intimidated into attempting bank robbery by threats from undercover agents where story was inconsistent, and was flatly contradicted by agent's testimony. United States v McQuin (1980, CA9 Cal) 612 F 2d 1193, cert den (US)  63 L Ed 2d 791,  100 S Ct 1607 and cert den (US)  63 L Ed 2d 791,  100 S Ct 1608.

In prosecution for conspiracy to commit armed bank robbery and for armed bank robbery, evidence that, even though defendant knew his accomplice to be vicious man, he rode around with him in van for six hours prior to bank robbery, belied defendant's coercion defense; evidence did not meet requirement that defendant acted under immediate threat of death or serious bodily injury, that defendant have well-grounded fear that threat would be carried out, and that defendant had no reasonable opportunity to escape threatened harm except by committing criminal act. United States v Morlan (1985, CA9 Cal) 756 F2d 1442, 18 Fed Rules Evid Serv 1209, cert den (US)  88 L Ed 2d 94,  106 S Ct 115.

In prosecution for knowingly and intentionally importing controlled substance, defense had burden to prove duress defense by preponderance of evidence, where defense did not negate element of intent, but rather justified defendant's conduct, if accepted by jury. United States v Meraz-Solomon (1992, SD Cal) 818 F Supp 1320, affd without op (CA9 Cal) 990 F2d 1263, reported in full (CA9 Cal) 3 F3d 298, 93 CDOS 5886, 93 Daily Journal DAR 10081.

In prosecution for possession of prohibited object, cocaine, while inmate in federal penitentiary, court did not err in refusing to instruct on coercion or duress, where inmate was aware that he could obtain protective custody and, after being placed in segegration, he did not indicate any fear for his safety, but rather threatened to kill another inmate "behind this," and where government presented evidence that inmate had opportunity to speak to prison guards and request protective custody when cocaine was delivered into prison. United States v Merchant (1993, CA10 Kan) 992 F2d 1091.

Trial court properly refused to delete language in pattern jury instruction denying defense of duress to one who recklessly placed himself in situation in which alleged duress was reasonably foreseeable where evidence supported inference that robbery defendant's drug dependency placed him in position to be forced by others to attempt robbery. Meador v State (1984) 10 Ark App 325, 664 SW2d 878.

Where defendant admitted committing robbery, but testified that codefendant had been wild, acted crazy, and waived gun around, pointing it at both him and victim, and that he had taken money from victim and thrown it into rear seat of car because he was afraid codefendant might shoot victim, trial judge erred in omitting any reference to third party from his instruction on defense of duress, thus preventing jury from giving any consideration to threatened imminent use of physical force on victim as motivation for defendant's participation in robbery, and in failing to instruct jury that State had burden to disprove duress beyond reasonable doubt. State v Fuller (1986) 199 Conn 273, 506 A2d 556.

Trial judge was obligated to submit issue of duress to jury under appropriate instructions in prosecution of defendant for driving getaway car after robbery by her husband and third defendant where third defendant testified that robbery was spontaneously suggested to him by defendant's husband just minutes before robbery and after those two had exited car driven by defendant to purchase beer in shopping center, that defendant's husband, armed with shotgun, returned to car driven by defendant and threatened to "whip her ass" unless she drove from scene, and that he continued to curse and direct her thereafter, while defendant was hysterical and crying during entire time. Morrison v State (1989, Fla App D4) 546 So 2d 102, 14 FLW 1611.

In prosecution for unarmed robbery, trial court properly denied jury instruction on defense of duress, although defendant said that he had not seen accomplice's gun before accomplice aimed it at victim and that he was stunned and intimidated when he saw it, where victim testified that he saw nothing to indicate that defendant was being forced or coerced into participating, where defendant called victim after robbery, apologized, and told victim that accomplice was schoolfriend whom he had grown up with, and where defendant did not tell investigator when he gave initial statement that he was forced to participate in robbery. Gahley v State (1990, Fla App D1) 567 So 2d 456, 15 FLW 2169, review den (Fla) 1991 Fla LEXIS 347.

Rule that defense of coercion was not available to person guilty of murder extended to unwilling accomplice even though accomplice did not actually kill victim. Thomas v State (1980) 246 Ga 484, 272 SE2d 68.

Where robbery defendant did not deny that he was present when robbery occurred, but testified that he was forced at gun point to lead robbers to victim's car, failure of defendant's attorney to tender instruction on defense of compulsion and on prosecution's burden of proof constituted ineffective assistance of counsel, and that critical omission so prejudiced defense as to deny right of accused to fair trial. People v Pegram (1988) 124 Ill 2d 166, 124 Ill Dec 525, 529 NE2d 506.

Defense of duress to crime against person is allowed only where prohibited conduct is compelled by threat of imminent bodily injury and where defendant did not have ability to form requisite mens rea, hence, it was not available to defendant charged with robbery where defendant's testimony alleged only that his accomplices badgered him, called him names, and told him he had no guts, and where defendant took part in planning robbery to raise money to purchase marijuana, called out before shooting victim, then proceeded to seriously injure him, victim's watch was found in defendant's possession, and defendant gave statement implicating himself. Early v State (1985, Ind) 482 NE2d 256.

Trial judge correctly ruled that expert testimony on battered woman syndrome and hostage syndrome was not relevant to facts of felony murder case and correctly denied defendant's request for funds to obtain expert witness where defendant, who accompanied her boyfriend and others on crime spree which resulted in charges against her of felony murder, aggravated kidnapping, aggravated robbery, aggravated battery on law enforcement officer, and aggravated battery, contended that acts of her boyfriend when she told him that she should return home, in threatening her with gun, warning her that he would harm her or her family if she left him, and later repeating warning, placed her under emotional and mental restraint of her boyfriend so that, although she had no intent to commit crimes, she was compelled by her boyfriend to be present when crimes were committed, that to show that her acts were compelled by her boyfriend, services of expert were necessary to investigate battered wife syndrome and hostage or captivity syndrome, evidence of which would bolster her claim that she acted under compulsion and, therefore, was not criminally responsible, but evidence showed that only physical threat was made before crime spree while parties were driving to Florida, that threats thereafter consisted of intermittent reminders of previous intimidation, that defendant had several opportunities to escape when boyfriend slept or when police officers were present, and where evidence was insufficient to make battered woman or hostage syndrome defenses applicable. State v Down (1988) 243 Kan 414, 758 P2d 718.

In prosecution of gang member for aggravated battery, assault, and kidnapping in connection with torture and beatings inflicted on new gang member, trial court did not err in refusing to instruct jury on compulsion defense on theory that defendant was compelled to participate due to his fear of gang leader upon whom he was financially and emotionally dependent, where evidence that defendant had ample opportunity to escape did not support contention that coercion was continuing or that defendant was in reasonable apprehension of death or serious injury, and where defendant had knowingly associated himself with selling of drugs and with gang noted for violence. State v Scott (1992) 250 Kan 350, 827 P2d 733.

Partially constructed nuclear power plant did not present kind of threat to life and health contemplated by compulsion statute so as to justify criminal action to prevent its operation. State v Greene (1981) 5 Kan App 2d 698, 623 P2d 933.

Evidence was insufficient to establish compulsion defense with respect to charge of driving while under influence of alcohol or drugs, where there was no evidence that defendant was followed and defendant drove vehicle for approximately 5 miles without stopping or otherwise seeking assistance; distance traveled and time involved provided defendant with ample opportunity to withdraw from criminal activity and seek aid. State v Riedl (1991) 15 Kan App 2d 326, 807 P2d 697.

Testimony that defendant's wife had received threatening phone calls including threats of death to herself and her children, and had contacted police but that caller, who defendant testified had been involved in crimes for which defendant had been imprisoned, had not been arrested, did not constitute sufficient evidence of duress to require court to instruct jury as to defense of duress to charge of escape from prison. People v Stephens (1981) 103 Mich App 640, 303 NW2d 51.

Under statutory changes effective January 1, 1979, defense of duress or coercion was affirmative defense placing burden of proof on defendant, rather than a special negative defense placing burden of proof on state. State v Wilkerson (1981, Mo) 616 SW2d 829.

Murder defendant was not entitled to instruction on statutory mitigating circumstance that he acted under extreme duress or under substantial domination of another person where there was no basis in record to support such instruction. State v Foster (1985, Mo) 700 SW2d 440, cert den (US)  90 L Ed 2d 993,  106 S Ct 2907.

Where defendant testified that he could have gotten away from persons he claimed coerced him into robbery at any time, defense of coercion would not apply. State v Hicks (1979, Mo App) 591 SW2d 184.

Defense of compulsion or duress to charge of escape from probation based on alleged coerced sexual relationship with male guardian was not available where probationer failed to report alleged sexual coercion to probation officer even though she had ample opportunity to do so and had developed close relationship with probation officer, failed to report to proper authorities once she had escaped, and was arrested in another state for prostitution. State v Ottwell (1989, Moat) 784 P2d 402.

In prosecution for driving while intoxicated, driver failed to establish that he acted under duress, where no one ordered defendant to get drunk and no one ordered defendant to drive drunk, where police did not coerce defendant into driving vehicle through use or threats of violence, and where police officer merely ordered defendant to get into his truck and leave scene of fight. State v Fogarty (1992) 128 NJ 59, 607 A2d 624.

In prosecution for assault against another inmate of county jail, instruction that, in determination of whether or not defendant would have been able to resist duress, time frame to look at was that at time of assault, did not impose more stringent standard than required by statute, since emphasis on defendant's situation at time of assault in no way precluded jury from considering all underlying circumstances leading up to that moment. People v Tenace (1983, 3d Dept)  97 App Div 2d 592, 468 NY S2d 215.

Jury properly rejected defendant's defense of duress in prosecution for robbery and criminal possession of stolen property where state's evidence indicated that defendant announced robbery using particularly vile curse, that he appeared calm throughout robbery, that he was only robber to display weapon, air pistol capable of causing death or serious physical injury, that he kept pistol pressed against one victim's side during incident, and that when arrested, defendant was found to have extra compressed gas cartridge and three spare pellets on his person in addition to proceeds of crime. People v Armstrong (1989, 2d Dept)  150 App Div 2d 589, 541 NY S2d 457.

The common law doctrine of duress does not recognize any duress, even the threat of imminent death, as sufficient to excuse the intentional killing of an innocent human being and does not apply if defendant had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. Therefore, defendant was not entitled to an instruction on duress in a prosecution for first-degree murder where all the evidence tended to show that defendant was either the actual killer of the victim or that he assisted another in killing the victim and where the evidence also showed that defendant had a reasonable opportunity to run away from the building in which the killing occurred and avoid any further aid to the other person involved in the killing without undue exposure to death or serious bodily harm when he left the building to talk with the driver of a vehicle which had driven up outside the building. State v Brock (1982) 305 NC 532,290 SE2d 566.

The trial court properly instructed the jury as to compulsion in accordance with State v Kearns (1975) 27 NC App 354, 219 SE2d 228, cert den (1976) 289 NC 300, 222 SE2d 700, where the defense initially requested that the judge instruct the jury as to coercion or duress and counsel for defendant withdrew the request after the State asked the court to give the instruction in accordance with Kearns. State v Barnes (1994) 116 NC App 311, 447 SE2d 478.

In prosecution for attempted aggravated murder and conspiracy to commit aggravated murder of girlfriend's ex-husband who threatened defendant, girlfriend, and girlfriend's daughter, failure of trial court to charge on duress was not error, where defendant's testimony that coconspirator stated that if defendant did not go along with plan defendant would be killed by hit man, and that defendant met with coconspirator and hit man on following day did not indicate immediate and continuous force compelling criminal conduct against will of defendant during time act was being committed. State v Dapice (1989, Summit Co) 57 Ohio App 3d 99, 566 NE2d 1261, motion overr 42 Ohio St 3d 710, 538 NE2d 119, motion den 47 Ohio St 3d 716, 549 NE2d 172 and later app (Ohio App, Summit Co) 1989 Ohio App LEXIS 3943, dismd, motion overr 49 Ohio St 3d 707, 551 NE2d 1301.

Trial court's instruction that to excuse any criminal act, degree of coercion must be present, imminent, and of such nature as to induce well-grounded apprehension of death or serious bodily harm if the act is not done, and that fear of injury must be reasonable, was accurate statement of law of coercion. State v Owens (1992, SC) 424 SE2d 473, cert den (US)  123 L Ed 2d 482,  113 S Ct 1861.

In prosecution for aggravated robbery, trial court did not err in shifting burden of production and persuasion to defendant who asserted affirmative defense of duress, where statute provided that affirmative defense shifted both burden of production and persuasion to defendant and where such shift did not violate substantive due process given that voluntariness was not element of offense. Alford v State (1991, Tex App Dallas) 806 SW2d 581, petition for discretionary review gr (Jul 3, 1991).

Defense of coercion, raised by driver who asserted that he was speeding to get away from another erratically-driven car and thereby protect his passenger sister and avoid confrontation with driver, would be available as defense to strict liability civil forfeiture defense (i.e., speeding), where defense did not seek to disprove culpable state of mind but rather raised legal justification of events, and where defendant's violation may have been caused by state itself, since other car was unmarked police car that eventually issued speeding citation. State v Brown (1982)  107 Wis 2d 44, 318 NW2d 370.

In prosecution for kidnapping and aggravated assault of 2 prison counselors, trial court did not abuse its discretion in refusing to permit physician/psychiatrist's testimony about inmate's subjective belief about danger, where testimony was irrelevant given that apprehension must be reasonable; trial court did not err in refusing inmate's instructions about duress and coercion, where inmate presented no evidence that (1) he was faced with specific threat of death, forcible sexual attack, or substantial bodily injury in immediate future, (2) there was not time for complaint to authorities, or that such complaint would have been futile, and (3) there was no opportunity to resort to courts to redress grievances. Amin v State (1991, Wyo) 811 P2d 255 (citing annotation).

Duress is usually taken to require present, immediate, and impending threat of such nature as to induce well founded fear of death or of serious bodily injury if criminal act is not done; actor must have been so positioned as to have no reasonable chance of escape; actor must have been put in condition of mind where neither he nor person of reasonable firmness could have acted otherwise in circumstances. Thus, in prosecution for murder, armed robbery, and assault by means of dangerous weapon, where record showed that defendant claimed he was afraid of his companion and his shotgun or else he would not have engaged in robbery, though there was controverting testimony, judge was obliged to instruct jury on duress; assuming that duress defense was available to meet charge of homicide, as well as other charged crimes, and that burden of disproving duress beyond reasonable doubt was upon Commonwealth as matter of constitutional law, instructions on duress and burden of proof were adequate, even though no explicit instruction was made that Commonwealth bore burden of negating duress beyond reasonable doubt, in that instructions required Commonwealth to prove voluntariness and critical nexus between elements of crime charged and absence of particular defense. Commonwealth v Robinson (1981, Mass) 1981 Adv Sheets 4, 415 NE2d 805.

Footnote 2. See 40 Am Jur 2d,  Homicide § 119.

Footnote 3. Koontz v State (Fla App D2) 204 So 2d 224; Nall v Commonwealth, 208 Ky 700, 271 SW 1059; State v Capaci, 179 La 462, 154 So 419; State v St. Clair (Mo) 262 SW2d 25,  40 ALR2d 903; State v Bromley, 72 Wash 2d 150, 432 P2d 568, later app 1 Wash App 325, 462 P2d 242 (kidnapping).

Defendant's testimony that he had been informed someone had a contract out on his life and that someone took a shot at him 3 days before the trial did not establish a defense of duress to excuse his failure to appear for trial, since defendant was not in danger because of the upcoming trial date, but rather for a matter not directly related to his appearance in court and there was no evidence that defendant had contacted the police, the court, or even his attorney about threats against his life.  United States v Atencio (1978, CA9 Cal) 586 F2d 744.

Rape has been suggested as another offense which possibly cannot be excused on the basis of coercion, even by one in peril of his life.  State v Dowell, 106 NC 722, 11 SE 525.

As to crime committed under military orders, see 53 Am Jur 2d,  Military, and Civil Defense.

As to coercion as defense in treason cases, see 70 Am Jur 2d,  Sedition, Subsersive Activities, and Treason § 52.

Practice Aids: Criminal Acts Committed Under Duress.   4 Am Jur Proof of Facts 2d 179.

Boyer, Constitutionality of Criminal Affirmative Defenses: Duress and Coercion.  1976, XI U San Francisco L Rev 123.

Wasik, Duress and criminal responsibility.  1977 Criminal L Rev 453, August 1977.

Footnote 4. R. I. Recreation Center, Inc. v Aetna Casualty & Surety Co. (CA1 RI) 177 F2d 603,  12 ALR2d 230; State v St. Clair (Mo) 262 SW2d 25,  40 ALR2d 903; State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr; State v Ellis, 232 Or 70, 374 P2d 461.

The defense of duress requires proof of a threat of imminent violence; fear of future bodily harm does not suffice.  People v Killman (4th Dist) 51 Cal App 3d 951, 124 Cal Rptr 673.

Claim by defendant that he committed robbery because he needed money to provide his family with food and shelter did not constitute claim of duress without any showing that defendant was under any physical compulsion or threat of physical harm from any source, person, or persons to commit crime. State v Gann (ND) 244 NW2d 746.

Footnote 5.
Annotation:  40 ALR2d 908, § 2.

In a prosecution of a man and three women for murder and conspiracy to commit murder arising out of two successive multiple homicides the trial court was not required to instruct the jury sua sponte on the defense of compulsion, where, though there was evidence that the male defendant gave the female defendants orders concerning the commission of the crimes, there was no evidence that such instructions were accompanied by any threat.  People v Manson (2d Dist) 61 Cal App 3d 102, 132 Cal Rptr 265, cert den  430 US 986,  52 L Ed 2d 382,  97 S Ct 1686 and later app (2d Dist) 113 Cal App 3d 280, 170 Cal Rptr 189.

In robbery prosecution, where no evidence showed that any threat was made by accomplice or defendant, and defendant made no explanation as to why he did not withdraw from crime at time when he had apparent opportunity to do so, there were no facts to show that defendant entertained reasonable fears of immediate violence being inflicted upon him, and therefore jury instruction which placed upon defendant burden of persuasion on issue of coercion was harmless error.  State v Moore, 237 Ga 269, 227 SE2d 241.

Compulsion to commit robbery was not shown where evidence indicated defendant participated fully and without direction in holdup of two victims, and later failed to claim defense of compulsion when caught by security guard or subsequently at police station.  People v Johnson, 42 Ill App 3d 194, 355 NE2d 577.

Coercion was not available as defense to defendant who was principal in second degree to armed robbery, where defendant had testified that accomplice had threatened to kill him if he did not participate in crime, but where defendant was left in control of car and had reasonable opportunity to leave scene and avoid aiding and abetting perpetrators.  State v Kearns, 27 NC App 354, 219 SE2d 228, cert den 289 NC 300, 222 SE2d 700.

Footnote 6. D'Aquino v United States (CA9 Cal) 192 F2d 338, reh den (CA9 Cal) 203 F2d 390 and cert den  343 US 935,  96 L Ed 1343,  72 S Ct 772, reh den  343 US 958,  96 L Ed 1358,  72 S Ct 1053 and reh den  345 US 931,  97 L Ed 1361,  73 S Ct 786; United States v Vigol (F CC Pa)  2 US 346,  1 L Ed 409.

Annotation:  40 ALR2d 908, § 2.

Defendant's testimony that codefendant, who had allegedly been harrassing him for six years, asked him to take photographs, saying if he refused some harm might come to his minor daughter and son, did not show that defendant was coerced in endeavoring to induce 17-year-old girl to pose for photographs in nude.  Mallicoat v State (Tenn Crim) 539 SW2d 54.

Footnote 7. State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr.

Duress is defense to crime other than murder if defendant was engaged in conduct because he was coerced to do so by use of, or threat to use, unlawful force against person or person of another, which person of reasonable firmness in defendant's situation would have been able to resist; although preliminary judicial determination that threat posed danger of "present, imminent and impending" harm to defendant or to another, trial judge in charging jury should advert to factor of immediacy, as well as gravity of harm threatened, seriousness of crime committed, identity of person endangered (whose conduct should be judged by standard of person of reasonable firmness in defendant's situation), possibilities for escape or resistence, and opportunities for seeking official assistance.  State v Toscano, 74 NJ 421, 378 A2d 755.

Footnote 8. R. I. Recreation Center, Inc. v Aetna Casualty & Surety Co. (CA1 RI) 177 F2d 603,  12 ALR2d 230; State v St. Clair (Mo) 262 SW2d 25,  40 ALR2d 903.

Annotation:  40 ALR2d 908, § 2.

In prosecution for carrying knife in federal prison, inmate, who had been threatened by other inmates, did not establish defense of duress where inmate neither sought administrative detention nor transfer to another institution to avoid threatened danger.  United States v Wood (CA9 Cal) 566 F2d 1108.

Footnote 9. People v Villegas, 29 Cal App 2d 658, 85 P2d 480; People v Merhige, 212 Mich 601, 180 NW 418; State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr.

Annotation:  40 ALR2d 908, § 2.

Footnote 10.
Annotation:  1 ALR4th 481.

Footnote 11. People v Graham (4th Dist) 57 Cal App 3d 238, 129 Cal Rptr 31; Koontz v State (Fla App D2) 204 So 2d 224; Hill v State, 239 Ga 278, 236 SE2d 626; People v Creach, 69 Ill App 3d 874, 25 Ill Dec 886, 387 NE2d 762, affd in part and revd in part on other grounds 79 Ill 2d 96, 37 Ill Dec 338, 402 NE2d 228, cert den (US)  66 L Ed 2d 467,  101 S Ct 564; Nall v Commonwealth, 208 Ky 700, 271 SW 1059; People v Merhige, 212 Mich 601, 180 NW 418; State v St. Clair (Mo) 262 SW2d 25,  40 ALR2d 903; White v State, 150 Tex Crim 546, 203 SW2d 222.

Annotation:  1 ALR4th 481, § 3[a].

See State v Milam, 108 Ohio App 254, 9 Ohio Ops 2d 252, 80 Ohio L Abs 449, 156 NE2d 840, motion overr, motion overr, involving a prosecution for murder committed in connection with a robbery, where the court said that under the circumstances presented at the time of the robbery, it was reasonable for the defendant to fear that he was in imminent danger of death or great bodily injury at the hands of his companions if he attempted to leave or to refuse to do anything that they told him to do, the court adding that the defense of coercion and duress to the commission of the robbery appeared to have been made.  The circumstances included, the court observed, the fact that the defendant's companions tricked him into accompanying them to the home of two acquaintances whom they intended to rob; the fact that the defendant, who was described as naive, did not suspect their intention and so agreed to accompany them; and the fact that when his companions undertook to rob the victims, the defendant was petrified with fear, placed his own safety uppermost in his mind, and did no more than what he believed was necessary to ward off any suspicion on the part of his companions that he was antagonistic to their purpose and unwilling to co-operate.

Footnote 12. Johnson v United States (CA9 Ariz) 370 F2d 495 (applying Arizona law); United States v Buchanan (CA7 Ill) 529 F2d 1148, cert den  425 US 950,  48 L Ed 2d 194,  96 S Ct 1725; United States v Campbell (CA8 Iowa) 609 F2d 922, cert den  445 US 918,  63 L Ed 2d 604,  100 S Ct 1282; United States v Saettele (CA8 Mo) 585 F2d 307, cert den  440 US 910,  59 L Ed 2d 458,  99 S Ct 1220; Ballou v State (Ala App) 365 So 2d 352; People v Killman (4th Dist) 51 Cal App 3d 951, 124 Cal Rptr 673; State v Moore, 237 Ga 269, 227 SE2d 241; People v Colone, 56 Ill App 3d 1018, 14 Ill Dec 592, 372 NE2d 871,  1 ALR4th 475; Love v State (Ind) 393 NE2d 178; State v Xanders, 215 Iowa 380, 245 NW 361; State v Wing (Me) 294 A2d 418; Darby v State, 3 Md App 407, 239 A2d 584, cert den  393 US 1105,  21 L Ed 2d 801,  89 S Ct 911; Commonwealth v Kennedy, 4 Mass App 772, 341 NE2d 697; People v Kelly, 51 Mich App 28, 214 NW2d 334; State v Rasmussen, 241 Minn 310, 63 NW2d 1; Brown v State (Miss) 252 So 2d 885; State v Hicks (Mo App) 591 SW2d 184; People v Irby (2d Dept)  61 App Div 2d 386, 402 NYS2d 847, mod on other grounds  47 NY2d 894, 419 NYS2d 477, 393 NE2d 472; State v Kearns, 27 NC App 354, 219 SE2d 228, cert den 289 NC 300, 222 SE2d 700; State v Sappienza, 84 Ohio St 63, 95 NE 381; State v Gibbs, 267 SC 365, 228 SE2d 104; Munsey v State (Tenn Crim) 496 SW2d 525; Thomas v State (Tex Crim) 530 SW2d 834; State v McKinney, 19 Wash App 23, 573 P2d 820.

Annotation:  1 ALR4th 481, § 3[b].

Describing as without merit the defendant's claim that he was acting solely under duress and fear in the presence of a deadly weapon, and that he therefore was not accountable for his participation in a robbery, the court in People v Sierra, 115 Cal App 2d 498, 252 P2d 394, affirmed his robbery conviction.  The defendant testified, and his testimony was generally substantiated by the victim of the crime, that he was driving the car in which his codefendant, the victim, and another person were passengers; that after placing a knife to the victim's throat, his codefendant ordered him to keep on driving and to keep quiet; and that his codefendant subsequently ordered him to stop the car, search the victim, and remove and throw away the victim's shoes.  In rejecting the defendant's claim that he acted under duress, the court said that the record showed that his codefendant neither attempted to use his knife on him nor threatened to harm him in any way; that the defendant stayed with his codefendant for some time after the robbery; and that the defendant was in contact with the police on the day of the robbery and made no mention of the crime to them. The evidence was clear, the court concluded, that the defendants jointly planned the robbery and shared in the money taken from the victim.

In People v Aldridge, 65 Ill App 3d 995, 22 Ill Dec 655, 383 NE2d 19, the court upheld the defendant's conviction for armed robbery even though he claimed that the evidence was sufficient to support his claim that he participated in the robbery of a liquor store only because he had been threatened by a man with a gun.  The court said that sufficient evidence was presented for the trial court to disbelieve the defendant and find that the claimed defense of compulsion had been overcome by the prosecution.  The defendant asserted that he took part in the robbery only because a man to whom he owed money threatened him with a gun and ordered him to hold up the liquor store in order to get the money that he owed. During the course of the robbery, the defendant said, the man kept the gun pointed at him.  Escape was impossible, the defendant added, because the door to the liquor store was guarded by an accomplice of the man.  In order to establish that he acted out of fear, the defendant testified that he had been shot in the leg on a previous occasion by the man.  The court noted, however, that an employee of the liquor store testified that the defendant was an active and apparently willing participant in the robbery.

Although the defendant claimed that he participated in the robbery of a market only because his two companions, one of whom was armed with a shotgun, threatened to kill him if he refused, the court held in Arendall v State (Tenn Crim) 509 SW2d 838, that there was evidence supporting a guilty verdict, and it accordingly affirmed the defendant's conviction for armed robbery.  The court pointed out that the defendant's contention that he acted under compulsion rested on his testimony alone, and it noted that in opposition to this contention, there was testimony from two employees of the market, one of whom recognized the defendant, that he took an active role in the robbery, including instructing his accomplice to shoot one of the employees.

Footnote 13.
Annotation:  1 ALR4th 481, § 4.

Footnote 14. People v Graham (4th Dist) 57 Cal App 3d 238, 129 Cal Rptr 31; Koontz v State (Fla App D2) 204 So 2d 224; State v St. Clair (Mo) 262 SW2d 25,  40 ALR2d 903.

Annotation:  1 ALR4th 481, § 4[a].

Footnote 15. United States v Buchanan (CA7 Ill) 529 F2d 1148, cert den  425 US 950,  48 L Ed 2d 194,  96 S Ct 1725; United States v Saettele (CA8 Mo) 585 F2d 307, cert den  440 US 910,  59 L Ed 2d 458,  99 S Ct 1220; People v Bryan (2d Dist) 3 Cal App 3d 327, 83 Cal Rptr 291; People v Byer, 75 Ill App 3d 658, 31 Ill Dec 430, 394 NE2d 632; Hood v State, 160 Ind App 667, 313 NE2d 546; State v Perry (Mo App) 565 SW2d 841; State v Fowler, 37 Or App 299, 587 P2d 104; Jackson v State (Tex Crim) 504 SW2d 488; State v McKinney, 19 Wash App 23, 573 P2d 820.

Annotation:  1 ALR4th 481, § 4[b].

In affirming a conviction for misapplying federally insured bank funds, despite the defendant's contention that as a result of her depressed state of mind over the death of a relative in Vietnam in 1967, she was compelled to misapply such funds in 1970 because of suicide threats made by her daughter, the court held in United States v Stevison (CA7 Ill) 471 F2d 143, cert den  411 US 950,  36 L Ed 2d 411,  93 S Ct 1933, that the trial court neither erroneously and unduly limited and curtailed development of the defense of coercion, nor incorrectly instructed the jury as to the defense.  The defendant, who was a bank cashier, permitted her daughter to cash checks against accounts which contained insufficient funds, and the defendant made payments on the checks from the bank's cash items, which she deducted from its undivided profits.  The court explained that the death of the defendant's relative in 1967 was not such an "immediate" limitation of her free choice of conduct in 1970 as to justify invoking the coercion defense.  Even if the defendant thought that her daughter's threat of suicide was serious, the court added, she failed to show that she did not have a full opportunity to avoid the threat by taking steps to have her daughter restrained.

Footnote 16.
Annotation:  1 ALR4th 481, § 5.

In People v Bevilacqua (2d Dept)  56 App Div 2d 605, 391 NYS2d 641, revd on other grounds  45 NY2d 508, 410 NYS2d 549, 382 NE2d 1326, a prosecution for, inter alia, robbery and grand larceny in which the defendant raised the defense of duress, the court affirmed, without describing the circumstances bearing upon the claim of duress, the defendant's convictions.

Footnote 17. In Hamilton v State, 205 Ind 26, 184 NE 170, a case in which the defendant contended that he took part in a burglary under duress and compulsion after threats were made to "ruin his reputation and close the doors of society against him from Maine to California," and because of force that was exerted against him by three fellow participants in the crime, the court affirmed his conviction without discussing the evidence assertedly bearing upon the defense of compulsion and duress.

Footnote 18. Although the defendant contended, in defense to a prosecution for larceny by embezzlement, that he had taken money from the bank for which he worked because of his fear that if he did not do so a prior act of embezzlement would be exposed and he would be prosecuted therefor, the court held in State v Patterson, 117 Or 153, 241 P 977, that the fear of a threat of prosecution for a former offense is not a sufficient compulsion to exonerate a defendant from prosecution for a subsequent offense.  The court thus determined that there was no error in the trial court's instruction to the jury that there was no evidence that the defendant was under such coercion as would constitute the defense of compulsion or duress, and it accordingly affirmed his conviction.  The defendant claimed that he embezzled the funds in question at the direction of a man from whom he had borrowed money to cover a previous act of embezzlement and who threatened to expose him if he refused to co-operate.  Pointing out that the defense of compulsion or duress requires evidence of present, imminent, and impending compulsion of such a nature as to induce a well-grounded apprehension of death or serious bodily harm, and noting that the compulsion must have arisen without the negligence or fault of the defendant, the court said that the defense was not available because the defendant himself was responsible for the prior act of embezzlement.

Footnote 19. Although the defendant claimed that she was not criminally responsible for her participation in an armed robbery because she needed money to buy heroin in order to prevent withdrawal, the court held in Love v State (Ind) 393 NE2d 178, that her claim of compulsion was without merit. Noting that the defendant did not claim that she was under any influence that prevented her from forming the requisite criminal intent, the court said that "pharmacological duress" does not constitute a legal defense to the commission of a crime.

Footnote 20. In State v Gann (ND) 244 NW2d 746, it was held that a claim by the defendant that he committed a robbery because he needed money to provide his family with food and shelter did not establish the defense of duress, since the defendant did not claim that he committed the crime under any physical compulsion or threat of physical harm.  The court explained that in order for the defense of duress or compulsion to be applicable, there must be a showing that the compulsion or duress was of such a nature as to induce a well-founded fear of immediate great bodily harm or death.  In the absence of such evidence, the court determined that the trial court correctly refused to instruct the jury as to the defense.

Footnote 21. State v Sappienza, 84 Ohio St 63, 95 NE 381.

See the Model Penal Code (U.L.A.) § 2.09.

Footnote 22. People v Nurse, 34 Ill App 3d 42, 339 NE2d 328; People v Johnson, 42 Ill App 3d 194, 355 NE2d 577.

Footnote 23. State v Toscana, 74 NJ 421, 378 A2d 755; People v Irby (2d Dept)  61 App Div 2d 386, 402 NYS2d 847, mod on other grounds  47 NY2d 894, 419 NYS2d 477, 393 NE2d 472; State v Sappienza, 84 Ohio St 63, 95 NE 381.

Footnote 24. White v State, 150 Tex Crim 546, 203 SW2d 222.

Footnote 25. See United States v Hearst (ND Cal) 412 F Supp 889, a case not within the scope of this discussion because it does not consider whether particular facts or circumstances were sufficient to establish the defense of coercion or duress, where it was held that expert psychiatric testimony was admissible to explain the effects that kidnapping, prolonged incarceration, and psychological and physical abuse may have had on the defendant's mental state at the time of a bank robbery, insofar as her mental state was relevant to the asserted defense of coercion or duress.  The court explained, in this notorious case involving the kidnapping of Patty Hearst by members of the Symbionese Liberation Army, that the question whether the defendant's initial status as a kidnap victim and her subsequent treatment by her captors could have deprived her of the requisite general intent to commit the offense charged was relevant to the asserted defense.  See also United States v Hearst (CA9 Cal) 563 F2d 1331, reh den (CA9 Cal) 573 F2d 579 and cert den  435 US 1000,  56 L Ed 2d 90,  98 S Ct 1656, where it was held that the trial court committed no error in permitting admission of evidence connecting the defendant with criminal activity which occurred approximately 1 month following the bank robbery, since such evidence was relevant to the question whether she was acting under duress at the time of the robbery.

Footnote 26. See, for example, State v Starks, 122 Ariz 531, 596 P2d 366, holding that proffered psychiatric testimony that the defendant, who was charged with armed robbery, was mentally retarded, as a result of which he was susceptible to threats against him, was inadmissible to prove that he acted under duress.  Explaining that the statute establishing the defense of duress required that a defendant's conduct be judged by an objective standard once it was established that he in fact believed that his life was endangered by "threats or menaces," the court reasoned that the proffered testimony was relevant only to the defendant's subjective mental state and therefore was inadmissible.

Even under the common law, marriage does not affect the capacity of a woman to commit crimes.  The law deems a married woman to be as capable of committing crimes as if she were a feme sole.  If in committing a crime she acts of her own free will, and not under the coercion or presumed coercion of her husband, she is held to the same responsibility for criminal acts as any other person; her coverture is no defense. 27   At common law, however, a married woman was not criminally responsible for acts done under her husband's coercion, 28  and his coercion was frequently presumed. 29    Actual coercion may be a good defense, even where the common-law presumption is not recognized. 30   And under some statutes, a married woman is incapable of crime when acting under the threats, command, or coercion of her husband, except in the case of felonies. 31

A married woman is generally responsible for crimes committed by her in the absence of her husband, 32  although some cases have stated the rule more guardedly to the effect that a married woman is responsible for crimes committed by her in her husband's absence where there is no coercion by her husband. 33

Practice Aids: Note, A Trend Emerges: A State Survey on the Admissibility of Expert Testimony Concerning the Battered Woman Syndrome. 25 J Fam L 373, 1986-87.

Battered women who act under duress, 28 New Eng LR 603 (1994).

Battered woman syndrome: does the "reasonable battered woman" exist? 19 New Engl J Crim&Civ Confin 329 (1993).

Coerced into crime: The application of battered woman syndrome to the defense of duress, 9 Wis Women's LJ 67-94 (1995).

Footnote 27. State v Renslow, 211 Iowa 642, 230 NW 316 (receiving stolen goods); State v Cleaves, 59 Me 298; Commonwealth v Hopkins, 133 Mass 381 (keeping house of ill fame); People v Wright, 38 Mich 744, (robbery); State v Miller, 162 Mo 253, 62 SW 692; State v Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115; Sentell v State, 61 Okla Crim 229, 67 P2d 466; State v McDonie, 96 W Va 219, 123 SE 405 (assault and battery); Gill v State, 39 W Va 479, 20 SE 568.

Practice Aids: –Boyer, Constitutionality of Criminal Affirmative Defenses:  Duress and Coercion.  1976, XI U San Francisco L Rev 123.

Footnote 28. Mulvey v State, 43 Ala 316; Conner v State, 95 Fla 765, 117 So 852; State v Renslow, 211 Iowa 642, 230 NW 316; Anderson v Commonwealth, 211 Ky 726, 277 SW 1008; Commonwealth v Neal, 10 Mass 152; Davis v State, 15 Ohio 72 (arson).

Footnote 29.  §§ 150,  151, infra.

Footnote 30. People v Statley, 91 Cal App 2d Supp 943, 206 P2d 76 (by statute); Anderson v Commonwealth, 211 Ky 726, 277 SW 1008.

Footnote 31. Encinas v State, 32 Ariz 200, 256 P 1054; People v Statley, 91 Cal App 2d Supp 943, 206 P2d 76.

Footnote 32. Humble v State, 199 Ind 653, 160 NE 41; State v Halbrook, 311 Mo 664, 279 SW 395.

Footnote 33. Commonwealth v Tryon, 99 Mass 442.

At common law it was generally presumed, though not with relation to all offenses, that crimes committed by a married woman in her husband's presence were committed under his coercion. 34    However, the presumption does not arise from the mere fact of marriage; 35  nor does the presumption apply to acts committed in the husband's absence, and his bare command or procurement has been held not sufficient to raise the presumption. 36   According to some cases, the husband must be personally and physically present, 37  but others state that he need not be in sight and it is sufficient if he is near enough for the wife to be acting under his immediate influence and control. 38  

The presumption has been vigorously criticized as obsolete and inconsistent with present-day customs and conditions, 39   and some jurisdictions now refuse to apply it, on the ground that the rule must cease to operate when the reasons which gave rise to it no longer obtain. 40    Some jurisdictions regard the statutory emancipation of married women from the disabilities of coverture as sufficient to abolish the common-law presumption, 41  but in others this has been denied. 42  Despite these considerations, the common-law presumption continues to be applied from time to time in a number of jurisdictions, 43  and at least one has adopted it by statute, though with a number of specified offenses excepted from its operation. 44

Footnote 34. Strouse v Leipf, 101 Ala 433, 14 So 667; Wolf v Keagy, 33 Del 362, 136 A 520; State v Renslow, 211 Iowa 642, 230 NW 316; Cothron v State, 138 Md 101, 113 A 620; State v Ready (Mo) 251 SW2d 680; State v Asper, 35 NM 203, 292 P 225; Sentell v State, 61 Okla Crim 229, 67 P2d 466; Morton v State, 141 Tenn 357, 209 SW 644; State v Buchanan, 111 W Va 142, 160 SE 920.

As to application of presumption in liquor cases, see 45 Am Jur 2d,  Intoxicating Liquors § 303.

Footnote 35. State v Hollis, 163 La 952, 113 So 159; State v Halbrook, 311 Mo 664, 279 SW 395.

Footnote 36. Shannon v United States (CA10 Okla) 76 F2d 490; Haning v United States (CA8 Neb) 59 F2d 942.

The act of a wife in obtaining a revolver and conveying it to her husband in prison, at his request, has been ruled to be an act committed in his presence, and the presumption applies; the fact that the husband was in prison does not rebut the presumption of coercion.  State v Miller, 162 Mo 253, 62 SW 692.

Footnote 37. Emmons v State (Okla Crim) 291 P2d 838.

Footnote 38. Vukodonovich v State, 197 Ind 169, 150 NE 56; Commonwealth v Burk, 77 Mass 437.

Footnote 39. United States v Dege,  364 US 51,  4 L Ed 2d 1563,  80 S Ct 1589, reh den  364 US 854,  5 L Ed 2d 77,  81 S Ct 29; State v McDonie, 96 W Va 219, 123 SE 405.

Footnote 40. People v Statley, 91 Cal App 2d Supp 943, 206 P2d 76; State v Renslow, 211 Iowa 642, 230 NW 316; King v Owensboro, 187 Ky 21, 218 SW 297; State v Turnbow, 67 NM 241, 354 P2d 533,  89 ALR2d 461.

Footnote 41. Conyer v United States (CA6 Mich) 80 F2d 292; State v Renslow, 211 Iowa 642, 230 NW 316 (receiving stolen property from her husband); King v Owensboro, 187 Ky 21, 218 SW 297; Morton v State, 141 Tenn 357, 209 SW 644.

With respect to the disputable presumption that a married woman's acts in the presence of her husband were done under his coercion, the court announced that as to crimes hereafter committed by married women the same rules would be applied as to duress or coercion by a husband as would be applied to duress or coercion by anyone else.  Commonwealth v Barnes, 369 Mass 462, 340 NE2d 863.

Footnote 42. Braxton v State, 17 Ala App 167, 82 So 657.

Footnote 43. State v Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115 (conviction reversed for failure to give instruction embodying presumption).

Footnote 44. O'Donnell v State, 73 Okla Crim 1, 117 P2d 139.

The authorities are not altogether uniform as to the offenses to which the common-law presumption applies.  It is usually held not to apply to murder 45  or treason, 46  on the ground that these crimes show so much malignity as to render it improbable that a wife would be constrained by her husband, without the separate operation of her will, into their commission. 47  Robbery, and occasionally manslaughter, are sometimes included in this statement, 48  although there have been robbery cases in which the presumption was applied. 49   Some authorities speak of the presumption as applicable only to offenses of a minor grade, or to those not particularly heinous, 50  but others have applied the presumption, or assumed it to be applicable, to such serious offenses as mayhem 51  and arson. 52

Offenses such as the keeping of a bawdy house, 53   and other offenses of a similar character, 54  have been regarded as constituting a special exception to the rule, on the ground that these are offenses in which the wife is more likely to have a managing, or at least an independent, role.  But there is some authority for the application of the presumption to such offenses, too. 55

In a prosecution for involuntary manslaughter which arose when defendant was confronted by the husband of a woman with whom he had had an extramarital affair, the evidence did not establish as a matter of law that defendant acted in self-defense, where it was not shown that defendant's resort to deadly force was necessary or appeared to be necessary at the time. Although it was clear that the victim intended to assault defendant, thus giving defendant the right to defend himself, the victim was not armed and defendant did not testify that he believed the victim intended to use a weapon against him. Accordingly, a reasonable jury could have found beyond a reasonable doubt that defendant's use of deadly force at the time and place was not justified. People v Clark (1982, 3d Dist) 130 Cal App 3d 371, 181 Cal Rptr 682.

Footnote 45. Cothron v State, 138 Md 101, 113 A 620; Martin v Commonwealth, 143 Va 479, 129 SE 348.

Footnote 46. Bibb v State, 94 Ala 31, 10 So 506; Conner v State, 95 Fla 765, 117 So 852; McGregor v State, 200 Ind 496, 163 NE 596; State v Renslow, 211 Iowa 642, 230 NW 316 (citing other authority to the effect it does no apply to murder); Morton v State, 141 Tenn 357, 209 SW 644; Martin v Commonwealth, 143 Va 479, 129 SE 348.

Footnote 47. State v McDonie, 96 W Va 219, 123 SE 405.

Footnote 48. State v McDonie, 96 W Va 219, 123 SE 405.

Footnote 49. People v Wright, 38 Mich 744 (presumption rebutted); O'Donnell v State, 73 Okla Crim 1, 117 P2d 139 (under statute listing express exceptions, which did not include robbery).

Footnote 50. State v Shee, 13 RI 535.

The presumption that a wife who commits certain crimes in the presence of her husband does so under his coercion was not applicable in prosecution for breaking and entering and larceny where there was no request for instructions with respect to the presumption, and the feme defendant testified in her own behalf denying any participation by her or her husband in the planning or accomplishment of the crime.  State v Smith, 33 NC App 511, 235 SE2d 860, cert den  434 US 1076,  55 L Ed 2d 782,  98 S Ct 1267.

Footnote 51. State v Baker, 110 Mo 7, 19 SW 222 (presumption assumed to apply to mayhem in instruction to jury, and decided on appeal on ground there was evidence to rebut presumption).

Footnote 52. Davis v State, 15 Ohio 72 (application denied because woman found not to be wife).

Footnote 53. State v Gill, 150 Iowa 210, 129 NW 821; State v Grossman, 95 NJL 497, 112 A 892; Haffner v State,  176 Wis 471, 187 NW 173.

Footnote 54. State v Nowell, 156 NC 648, 72 SE 590 (abducting women by solicitation for immoral purposes).

Footnote 55. Commonwealth v Hill, 145 Mass 305, 14 NE 124.

The presumption that a wife's crimes committed in her husband's presence are committed under his coercion is rebuttable. 56   The presumption is often said to be a weak one, rebuttable by slight circumstances, 57  although, on the other hand, it has also been said that it puts on the prosecution the burden of proving beyond a reasonable doubt that the wife acted of her own free will. 58   The evidence which is sufficient to rebut the presumption depends, of course, upon the facts of the individual case. 59   It is sufficient if it is apparent on all the evidence that the wife was acting freely 60  or if her own conduct was inconsistent with the coercion hypothesis. 61   However, where evidence to rebut the presumption is lacking, the wife's conviction cannot be sustained. 62

Footnote 56. State v Ready (Mo) 251 SW2d 680; Sentell v State, 61 Okla Crim 229, 67 P2d 466; State v Minor, 171 SC 120, 171 SE 737; Morton v State, 141 Tenn 357, 209 SW 644; State v McDonie, 96 W Va 219, 123 SE 405.

Footnote 57. Sanders v State (Okla Crim) 287 P2d 458; Morton v State, 141 Tenn 357, 209 SW 644; Brown v Commonwealth, 135 Va 480, 115 SE 542; State v McDonie, 96 W Va 219, 123 SE 405.

Footnote 58. State v Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115.

Footnote 59. O'Donnell v State, 73 Okla Crim 1, 117 P2d 139.

Footnote 60. State v Ready (Mo) 251 SW2d 680; Doyle v State (Okla Crim) 317 P2d 289.

It is not necessary to show that the husband disapproved the wife's crime. State v Baker, 110 Mo 7, 19 SW 222.

Footnote 61. People v Wright, 38 Mich 744.

In a prosecution for robbery, evidence that the wife took the victim by the throat and told him to keep still, while her husband rifled his pockets, is sufficient to authorize a finding that she was not acting under the coercion of her husband in the commission of the offense charged.  People v Wright, 38 Mich 744.

In reference to a charge against a wife of illegally possessing narcotics, it has been held that testimony, in effect, that a wife freely and boldly assisted in an attempt to dispose of such goods at a time when search was being made of the premises, is sufficient evidence of free action on her part to sustain a conviction against her.  Winer v State, 36 Okla Crim 316, 253 P 1025.

Footnote 62. State v Miller, 162 Mo 253, 62 SW 692; State v Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115; Kelso v State, 96 Okla Crim 367, 255 P2d 284.

Unless the child has not yet reached the age of criminal responsibility, 63   or is of such immature years or mind as to be entirely under the parent's domination, direction, and control, 64  a criminal act will not be excused on the ground that it was committed under parental command. 65   And it seems that even the fact that the child acted in fear of a parent or person standing in loco parentis will excuse only under extreme circumstances comparable to those in which an adult would be excused on the ground of coercion or duress. 66  However, there is some authority to the effect that in the case of a child under 14, obedience to express parental command may be proved as having some tendency to show that the child did not understand that the act was wrong. 67

Practice Aids: Criminal responsibility of parent for act of child. (See also 59 Am Jur 2d, Parent and Child § 138 and 68 Am Jur 2d, Schools § 233.)  12 ALR4th 673.

Footnotes

Footnote 63.  § 28, supra.

Footnote 64. Kelley v State, 79 Fla 182, 83 So 909.

Footnote 65. People v Richmond, 29 Cal 414; Kelley v State, 79 Fla 182, 83 So 909; State v Thrailkill, 73 SC 314, 53 SE 482; McDaniel v State, 5 Tex App 475.

Footnote 66. A dynamiting by a 16-year-old boy under the command of a woman who, though not his mother, had raised him from infancy, was not excused by her threats and his fear of her where these were not of immediate death, but of death at some remote time and place. People v Martin, 13 Cal App 96, 108 P 1034, later app 19 Cal App 295, 125 P 919.

Where defendant, aged 20 and of ordinary intelligence, committed homicide on his father's command, evidence that the father ruled the family with fear and that defendant had been trained to give him unquestioning obedience was properly excluded.  Rainey v Commonwealth, 19 Ky LR 390, 40 SW 682.

Footnote 67. Commonwealth v Mead, 92 Mass 398

6.  Intoxication or Narcosis [155-157]

Despite extensive developments in psychiatric research, widespread changes in social, medical, and legal attitudes toward alcoholism, and intense debate as to legal tests of mental responsibility of those charged with crime, the law with respect to the effect of voluntary intoxication upon criminal responsibility has shown little tendency to change or develop.  The legal rules governing the question were early settled and may be briefly stated:  intoxication, if voluntarily incurred, is ordinarily no defense to a charge of crime based upon acts committed while intoxicated. 75    This is true, no matter how gross and long-continued the drunkenness may have been. 76   And it applies, at least according to some authorities, even to one so drunk as not to know what he is doing 77  or afflicted with delusions and hallucinations. 78   The rule is frequently stated very broadly and without qualification. 79   Thus, the courts in considering the question have taken little or no notice of modern medical attitudes toward alcoholism as a disease, but have usually assumed that the intoxication must be treated as voluntary for purposes of determining criminal guilt, no matter how compulsive the accused's addiction to alcohol may have been. 80   It is apparently only when the alcoholism produces a permanent and settled insanity distinct from the alcoholic compulsion itself that the law will accept it as an excuse. 81   The discussion which has accompanied the attack upon the M'Naghten tests of mental responsibility for crime 82   has apparently had no repercussions in the area of law here discussed although it would seem that the underlying considerations of logic and policy would be very closely related. 83  

The rule has been explained on the ground that one who has voluntarily cast off the restraints of reason and conscience is not wronged by being held responsible for any injury he may do while in that state. 84   It has also been suggested that the defendant must be held to have intended the consequences springing from his voluntary act of becoming intoxicated, 85  and that the intent to get drunk is itself a wrongful intent which can take the place of the ordinary criminal intent, if the latter is missing. 86   The view has also been taken that insofar as the crime charged involves only a general criminal intent (mens rea), such intent is presumed from the doing of the forbidden acts, without more. 87   The policy of the rule against considering intoxication as a defense to criminal charges has sometimes been based upon the fear that such a defense could be so easily simulated as to make prosecutions too difficult. 88    Some of the opinions indicate that moral indignation at the drunkenness may have affected the court's attitude. 89    According to what seems to have been the common-law view, intoxication not only did not excuse or palliate, but was an aggravation of, the wrong committed. 90   However, as will appear below, the rigor of the common-law rule has now been modified in many jurisdictions where a particular mental state is a requisite element of the offense charged.  In a number of jurisdictions, the effect of voluntary intoxication on criminal responsibility is governed by statute. 91  

The courts of most jurisdictions 92   are in agreement that although voluntary intoxication may not be shown for the purpose of negativing general criminal intent, where the offense is one requiring a specific intent, evidence of voluntary intoxication is admissible and may be considered in determining whether such specific intent was actually present, 93   As stated by some authorities, where a certain mental state is a necessary element of the particular offense charged, or of a particular degree thereof, intoxication, though it is voluntary, can be shown for its bearing on whether the accused had that state of mind at the time of his act. 94    The theory is that intoxication is being shown, not to excuse or mitigate a crime, but to prove that a particular offense was not committed, since one of its necessary elements was lacking. 95   In some jurisdictions, it is provided by statute that intoxication may be considered in determining purpose, motive, or intent, where these are requisite elements of any particular species or degree of crime. 96   There is also authority that intoxication may be considered as bearing on such issues as malice 97  or deliberation and premeditation 98    where these are required elements of a particular offense.  Similarly, intoxication may bear on the issue of knowledge or scienter requisite to some offenses. 99    It has also been recognized that voluntary intoxication can be considered for the purpose of determining whether or not the alleged criminal act was accidental and excusable. 1   The defendant has the burden of showing that he was so intoxicated that he was robbed of his mental faculties, 2  and whether he was drunk to such an extent is a question for the trier of the facts to decide, 3  under proper instructions. 4    An instruction to the effect that the jury should apply with caution the law as to the defense of intoxication has been approved. 5    The foregoing principles, permitting voluntary intoxication to be shown as a defense in prosecutions for crimes involving the element of specific intent, have been applied or recognized in cases involving a number of different offenses, 6   including first-degree murder, 7  second-degree murder, 8   and manslaughter, 9  assault; 10   assault with intent to commit murder, 11  manslaughter, 12  or rape; 13   kidnapping or abduction; 14   rape; 15  lewd or indecent conduct or liberties with a child; 16  robbery; 17   larceny; 18   burglary 19    or breaking and entering; 20   forgery; 21  and various other crimes. 22      

Of course, intoxication itself does not preclude a finding that the requisite mental element was present, 23  unless it was so extreme as to render the accused entirely incapable of the state of mind required. 24   Stated another way, intoxication acts as a defense or excuse only where the degree of intoxication is such as to render the accused incapable of entertaining the specific intent. 25    

Ordinarily, where intoxication is established as a defense to a specific intent crime, the result may be not acquittal but conviction of a lower degree of the offense as to which no proof of specific intent is necessary. 26   However, taking the view that the malice necessary to a conviction of murder could be found from the act of voluntarily becoming intoxicated, some courts have refused to entertain the argument that voluntary drunkenness precluded a conviction of murder and limited the state to a charge of manslaughter. 27    If a person becomes intoxicated to nerve or brace himself to commit a crime, the intoxication, of course, will be of no avail even to mitigate the degree of the crime. 28   And where the distinctions between the degrees of murder have been abolished, it has been held that voluntary intoxication is no excuse for murder. 29 

Practice Aids: Intoxicants and diminished responsibility, 1994 Crim LR 156 (1994).

Voluntary intoxication and the insanity defense, 20 J Psych&Law 4:439 (1993).

Evidence of a criminal defendant's voluntary intoxication is admissible at trial, 22 Pepp LR 2:835 (1995).

Voluntary intoxication was not defense to violation of statute providing punishment for assault within special maritime and territorial jurisdiction of United States, where statute did not explicitly require showing of specific intent. United States v Lewis (1986, CA4 Md) 780 F2d 1140, 19 Fed Rules Evid Serv 1403.

In prosecution for murder, attempted murder, and related offenses, prosecutor properly asked defendant whether he became violent when intoxicated, as question was directly relevant to intent of accused and in countering claim of accident. United States v Shaw (1983, CA5 Miss) 714 F2d 544.

In prosecution for interstate transportation of stolen property and stolen motor vehicle, trial court did not err in denying defendant's motion for acquittal after jury returned verdict convicting defendant; although intoxication may preclude formation of specific intent and thus serve to negate essential element of certain crimes, and although defendant presented considerable testimony, including opinion of medical expert, that he was intoxicated at time of crimes, evidence supported jury's verdict where it showed defendant was oriented as to time, place, and identity, and was able to perform delicate manual and mental tasks such as connecting Peterbilt tractor to trailer, driving rig over 300 miles, and negotiating with men he hired to unload trailer. United States v Newman (1989, GA6 Ohio) 889 F2d 88, cert den (US)  109 L Ed 2d 748,  110 S Ct 2566.

Court properly denied instruction on intoxication defense for general intent crime of possession of firearm by convicted felon under 18 USCS §  922, since there was no authority for proposition that degree of intoxication negates general intent crime, and no authority for argument that such possession is specific intent crime. United States v Bennett (1992, CA6 Ky) 975 F2d 305.

In prosecution for assaulting federal officer, trial court correctly refused to give jury instruction of defense of intoxication, since crime is one of general intent to which voluntary intoxication as defense is unavailable. United States v Hanson (1980, CA8 Minn) 618 F 2d 1261.

It is true that voluntary intoxication instruction should not ordinarily be given in rape case, because rape is crime of general intent. However, in cases involving general-intent crimes in which considerable evidence has been introduced about intoxicated state of defendant, trial court instruction, even over defendant's objection, to make clear to jury that voluntary intoxication is not defense, is not unfairly prejudicial. United States v Norquay (1993, CA8 Minn) 987 F2d 475 (criticized on other grounds by United States v Falesbork (CA4 Va) S F3d 715).

In prosecution for specific intent crime, intoxication that precludes formation of requisite intent may be established as defense, even if intoxication was voluntary. United States v Echeverry (1985, CA9 Wash) 759 F2d 1451, 18 Fed Rules Evid Serv 62.

Trial court's instruction that degree of intoxication necessary to negate specific intent must amount to insanity was proper. Ex parte Bankhead (1991, Ala) 585 So 2d 112, on remand, remanded (Ala App) 585 So 2d 133.

Voluntary intoxication can never justify or excuse commission of crime, but excessive intoxication may render individual incapable of forming specific intent. Latimore v State (1988, Ala App) 534 So 2d 665.

Defendant's voluntary intoxication combined with schizophrenia did not constitute defense to charge of intentionally causing serious injury by means of dangerous instrument where evidence indicated defendant was able to appreciate wrongfulness of his actions on night in question. Ware v State (1991, Ala App) 584 So 2d 939, reh den, without op (Ala App) 1991 Ala Crim App LEXIS 1116 and cert den, without op (Ala) 1991 Ala LEXIS 825.

Trial court properly refused to give requested instruction on voluntary intoxication in trial for rape, robbery, and theft, where instruction as requested provided that defendant was required only to raise reasonable doubt and also that defendant had burden of proving affirmative defense by preponderance of evidence, thus giving contradictory burden of proof and misleading jury. Mosier v State (1985) 285 Ark 67, 684 SW2d 810.

Although voluntary intoxication is common law defense to crimes which require formation of specific intent, in incest prosecution state need only prove that defendant knew that person he was having sex with was his daughter; trial court, therefore, properly instructed jury as to voluntary intoxication defense, where there was nothing in record which suggested defendant did not have such knowledge. Johnson v State (1986) 288 Ark 101,702 SW2d 2.

In prosecution for interfering with law officer in violation of statute providing that no person shall "knowingly employ ... physical force against a law enforcement officer," trial court properly refused to instruct jury that self-induced intoxication was affirmative defense, since mental state of "knowingly" did not require specific intent. Bowen v State (1980, Ark App) 598 SW2d 447.

Court properly refused to instruct jury that voluntary intoxication could negate express malice so as to reduce murder to voluntary manslaughter. People v Saille (1991) 54 Cal 3d 1103, 2 Cal Rptr 2d 364, 820 P2d 588, 91 Daily Journal DAR 15308, reh den.

The elimination of diminished capacity as a defense removed a defendant's intoxication from the realm of defenses to a crime. Intoxication is now relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state. People v Lopez (1992, 5th Dist) 11 Cal App 4th 1115, 14 Cal Rptr 2d 692, 92 CDOS 10368, 92 Daily Journal DAR 17355.

Voluntary intoxication was no defense to charge of second-degree kidnapping or first-degree sexual assault where mental culpability required for both offenses was a knowing participation in the crimes. People v Vigil (1979, Colo App) 602 P2d 884.

Trial court in burglary prosecution erred in denying defendant's request for instruction on defense of intoxication, where court-appointed psychiatrist testified that defendant was significantly impaired by long-term and short-term substance abuse at time of offense. Smith v State (1988, Fla App D3) 532 So 2d 78, 13 FLW 2346.

In prosecution for burglary, grand theft by unauthorized control, and malicious injury to property, issue was not whether defendant was under influence of alcohol at time of events, but whether he was so intoxicated that he was unable to form specific intent necessary to commit offenses charged. This was question of fact for jury to decide. State v Tucker (1993, App) 123 Idaho 374, 848 P2d 432.

In robbery prosecution, trial court correctly excluded opinion testimony by prosecution witness as to whether defendant was drunk, where clear evidence indicated that defendant's possible intoxication was not so extreme as to negate requisite criminal mental state; merely being drunk or intoxicated is insufficient to create defense of intoxication. People v Wing Cheung (1980) 83 Ill App 3d 1048, 39 Ill Dec 174, 404 NE2d 558.

Murder defendant failed to establish sufficient degree of intoxication to support instruction that intoxication might negate criminal intent, where defendant testified as to many details of robbery and murder with clarity that was inconsistent with extreme intoxication. People v Riddle (1988, 1st Dist) 175 Ill App 3d 85, 124 Ill Dec 732, 529 NE2d 713.

Defendant's battery conviction would be reversed where prosecutor's non-pattern jury instruction on defense of voluntary intoxication, stating that level of intoxication must be so extreme as to suspend all power of reason and render defendant incapable of "any mental action," misstated law by redefining the defense. Contrary to instruction given, Illinois law states that once defendant introduces evidence to show that intoxicated condition reasonably might have negated existence of requisite mental state, prosecution must then overcome affirmative defense of voluntary intoxication; defendant is not required to make extreme showing that he was devoid of any mental activity in order to successfully invoke voluntary intoxication defense. People v Baczkowski (1989, 2d Dist) 180 Ill App 3d 17, 535 NE2d 484.

Failure of trial counsel in prosecution for attempted murder and assault to explore and present available evidence on sole defense of voluntary intoxication negating specific intent to kill was ineffective assistance of counsel, where defendant had 0.20 percent blood alcohol level immediately after crime and had long history of alcoholism including blackouts. People v Popoca (1993, 2d Dist) 245 Ill App 3d 948, 185 Ill Dec 908, 615 NE2d 778.

There was sufficient evidence to support trial court's finding that defendant who was convicted of rape and criminal deviate conduct was capable of forming intent necessary for commission of those crimes as charged where, even though he might have been intoxicated, there was ample expert medical testimony that he was not suffering from mental disease at time of crimes, and where there was evidence that at time of incident in question defendant did not slur his words when talking, did not stumble when he walked, and did not appear to be drunk. Duffy v State (1981, Ind) 415 NE2d 715.

Rape, which included requirement of "knowing" intercourse, was specific intent crime to which intoxication could be defense. Ives v State (1981, Ind) 418 NE2d 220.

In prosecution for attempted murder, battery, resisting arrest and possession of controlled substance, where defendant pleaded temporary insanity at trial, specific intent required for attempted murder was established despite defendant's drug intoxication; court held specific intent for attempted murder was question of fact for jury and one on which defendant bore burden of proof; mere intoxication, absent incapacity to think deliberately and meditate rationally in forming guilty design or intent, cannot be regarded as sufficient. Norris v State (1981, Ind) 419 NE2d 129.

Evidence, in trial for robbery and burglary, that although defendant had consumed large amount of alcoholic beverages just prior to crime, witness who observed him shortly after crime indicated he showed no signs of intoxication, was able to communicate rationally, and appeared and acted normal, was sufficient to support jury finding that defendant was not intoxicated to such degree as to deprive him of power to deliberate or to form necessary design or guilty intent. Wagner v State (1985, Ind) 474 NE2d 476.

Evidence, in prosecution for robbery, did not support assertion that defendant was too intoxicated to form necessary intent, where rock had been used to break into building, outside light bulb had been unscrewed to avoid being seen, and defendant had been seen earlier rummaging through cash register of bakery which was broken into. Coble v State (1985, lnd) 476 NE2d 102.

Voluntary intoxication can be offered as defense to any crime. Johnson v State (1992, Ind) 584 NE2d 1092.

In criminal prosecution resulting in defendant's conviction of aggravated robbery and involuntary manslaughter, instruction that specifically set forth intent required of one who aids or abets and that specifically advised jurors that "when a particular intent ... is a necessary element ... intoxication may be taken into consideration ... "were not effective and did not have result of removing from jurors' consideration defense of involuntary intoxication. State v Knoxsah (1981) 229 Kan 36, 622 P2d 140.

In prosecution for rape and sodomy, trial court properly refused to instruct jury that voluntary intoxication was defense to crimes, since defense applied only to intentional and knowing offenses to negate existence of intent element of offense, and statutes defining forceable rape and sodomy contained no requirement of culpable mental state, but only that prohibited act be done by forcible compulsion. Malone v Commonwealth (1982, Ky) 636 SW2d 647.

In prosecution for attempt to obstruct justice, trial court correctly refused to instruct jury as to defense of self-intoxication, notwithstanding that any attempt to commit crime requires specific intent as to which intoxication is relevant, where evidence was insufficient to show that defendant was so drunk that he was unable to formulate requisite mens tea. Mayne v State (1980) 45 Md App 483, 414 A2d 1.

Assault with intent to maim and assault with intent to disable are specific intent crimes and defendant was entitled to instruction as to possible defense based upon his voluntary intoxication. Bryant v State (1990) 83 Md App 237, 574 A2d 29.

In attempted murder trial, evidence from defendant that his mental condition, combined with his prescription drug consumption and use of alcohol on day of crime, affected his capacity to form specific intent to murder did not warrant instruction telling jury to consider defendant's mental condition in determining whether state had proved requisite specific intent; judge properly gave instruction that in deciding whether defendant had specific intent jury could consider evidence that defendant was under influence of alcohol, prescription drugs, or both. Commonwealth v Beattie (1991) 409 Mass 458, 567 NE2d 206.

In a trial for first-degree murder, the court correctly charged the jury that it should consider the voluntary intoxication of the defendant when deciding whether he had the capacity to premeditate and deliberate, whether he committed murder with extreme atrocity or cruelty and whether he possessed malice aforethought as evidenced by a specific intent to kill or a specific intent to cause grievous bodily harm; however, the court erred in refusing to permit the jury to consider the voluntary intoxication of the defendant when deriding whether he "knew" for purposes of finding malice aforethought under the third prong of malice. Commonwealth v Sama (1991) 411 Mass 293, 582 NE2d 498.

In a prosecution for manslaughter arising from the beating death of a 3 year old child, on the evidence most favorable to the defendant, he was entitled to a jury instruction concerning lack of criminal responsibility where (1) the child was beaten to death with an electrical cord while the defendant was under the influence of cocaine, (2) a medical expert testified that he believed the defendant to be suffering from cocaine paranoid psychosis based in part on defendant's recitation of his history of cocaine use and his reaction to it, which included delusions of seeing nonexistent worms, bugs and snakes and hearing voices, and (3) the defendant's mother and wife and the mother of the deceased child all testified to observing similar symptoms. Commonwealth v Herd (1992) 413 Mass 834, 604 NE2d 1294.

In a prosecution for manslaughter arising from the beating death of a 3 year old child while the defendant was under the influence of cocaine, the court properly instructed the jury that it was required to find the defendant criminally responsible for his actions if the Commonwealth proved that the defendant knew or had reason to know that his consumption of cocaine would activate a mental disease or defect since, even though there was evidence that the defendant suffered from cocaine paranoid delusion, he had told a firefighter at the scene of the crime and a defense expert that he knew that he engaged in beatings while he was high on cocaine. Commonwealth v Herd (1992) 413 Mass 834, 604 NE2d 1294.

Court properly declined to give intoxication instruction, even though defendant had been drinking beer and cherry brandy, and smoking either marihuana or "angel dust," or both, prior to robbery of grocery store and assault on owner, where there was no evidence that he was intoxicated at time of crimes or that his mental capacity was diminished, and defendant himself testified that he knew what he was doing and claimed to be "immuned" to large quantities of alcohol. People v Rios (1989, 2d Dept)  150 AD2d 620, 541 NYS2d 489, app den  74 NY2d 899, 548 NYS2d 432, 547 NE2d 959 and (disapproved by People v Rodriguez,  76 NY2d 918, 563 NYS2d 48, 564 NE2d 658).

Intoxication is defense only to crime of specific intent, and general intent cannot be negated by evidence actor was intoxicated at time crime was committed; thus voluntary intoxication was no defense to charges that defendant had committed crimes of sexual misconduct in first and second-degree that did not require specific intent for their commission. People v Bell (1980) 101 Mich App 779, 300 NW2d 691.

Where person, when sober, was capable of distinguishing between right and wrong and voluntarily intoxicated or drugged himself to extent that he did not know or understand his actions, he would be responsible and could be convicted and sentenced for crime. Smith v State (1984, Miss) 445 So 2d 227.

Even though all evidence shows that defendant was voluntarily intoxicated when crime was committed, defendant shall not be entitled to directed verdict due to failure to prove necessary mental state. Neither shall defendant be entitled to instruction that jury may consider evidence of voluntary intoxication in determining if defendant had requisite mental state. This does not relieve prosecution of its burden of proof of requisite mental state. Further, jury may not consider intoxication on issue of defendant's mental state. Exclusion from consideration of evidence of voluntary intoxication in no way relieves state of its burden of proof. State is still obliged to prove all elements of offense, including mental state, beyond reasonable doubt. Rule merely treats sober persons and voluntarily intoxicated persons as equally responsible for conduct, and does not violate due process. State v Erwin (1993, Mo) 848 SW2d 476, cert den (US)  126 L Ed 2d 56,  114 S Ct 88.

In prosecution for leaving scene of accident involving personal injuries where defendant's only defense was to element of knowledge, and was based on inability to form that mental state because of combination of intoxication and head injury, failure to fully instruct jury on effect that intoxication may have on mental state was prejudicial. State v Stafford (1984, Mont) 678 P2d 644.

Defendant charged with attempted burglary was entitled to have jury instructed as to defense of voluntary intoxication as applied to specific intent of crime charged, and failure of court to give instruction was reversible error. Vincent v State (1981, Nev) 625 P2d 1172.

While defendant may offer evidence of his intoxication whenever it is relevant to negative element of crime charged, even inebriated individual may be capable of forming intent. People v Lang (1988, 2d Dept)  143 App Div 2d 685, 532 NY S2d 927.

Alleged lack of intent by reason of lack of motive and voluntary intoxication is irrelevant to determination of recklessness as defined in CLS Penal §  15.05(3). People v Acton (1989, 3d Dept)  149 AD2d 839, 540 NYS2d 544.

Court did not err in failing to charge jury on intoxication where no reasonable jury could have inferred that defendant's capacity to form intent had been affected by ingestion of alcohol or drugs. People v Kruger (1992, 4th Dept)  184 AD2d 1031, 586 NYS2d 916, app den  80 NY2d 931, 589 NYS2d 858, 603 NE2d 963.

In trial for second-degree vehicular manslaughter, negligent homicide, and driving while intoxicated, court erred in denying defendant's request for 1-hour continuance to allow testimony of expert concerning whether intoxication played role in causing accident and death. People v Osburn (1989, 4th Dept)  155 AD2d 926, 547 NYS2d 749, app den  75 NY2d 816, 552 NYS2d 566, 551 NE2d 1244.

In prosecution for first-degree manslaughter, attempted first-degree manslaughter, and second-degree assault, evidence was sufficient to establish that defendant acted with intent to kill his girlfriend and to seriously injure her mother, despite his intoxication, where he took large butcher knife from kitchen and began stabbing his girlfriend, first in leg and then in various other parts of her body, inflicting 8 stab wounds in all, and then stabbed mother 3 times. People v Angel (1992, 2d Dept)  185 AD2d 356, 586 NYS2d 622, app den  80 NY2d 1025, 592 NYS2d 674, 607 NE2d 821.

In a prosecution for second-degree murder, defendant's evidence that on the evening of the shooting he drank a cup of rum and two cups of wine, that he usually did not drink because his doctor had told him, after an operation on his head, not to drink any liquor because it affects his mind, that one witness testified his mind was "coming and going," and that he heard "all kinds of things, noise" and "flipped out" was insufficient evidence of intoxication to require the trial judge to instruct the jury on the defense of voluntary intoxication. State v Gerald (1981) 304 NC 511,284 SE2d 312.

Instructions in murder prosecution constituted reversible error, where instructions imposed on defendant burden of proving that he was totally incapable of forming intent, whereas proper burden is that of raising reasonable doubt as to capacity. State v Mash (1988) 323 NC 359, 372 SE2d 532.

The offense of discharging a firearm into an occupied vehicle is a general intent crime that does not require the State to prove any specific intent but only that the defendant performed the act which is forbidden by statute. Therefore, the trial court properly charged the jury that the law does not require any specific intent for the defendant to be guilty of the crime of discharging a firearm into occupied property and, since intoxication does not negate a general intent, also properly charged that the defendant's intoxication can have no bearing upon the determination of his guilt or innocence of this crime. State v Jones (1994) 339 NC 114, 451 SE2d 826, reconsideration den (NC) 453 SE2d 188.

The trial court in an armed robbery prosecution erred in failing to instruct the jury on the defense of automatism or unconsciousness where defendant's evidence tended to show that she had no independent recollection of the robbery or of that day's events because of the large amount of drugs and alcohol she had taken for several days. State v Smith (1982) 59 NC App 227, 296 SE2d 315.

Though evidence of a defendant's intoxication at the time of a burglary may require an instruction on the lesser-included offense of misdemeanor breaking and entering, which requires no specific intent, evidence in this case, consisting of the testimony of defendant and his family and friends that he was an alcoholic and that he had been drinking on the dates in question and the fact that police on a later date found beer in his car, was insufficient to require an instruction on misdemeanor breaking and entering, particularly where the evidence tended to show that defendant, in order to commit the crimes in question, had to plan his actions by watching the victims use their ATM cards, attempting to memorize their access numbers, following the victims home, and, at an opportune moment, stealing their purses. State v Howie (1994) 116 NC App 609, 448 SE2d 867.

In prosecution for gross sexual imposition, where evidence had been overwhelming and uncontradicted that defendant had overpowered victim in her home and had sexual intercourse with her by force and against her will, where general rule stated that voluntary intoxication would not be defense to crime of general intent but that evidence of intoxication would be admissible whenever it would be relevant to negate or establish element of offense charged, where trial court had appropriately admitted evidence relating to defendant's intoxicated condition, which he had offered in his defense, and where court had instructed jury more favorably to defendant than he had been entitled to under state law, court did not err in refusing to instruct jury as to definition of "knowingly" or "intentionally." State v Cummins (1984, ND) 347 NW2d 571.

Court did not err in failing to charge jury on intoxication where no reasonable jury could have inferred that defendant's capacity to form intent had been affected by ingestion of alcohol or drugs. People v Kruger (1992, 4th Dept)  184 AD2d 1031, 586 NYS2d 916, app den  80 NY2d 931, 589 NYS2d 858, 603 NE2d 963.

Where a criminal defendant's testimony indicated that he was fully aware of the facts and circumstances occurring around him and further indicated that he was properly oriented regarding his location and the passage of time, a trial court's decision not to instruct the jury on the possibility of voluntary intoxication negating the defendant's specific intent was not unreasonable, arbitrary, or unconscionable. State v Davis (1992, Wash) 81 Ohio App 3d 706, 612 NE2d 343, motion overr 65 Ohio St 3d 1466, 602 NE2d 1174.

In murder prosecution in which State claimed that defendant was intoxicated at the time of the offense but defendant claimed he was sober, trial court erred by instructing jury at guilt stage on law of voluntary intoxication. PC § 8.04. The instruction constituted a comment on the evidence because the jury could only have concluded that judge agreed with State on this contested issue. Gonzales v State (1992, Tex App Houston (1st Dist)) 838 SW2d 848.

In prosecution for manslaughter, evidence of blackout produced by alcohol, was immaterial and properly excluded, since blackout was nothing more than effect of severe intoxication, and voluntary intoxication is not defense to crime with mens rea of recklessness. State v Bryan (1985, Utah) 709 P2d 257.

In prosecution of defendant for third-degree assault, voluntary intoxication was not affirmative defense requiring state to disprove defendant's voluntary intoxication beyond a reasonable doubt, though evidence of intoxication would be admissible on the issue of whether defendant had requisite mental state in committing offense. State v Coates (1987) 107 Wash 2d 882, 735 P2d 64.

Voluntary intoxication was not defense to charge of unauthorized use of automobile, where state of mind described as element of offense was "willfully, wantonly, or maliciously." Matlack v State (1985, Wyo) 695 P2d 635, cert den (US)  87 L Ed 2d 638,  105 S Ct 3508.

In prosecution for child molestation, trial court did not err in charging jury on voluntary intoxication as defense even though defendant did not raise voluntary intoxication as defense, where evidence indicated defendant was voluntarily intoxicated at time he molested victim. Adams v State (1989) 193 Gst App 628, 388 SE2d 747.

Footnote 75. Hopt v People,  104 US 631,  26 L Ed 873; Brimhall v State, 31 Ariz 522, 255 P 165 (ovrld on other grounds State v Balderrama 97 Ariz 134, 397 P2d 632); People v Strader, 23 Ill 2d 13, 177 NE2d 126; State v Rumble, 81 Kan 16, 105 P 1; Martin v State, 228 Md 311, 179 A2d 865; Commonwealth v Taylor, 263 Mass 356, 161 NE 245, later app 265 Mass 133, 163 NE 865; Kendall v State, 244 Miss 618, 145 So 2d 924; State v Pinski (Mo) 163 SW2d 785; State v Trott, 190 NC 674, 130 SE 627; Commonwealth v McGowan, 189 Pa 641, 42 A 365; Bradford v State, 208 Tenn 500, 347 SW2d 33.

Annotation:  8 ALR3d 1236.

In State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den  366 US 973,  6 L Ed 2d 1263,  81 S Ct 1941, the court stated that it is so generally accepted as to be a truism that voluntary intoxication is neither an excuse for the commission of a crime nor a defense to a prosecution for it.

Voluntary drunkenness, as distinguished from settled insanity produced by drink, affords no excuse for crime except that where premeditation is a material question, the intoxication of the accused may be considered by the jury.  Johnson v Commonwealth, 135 Va 524, 115 SE 673.

Practice Aids: –Wald, Alcohol, Drugs, and Criminal Responsibility.  1974, 63 Georgetown L J 69.

Murphy, The Defense of Voluntary Intoxication.  1972, Law Notes 7.

Footnote 76. Latimer v State, 55 Neb 609, 76 NW 207; State v Peterson, 129 NC 556, 40 SE 9; Pigman v State, 14 Ohio 555; Commonwealth v Eyler, 217 Pa 512, 66 A 746; State v Kidwell, 62 W Va 466, 59 SE 494.

Holding that chronic alcoholism is not defense to charge of intoxication in public place does not violate Eighth and Fourteenth Amendments to United States Constitution.  Powell v Texas,  392 US 514,  20 L Ed 2d 1254.   88 S Ct 2145.

Chronic Alcoholism as a Defense to Crime.  1977, 61 Minn L Rev 901.

Footnote 77. State v Kraemer, 49 La Ann 766, 22 So 254; State v Kidwell, 62 W Va 466, 59 SE 494.

Offenses in which specific intent to do the forbidden act is not an essential element are never excused, at common law, by mere drunkenness of the perpetrator of the act, even though it was so extreme as wholly to deprive him of his reason.  State v Phillips, 80 W Va 748, 93 SE 828.

In applying the basic rules that voluntary intoxication is no defense to a criminal charge (except to the extent that it prevents the formulation of the specific intent necessary to some offenses), the courts have not generally given any special consideration to possible degrees of intoxication.  In most of the cases where the question has been raised, the defense contention has been that the accused was so drunk as not to know or realize what he was doing, that is, was unconscious as to the particular acts.  In some cases the courts have explicitly indicated that drunkenness to the point of unconsciousness was immaterial, if accused did in fact carry out the physical acts constituting the crime.  See, for example, People v McNichol, 100 Cal App 2d 554, 224 P2d 21; People v Mead, 126 Cal App 2d 164, 271 P2d 619; People v Morrow (5th Dist) 268 Cal App 2d 939, 74 Cal Rptr 551; Lewis v State, 196 Ga 755, 27 SE2d 659.

In a few instances, however, the courts have indicated that a state of unconsciousness would operate to reduce the degree of the offense.  See, for example, Adams v Stone (ND Cal) 378 F Supp 315; People v Graham, 71 Cal 2d 303, 78 Cal Rptr 217, 455 P2d 153.

Annotation:  8 ALR3d 1236, § 5.

Footnote 78. State v Kidwell, 62 W Va 466, 59 SE 494.

Footnote 79. See, for example, Martin v State, 228 Md 311, 179 A2d 865 (murder); Clark v State, 236 Md 648, 207 A2d 94 (breaking and entering with intent to steal goods).

Footnote 80.
Annotation:  8 ALR3d 1236, § 6[a].

For a comprehensive discussion of the nature and incidence of alcoholism, see  16 Am Jur Proof of Facts 569, Alcoholism.

Footnote 81.
Annotation:  8 ALR3d 1236, § 6[a].

As to insanity caused by intoxication, generally, see  § 54, supra.

Footnote 82. See  §§ 57 et seq., supra.

Footnote 83.
Annotation:  8 ALR3d 1236, § 2.

Footnote 84. Couch v State (Okla Crim) 375 P2d 978.

Footnote 85. Evers v State, 31 Tex Crim 318, 20 SW 744.

In People v Rogers, 18 NY 9, speaking of the duty each man owes to preserve in himself the inestimable gift of reason, the court said that if by a voluntary act he casts off the restraints of reason and conscience, no wrong is done him by holding him answerable for any injury he may do while in that state.

Footnote 86. State v Kraemer, 49 La Ann 766, 22 So 254.

Footnote 87. United States ex rel. Rucker v Myers (CA3 Pa) 311 F2d 311, cert den  374 US 844,  10 L Ed 2d 1064,  83 S Ct 1901; Clayton v State, 36 Ala App 175, 54 So 2d 719, cert den 256 Ala 378, 54 So 2d 723 (manslaughter); Comer v State, 212 Ark 66, 204 SW2d 875 (involuntary manslaughter); People v Corson (3d Dist) 221 Cal App 2d 579, 34 Cal Rptr 584 (assault with deadly weapon; intent inferred); State v Dennis, 150 Conn 245, 188 A2d 65 (impairment of morals of child); Proctor v United States, 85 App DC 341, 177 F2d 656 (automobile used without owner's consent; general intent presumed); Askew v State (Fla) 118 So 2d 219 (rape, intent inferred from act); People v Bray, 52 Ill App 2d 384, 202 NE2d 152 (armed robbery); Minton v State, 244 Ind 636, 195 NE2d 355 (involuntary manslaughter); State v Wharff, 257 Iowa 871, 134 NW2d 922 (escape); Murphy v Commonwealth (Ky) 279 SW2d 767 (operating motor vehicle without consent of owner); State v Johnston, 207 La 161, 20 So 2d 741 (assault with dangerous weapon); State v Anderson, 270 Minn 411, 134 NW2d 12 (sodomy); State v Hairston, 222 NC 455, 23 SE2d 885 (rape; intent inferred from commission of act); Commonwealth v Simmons, 361 Pa 391, 65 A2d 353, cert den  338 US 862,  94 L Ed 528,  70 S Ct 96, reh den  338 US 888,  94 L Ed 546,  70 S Ct 181 (murder in perpetration of robbery or burglary); Bostock v State, 210 Tenn 620, 360 SW2d 472 (involuntary manslaughter); State v Turner, 3 Utah 2d 285, 282 P2d 1045 (sodomy); State v Huey, 14 Wash 2d 387, 128 P2d 314 (taking indecent liberties with female under age of 15).

Annotation:  8 ALR3d 1236, § 3[b].

Voluntary intoxication was not defense to crime of robbery where specific intent was not element of offense.  People v White, 40 Ill App 3d 455, 352 NE2d 243, affd 67 Ill 2d 107, 8 Ill Dec 99, 365 NE2d 337 (ovrld on other grounds People v Banks 75 Ill 2d 383, 27 Ill Dec 195, 388 NE2d 1244).

Footnote 88.
Annotation:  8 ALR3d 1236, § 3[b].

The rule regarding the defense of insanity should never be extended to apply to voluntary intoxication in a murder case, since this would not only open wide the door to defenses built on frauds and perjuries, but would build a broad, easy turnpike for escape–all that the crafty criminal would require for a well-planned murder would be a revolver in one hand to commit the deed, and a quart of intoxicating liquor in the other with which to build his excusable defense, said the court in State v Arsenault, 152 Me 121, 124 A2d 741.  The defendant took exception to the instructions to the jury and to the court's failure to give requested instructions to the effect that if the jury found that the defendant was intoxicated to the extent that he had so far lost his intelligence and his reason and faculties that there was doubt as to whether he was able to form and have a purpose to kill or to know what he was doing, then he should be found not guilty of the charge of murder. Overruling the exceptions, the court also pointed out that there was no evidence of an insane state.

In Kendall v State, 244 Miss 618, 145 So 2d 924, the court stated that voluntary drunkenness of an accused at the time a crime was committed is said to be no defense, especially where no particular motive or intent is a necessary element of the crime charged, as when the crime consists only of the doing of acts which are prohibited.  The court stated that the rule was based on moral and ethical reasons since it is one's duty to abstain from getting himself into an intoxicated condition.  Otherwise, said the court, one planning to commit a crime could always plan for his intoxication at the time of the commission in order to avoid his responsibility.

Footnote 89.
Annotation:  8 ALR3d 1236, § 3[b].

So, speaking of drunkenness as a "gross vice," and itself a crime under some laws, the court in United States v Cornell (1820, CC RI) 2 Mason 91, F Cas No. 14868, speaks of the incongruity of considering one crime to be a defense to another.

Footnote 90. Shannahan v Commonwealth, 71 Ky 463; Director of Public Prosecutions v Beard (Eng) [1920] AC 479 (HL).

Footnote 91.
Annotation:  8 ALR3d 1236, §§ 3, 4.

For example, see People v Corson (3d Dist) 221 Cal App 2d 579, 34 Cal Rptr 584, noting a Penal Code provision to the effect that no act committed by a person while in the state of intoxication is less criminal by reason of his having been in such condition.

Footnote 92. Some jurisdictions do not permit intoxication to be considered, even on the issue of specific intent.  Hardy v State 242 Ga 702, 251 SE2d 289; Young v State, 239 Ga 53, 236 SE2d 1, cert den  434 US 1002,  54 L Ed 2d 499,  98 S Ct 648, reh den  434 US 1051,  54 L Ed 2d 805,  98 S Ct 904; State v Cornwall, 95 Idaho 680, 518 P2d 863 (by statute); People v Hawkins, 14 Ill App 3d 549, 302 NE2d 128; People v Isenberg, 60 Ill App 3d 325, 17 Ill Dec 632, 376 NE2d 778; State v Shipman, 354 Mo 265, 189 SW2d 273; State v Garrett (Mo) 391 SW2d 235 (ovrld on other grounds State v Anderson (Mo) 515 SW2d 534); State v Maggitt (Mo) 517 SW2d 105; State v Kinlaw, 150 NJ Super 70, 374 A2d 1233; Commonwealth v England, 474 Pa 1, 375 A2d 1292; State v Vaughn, 268 SC 119, 232 SE2d 328; Pyburn v State (Tenn Crim) 539 SW2d 835; Kincaid v State, 150 Tex Crim 45, 198 SW2d 899; Dubois v State, 164 Tex Crim 557, 301 SW2d 97, cert den  356 US 921,  2 L Ed 2d 717,  78 S Ct 705; Tijerina v State (Tex Crim) 578 SW2d 415; State v Frotten, 114 Vt 410, 46 A2d 921; Brenan v Commonwealth, 183 Va 846, 33 SE2d 639; State v Bailey (W Va) 220 SE2d 432.

Annotation:  8 ALR3d 1236, § 3[a].

Under a statute providing that intoxication shall not excuse crime or mitigate the degree or penalty, but that temporary insanity resulting therefrom may be shown in mitigation of the penalty, evidence of intoxication cannot be considered on the question of intent.  Stoudenmire v State, 58 Tex Crim 258, 125 SW 399.

Voluntary intoxication would not mitigate and could not be invoked as defense to crime of assault and battery with intent to commit rape.  Cherry v State (Tenn Crim) 539 SW2d 51.

Footnote 93. Clark v State (Ala App) 333 So 2d 885, cert den (Ala) 333 So 2d 890; McIntyre v State (Alaska) 379 P2d 615,  8 ALR3d 1231 (recognizing rule); Kimoktoak v State (Alaska) 584 P2d 25; State v Skaggs, 120 Ariz 467, 586 P2d 1279; Olles v State, 260 Ark 571, 542 SW2d 755; People v Stevenson (2d Dist) 79 Cal App 3d 976, 145 Cal Rptr 301; People v Montez, 197 Colo 126, 589 P2d 1368; State v Crawford, 172 Conn 65, 372 A2d 154; People v Jacobs, 44 Ill App 3d 290, 2 Ill Dec 601, 357 NE2d 821; People v Miner, 46 Ill App 3d 273, 4 Ill Dec 766, 360 NE2d 1141; Yarber v State, 242 Ind 616, 179 NE2d 882; Hooker v State (Ind App) 387 NE2d 1354; State v Watts (Iowa) 244 NW2d 586; Commonwealth v Podlaski (Mass) 1979 Adv Sheets 427, 385 NE2d 1379; People v Garcia, 398 Mich 250, 247 NW2d 547; People v Maynard, 84 Mich App 437, 269 NW2d 631; McDaniel v State (Miss) 356 So 2d 1151; State v Lukus, 149 Mont 45, 423 P2d 49; State v Coleman, 196 Neb 721, 246 NW2d 61; Tucker v State, 92 Nev 486, 553 P2d 951; State v Sinclair, 49 NJ 525, 231 A2d 565, later app 57 NJ 39, 269 A2d 153; State v Atkins, 151 NJ Super 555, 377 A2d 718, revd on other grounds 78 NJ 454, 396 A2d 1122; State v Rayos, 77 NM 204, 420 P2d 314; People v Jackson,  14 NY 2d 5, 247 NYS2d 481, 196 NE2d 887; State v Simmons, 286 NC 681, 213 SE2d 280, vacated, in part on other grounds  428 US 903,  49 L Ed 2d 1208,  96 S Ct 3207; State v Salmon, 10 Ohio App 2d 175, 39 Ohio Ops 2d 336, 226 NE2d 784; Weimar v State (Okla Crim) 555 P2d 1304; Commonwealth v Colbert, 476 Pa 531, 383 A2d 490; Danahey v State (RI) 373 A2d 489; State v Lambert, 266 SC 574, 225 SE2d 340; State v White (SD) 269 NW2d 781; Frazier v State (Tenn Crim) 566 SW2d 545; State v Standrod (Utah) 547 P2d 215; Waye v Commonwealth, 219 Va 683, 251 SE2d 202, cert den  442 US 924,  61 L Ed 2d 292,  99 S Ct 2850; State v Mriglot, 88 Wash 2d 573, 564 P2d 784; State v Johnnies,  76 Wis 2d 578, 251 NW2d 807.

Annotation:  8 ALR3d 1236, § 4[a].

On a plea of not guilty to an offense involving specific intent, evidence of drunkenness can be considered, not for the purpose of acquitting defendant altogether, but for the purpose of ascertaining whether his condition rendered him capable of harboring that intent.  Brown v State, 39 Ala App 149, 96 So 2d 197.

Whether the defendant was so intoxicated as to preclude the existence of the specific intent to commit rape was properly a question for the jury. People v Cheary, 48 Cal 2d 301, 309 P2d 431.

One must have an intent to pass a bogus check or to commit forgery and one might be so intoxicated as to not know what he was doing and a jury might conclude he either could or could not have or form the requisite intention to constitute the offenses. Woodard v People, 154 Colo 162, 389 P2d 411 (affirming conviction).

In a prosecution for murder committed during the perpetration or attempted perpetration of a robbery, defendant was not entitled to instruction sua sponte on the defense of diminished capacity by reason of voluntary intoxication, where there was no evidence that defendant's drinking had any substantial effect on him or that he was so intoxicated that he could not harbour the intent to rob, where defendant's defense was that death was accidental, and where defendant's own testimony negated any possibility that the capacity to intend to commit robbery was diminished in any way.  People v Obie (1st Dist) 41 Cal App 3d 744, 116 Cal Rptr 283 (disapproved on other grounds People v Rollo 20 Cal 3d 109, 141 Cal Rptr 177, 569 P2d 771).

Where a necessary element of the offense charged was that the accused knew or reasonably should have known of the victim's identity as a peace officer, the court erred in failing to give an instruction on intoxication.  People v Garcia (3d Dist) 250 Cal App 2d 15, 58 Cal Rptr 186.

Drunkenness, if so extreme as to make the existence of a definite purpose impossible, may be a defense to any crime of which a specific design is an essential element.  State v Rumble, 81 Kan 16, 105 P 1.

Practice Aids: –Lack of Capacity to Form Specific Intent–Voluntary Intoxication.   5 Am Jur Proof of Facts 2d 189.

Footnote 94. Kane v United States (CA9 Ariz) 399 F2d 730, cert den  393 US 1057,  21 L Ed 2d 699,  89 S Ct 698; People v Sanchez, 35 Cal 2d 522, 219 P2d 9; Blackburn v Commonwealth, 200 Ky 638, 255 SW 99; State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den  366 US 973,  6 L Ed 2d 1263,  81 S Ct 1941; Bradford v State, 208 Tenn 500, 347 SW2d 33.

In a prosecution for aggravated robbery, simple robbery, and assault, defendant who testified to being intoxicated at the time of the robbery had the right to use mental condition as a defense on the merits of whether or not defendant had requisite intent. People v Scheidt, 186 Colo 142, 526 P2d 300.

Where the essence of a crime depends upon the intent with which an act was done or where an essential ingredient of the crime consists in the doing of an unlawful act with a deliberate and premeditated purpose, the mental condition of the accused, whether that condition is occasioned by voluntary intoxication or otherwise, is an important factor to be considered.  Booher v State, 156 Ind 435, 60 NE 156.

Evidence is admissible as to the possible effect of a defendant's consumption of alcohol and ingestion of drugs upon his capacity to form the requisite intent required in the charges of robbery and burglary. Commonwealth v Graves, 461 Pa 118, 334 A2d 661 (superseded by statute as stated in Commonwealth v Pickett 244 Pa Super 433, 368 A2d 799) and later app 484 Pa 29, 398 A2d 644.

Footnote 95. People v Arriola (1st Dist) 164 Cal App 2d 430, 330 P2d 683; State v Wheeler, 195 Kan 84, 403 P2d 1015; People v Guillet, 342 Mich 1, 69 NW2d 140.

While it is true that drunkenness cannot excuse crime, it is also true that where a certain intent is a necessary element of a crime, defendant did not commit that crime if, because of intoxication, or for any reason whatsoever, he did not have that intent.  People v Guillett, 342 Mich 1, 69 NW2d 140.

Intoxication is to be considered by the jury in a prosecution for murder in which a premeditated design to effect death is essential, with reference to its effect upon the ability of the defendant at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because, in connection with other facts, an absence of malice or premeditation may appear.  Collier v State, 17 Okla Crim 139, 186 P 963.

Footnote 96. People v Sameniego, 118 Cal App 165, 4 P2d 809, reh den 118 Cal App 174, 5 P2d 653; State v Koerner, 8 ND 292, 78 NW 981; State v Stenback, 78 Utah 350, 2 P2d 1050.

Under a statute permitting the showing of intoxication to negate intent, it is error to instruct that no act is less criminal by reason of voluntary intoxication, without adding that intoxication can be considered in determining whether defendant had any specific motive, purpose, or intent which constitutes an element of the crime charged or of a particular species or degree thereof.  People v Baker, 42 Cal 2d 550, 268 P2d 705.

Footnote 97. People v Strader, 23 Ill 2d 13, 177 NE2d 126; Dawson v State, 16 Ind 428; Cummins v Commonwealth (Ky) 344 SW2d 611; Cheadle v State, 11 Okla Crim 566, 149 P 919.

Voluntary drunkenness is no excuse for the perpetration of a criminal act, and it may be used to negative the essential elements of intent and malice only where the intoxication is so extreme as to entirely suspend the power of reason.  Merely being drunk or intoxicated is no defense, even though the condition may have lasted for several days.  People v Lion, 10 Ill 2d 208, 139 NE2d 757.

Footnote 98. State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den  366 US 973,  6 L Ed 2d 1263,  81 S Ct 1941; Johnson v Commonwealth, 135 Va 524, 115 SE 673.

See also Chisley v State, 202 Md 87, 95 A2d 577, which recognizes that voluntary intoxication may be considered by the jury as it bears on the question of wilfulness, deliberation, and premeditation, in order to reduce first-degree murder to second-degree murder.

Footnote 99.
Annotation:  8 ALR3d 1236, § 4[c].

Although knowledge is not identical with intent, it is nevertheless mental state, and since intoxication has obvious relevance to question of awareness, familiarity, understanding, and ability to recognize and comprehend, it follows that where knowledge is requisite element of crime, court must instruct, on its own motion, that in determining evidence of such knowledge, jury may take into consideration fact that accused was intoxicated at time he committed act charged.  People v Foster (1st Dist) 19 Cal App 3d 649, 97 Cal Rptr 94.

In prosecution for receiving stolen vehicle, instruction on intoxication should have been given, whether or not it was raised as defense, if evidence warranted issue being presented for jury determination, where statute provided that state prove that defendant received vehicle "knowing it had been stolen".  State v Ghaul, 132 NJ Super 438, 334 A2d 65.

Footnote 1. In Long v Commonwealth (Ky) 262 SW2d 809, the court recognized that while drunkenness is not an excuse for crime, the condition of drunkenness may be considered in determining whether or not the alleged criminal act was accidental and excusable.  In regard to the defendant's contention that the court should have confined its instructions to murder in self-defense and that an instruction on voluntary manslaughter, in a murder prosecution, was unauthorized and tended to confuse the jury to his prejudice, the court stated that where the circumstances indicated possible lack of malice aforethought, coupled with the grossly careless or reckless use of a firearm, an instruction on voluntary manslaughter is proper.  The court also stated that the jury doubtless considered the testimony as to the drunken condition of the defendant, and unquestionably a voluntary manslaughter instruction was not only proper under the evidence but the defendant could not possibly have been prejudiced by it.  The court affirmed a conviction of voluntary manslaughter.

Footnote 2. State v Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54 NW2d 927; State v Linzmeyer, 248 Iowa 31, 79 NW2d 206; Beall v State, 203 Md 380, 101 A2d 233.

In State v Arnold, 264 NC 348, 141 SE2d 473, the court stated that drunkenness is an affirmative defense and when interposed by the accused the burden is on him to satisfy the jury that at the time of the commission of a crime, he was so intoxicated that he did not know what he was doing or attempting to do and was incapable of forming a criminal intent.

Footnote 3. People v Houghton (3d Dist) 212 Cal App 2d 864, 28 Cal Rptr 351; State v Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54 NW2d 927; State v Linzmeyer, 248 Iowa 31, 79 NW2d 206.

Footnote 4. State v Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54 NW2d 927.

Instruction was inadequate and required reversal of defendant's two convictions of specific intent crime of assault with intent to commit great bodily harm less than murder, where although the court instructed the jury that voluntary intoxication was a defense to specific intent crime, it failed to tell the jury which of the charged offenses of kidnapping, second degree murder, and assault with intent to do great bodily harm less than murder were specific intent crimes.  People v Widgren, 53 Mich App 375, 220 NW2d 130.

The trial court's refusal to give a requested instruction to the effect that although intoxication is no defense to first-degree murder, the defendant may have been so intoxicated as to be unable to form the specific intent to commit the crime charged, was prejudicial error.  People v Jackson,  14 NY2d 5, 247 NYS2d 481, 196 NE2d 887.

An instruction that "[i]f you should determine that the defendant was intoxicated and that such intoxication prevented the presence of an intent to kill, then you must acquit defendant of the crime of murder in the second degree.  On the other hand, if you are satisfied beyond a reasonable doubt that the defendant was not intoxicated or that, if intoxicated, his state of intoxication did not prevent the presence of an intent to kill, then you may consider whether or not you are satisfied beyond a reasonable doubt that the defendant had an intent to kill the deceased in connection with your consideration of the crime of murder in the second degree," was held proper in People v Davis (1st Dept)  18 App Div 2d 644, 235 NYS2d 282, affd  13 NY2d 1151, 247 NYS2d 140, 196 NE2d 569.  Affirming a conviction of second-degree murder, the court stated that the instruction did not present the jury with the dilemma of either acquitting the defendant or finding him guilty of murder in the second degree.  The court stated that the plain meaning of the charge was that intoxication, if found, could support a finding of absence of an intent to kill, enabling the jury to acquit defendant of second-degree murder.  The court also stated that the trial court expressly charged the elements of manslaughter, first degree, and emphasized that it differed from murder in the second degree in that the intent to kill may not be present, and throughout the instruction reference was made repeatedly to the alternative verdict of manslaughter first degree.

An instruction that the burden of proof was on the defendant to prove by a preponderance of evidence incapacity resulting from intoxication was held to be proper in State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den  366 US 973,  6 L Ed 2d 1263,  81 S Ct 1941.  Affirming a conviction of breaking and entering with intent to commit a felony and rape, the court stated that the raising of the question of intoxication as a defense to a charge of a crime involving a physical act, such as rape, goes to the question of the physical capacity of the defendant to have committed the crime charged.  In regard to the defendant's contention that evidence of intoxication was introduced merely to support the defense that the defendant did not commit the acts with which he was charged, and that he did not raise the separate defense of intoxication as to which he would have the burden of proof, the court stated that since there is no recognized plea of not guilty by reason of intoxication, it can appear defensively only under a general plea of not guilty, and any evidence on that subject introduced by the defendant must necessarily be a defense, whether it is called simply a defense or an affirmative defense, and if the defendant would escape the consequences of a prima facie case made by the state through proof of the essential elements of the crime, he must assume the burden of so doing.

Footnote 5.
Annotation:  8 ALR3d 1236, § 4[a].

Where the trial court gave a cautionary instruction stating that the jury was to apply the law as to intoxication with caution because the court cannot countenance assault with intent to murder by mere intoxication unless the intoxication carries a man to the extent that he is helpless in mind and incapable of forming the intent to take a life, the court in Leach v State, 245 Ala 539, 18 So 2d 289, held that the court's charge was not reversible error. The court stated that the trial court did not in any sense reflect upon the offense of intoxication or cast suspicion upon it and it was not improper to caution the jury or admonish them or state to them that they should observe carefully the exact nature of the defense, and not apply it improperly.  The court, however, upheld a reversal of the conviction on other grounds.

Where an instruction was given to the effect that the jury should use caution not to give immunity to persons who commit crime when they are inflamed by intoxicating drink, and that they must discriminate between the conditions of mind of being merely excited by intoxicating drink, and yet capable of forming a specific intent to commit a crime, and of such a prostration of the faculties as renders a man incapable of forming the intent, and that if an intoxicated person has the capacity to form an intent to commit the crime charged and conceives and executes such intent, it is no defense that he was induced to conceive it, or to conceive it more suddenly by reason of his intoxication, the court in State v Runnells, 64 Wash 2d 995, 390 P2d 1003, stated that such instruction did not take from the jury its right to consider the defense of intoxication as claimed by the defendant. The court affirmed a conviction for first-degree forgery.

However, an instruction that the defense of drunkenness is one which is dangerous in its application and that the evidence as to intoxication should be carefully scrutinized and weighed with great caution, but if the jury finds from the evidence that by reason of intoxication the defendant was incapable of forming a deliberate and premeditated intent to kill, it would be the jury's duty to acquit the defendant of the charge of murder in the first degree, was held erroneous in State v Oakes, 249 NC 282, 106 SE2d 206. Reversing a conviction of murder in the first degree in remanding, the court stated that the error was in the expression that the defense of drunkenness is one which is dangerous in its application.  The court stated that such expression is clearly an expression of opinion by a judge and as such is prohibited by statute.

Footnote 6. In the majority of cases cited, the evidence was held insufficient to show that the accused did not possess the requisite intent or motive at the time of the commission of the crime, and a conviction of the crime charged was upheld.

Annotation:  8 ALR3d 1236, § 4[a].

It should be noted that whether a particular offense is one requiring specific, rather than only general, intent depends usually upon the language of the statute in a particular jurisdiction, and consequently what may be a general intent crime in one state is a specific intent crime in another.

Footnote 7. Lawrence v State (Ala App) 341 So 2d 188; State v Melendez, 121 Ariz 1, 588 P2d 294; Kagebein v State, 254 Ark 904, 496 SW2d 435; People v Ford, 60 Cal 2d 772, 36 Cal Rptr 620, 388 P2d 892, cert den  377 US 940,  12 L Ed 2d 303,  84 S Ct 1342 and (ovrld on other grounds People v Satchell 6 Cal 3d 28, 98 Cal Rptr 33, 489 P2d 1361,  50 ALR3d 383) and later app 65 Cal 2d 41, 52 Cal Rptr 228, 416 P2d 132, cert den  385 US 1018,  17 L Ed 2d 554,  87 S Ct 737 and on remand (2d Dist) 253 Cal App 2d 390, 61 Cal Rptr 329; People v Conley, 64 Cal 2d 310, 49 Cal Rptr 815, 411 P2d 911; Dolan v People, 168 Colo 19, 449 P2d 828; State v Dortch, 139 Conn 317, 93 A2d 490; Cirack v State (Fla) 201 So 2d 706; Carey v State, 91 Idaho 706, 429 P2d 836; People v Walsh, 28 Ill 2d 405, 192 NE2d 843 (murder while robbing); State v Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54 NW2d 927; Long v Commonwealth (Ky) 262 SW2d 809; State v Youngblood, 235 La 1087, 106 So 2d 689; Dubs v State, 2 Md App 524, 235 A2d 764; Commonwealth v Whipple (Mass) 1979 Adv Sheets 907, 387 NE2d 575; State v Palen, 119 Mont 600, 178 P2d 862; King v State, 80 Nev 269, 392 P2d 310; State v King, 37 NJ 285, 181 A2d 158,  2 ALR3d 1278; People v Lynch,  23 NY2d 262, 296 NYS2d 327, 244 NE2d 29; State v Propst, 274 NC 62, 161 SE2d 560; State v Braley, 224 Or 1, 355 P2d 467; Commonwealth v Johnson, 410 Pa 605, 190 A2d 146; Commonwealth v Fostar, 455 Pa 216, 317 A2d 188; State v Thompson, 110 Utah 113, 170 P2d 153; State v Hartley, 25 Wash 2d 211, 170 P2d 333; State v Rio, 38 Wash 2d 446, 230 P2d 308, cert den  342 US 867,  96 L Ed 652,  72 S Ct 106 (recognizing rule); State v Bragg, 140 W Va 585, 87 SE2d 689; State v Johnnies,  76 Wis 2d 578, 251 NW2d 807.

Although recognizing that if the defendant was so intoxicated that he did not have the specific intent to rape, he was not guilty of murder in the first degree, the court in People v Cheary, 48 Cal 2d 301, 309 P2d 431, affirmed the conviction of murder in the first degree. The court stated that whether the defendant was so intoxicated as to preclude the existence of the specific intent was a question for the jury, and, since the jury was properly instructed on the effect of intoxication, its verdict necessarily implied that they found that the defendant was not so intoxicated that he did not have the specific intent to rape.  Such determination was amply supported by the evidence even though the testimony regarding the extent of the defendant's intoxication was conflicting, said the court.

Affirming a conviction of murder, the court in People v Lion, 10 Ill 2d 208, 139 NE2d 757, stated that it is the rule that voluntary drunkenness is no excuse for the perpetration of a criminal act, and it may be used to negative the essential elements of intent and malice only where the intoxication is so extreme as to entirely suspend the power of reason. Merely being drunk or intoxicated is no defense, said the court, even though the condition may have lasted for several days.  The court stated that the facts of the case and the conduct of the defendant showed that his intoxication was not so extreme as to render him incapable of having the malice and intent necessary to commit the crime of murder.

Generally, as to intoxication as a defense in homicide cases, see 40 Am Jur 2d,  Homicide §§ 130-132.

Footnote 8. State v Saunders, 102 Ariz 565, 435 P2d 39; People v Curry (4th Dist) 192 Cal App 2d 664, 13 Cal Rptr 596; Nicholson v United States (Dist Col App) 368 A2d 561; State v Linn, 93 Idaho 430, 462 P2d 729; De Boor v State, 243 Ind 87, 182 NE2d 250, cert den  371 US 848,  9 L Ed 2d 83,  83 S Ct 83; Taylor v State, 260 Ind 264, 295 NE2d 600, cert den  414 US 1012,  38 L Ed 2d 250,  94 S Ct 377; State v Mart (La) 352 So 2d 678; People v De Mino, 277 App Div 1121, 100 NYS2d 982; People v Davis (1st Dept)  18 App Div 2d 644, 235 NYS2d 282, affd  13 NY2d 1151, 247 NYS2d 140, 196 NE2d 569; State v Turley, 113 RI 104, 318 A2d 455.

On the basis that the evidence was sufficient to support a finding that the defendant was in full command of all his faculties and fully capable of maliciously intending the consequences of his act in shooting his stepson, the court in De Boor v State, 243 Ind 87, 182 NE2d 250, cert den  371 US 848,  9 L ed 2d 83,  83 S Ct 83, affirmed a conviction of second-degree murder. While evidence of intoxication is admissible and may be considered in behalf of a person on trial for a crime involving specific intent, said the court, it acts as a complete and effective defense only when its degree is such as to render the accused incapable of entertaining the specific intent.  The court stated that there was evidence in the record that the defendant did not stagger, that he walked normally and spoke understandingly, and that his actions were the same shortly before and after the shooting.  The court also stated that the degree of intoxication and the effect of alcohol upon the defendant were questions of fact to be determined by the jury.

Footnote 9. People v Hammock, 68 Ill App 3d 34, 24 Ill Dec 655, 385 NE2d (voluntary manslaughter); Brown v Commonwealth (Ky) 575 SW2d 451 (first-degree manslaughter); Cowling v State (Okla Crim) 327 P2d 500 (manslaughter in first degree); Dodge v State (Wyo) 562 P2d 303.

Footnote 10. Nicholson v United States (Dist Col App) 368 A2d 561; People v Counts, 318 Mich 45, 27 NW2d 338; People v Crane, 27 Mich App 201, 183 NW2d 307 (disagreed with on other grounds People v Rohr 45 Mich App 535, 206 NW2d 788) as stated in People v Starghill 99 Mich App 790, 298 NW2d 641 (felonious assault); State v Crespin (App) 86 NM 689, 526 P2d 1282 (aggravated battery); People v Lane (3rd Dept)  9 App Div 2d 979, 194 NYS2d 846 (second-degree assault arising from alleged acts of incest); State v Bunn, 283 NC 444, 196 SE2d 777 (felonious assault); Dodge v State (Wyo) 562 P2d 303 (assault and battery with dangerous weapon).

Footnote 11. Leach v State, 245 Ala 539, 18 So 2d 289; Myrick v State, 244 Ark 1156, 428 SW2d 241; People v Mathews (3d Dist) 163 Cal App 2d 795, 329 P2d 983; Eastin v State, 233 Ind 101, 117 NE2d 124; Avey v State, 249 Md 385, 240 A2d 107, later app 9 Md App 227, 263 A2d 609.

Footnote 12. Britts v State, 158 Fla 839, 30 So 2d 363.

Footnote 13. Moran v State, 34 Ala App 238, 39 So 2d 419, cert den 252 Ala 60, 39 So 2d 421; People v Peckham (2d Dist) 249 Cal App 2d 941, 57 Cal Rptr 922; Claxton v People, 164 Colo 283, 434 P2d 407; People v Cozzie, 397 Ill 620, 74 NE2d 685; Shipman v State, 243 Ind 245, 183 NE2d 823, cert den  371 US 958,  9 L Ed 2d 504,  83 S Ct 515 (assault and battery with intent to gratify sexual desires); Charles v State, 164 Ind App 260, 328 NE2d 455; State v Holl, 238 Iowa 130, 25 NW2d 853; Michael v State, 1 Md App 243, 229 A2d 145 (assault with intent to have carnal knowledge of female child under 14 years of age); State v Johnson, 243 Minn 296, 67 NW2d 639; Commonwealth v Heatter, 177 Pa Super 374, 111 A2d 371.

The crime of assault with intent to rape involves a specific intent and while it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist, said the court in People v Guillett, 342 Mich 1, 69 NW2d 140, reversing a conviction of assault with intent to rape and remanding for a new trial.  It was held that an instruction by the trial judge that voluntary drunkenness is not a defense to the crime and that a man who puts himself in a position to have no control over his actions must be held to intend the consequences was erroneous, despite the fact that the defendant failed to request the appropriate instructions.

Footnote 14. Wheatley v United States (CA4 W Va) 159 F2d 599; People v Wilson (2d Dist) 261 Cal App 2d 12, 67 Cal Rptr 678; Claxton v People, 164 Colo 283, 434 P2d 407; People v Savage, 5 Ill 2d 296, 125 NE2d 449 (abduction of infant); Shipman v State, 243 Ind 245, 183 NE2d 823, cert den  371 US 958,  9 L Ed 2d 504,  83 S Ct 515.

Footnote 15. People v Cheary, 48 Cal 2d 301, 309 P2d 431; State v Gailey, 69 Idaho 146, 204 P2d 254; State v Evenson, 237 Iowa 1214, 24 NW2d 762; Kahafer v Commonwealth (Ky) 284 SW2d 678 (apparently recognizing rule).

Footnote 16. People v Oliver, 55 Cal 2d 761, 12 Cal Rptr 865, 361 P2d 593 (lewd conduct with child); State v Johnson, 74 Idaho 269, 261 P2d 638 (lewd and lascivious conduct with 9-year-old); People v Freedman, 4 Ill 2d 414, 123 NE2d 317 (immoral, improper, and indecent liberties with a female child); People v Evrard, 55 Ill App 2d 270, 204 NE2d 777 (taking indecent liberties with child under 16); State v Haines (Iowa) 259 NW2d 806 (committing lascivious acts upon person of female child under age of 16 years); Kendall v State, 244 Miss 618, 145 So 2d 924 (indecent assault upon female child).

Footnote 17. Caples v United States (CA5 Miss) 391 F2d 1018 (armed robbery of federally insured bank); United States v Lemon (CA9 Cal) 550 F2d 467 (bank robbery); United States v Williams (DC Md) 332 F Supp 1 (bank robbery); Brown v State, 39 Ala App 149, 96 So 2d 197; People v Spencer, 60 Cal 2d 64, 31 Cal Rptr 782, 383 P2d 134, cert den  377 US 1007,  12 L Ed 2d 1055,  84 S Ct 1924 (robbing murdered taxicab driver); People v Garcia (1st Dist) 169 Cal App 2d 368, 337 P2d 100 (armed robbery); Womack v United States, 119 App DC 40, 336 F2d 959; People v White, 67 Ill 2d 107, 8 Ill Dec 99, 365 NE2d 337 (ovrld on other grounds People v Banks 75 Ill 2d 383, 27 Ill Dec 195, 388 NE2d 1244; armed robbery); Payton v State, 246 Ind 401, 206 NE2d 143; Johnson v Commonwealth (Ky) 302 SW2d 585 (armed robbery); McPherson v State, 208 Miss 784, 45 So 2d 589; State v Brown, 174 Neb 393, 118 NW2d 332; State v Reposa, 99 RI 147, 206 A2d 213; State v Haynes, 58 Wash 2d 716, 364 P2d 935, vacated on other grounds  373 US 503,  10 L Ed 2d 513,  83 S Ct 1336.

Footnote 18. Schwab v United States (CA8 Minn) 327 F2d 11 (Motor Vehicle Theft Act); Alden v Montana (DC Mont) 234 F Supp 661, affd (CA9) 345 F2d 530 (grand larceny, depriving owner of automobile); Green v State (Ala App) 342 So 2d 419 (grand larceny); State v Parsons, 70 Ariz 399, 222 P2d 637; People v Wilson (1st Dist) 160 Cal App 2d 606, 325 P2d 106 (petit theft); People v Arriola (1st Dist) 164 Cal App 2d 430, 330 P2d 683 (grand theft); Edwards v United States, 85 App DC 310, 172 F2d 884; People v Reynolds, 27 Ill 2d 523, 190 NE2d 301; People v Jones, 99 Ill App 2d 364, 240 NE2d 776; State v Estrella, 257 Iowa 462, 133 NW2d 97 (shoplifting); McVey v Commonwealth (Ky) 272 SW2d 33 (grand larceny of money); Hazel v Commonwealth (Ky) 371 SW2d 635 (grand larceny); Brown v State, 6 Md App 631, 252 A2d 887; Best v State, 235 Miss 318, 108 So 2d 840; King v State (Miss) 210 So 2d 887 (grand larceny); Daugherty v State, 154 Neb 376, 48 NW2d 76 (grand larceny); State v Roybal, 66 NM 416, 349 P2d 332; State v Lucero, 70 NM 268, 372 P2d 837; People v Burley, 282 App Div 408, 122 NYS2d 760; State v Koerner, 8 ND 292, 78 NW 981; Phillips v State, (Okla Crim) 321 P2d 724 (larceny of automobile); Thomas v State, 201 Tenn 645, 301 SW2d 358.

As to intoxication as negating specific intent in larceny cases, generally, see 50 Am Jur 2d,  Larceny § 42.

Footnote 19. Goings v United States (CA8 SD) 377 F2d 753, later app (CA8 SD) 393 F2d 884, cert den  393 US 883,  21 L Ed 2d 158,  89 S Ct 191 (applying South Dakota law); Green v State (Ala App) 342 So 2d 419; State v Parsons, 70 Ariz 399, 222 P2d 637; State v Roqueni, 94 Ariz 72, 381 P2d 757, cert den  375 US 948,  11 L Ed 2d 278,  84 S Ct 359 (recognizing rule); People v Wilson (1st Dist) 160 Cal App 2d 606, 325 P2d 106; People v Romero, 182 Colo 50, 511 P2d 466; State v Rutten, 73 Idaho 25, 245 P2d 778 (burglary in first degree); People v Iannaco, 11 Ill 2d 55, 142 NE2d 8; People v Reynolds, 27 Ill 2d 523, 190 NE2d 301; People v Garrett, 46 Ill App 3d 592, 360 NE2d 1231; Hunter v State 246 Ind 494, 207 NE2d 207 (second-degree burglary); Watson v State (Ind App) 386 NE2d 1015 (first-degree burglary); State v Lentz (La) 306 So 2d 683; McFarland v State, 212 Miss 802, 55 So 2d 457; State v Ostwald (Mont) 591 P2d 646; Commonwealth v Bable, 248 Pa Super 496, 375 A2d 350; Bradford v State, 208 Tenn 500, 347 SW2d 33; State v Hartley, 16 Utah 2d 123, 396 P2d 749 (second-degree burglary).

Footnote 20. Young v State (Fla App D3) 162 So 2d 297 (breaking and entering with intent to commit a misdemeanor); State v Linzmeyer, 248 Iowa 31, 79 NW2d 206; Hall v Commonwealth, 310 Ky 718, 221 SW2d 652 (storehouse breaking); Ray v Commonwealth (Ky) 284 SW2d 76; State v Del Vecchio, 142 NJ Super 359, 361 A2d 579 (breaking and entering with intent to steal); State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den  366 US 973,  6 L Ed 2d 1263,  81 S Ct 1941 (breaking and entering with intent to commit felony); State v Murphy, 107 RI 737, 271 A2d 310 (breaking and entering with intent to commit larceny).

Footnote 21. United States v MacLeod (DC Pa) 83 F Supp 372; Woodard v People, 154 Colo 162, 389 P2d 411; State v Baldwin, 69 Idaho 459, 208 P2d 161; State v O'Donnell, 280 Minn 213, 158 NW2d 699 (aggravated forgery); Andrade v State, 87 Nev 144, 483 P2d 208; State v Conklin, 79 Wash 2d 805, 489 P2d 1130 (first-degree forgery).

Footnote 22. United States v Nix (CA7 Ill) 501 F2d 516 (escape from prison); Gallegos v People, 159 Colo 379, 411 P2d 956 (felonious escape); People v Haines, 37 Colo App 302, 549 P2d 786; People v Lundborg, 39 Colo App 498, 570 P2d 1303 (felony menacing); Jenkins v United States (Dist Col App) 242 A2d 214 (possession of prohibited weapon); State v Crocker (Me) 387 A2d 26 (unlawful sexual contact); Brown v State, 6 Md App 631, 252 A2d 887 (obtaining money by false pretenses); People v Cesare (2d Dept)  68 App Div 2d 938, 414 NYS2d 585 (criminal possession of stolen property, and possession of burglar's tools); State v Arnold, 264 NC 348, 141 SE2d 473 (attempting to burn a dwelling house); State v Smith (App) 32 Ohio Ops 2d 130, 198 NE2d 89 (coconspirator or aider and abettor to firing of pistol fatal to victim); Commonwealth ex rel. Dunbar v Keenan, 196 Pa Super 592, 176 A2d 135, cert den  371 US 839,  9 L Ed 2d 74,  83 S Ct 65 (apparently recognizing rule; fraudulent pretenses); Commonwealth v Pickett, 244 Pa Super 433, 368 A2d 799 (conspiracy); Commonwealth v Hart (Pa) 101 Pittsb Leg J 449 (carrying concealed weapons).

Footnote 23. Booher v State, 156 Ind 435, 60 NE 156; State v Heinz, 223 Iowa 1241, 275 NW 10; State v Butner, 66 Nev 127, 206 P2d 253, reh den 67 Nev 436, 220 P2d 631 and cert den  338 US 950,  94 L Ed 586,  70 S Ct 479 and cert den  340 US 913,  95 L Ed 660,  71 S Ct 285 and (ovrld on other grounds Poirier v Board of Dental Examiners 81 Nev 384, 404 P2d 1); State v Phillips, 80 W Va 748, 93 SE 828.

Footnote 24. Stenzel v United States (CA8 Iowa) 261 F 161; Chrisman v State, 54 Ark 283, 15 SW 889; Garner v State, 28 Fla 113, 9 So 835; People v Strader, 23 Ill 2d 13, 177 NE2d 126; Booher v State, 156 Ind 435, 60 NE 156; Latimer v State, 55 Neb 609, 76 NW 207; Warner v State, 56 NJL 686, 29 A 505; State v Koerner, 8 ND 292, 78 NW 981; Pigman v State, 14 Ohio 555; State v Stenback, 78 Utah 350, 2 P2d 1050; State v Phillips, 80 W Va 748, 93 SE 828; Director of Public Prosecutions v Beard (Eng) [1920] AC 479 (HL).

In Johnson v State, 32 Ala App 217, 24 So 2d 228, a conviction was reversed where the evidence affirmatively showed that the defendant's mind was so impaired by drugs taken medicinally, plus liquor, as to render him incapable of forming the required specific intent.

In Murphy v Commonwealth (Ky) 279 SW2d 767, the court, reversing a conviction of operating an automobile without the consent of the owner, ordered the trial court to enter a directed verdict for the defendant.  The court stated that the evidence clearly established that at the time the automobile was taken, the defendant was drunk to the point of being physically incapable of committing or participating in the crime charged.

Footnote 25. Yarber v State, 242 Ind 616, 179 NE2d 882.

Where the offense can be completed only by doing a particular thing with a specific intent, it may be shown that the accused was so drunk that he was incapable of entertaining the intent necessary to constitute the crime. Hankins v State, 206 Ark 881, 178 SW2d 56 (murder).

Evidence of intoxication is admissible and may be considered in behalf of a person on trial for a crime involving specific intent. However, intoxication acts as a complete and effective defense only when its degree is such as to render the accused incapable of entertaining the specific intent. De Boor v State, 243 Ind 87, 182 NE2d 250, cert den  371 US 848,  9 L Ed 2d 83,  83 S Ct 83 (affirming conviction of second-degree murder).

Intoxication to the extent of deprivation of reason and willpower precludes a finding of guilt of the breaking and entering of a building with intent to steal, where the proof shows only a breaking and entering, but not an actual taking or any attempt to take.  State v Phillips, 80 W Va 748, 93 SE 828.

Footnote 26. Kane v United States (CA9 Ariz) 399 F2d 730, cert den  393 US 1057,  21 L Ed 2d 699,  89 S Ct 698 (first degree murder reduced to voluntary manslaughter); Wheatley v United States (CA4 W Va) 159 F2d 599 (kidnapping); United States ex rel. Thompson v Dye (CA3 Pa) 221 F2d 763, cert den  350 US 875,  100 L Ed 773,  76 S Ct 120 (murder in the first degree to murder in the second degree); Government of Virgin Islands v Downey (DC VI) 396 F Supp 349, affd without op (CA3 VI) 529 F2d 511; Gosa v State, 273 Ala 346, 139 So 2d 321 (murder in first degree to manslaughter or murder in second degree); Lewis v State, 42 Ala App 166, 157 So 2d 38 (drunkenness may reduce degree of homicide from murder to manslaughter but is no defense as to either degree of manslaughter); State v Magby, 113 Ariz 345, 554 P2d 1272 (first-degree murder to second-degree murder or manslaughter); People v Horn, 12 Cal 3d 290, 115 Cal Rptr 516, 524 P2d 1300 (conspiracy to commit first degree murder to conspiracy to commit manslaughter); People v Reyes, 12 Cal 3d 486, 116 Cal Rptr 217, 526 P2d 225 (murder in first degree to involuntary manslaughter); People v Matta (5th Dist) 57 Cal App 3d 472, 129 Cal Rptr 205 (murder to involuntary manslaughter); State v Dortch, 139 Conn 317, 93 A2d 490 (first-degree murder to second-degree murder); Bantum v State (Sup) 46 Del 487, 85 A2d 741 (first-degree murder); Dashiell v State (Sup) 52 Del 189, 154 A2d 688 (recognizing rule; murder in first degree to murder in second degree); Harris v United States (Dist Col App) 375 A2d 505; State ex rel. Goepel v Kelly (Fla) 68 So 2d 351 (first-degree murder); Griffin v State (Fla App) 96 So 2d 424 (recognizing rule; murder in first degree); People v Johnson, 32 Ill App 3d 36, 335 NE2d 144; People v Proper, 68 Ill App 3d 250, 24 Ill Dec 741, 385 NE2d 882 (murder to voluntary manslaughter); Hooker v State (Ind App) 387 NE2d 1354; State v Gramenz, 256 Iowa 134, 126 NW2d 285 (dictum recognizing rule; homicide to manslaughter); State v Anderson, 172 Kan 402, 241 P2d 742 (murder to manslaughter); State v Gee, 194 Kan 443, 399 P2d 880 (recognizing rule); Rose v Commonwealth (Ky) 408 SW 2d 621 (maliciously cutting and wounding to cutting and wounding in sudden affray or in sudden heat and passion, without previous malice); Geary v Commonwealth (Ky) 503 SW2d 505; Chisley v State, 202 Md 87, 95 A2d 577 (first-degree murder to second-degree murder); Commonwealth v Dellechiaie, 323 Mass 615, 84 NE2d 7 (murder in first degree to murder in second degree); People v Engle, 61 Mich App 628, 233 NW2d 116; Thurmond v State, 212 Miss 36, 53 So 2d 44 (murder to manslaughter); State v Palen, 119 Mont 600, 178 P2d 862 (first-degree murder reduced to second-degree murder); Tvrz v State, 154 Neb 641, 48 NW2d 761 (first-degree murder); Thompson v State, 159 Neb 685, 68 NW2d 267 (recognizing rule; malicious shooting with intent to kill); State v Butner, 66 Nev 127, 206 P2d 253, reh den 67 Nev 436, 220 P2d 631 and cert den  338 US 950,  94 L Ed 586,  70 S Ct 479 and cert den  340 US 913,  95 L Ed 660,  71 S Ct 285 and (ovrld on other grounds Poirier v Board of Dental Examiners 81 Nev 384, 404 P2d 1; first-degree murder to second-degree murder); Kuk v State, 80 Nev 291, 392 P2d 630 (apparently recognizing rule; first-degree murder); State v Hudson, 38 NJ 364, 185 A2d 1 (first-degree murder may be reduced to second-degree murder); State v Trantino, 44 NJ 358, 209 A2d 117, cert den  382 US 993,  15 L Ed 2d 479,  86 S Ct 573, reh den  383 US 922,  15 L Ed 2d 679,  86 S Ct 901 (first-degree murder may be reduced to second-degree murder); State v Padilla, 66 NM 289, 347 P2d 312,  78 ALR2d 908 (first-degree murder to second-degree murder); People v Caverio, 286 App Div 369, 143 NYS2d 309, settled 286 App Div 972, 144 NYS2d 1, app den 309 NY 913, 131 NE2d 910 and affd  1 NY2d 657, 150 NYS2d 24, 133 NE2d 512 (recognizing rule; first-degree murder); People v Cook (3d Dept)  51 App Div 2d 1072, 380 NYS2d 792; People v Isrile (1st Dept)  64 App Div 2d 536, 406 NYS2d 491; State v Fowler, 285 NC 90, 203 SE2d 803, vacated, in part on other grounds  428 US 904,  49 L Ed 2d 1212,  96 S Ct 3212 (first-degree murder to second-degree murder); State v Bock, 288 NC 145, 217 SE2d 513, vacated, in part on other grounds  428 US 903,  49 L Ed 2d 1209,  96 S Ct 3208; Oxendine v State (Okla Crim) 335 P2d 940 (murder to manslaughter in the first degree); Williams v State (Okla Crim) 513 P2d 335 (murder); State v Braley, 224 Or 1, 355 P2d 467 (first-degree murder may be reduced to second-degree murder); Commonwealth v Reid, 432 Pa 319, 247 A2d 783; Commonwealth v Haywood, 464 Pa 226, 346 A2d 298; Commonwealth v England, 474 Pa 1, 375 A2d 1292; Commonwealth v Wilson, 224 Pa Super 515, 307 A2d 351; Long v State, 187 Tenn 139, 213 SW2d 37 (first-degree murder to second-degree murder); State v Bullington (Tenn) 532 SW2d 556; Cody v Commonwealth, 180 Va 449, 23 SE2d 122 (as between murder in the first degree and murder in the second degree, voluntary drunkenness may be a legitimate subject of inquiry, but as between murder in the second degree and manslaughter, it is never material and cannot be considered); State v Painter, 135 W Va 106, 63 SE2d 86 (murder in first degree to murder in second degree); State v Burdette, 135 W Va 312, 63 SE2d 69 (murder in first degree); Smith v State,  248 Wis 399, 21 NW2d 662 (murder in first degree).

Annotation:  8 ALR3d 1236, § 4[b].

As to intoxication as affecting degree of homicide, generally, see 40 Am Jur 2d,  Homicide §§ 128,  129.

Footnote 27. Newsome v State, 214 Ark 48, 214 SW2d 778; Robertson v State, 212 Ark 301, 206 SW2d 748; Dashiell v State (Sup) 52 Del 189, 154 A2d 688; State v Painter, 135 W Va 106, 63 SE2d 86.

Annotation:  8 ALR3d 1236, § 4[b].

Footnote 28. Marshall v Commonwealth, 141 Ky 222, 132 SW 139; State v Butner, 66 Nev 127, 206 P2d 253, reh den 67 Nev 436, 220 P2d 631 and cert den  338 US 950,  94 L Ed 586,  70 S Ct 479 and cert den  340 US 913,  95 L Ed 660,  71 S Ct 285 and (ovrld on other grounds Poirier v Board of Dental Examiners 81 Nev 384, 404 P2d 1).

For application of rule to homicide, see 40 Am Jur 2d,  Homicide § 138.

Footnote 29.
Annotation:  8 ALR3d 1236, § 4[b].

In State v Arsenault, 152 Me 121, 124 A2d 741, overruling exceptions to instructions of the defendant, who had been convicted of murder, the court stated that voluntary intoxication is no excuse for murder and is not an excuse or justification for, or an extenuation of, a crime.  Maine had abolished the distinction between the degrees of murder and the defendant had requested instructions which would render him not guilty of the crime if the jury found that he was so intoxicated as to have lost his intelligence and his reason and faculties.  The court recognized that where there are statutory degrees of murder, as formerly in Maine, intoxication may sometimes reduce first-degree murder to second-degree murder.

And see Stokes v State, 240 Miss 453, 128 So 2d 341, in which the court, affirming a conviction of murder, stated that voluntary intoxication is no defense in a murder case and that murder cannot be reduced to manslaughter.

Though occasions for its application have not been frequent, the rule appears to be settled that involuntary intoxication relieves the criminality of an act committed under its influence. 30   Involuntary intoxication is said to result from or be induced by the force, duress, fraud, or contrivance of another, 31  but this rule has been given a rather narrow reading in at least one jurisdiction 32  and it has been said that the rule is recognized only under strict limitations. 33  It is not involuntary intoxication where an accused voluntarily consumed liquor given or furnished him by another or by his ultimate victim. 34

The test of involuntary drunkenness is whether there was an absence of an exercise of independent judgment and volition on the part of the accused in taking the intoxicant. 35   And this has been held true despite considerable insistence on the part of the latter, unless there was coercion and abuse to the extent of duress. 36   Although intoxication resulting from drugs taken or administered for medicinal purposes has been regarded as involuntary, 37   intoxication resulting from taking whiskey, without the advice of a physican, to relieve a toothache, has been held not involuntary. 38    On the other hand, "pathological intoxication," described as an acute condition of short duration resulting from the ingestion of alcohol, has been accepted as involuntary intoxication. 39  

Failure to give notice of insanity defense precluded defendant's raising defense of involuntary intoxication. People v Wilkins (1990) 184 Mich App 443, 459 NW2d 57, app den 439 Mich 863; 478 NW2d 90, reconsideration den 482 NW2d 715.

Where defendant voluntarily ingested large amounts of illegal intoxicants and intentionally overdosed on legal drugs, he could not claim involuntary intoxication based upon alleged unexpectedly violent reaction to those drugs due to unknown underlying pathological condition caused by exposure to pesticides. State v Sette (1992) 259 NJ Super 156, 611 A2d 1129, certif den (NJ) 617 A2d 1219.

Since alcoholism may not be the basis for a defense of involuntary intoxication, the trial court did not err in excluding evidence bearing on defendant's intoxication at the guilt-innocence level of defendant's trial on a theft charge; however, the tendered evidence raised the issue of temporary insanity by reason of intoxication and should have been admitted by way of mitigation of punishment. Shurbet v State (1982, Tex App 3d Dist) 652 SW2d 425.

Footnote 30. Bartholomew v People, 104 Ill 601 (ovrld on other grounds People v Montgomery 47 Ill 2d 510, 268 NE2d 695,  67 ALR3d 816 (superseded by statute as stated in People v Ray 54 Ill 2d 377, 297 NE2d 168)) as stated in Charlton v Baker 36 Ill App 3d 427, 344 NE2d 25; Saldiveri v State, 217 Md 412, 143 A2d 70; Carter v State, 12 Tex 500; Johnson v Commonwealth, 135 Va 524, 115 SE 673.

Annotation:  73 ALR3d 195.

Footnote 31. United States v Jewett (CA8 SD) 438 F2d 495, cert den  402 US 947,  29 L Ed 2d 117,  91 S Ct 1640; People v Carlo (1st Dept)  46 App Div 2d 764, 361 NYS2d 168; State v Bunn, 283 NC 444, 196 SE2d 777.

Intoxication occasioned by the fraud, artifice, contrivance, or force of another for the purpose of causing the perpetration of a crime, is involuntary intoxication.  Grimes v Burch, 223 Ga 856, 159 SE2d 69; State v Bevins, 187 Neb 785, 194 NW2d 181.

It is only when alcohol has been introduced into a person's system without his knowledge or by "force majeure" that his intoxication will be regarded as involuntary.  State v Bunn, 283 NC 444, 196 SE2d 777.

Intoxication caused by drinking beer which had been "drugged" without the accused's knowledge is involuntary intoxication. People v White, 131 Ill App 2d 652, 264 NE2d 228.

Footnote 32. To establish a defense of involuntary intoxication, the intoxication must be induced by acts amounting in effect to duress or fraud and it must go to such an extent that the mind of the defendant was incapable of understanding the criminal nature of his act.  Burrows v State, 38 Ariz 99, 297 P 1029 (disapproved on other grounds State v Hernandez 83 Ariz 279, 320 P2d 467).

Footnote 33. Johnson v Commonwealth, 135 Va 524, 115 SE 673.

Footnote 34. Commonwealth v Dudash, 204 Pa 124, 53 A 756.

Footnote 35. Johnson v Commonwealth, 135 Va 524, 115 SE 673.

Annotation:  73 ALR3d 195.

Involuntary intoxication is a defense to criminal culpability when it is shown that the accused has exercised no independent judgment or volition in taking the intoxicant and, as a result of his intoxication, the accused did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.  Torres v State (Tex Crim) 585 SW2d 746.

Where a defendant had received head injuries that lowered his tolerance to alcohol so that intoxication occurred from a relatively small amount of alcohol, and that caused him to become legally insane while so intoxicated, and where there was evidence that the defendant was aware of this weakness, the defendant's intoxication was voluntary intoxication.  Kane v United States (CA9 Ariz) 399 F2d 730, cert den  393 US 1057,  21 L Ed 2d 699,  89 S Ct 698.

Footnote 36. Burrows v State, 38 Ariz 99, 297 P 1029 (disapproved on other grounds State v Hernandez 83 Ariz 279, 320 P2d 467).

Footnote 37.  § 157, infra.

Footnote 38. Flanigan v People, 86 NY 554; Johnson v Commonwealth, 135 Va 524, 115 SE 673.

Annotation:  40 ALR3d 321.

Chronic alcoholism is not per se sufficient to raise the issue of criminal responsibility, except in a charge of drunkenness. Salzman v United States, 131 App DC 393, 405 F2d 358.

When on a given occasion, a person takes his first drink by choice and afterwards drinks successively and finally gets drunk, that is voluntary intoxication, even though he may be an alcoholic. People v Morrow (5th Dist) 268 Cal App 2d 939, 74 Cal Rptr 551.

Footnote 39. Hurley v Commonwealth (Ky) 451 SW2d 838.

In State v Matthews, 20 Or App 466, 532 P2d 250, the testimony of a psychiatrist that a defendant suffered from an "organic brain disease" which made his excessive drinking of alcoholic beverages an "automatic" an "involuntary process," was sufficient to support a finding that the defendant, convicted of manslaughter, was involuntarily intoxicated.

As to the effect that a drug addict is not acting voluntarily in the continued use of the drug, see  § 157, infra.

What little authority has been found indicates that the rules as to criminal responsibility where an act is committed under the influence of drugs are the same as when it is committed under the influence of intoxicating liquor. 40  Thus, the voluntary nonmedicinal use of narcotics is no defense to a crime committed under their influence, 41  although it may lead to acquittal where it excludes the required specific intent. 42

Involuntary narcosis, however, like involuntary alcoholic intoxication, may negative criminal responsibility. 43    Intoxication resulting from drugs medicinally administered is considered as involuntary. 44   Apparently it may be so considered even where the drug was self-administered. 45   And although the rule seems to be the other way in the case of chronic alcoholism, 46   it has been held that a person who has become addicted to a narcotic and is unable to resist the craving for it cannot be said to act voluntarily in its continued use. 47  

Practice Aids: Benton et al., Drugs and Criminal Responsibility. 33 Vand L R 1145, October, 1980.

Fact that defendant had injected three bags of heroin about hour before robbery did not entitle him to have court instruct jury as to defense of involuntary intoxication; fact that defendant was addicted to heroin did not render use of drug involuntary. Tacorante v People (1981, Colo) 624 P2d 1324.

Court properly excluded evidence, at trial on charges of attempted first-degree assault, first-degree reckless endangerment and third-degree possession of weapon, that defendant (diabetic) had been hospitalized for lack of insulin shortly after incident in which he accosted woman in parking lot and fired 2 shotgun blasts at her vehicle as she drove away, despite defendant's claim that he was unable to form requisite intent as result of undermedication of insulin, where no expert testimony was offered to explain what effect lack of insulin would have on individual or how long it would take for defendant's condition to develop. People v Philipson (1989, 2d Dept)  150 AD2d 615, 541 NYS2d 483, app den  74 NY2d 817, 546 NYS2d 575, 545 NE2d 889.

The trial court in a prosecution for attempted first-degree rape and first-degree sexual offense correctly refused to instruct the jury on the defense of unconsciousness or automatism where all the evidence tended to show that defendant's mental state was caused by his voluntary smoking of the drug characterized as "angel dust." State v Boone (1982) 307 NC 198, 297 SE2d 585.

Footnote 40. People v Sameniego, 118 Cal App 165, 4 P2d 809, reh den 118 Cal App 174, 5 P2d 653 (statute dealing with effect of voluntary intoxication includes all forms of voluntary intoxication, not just those caused by alcohol); De Berry v Commonwealth (Ky) 289 SW2d 495, cert den  352 US 881,  1 L Ed 2d 81,  77 S Ct 105; State v White, 27 NJ 158, 142 A2d 65; Couch v State (Okla Crim) 375 P2d 978; State v Roisland, 1 Or App 68, 459 P2d 555.

Annotation:  73 ALR3d 16.

Intoxication which resulted from the taking of a pill in order to feel "groovy" or to get "a little sunshine" was held to constitute voluntary intoxication.  State v Hall (Iowa) 214 NW2d 205,  73 ALR3d 85.

Compare Saldiveri v State, 217 Md 412, 143 A2d 70, discussing testimony that sodium amytal has no intoxicating effect.

See 40 Am Jur 2d,  Homicide § 133.

Practice Aids: –Wald, Alcohol, Drugs, and Criminal Responsibility.  1974, 63 Georgetown LJ 69.

Fingarette, Addiction and Criminal Responsibility.  1975, 84 Yale L J 413.

Footnote 41. State v White, 27 NJ 158, 142 A2d 65; Couch v State (Okla Crim) 375 P2d 978; State v Blassingame, 221 SC 169, 69 SE2d 601.

Uncontroverted evidence that a defendant, accused of murder, had been voluntarily taking librium tranquilizers for several months prior to the offense, and that during that period, he had consumed large quantities of alcohol as well, was held to be sufficient to permit the trial court to determine that the defendant was aware of the effects of such a combination and willingly assumed the risk.  People v Mahle (1st Dist) 273 Cal App 2d 309, 78 Cal Rptr 360.

In a prosecution of a man and three women for murder and conspiracy to commit murder arising out of two successive multiple homicides, the trial court properly refused defendants' requested jury instructions on diminished capacity, where, though there was evidence that hallucinogenic drugs were available and were used by the communal "family" to which defendants belonged, no evidence suggested that anyone ingested any drugs at any time proximate to the murders, and where there was no evidence concerning the effect of prior usage of drugs on any defendant, or that any of them suffered from undisputed mental illness or from incapacity to materially and meaningfully reflect on the gravity of contemplated acts.  People v Manson (2d Dist) 61 Cal App 3d 102, 132 Cal Rptr 265, cert den  430 US 986,  52 L Ed 2d 382,  97 S Ct 1686 and later app (2d Dist) 113 Cal App 3d 280, 170 Cal Rptr 189.

Footnote 42. State v White, 27 NJ 158, 142 A2d 65.

Footnote 43. State v Rippy, 104 NC 752, 10 SE 259, holding it to be a complete defense that a crime was committed in a frenzy produced by an overdose of morphine administered as medicine.

A defense of involuntary intoxication due to ingestion of a prescribed drug is available if the defendant did not know or have reason to know that the prescribed drug was likely to have an intoxicating effect, if the prescribed drug and not some other intoxicant was in fact the cause of defendant's intoxication, and if the defendant, due to involuntary intoxication, was temporarily insane at the time of his alleged criminal conduct.  Minneapolis v Altimus (Minn) 238 NW2d 851.

Intoxication induced by coffee which had been drugged (presumably by LSD) without the accused's knowledge is involuntary intoxication.  Commonwealth v McAlister 365 Mass 454 313 NE2d 113, cert den  419 US 1115,  42 L Ed 2d 814,  95 S Ct 794.

Footnote 44. Saldiveri v State, 217 Md 412, 143 A2d 70; State v Rippy, 104 NC 752, 10 SE 259.

Intoxication resulting from medicine which has been prescribed (and taken as prescribed) or administered by a physician, is involuntary intoxication. Dubs v State, 2 Md App 524, 235 A2d 764; State v Bunn, 283 NC 444, 196 SE2d 777.

As to insanity brought on by use of drugs, see  § 55, supra.

Footnote 45. Where a defendant took intoxicating pills to ward off an attack of epilepsy, it was a question for the jury whether this was sufficient to render his intoxication involuntary.  People v Baker, 42 Cal 2d 550, 268 P2d 705.

Footnote 46.  § 156, supra.

Footnote 47. Prather v Commonwealth, 215 Ky 714, 287 SW 559.

Under a statute governing the defense of involuntary intoxication and associating it with intoxication through force, fraud or mistake, drug addiction would not be considered as a basis for "involuntariness":  an addict could not have consumed drugs the first time without an exercise of will and still retains some ability to extricate himself from his addiction; it would be difficult for a jury to decide whether an accused was one of those so addicted that he had lost self-control in taking drugs; and to deny the addict the involuntariness defense still leaves him able to pursue a voluntary intoxication defense.  Loveday v State,  74 Wis 2d 503, 247 NW2d 116.

IV.  ATTEMPTS AND SOLICITATION [158-162]

An attempt to commit a crime was itself an indictable offense at common law. 48  The question as to what constitutes an attempt is often intricate and difficult to determine, and no general rule can be laid down which will serve as a test in all cases.  Each case must be determined on its own facts, but there are certain well-established principles which may be applied. 49     An attempt has been defined as any overt act done with the intent to commit the crime, and which, except for the interference of some cause preventing the carrying out of the intent, would have resulted in the commission of the crime. 50   However, as will appear below, an attempt is sometimes held to be complete though some further voluntary act on the part of the attempter is necessary to accomplish the intended result.

An attempt has two elements:  a specific intent to commit a particular crime, and a direct ineffectual act toward its commission. 51  In other words, there must be unity of intent and overt act. 52       

According to some authorities, failure to consummate the ultimate crime intended is as much an element of the crime of attempt as the intent and the overt act; hence there can be no conviction for attempt where the substantive offense is complete. 53    It seems, however, that partial accomplishment of the purpose intended does not always prevent a prosecution. 54   Some jurisdictions, moreover, do not accept the view that there can be no conviction for an attempt where the evidence shows that the crime attempted was consummated. 55   And in others, attempt convictions under such circumstances are specifically authorized by statute. 56

According to a number of authorities, where the substantive offense is in the nature of an attempt, there can be no conviction for an attempt to commit it, since this would be merely an attempt to attempt. 57    This doctrine, however, is not universally accepted. 58   

Once the elements of a criminal attempt are complete, abandonment of the criminal purpose will not constitute a defense to a charge of attempt. 59   

Practice Aids: Hoeber, The Abandonment Defense to Criminal Attempt and Other Problems of Temporal Individuation. 74 Cal LR 377, March, 1986.

Davis, Why Attempts Deserve Less Punishment Than Complete Crimes. 5 Law & Philosophy 1, April, 1986.

Ashworth, Criminal Attempts and the Role of Resulting Harm Under the Code and in the Common Law. 19 Rut LJ 725, Spring, 1988.

Trial court properly instructed jury that malice and specific intent to kill are elements of attempted murder. People v Visciotti (1992) 2 Cal 4th 1, 5 Cal Rptr 2d 495, 825 P2d 388, 92 CDOS 2199, 92 Daily Journal DAR 3468, reh den (Cal) 1992 Cal LEXIS 2132, stay gr (Cal) 1992 Cal LEXIS 3498 and petition for certiorari filed (Jul 24, 1992).

Evidence that defendant said he was going to kill victim, then loaded firearm and went to victim's home, where he crouched outside door, was sufficient to support conviction for attempted murder. People v Morales (1992, 1st Dist) 5 Cal App 4th 917, 7 Cal Rptr 2d 358, 92 CDOS 3524, 92 Daily Journal DAR 5433, reh den (Cal App 5th Dist) 92 CDOS 3775, 92 Daily Journal DAR 5935, review den (Cal) 1992 Cal LEXIS 3673.

A defendant is guilty of an attempt when he or she harbors a specific intent to commit the crime and does a direct but ineffectual act toward its commission. The act need not be an element of the substantive offense, but need only indicate a certain intent to commit the crime and constitute an immediate step in the present execution of the criminal design. No bright line distinguishes when an act crosses into commencement of the criminal scheme. The more clearly the intent to commit the offense is shown, the less proximate the acts need be to final consummation of the crime. People v Burus (1992, 4th Dist) 8 Cal App 4th 715, 10 Cal Rptr 2d 483, 92 CDOS 6756, 92 Daily Journal DAR 10713, review den, op withdrawn by order of ct (Cal) 92 CDOS 8704, 92 Daily Journal DAR 14438 and review den (Oct 22, 1992).

An attempt to commit a crime consists of two essential elements: a specific intent to commit the crime and an overt act, beyond mere preparation, done towards its commission; the intent and the act must be such that they would have resulted, except for the interference of some cause preventing the carrying out of the intent, in the completed comission of the crime. Adams v Murphy (1981, Fla) 394 So 2d 411.

When the definition of a criminal offense includes an attempt to commit such offense, there can be no separate crime of attempt. Thus the offense of attempted resisting arrest with violence does not exist since the applicable state statute, defining the offense of resisting arrest with violence, extends to both doing violence to the person of an arresting officer and to offering to do such violence, and since the legislature's use of the word "offering" in such statute is equivalent to the use of the word "attempting." McAbee v State (1980, Fla App D2) 391 So 2d 373.

For renunciation to be "voluntary" under CLS Penal §  40.10, abandonment must reflect change in actor's purpose or change of heart that is not influenced by outside circumstances, and abandonment cannot be motivated in whole or in part by belief that circumstances exist that increase possibility of detection or apprehension or make more difficult the completion of crime; to be "complete," abandonment must be permanent, not temporary or contingent, and not simply decision to postpone criminal conduct until another time or to transfer criminal effort to another victim. People v Taylor (1992)  80 NY2d 1, 586 NYS2d 545, 598 NE2d 693.

An order dismissing the indictment of a defendant for criminal sale of a controlled substance in the third-degree and petit larceny was reversed and permission to resubmit was granted where the evidence before the Grand Jury was sufficient, if uncontradicted, to establish an attempt to sell a controlled substance, notwithstanding the fact that the substance actually transferred was aspirin, since the defendant may have believed the substance was cocaine and therefore have been guilty of any attempt to sell a controlled substance; furthermore, the indictment charging petit larceny was sufficient even without allegations of the manner by which the larceny was committed or various elements of that method of committing the crime. People v Culligan (1980, 4th Dept)  79 App Div 2d 875, 484 NY S2d 546.

In a prosecution for first-degree robbery and attempted robbery, the conviction for attempted robbery was proper despite the fact that defendant did not take any money from the victim after demanding money at gunpoint, since renunciation does not negate the commission of the inchoate crime of attempt. People v Johnston (1982, 3d Dept)  87 App Div 2d 703, 448 NY S2d 902.

In a prosecution for criminal solicitation and criminal attempt based on a reverse sting operation in which undercover officers arranged to sell 100 pounds of marijuana to the defendant, the court would reject the defendant's contention that police involvement in the reverse sting operation was so outrageous that the prosecution would be barred on due process grounds. The defendant's due process rights were not violated by the fact that the police used an untrained informant who was permitted to make the initial contact without police supervision, by the fact that the police provided the defendant with a marijuana sample and offered him an opportunity to make a substantial profit or by the fact that the police used an informant who was paid a contingency fee. Commonwealth v Mance (1995, Pa) 652 A2d 299.

Footnote 48. State v Batson, 220 NC 411, 17 SE2d 511.

Attempts which, if successful, would have resulted in an indictable offense, are indictable.  Commonwealth v Tolman, 149 Mass 229, 21 NE 377.

Practice Aids: Enker, Mens Rea and Criminal Attempt.  1977, ABF Res J 845.

Footnote 49. McDowell v State, 19 Ala App 532, 98 So 701; People v Miller, 2 Cal 2d 527, 42 P2d 308; State v Thompson, 118 Kan 256, 234 P 980; Nider v Commonwealth, 140 Ky 684, 131 SW 1024; Stokes v State, 92 Miss 415, 46 So 627; People v Rizzo, 246 NY 334, 158 NE 888,  55 ALR 711; State v Taylor, 47 Or 455, 84 P 82; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.

Whether an attempt has been made to commit a crime depends on the condition of the actor's mind and his conduct in the circumstances.  People v Moran, 123 NY 254, 25 NE 412.

For application to particular crimes, see particular titles, for example, 40 Am Jur 2d,  Homicide §§ 565-567.

Footnote 50. People v Mayen, 188 Cal 237, 205 P 435,  24 ALR 1383 (ovrld on other grounds People v Cahan 44 Cal 2d 434, 282 P2d 905,  50 ALR2d 513) and (ovrld on other grounds People v Matteson 61 Cal 2d 466, 39 Cal Rptr 1, 393 P2d 161); Gustine v State, 86 Fla 24, 97 So 207; People v Lardner, 300 Ill 264, 133 NE 375; State v Roby, 194 Iowa 1032, 188 NW 709; State v Mitchell, 170 Mo 633, 71 SW 175; People v Rizzo, 246 NY 334, 158 NE 888; State v Taylor, 47 Or 455, 84 P 82; State v Hurley, 79 Vt 28, 64 A 78; State v Butler, 8 Wash 194, 35 P 1093.

A "criminal attempt" is when one purposely does or omits to do anything which is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.  To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose.  State v Woods, 48 Ohio St 2d 127, 2 Ohio Ops 3d 289, 357 NE2d 1059 (ovrld on other grounds State v Downs 51 Ohio St 2d 47, 5 Ohio Ops 3d 30, 364 NE2d 1140, vacated, in part  438 US 909,  57 L Ed 2d 1153,  98 S Ct 3133) and vacated, in part on other grounds  438 US 910,  57 L Ed 2d 1153,  98 S Ct 3133.

Whenever a person's acts have gone to the extent of placing it in his power to commit the offense unless interrupted, and nothing except such interruption prevents his commission of it, he is guilty of an attempt to commit the offense.  People v Sullivan, 173 NY 122, 65 NE 989.

The common-law rule as to what constitutes an attempt to commit an offense is not changed by a statute providing for punishment of every person who shall attempt to commit a crime and do any act toward its commission, but shall fail in the perpetration or shall be intercepted or prevented in the execution of the same.  People v Youngs, 122 Mich 292, 81 NW 114.

Footnote 51. Hill v State, 27 Ala App 160, 167 So 606; State v Westbrook, 79 Ariz 116, 285 P2d 161,  53 ALR2d 619; People v Buffum, 40 Cal 2d 709, 256 P2d 317; King v State, 85 Fla 257, 95 So 567; People v Lardner, 300 Ill 264, 133 NE 375,  19 ALR 721; State v Western, 210 Iowa 745, 231 NW 657; State v McCarthy, 115 Kan 583, 224 P 44; Nider v Commonwealth, 140 Ky 684, 131 SW 1024; Nemecek v State, 72 Okla Crim 195, 114 P2d 492; State v Harvey, 119 Or 512, 249 P 172; Commonwealth v Johnson, 312 Pa 140, 167 A 344; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.

Footnote 52. People v Anderson, 1 Cal 2d 687, 37 P2d 67; State v Wright, 74 Wash 2d 355, 444 P2d 676, cert den  394 US 961,  22 L Ed 2d 562,  89 S Ct 1305.

Where acts are not sufficient in themselves to produce a result which the law seeks to prevent, but require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen; but when that intent and the consequent dangerous probability exist, the law directs itself against that dangerous probability as well as against the completed result.  Swift & Co. v United States,  196 US 375,  49 L Ed 518,  25 S Ct 276.

Footnote 53. United States v Quincy,  31 US 445,  8 L Ed 458; Hill v State, 27 Ala App 160, 167 So 606; People v Lardner, 300 Ill 264, 133 NE 375; State v Harvey, 119 Or 512, 249 P 172; Commonwealth v Johnson, 312 Pa 140, 167 A 344.

A statute punishing persons who attempt to commit an offense but fail or are prevented from doing so has been held to make failure or prevention of the ultimate crime as much an element of the offense of attempt as the intent and overt act.  State v Franklin, 139 W Va 43, 79 SE2d 692.

Footnote 54. One may be convicted of attempting to obtain money by false pretenses even though he received part of the money which he sought to obtain.  Commonwealth v Johnson, 312 Pa 140, 167 A 344.

Footnote 55. State v Fox, ---- (Iowa) ----, 159 NW2d 492; People v Baxter, 245 Mich 229, 222 NW 149; Nielson v State (Tex Crim) 437 SW2d 862.

As to conviction of attempt under indictment charging specific crime, see 41 Am Jur 2d,  Indictments and Informations § 306.

Footnote 56. State v Braathen, 77 ND 309, 43 NW2d 202.

Ownership of premises described in the allegation of an attempt to discharge a destructive device with intent to damage a structure, is not an element of the alleged crime.  In a prosecution of a defendant accused of an attempt to place or throw a destructive device, it is not error to charge under the destructive device statute and also under the general attempt statute notwithstanding that the destructive device statute refers to "attempt to discharge," since the destructive device statute refers also to the throwing or placing of a destructive device without referring to an attempt to do so.  A state statute proscribes as a single crime the possession of dynamite but authorizes two levels of punishment depending on whether intent to harm is present; thus, there can be only one sentence even though a defendant is convicted of both the the charge of possession and the charge of possession with intent to harm.  De La Cova v State (Fla App D3) 355 So 2d 1227, cert den (Fla) 361 So 2d 831.

Footnote 57. Wiseman v Commonwealth, 143 Va 631, 130 SE 249.

Annotation:  79 ALR2d 597, §§ 1, 2.

See authorities collected in State v Wilson, 218 Or 575, 346 P2d 115,  79 ALR2d 587.

Footnote 58. State v Wilson, 218 Or 575, 346 P2d 116,  78 ALR2d 587.

Annotation:  79 ALR2d 597, § 3.

Footnote 59. People v Robinson (2d Dist) 180 Cal App 2d 745, 4 Cal Rptr 679.

Where a criminal intent had been formed, and where such intent had been coupled with an overt act toward the commission of the contemplated offense, abandonment of the criminal purpose could not be raised as a defense to a charge of attempting to commit the crime and an instruction on abandonment was not required.  State v Cooper, 52 Ohio St 2d 163, 6 Ohio Ops 3d 377, 370 NE2d 725, vacated, in part on other grounds  438 US 911,  57 L Ed 2d 1157,  98 S Ct 3137.

Mere intention to commit a specified crime does not amount to an attempt. 60   It is also essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission thereof. 61   However, not every act that may be done with intent to produce an unlawful result is unlawful or constitutes an attempt; it is a question of proximity and degree. 62    

According to many authorities, mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it, 63   especially when made at a distance from the place where the substantive offense is to be committed, 64  for there must be some act moving directly toward the commission of the offense after the preparations are made. 65   However, while there is sometimes a wide difference between preparation for an attempt and the attempt itself, 66  it has been found difficult, if not impossible, to formulate legal rules which will distinguish between them in close cases. 67  And it has been said that no definite line can be drawn and that the question is one of degree. 68    In a general way it may be said that preparation consists in devising or arranging the means or measures necessary for the commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made. 69   It has been held that even though a person actually intends to commit a crime, his procurement of the instrumentalities adapted to that end will not constitute an attempt to commit the crime in the absence of some further overt act. 70   But it has been suggested that if preparation comes very near the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, though there is still a locus penitentiae in the need of a further exertion of the will to complete the crime. 71     

It is difficult to formulate any precise rule about how close the overt act must come to the accomplishment of the ultimate criminal result. 72   If the accused expected his acts to accomplish that result without further effort on his part, this will usually be enough, unless his expectation was very absurd. 73   And some formulations of the rule appear to require this before the attempt will be considered complete. 74  However, it has been said that this requirement is no longer generally the law in this country, since the accused is frequently held to have passed beyond preparation, though interrupted before the last of his intended steps. 75  Other cases state that while the act need not be the last proximate act to the consummation of the offense, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement toward the commission of the offense after the preparations are made. 76  It has been said that some appreciable fragment of the crime must have been committed. 77  Some cases emphasize the immediate and direct tendency to bring about the principal crime, and the power of defendant to carry his intention into execution. 78

Some formulations of the rule would apparently be satisfied by any effort to bring about the forbidden result. 79   

It has been suggested that the degree of danger that the result will be accomplished is determinative 80      and that when the evil threatened is especially grave, liability for criminal attempt may begin at a point more remote from its accomplishment than in the case of lighter offenses. 81   However, it has also been held that the reason for requiring an overt act is that without it there is too much uncertainty as to what the intent actually was. 82    From this point of view, what is needed is an act which makes the intent unequivocal. 83   Some confirmation of the latter view may be found in holdings that whenever the design of a person to commit a crime is clearly shown, slight acts in furtherance of the design will constitute an attempt. 84

Attempt instruction without "substantial step" language did not constitute plain error since evidence that defendant had taken substantial step strongly corroborative of his criminal intent was so strong that any error from omission of "substantial step" language was not plain error since it could not have meant difference between acquittal and conviction. United States v Contreras (1991, CA5 Tex) 950 F2d 232, cert den (US)  119 L Ed 2d 202,  1125 S Ct 2276.

In a prosecution of defendant for violating FS § 893.13(3)(a)1, making it unlawful for any person to attempt to acquire or obtain possession of a controlled substance by fraud, the trial court improperly dismissed the information on the asserted grounds that the undisputed facts failed to establish a prima facie case of guilt where defendant had gone to the doctor's office, requesting a new prescription on the basis that his mother had washed and destroyed the original prescription, which was untruthful, and the doctor had refused to issue a new prescription; the allegations of defendant's motion to dismiss and the state's traverse established the necessary intent, and the defendant's untruthfulness with reference to the destruction of the prescription, made for the express purpose of obtaining another prescription, constituted an overt act done toward the commission of the crime. State v Coker (1984, Fla App D2) 452 So 2d 1135.

Charge of completed crime which alleges no overt act except completed crime does not charge attempt to commit completed crime. Commonwealth v Foley (1987) 24 Mass App 114, 506 NE2d 1160.

One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime. Accordingly, the requisite overt act need not be the last proximate or ultimate step towards commission of the substantive crime. People v Dillon (1983) 84 Cal 3d 441.

Footnote 60. People v Miller, 2 Cal 2d 527, 42 P2d 308; People v Mills, 178 NY 274, 70 NE 786.

Footnote 61. Jackson v State, 91 Ala 55, 8 So 773; State v Doran, 99 Me 329, 59 A 440; People v Youngs, 122 Mich 292, 81 NW 114; Stokes v State, 92 Miss 415, 46 So 627; State v Howell, 318 Mo 772, 300 SW 807; State v Rains, 53 Mont 424, 164 P 540; State v Lung, 21 Nev 209, 28 P 235 (ovrld on other grounds Darnell v State 92 Nev 680, 558 P2d 624); People v Mills, 178 NY 274, 70 NE 786; State v Addor, 183 NC 687, 110 SE 650; State v Hurley, 79 Vt 28, 64 A 78; 78; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.

Footnote 62. Swift & Co. v United States,  196 US 375,  49 L Ed 518,  25 S Ct 276.

Footnote 63. People v Camodeca, 52 Cal 2d, 142, 338 P2d 903; Groves v State, 116 Ga 516, 42 SE 755; People v Woods, 24 Ill 2d 154, 180 NE2d 475, cert den  371 US 819,  9 L Ed 2d 59,  83 S Ct 34; State v Roby, 194 Iowa 1032, 188 NW 709; State v Thompson, 118 Kan 256, 234 P 980; People v Rizzo, 246 NY 334, 158 NE 888; State v Addor, 183 NC 687, 110 SE 650; State v Taylor, 47 Or 455, 84 P 82; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.

Persons who procure firearms and an automobile and go upon the streets with intent to rob a messenger carrying a payroll are not guilty of violating a statute making an attempt to commit robbery an act done with intent to commit the crime, and tending, but failing, to effect its commission, where they have not found the one whom they intend to rob and the money has not yet been drawn from the bank to meet the payroll.  People v Rizzo, 246 NY 334, 158 NE 888.

Where defendant drove to a still with 12 empty half-gallon jars in his car, intending to buy, transport, and resell whisky, but the still was raided while he was waiting for his order to be filled, the court was unanimously of the opinion that the evidence did not show an attempt to sell ardent spirits, and the majority opinion was that it was insufficient to convict of an attempt to transport. Andrews v Commonwealth, 135 Va 451, 115 SE 558.

Footnote 64. Groves v State, 116 Ga 516, 42 SE 755; State v Roby, 194 Iowa 1032, 188 NW 709; People v Rizzo, 246 NY 334, 158 NE 888; State v Hurley, 79 Vt 28, 64 A 78.

Footnote 65. State v Roby, 194 Iowa 1032, 188 NW 709; State v Doran, 99 Me 329, 59 A 440; State v Lung, 21 Nev 209, 28 P 235 (ovrld on other grounds Darnell v State 92 Nev 680, 558 P2d 624); McEwing v State, 134 Tenn 649, 185 SW 688.

An attempt to break and enter a dwelling house is not made by the fact that a person left his home with revolver and slippers and traveled nine miles toward the place where he intended to commit the crime, where he met a person with whom he had planned to commit the crime, and then provided himself with chloroform and loaded his revolver, but was prevented from committing the crime by being arrested.  People v Youngs, 122 Mich 292, 81 NW 114.

Footnote 66. Vogel v State, 124 Fla 409, 168 So 539.

Footnote 67. Cornwell v Fraternal Acc. Ass'n. 6 ND 201, 69 NW 191; McEwing v State, 134 Tenn 649, 185 SW 688.

Footnote 68. United States v Coplon (CA2 NY) 185 F2d 629,  28 ALR2d 1041, cert den  342 US 920,  96 L Ed 688,  72 S Ct 362.

Footnote 69. People v Anderson, 1 Cal 2d 687, 37 P2d 67; People v Youngs, 122 Mich 292, 81 NW 114; State v Hurley, 79 Vt 28, 64 A 78.

Footnote 70. The procurement by a prisoner of tools adapted to jail breaking does not render him guilty of an attempt to break jail.  State v Hurley, 79 Vt 28, 64 A 78.

Footnote 71. United States v Coplon (CA2 NY) 185 F2d 629,  28 ALR2d 1041, cert den  342 US 920,  96 L Ed 688,  72 S Ct 362; Commonwealth v Peaslee, 177 Mass 267, 59 NE 55.

Footnote 72. Jenkins v State, 53 Ga 33; State v Roby, 194 Iowa 1032, 188 NW 709; Stokes v State, 92 Miss 415, 46 So 627; State v Mitchell, 170 Mo 633, 71 SW 175; People v Sullivan, 173 NY 122, 65 NE 989; State v Taylor, 47 Or 455, 84 P 82; State v Hurley, 79 Vt 28, 64 A 78.

Footnote 73. Commonwealth v Kennedy, 170 Mass 18, 48 NE 770.

Footnote 74. The crime must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.  People v Camodeca, 52 Cal 2d 142, 338 P2d 903.

An overt act essential to an attempt to commit a crime is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.  People v Mills, 178 NY 274, 70 NE 786.

The act must be one which will apparently result in commission of the crime itself in the usual and normal course of events, if not hindered by extraneous causes.  Nemecek v State, 72 Okla Crim 195, 114 P2d 492.

Footnote 75. United States v Coplon (CA2 NY) 185 F2d 629,  28 ALR2d 1041, cert den  342 US 920,  96 L Ed 688,  72 S Ct 362.

Footnote 76. McDowell v State, 19 Ala App 532, 98 So 701; People v Fulton (2d Dist) 188 Cal App 2d 105, 10 Cal Rptr 319; People v Staples (2d Dist) 6 Cal App 3d 61, 85 Cal Rptr 589; State v Roby, 194 Iowa 1032, 188 NW 709; State v Rains, 53 Mont 424, 164 P 540; People v Sullivan, 173 NY 122, 65 NE 989; State v Addor, 183 NC 687, 110 SE 650; Nemecek v State, 72 Okla Crim 195, 114 P2d 492; State v Taylor, 47 Or 455, 84 P 82; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.

To constitute an attempt, the act need not be the ultimate step toward, or the last proximate, or the last possible, act to the consummation of the crime attempted to be perpetrated.  State v Thomas (Mo) 438 SW2d 441.

Footnote 77. People v Camodeca, 52 Cal 2d 142, 338 P2d 903.

Footnote 78. People v Youngs, 122 Mich 292, 81 NW 114.

Footnote 79. Howard v Commonwealth, 207 Va 222, 148 SE2d 800.

To attempt to do an act does not, either in law or in common parlance, imply a completion of the act or any definite progress toward it.  An effort or endeavor to effect it will satisfy the term of the law.  United States v Quincy,  31 US 445,  8 L Ed 458.

Footnote 80. United States v Coplon (CA2 NY) 185 F2d 629,  28 ALR2d 1041, cert den  342 US 920,  96 L Ed 688,  72 S Ct 362.

Since the aim of the law is not to punish sins but to prevent certain external results, the act done must come pretty near accomplishing that result before the law will notice it. Commonwealth v Kennedy, 170 Mass 18, 48 NE 770.

Footnote 81. Commonwealth v Kennedy, 170 Mass 18, 48 NE 770.

An attempt to commit a crime is an act done with intent to commit that crime, and forming a part of a series of acts which would constitute its actual commission if it were not interrupted. All acts done in preparation are, in a sense, acts done toward the accomplishment of the thing contemplated.  State v Davis, 199 Kan 33, 427 P2d 606.

Footnote 82. State v Mandel, 78 Ariz 226, 278 P2d 413; People v Bowlby (2d Dist) 135 Cal App 2d 519, 287 P2d 547,  53 ALR2d 1147.

Footnote 83. People v Buffum, 40 Cal 2d 709, 256 P2d 317; State v Damms,  9 Wis 2d 183, 100 NW2d 592,  79 ALR2d 1402 (by statute).

Footnote 84. People v Anderson, 1 Cal 2d 687, 37 P2d 67; State v Roby, 194 Iowa 1032, 188 NW 709; Stokes v State, 92 Miss 415, 46 So 627.

Whenever the law makes it a crime to take one step toward the accomplishment of an unlawful object with the intent or purpose of accomplishing it, a person taking that step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance. 85     Thus, one who thrusts his hand into another's pocket, intending to steal what he finds there, may be guilty of attempted larceny, though the pocket was empty. 86   And one who, believing a gun to be loaded, points it at another and pulls the trigger, may be convicted of attempted murder, though the gun was not loaded. 87  The theory is that one whose intent and conduct are consistent with criminal attempt should not escape responsibility merely because, due to some fortuitous circumstance not apparent to him when he acted, he could not effectuate the intended result. 88   It is frequently said that the thing attempted must not be an impossibility, but it seems that this rule refers only to inherent impossibility, 89  not to impossibility due to outside interference, or miscalculation as to a supposed opportunity which failed to materialize; in short, it has no application where the impossibility grows out of extraneous facts not within the party's control. 90   It is sufficient if, looking at the facts as they were understood by the accused at the time he acted, the crime appeared to be possible. 91   But the crime must be at least apparently possible to the reasonable apprehension of the accused. 92   And it seems to make a difference whether the impossibility of committing the offense is legal or merely factual. 93    Where the impossibility is legal, it is usually held that there can be no attempt.  Thus, where the accused is legally incapable of committing the substantive offense, he cannot be convicted of attempting it. 94   And the act attempted must be a crime. 95  Where, as a matter of law, the act if accomplished would not constitute a crime, the attempt is not criminal. 96   This has been held to be the case even where the act was done with the belief that it was a crime and with intent to commit that crime. 97    However, there is a split of authority as to whether one who believes property is stolen, when in fact it has lost that status through being recovered by police or the owner, can be guilty of a criminal attempt to receive it. 98    And it may be noted that some jurisdictions punish attempted suicide without regarding suicide itself as a crime. 99  

Practice Aids: Friedman, Impossibility, Subjective Probability, And Punishment For Attempts, 20 J Legal St 179, 1991.

Fact that gun was unloaded as affecting criminal responsibility.  68 ALR4th 507.

Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime.  41 ALR4th 588.

As to the difference between legal and factual impossibility as it applies to commission of the crime with which defendant in a criminal prosecution is charged, the hypothesis of the rule established in this state is that the defendant must have the specific intent to commit the substantive offense, and that under the circumstances as he reasonably sees them, he does the acts necessary to consummate the substantive offense; but because of circumstances unknown to him, essential elements of the substantive crime are lacking. It is only when the results intended by the actor, if they happened as envisaged by him, would still not be a crime, then and only then, can he not be guilty of an attempt. People v Meyer (1985, 5th Dist) 169 Cal App 3d 496, 215 Cal Rptr 352.

Sufficient evidence supported defendant's conviction for attempted violations of Pen. Code, 288 (child molestation), and Pen. Code, 311.4 (use of minor in photograph of sexual conduct), even though the intended victims were fictitious children invented for a police "sting" operation. A defendant is guilty of "attempt" if he or she harbors the requisite intent and commits the acts, even though unknown circumstances render completion of the target crime factually impossible. People v Burns (1992, 4th Dist) 8 Cal App 4th 715, 10 Cal Rptr 2d 483, 92 CDOS 6756, 92 Daily Journal DAR 10713, review den, op withdrawn by order of ct (Cal) 92 CDOS 8704, 92 Daily Journal DAR 14438 and review den (Oct 22, 1992).

In prosecution for attempted murder, evidence tending to prove that explosion of pipe bomb on ground floor of house in which intended victim was asleep in upstairs room could not have resulted in intended victim's death, was of no weight since Indiana's criminal attempt statute provided it was no defense that, because of misapprehension of circumstances, it would have been impossible for accused person to commit crime attempted. Armstrong v State (1982, Ind) 429 NE2d 647.

A defendant's voluntary abandonment may negate a crime of attempt. Abandonment occurs where, through the verbal urging of the victim, but with no physical resistance or external intervention, the perpetrator changes his or her mind. A perpetrator cannot claim that he or she abandoned his or her attempt when, in fact, the perpetrator ceased his or her efforts because the victim or a third party intervened or prevented the perpetrator from furthering the attempt. Ross v State (1992, Miss) 601 So 2d 872.

Defense of legal impossibility was not available to defendant charged with attempted theft where defendant accepted goods purported to be stolen that were offered to defendant by police informant, even though alleged stolen goods were in police custody prior to time of alleged offense and therefore were not actually "stolen." Commonwealth v Henley (1984) 504 Pa 408, 474 A2d 1115,  41 ALR4th 579.

Footnote 85. Hamilton v State, 36 Ind 280; State v Fitzgerald, 49 Iowa 260; State v Broadnax, 216 La 1003, 45 So 2d 604 (by statute); State v Doran, 99 Me 329, 59 A 440; Commonwealth v Kennedy, 170 Mass 18, 48 NE 770; State v Mitchell, 170 Mo 633, 71 SW 175; State v Davis, 108 NH 158, 229 A2d 842 (active prevention by intended rape victim); State v Bowers, 35 SC 262, 14 SE 488; Collins v Radford, 134 Va 518, 113 SE 735 (disapproved on other grounds Sisk v Shenandoah 200 Va 277, 105 SE2d 169); State v Damms,  9 Wis 2d 183, 100 NW2d 592,  79 ALR2d 1402.

Annotation:  37 ALR3d 375 (impossibility as defense in criminal prosecution for attempt to commit crime).

The fact that a crime for some reason unknown to an intending perpetrator is impossible of accomplishment will not prevent his being guilty of an attempt to commit it.  People v Moran, 123 NY 254, 25 NE 412.

If there is an intent to commit the crime, and an overt act is accomplished, the result may be ineffectual because of a physical or mental obstruction on the part of the intended victim, but the crime of attempt is complete if the bar to fulfilment of the object is unknown to the perpetrator at the time the overt act is performed.  People v Fulton (2d Dist) 188 Cal 2d 105, 10 Cal Rptr 319.

Practice Aids: Inker, Impossibility in Criminal Attempts–Legality and the Legal Process.  1969, 53 Minn L Rev 665.

Footnote 86. State v Mitchell, 170 Mo 633, 71 SW 175; State v Meisch, 86 NJ Super 279, 206 A2d 763 (defendant opening empty drawer and thrusting hand into drawer to remove contents was guilty of attempted larceny); People v Gardner, 144 NY 119, 38 NE 1003.

Footnote 87. See 40 Am Jur 2d,  Homicide § 566.

As to present ability to injure as element of assault with intent to kill, see 40 Am Jur 2d,  Homicide § 574.

Footnote 88. People v Moran, 123 NY 254, 25 NE 412; State v Olsen, 138 Or 666, 7 P2d 792.

Emphasis upon the dangerous propensities of the actor as shown by his conduct, rather than upon how close he came to succeeding, is more appropriate to the purposes of the criminal law to protect society and reform offenders or render them temporarily harmless. State v Damms,  9 Wis 2d 183, 100 NW2d 592,  79 ALR2d 1402.

Footnote 89. State v Olsen, 138 Or 666, 7 P2d 792; Andrews v Commonwealth, 135 Va 451, 115 SE 558.

Footnote 90. Stokes v State, 92 Miss 415, 46 So 627.

Husband was guilty of rape when he pushed wife on bed, hit her, and held her legs while another man had intercourse with her even though that man was acquitted of crime.  Rozell v State (Tex Crim) 502 SW2d 16.

Footnote 91. State v Mandel, 78 Ariz 226, 278 P2d 413; Collins v Radford, 134 Va 518, 113 SE 735 (disapproved on other grounds Sisk v Shenandoah, 200 Va 277, 105 SE2d 169).

By reason of a statute providing that it was no defense to prosecution for attempts that the attempted crime was factually or legally impossible to commit, a defendant was guilty of attempted murder where, with the belief that the victim was alive although he had been shot several times in the chest five minutes earlier by another person and may in fact have already been dead, the defendant shot the victim in the head.  People v Dlugash,  41 NY2d 725, 395 NYS2d 419, 363 NE2d 1155, on remand (2d Dept)  59 App Div 2d 745, 398 NYS2d 560.

Footnote 92. State v Addor, 183 NC 687, 110 SE 650.

Footnote 93. People v Camodeca, 52 Cal 2d 142, 338 P2d 903.

Annotation:  37 ALR3d 375, §§ 3, 4.

Footnote 94. Foster v Commonwealth, 96 Va 306, 31 SE 503 (boy under 14, conclusively presumed incapable of rape, cannot be convicted of attempted rape).

Footnote 95. State v Willis, 255 NC 473, 121 SE2d 854.

Footnote 96. Nemecek v State, 72 Okla Crim 195, 114 P2d 492 (inclusion of false items in report of fire loss is not attempt to obtain money by false pretenses where insured sustained actual loss entitling him to full amount of policy).

Footnote 97. Commonwealth v Tolman, 149 Mass 229, 21 NE 377.

If all that an accused person intends to do would not constitute a crime if done, it cannot be a crime to attempt to do with the same purpose a part of the thing intended.  People v Jaffe, 185 NY 497, 78 NE 169, reh den 186 NY 560, 79 NE 1113 and (superseded by statute as stated in People v Leichtweis (2d Dept)  59 App Div 2d 383, 399 NYS2d 439).

Footnote 98. See 66 Am Jur 2d,  Receiving and Transporting Stolen Property § 2.

Footnote 99. See 40 Am Jur 2d,  Homicide § 584.

Though solicitation may constitute an element in some attempts, 1  the usual view seems to be that soliciting another to commit a crime is not, by itself, sufficient to constitute an attempt to commit that crime. 2   This has been explained on the ground that the offenses of solicitation and attempt are analytically distinct in their elements and that there is no overt act, since solicitation is in the nature of preparation, rather than perpetration. 3   Some cases, however, take the view that even though a solicitation to commit a misdemeanor does not constitute an attempt to commit the misdemeanor, a solicitation to commit a felony may be punished as an attempt. 4

Legislative revision of penal code was intended to make solicitation punishable as attempt, based on revision commission's expressed desire to change common-law notion that solicitation constituted substantive crime in itself and was not abortive attempt to perpetrate crime solicited; thus, criminal attempt to commit arson occurred where owner solicited undercover detective to burn his building and then engaged in certain conduct in furtherance of scheme. State v Jovanovic (1980) 174 NJ Super 435, 416 A2d 961.

Solicitation to commit a crime against nature cannot be construed as an attempt to commit a crime against nature; solicitation to commit a crime against nature is therefore not an "infamous misdemeanor" under G.S. 14-3; and the superior court therefore did not have original jurisdiction of such a charge. State v Tyner, 50 NC App 206, 272 SE2d 626, cert den (NC) 302 NC 633, 280 SE2d 451.

Evidence that defendant solicited murder of her boyfriend's wife and child, hired killer, gave him money for weapon and advance on murder contract, drew map of residence of planned victims, and instructed killer as to how to shoot victims, supported conviction for attempted murder. State v Burd (1991, W Va) 419 SE2d 676.

Footnote 1. State v Mandel, 78 Ariz 226, 278 P2d 413; Gervin v State, 212 Tenn 653, 371 SW2d 449.

Where solicitation proceeds to the point of some overt act in the commission of the crime, it becomes an attempt.  Wiseman v Commonwealth, 143 Va 631, 130 SE 249.

Footnote 2. Graham v People, 181 Ill 477, 55 NE 179; State v Bowles, 70 Kan 821, 79 P 726; State v Lampe, 131 Minn 65, 154 NW 737; State v Davis, 319 Mo 1222, 6 SW2d 609; State v Blechman, 135 NJL 99, 50 A2d 152; Stabler v Commonwealth, 95 Pa 318; Gervin v State, 212 Tenn 653, 371 SW2d 449; State v Butler, 8 Wash 194, 35 P 1093.

See also titles dealing with particular crimes, for example, 2 Am Jur 2d,  Adultery and Fornication § 7; 5 Am Jur 2d,  Arson and Related Offenses § 15; 40 Am Jur 2d,  Homicide § 567; 50 Am Jur 2d,  Larceny § 41.

Footnote 3. Gervin v State, 212 Tenn 653, 371 SW2d 449.

Footnote 4. State v Avery, 7 Conn 266; State v Taylor, 47 Or 455, 84 P 82 (stating the rule, but holding otherwise); Stabler v Commonwealth, 95 Pa 318 (stating the rule, but holding otherwise).

At common law, one who incites or solicits another to commit a crime which, either by common law or by statute, is a felony, himself commits the substantive crime of solicitation. 5   Although a minority view tends to support the proposition that solicitation to commit a misdemeanor is not indictable, 6  the majority view is to the contrary, at least where the crime solicited is one tending to the disturbance of the peace or harmful to the public welfare. 7   Where the crime is one which tends to defeat public justice, solicitation to commit it is indictable at common law. 8   It has been suggested that solicitation to commit an offense should itself be a crime wherever attempt to commit that offense would be. 9  Solicitation is also a substantive offense by statute in some states, though such statutes are sometimes regarded as declaratory of the common law. 10  

Solicitation is a substantive crime in itself, not an abortive effort to commit the crime solicited. 11   The solicitor is guilty even though his solicitation was of no effect and the crime counseled was not committed. 12    Indeed, the crime is complete when the solicitation is made; it is not necessary that any further steps be taken toward the consummation of the offense solicited. 13    If the solicitor believes the act can be committed, it is immaterial that the crime urged is not possible of fulfilment at the time the words are spoken, or becomes impossible later. 14

There is some authority to the effect that the crime of solicitation does not require a personal communication to a particular individual, but may be committed by a public utterance. 15

Solicitation has been characterized as a lesser offense than attempt, since there is not such dangerous proximity to success. 16

To convict for solicitation under federal law, prosecution must prove that defendant intended for another person to engage in conduct which violated Title 18, and that defendant induced or tried to persuade that other person to commit crime; evidence supported convictions for solicitation, conspiracy, and aiding and abetting in murder-for-hire conspiracy, where defendant telephoned another and asked him to travel from Chicago to Houston to kill victim, where defendant paid or offered to pay hit man for murder, where defendant provided weapon and automobile for hit man to use in murder, and where defendant helped hit man locate victim's home. United States v Razo-Leora (1992, CA5 Tex) 961 F2d 1140, reh den (CA5) 1992 US App LEXIS 13936.

Pen. Code, § 653f, making it a crime to ask another to commit a specified crime, has a twofold purpose: to protect individuals from being exposed to inducement to commit or join in the commission of crimes, and to prevent solicitations from resulting in the commission of the crimes solicited. People v Cook (1984, 1st Dist) 151 Cal App 3d 1142, 199 Cal Rptr 269.

In a prosecution for solicitation of murder (Pen. Code, § 653f, subd. (b)), the evidence was sufficient to justify a finding of two crimes of solicitation. Defendant asked an undercover police officer to kill, individually, two different specified victims, possibly at different times and places and by different means. The death of each victim was important to defendant's purpose. And, defendant agreed to pay a separate consideration for each murder. People v Davis (1989, 1st Dist) 211 Cal App 3d 317, 259 Cal Rptr 348.

Intent to solicit act of arson was proved by facts and circumstances surrounding defendant's conduct, including tape recordings of conversation with persons solicited, and proof of requisite criminal intent removed defendant's conduct from protection of First Amendment. People v Lewis (1980) 84 Ill App 3d 556, 40 Ill Dec 310, 406 NE2d 11.

Defendant, who provided third party with camera and gun to photograph and shoot intended victim, was properly convicted of solicitation to commit murder where uncorroborated testimony of accomplice was sufficient to support criminal conviction and where crime of solicitation was completed when request was made with requisite intent to commit offense; defendant, therefore, could not have withdrawn from offense that had already been completed. People v Harvey (1981) 95 Ill App 3d 992, 51 Ill Dec 231, 420 NE2d 645.

To "procure" act of gross indecency encompassed only acquisition of something on behalf of another and not for oneself, as contrasted to solicitation statute in which one party, through words or conduct, invites another to perform immoral act between themselves. People v Mabry (1980) 102 Mich App 336, 301 NW2d 528.

The superior court did not err in dismissing an indictment against defendant for lack of subject matter jurisdiction where the indictment alleged that defendant solicited three others to possess and deliver more than one ounce of marijuana, which was not in itself an infamous offense, and the indictment did not charge elements of secrecy, deceit and intent to defraud. State v Jarvis, 50 NC App 679, 274 SE2d 852.

Conviction of defendant under city ordinance which prohibited the solicitation of a child under the age of 14 to enter an automobile or to coax or entice a child to do so was affirmed where the evidence was such that the jury could reasonably find that defendant solicited 2 girls to get in his automobile and "have fun" with him, in return for which he would give them food, because it was the act of solicitation, coaxing or enticing the children to enter the automobile that constituted the crime; the purpose of the person doing the solicitation was not relevant. Reynoldsburg v Johnson (1992, Franklin Co) 78 Ohio App 3d 641, 605 NE2d 996.

The trial court, sitting as the trier of fact did not "clearly lose its way" and create such a manifest miscarriage of justice that a conviction under RC § 2907.07(B) should be reversed where the court held that the solicitation in the context it was made and by virtue of the words used most certainly was grossly offensive and emotionally disturbing and further it was likely the average person would be provoked to a breach of the peace by such words in a similar context. State v Presley (1992, Warren Co) 81 Ohio App 3d 721, 612 NE2d 353.

In a prosecution for criminal solicitation and criminal attempt based on a reverse sting operation in which undercover officers arranged to sell 100 pounds of marijuana to the defendant, the court would reject the defendant's contention that police involvement in the reverse sting operation was so outrageous that the prosecution would be barred on due process grounds. The defendant's due process rights were not violated by the fact that the police used an untrained informant who was permitted to make the initial contact without police supervision, by the fact that the police provided the defendant with a marijuana sample and offered him an opportunity to make a substantial profit or by the fact that the police used an informant who was paid a contingency fee. Commonwealth v Mance (1995, Pa) 652 A2d 299.

The defendant was properly found to be guilty of criminal solicitation for involuntary deviate sexual intercourse even though the person solicited was under 14 years of age and, therefore, would have been protected from criminal culpability in such an act; the fact that the person solicited was protected from criminal culpability had no applicability to the defendant's culpability. Commonwealth v Morales (1992) 411 Pa Super 471,601 A2d 1263.

Footnote 5. State v Schleifer, 99 Conn 432, 121 A 805,  35 ALR 952; Walsh v People, 65 Ill 58 (opinion of Le Blanc, J.); State v Bowles, 70 Kan 821, 79 P 726; State v Beckwith, 135 Me 423, 198 A 739; Commonwealth v Randolph, 146 Pa 83, 23 A 388; State v Bowers, 35 SC 262, 14 SE 488; Gervin v State, 212 Tenn 653, 371 SW2d 449; State v Baller, 26 W Va 90 (obiter); Rudolph v State,  128 Wis 222, 107 NW 466.

Where an intention is expressed in the form of a solicitation, or incitement, or command to another to commit a felony or a high crime and misdemeanor akin to felony, it is a crime under the common law.  State v Schleifer, 99 Conn 432, 121 A 805.

But see 45 Am Jur 2d,  Intoxicating Liquors § 299 (rule held inapplicable to soliciting illegal liquor sales).

For application to particular offenses see the particular title, for example, 2 Am Jur 2d,  Adultery and Fornication § 7; 12 Am Jur 2d,  Bribery § 11; 40 Am Jur 2d,  Homicide § 564; 50 Am Jur 2d,  Larceny § 91.

Footnote 6. Reed v Maley, 115 Ky 816, 74 SW 1079; Smith v Commonwealth, 54 Pa 209.

Footnote 7. Lott v United States (CA9 Alaska) 205 F 28; State v Blechman, 135 NJL 99, 50 A2d 152; State v Baller, 26 W Va 90 (obiter).

Solicitation to commit a felony or to commit a serious misdemeanor harmful to the public peace or the public welfare or economy is a common-law offense. Only such misdemeanors as by their nature make it illogical to treat them as separate crimes are excluded as objects of solicitation.  Commonwealth v Wiswesser, 134 Pa Super 488, 3 A2d 983.

Footnote 8. Wiseman v Commonwealth, 143 Va 631, 130 SE 249 (embracery); State v Baller, 26 W Va 90 (procuring witness to absent himself from court to avoid testifying when summoned to do so).

Footnote 9. State v Schleifer, 99 Conn 432, 121 A 805.  Compare Wiseman v Commonwealth, 143 Va 631, 130 SE 249 (soliciting another to commit embracery held an offense, though attempt to commit it would not be, since embracery is itself an attempt).

Footnote 10. State v Schleifer, 99 Conn 432, 121 A 805; State v Blechman, 135 NJL 99, 50 A2d 152.

Annotation:  51 ALR2d 953, § 2[a].

Footnote 11. State v Bowles, 70 Kan 821, 79 P 726; State v Blechman, 135 NJL 99, 50 A2d 152.  See also People v Burt, 45 Cal 2d 311, 288 P2d 503,  51 ALR2d 948 (solicitation conviction upheld, though crime solicited was to have been committed in foreign country).

Footnote 12. State v Bowles, 70 Kan 821, 79 P 726; State v Beckwith, 135 Me 423, 198 A 739; State v Blechman, 135 NJL 99, 50 A2d 152; State v Hampton, 210 NC 283, 186 SE 251; Commonwealth v Randolph, 146 Pa 83, 23 A 388; State v Bowers, 35 SC 262, 14 SE 488.

Annotation:  51 ALR2d 953, § 3.

The fortuity that the person solicited does not agree to commit the crime should not relieve the solicitor of liability.  Benson v Superior Court of Los Angeles County, 57 Cal 2d 240, 18 Cal Rptr 516, 368 P2d 116.

Footnote 13. People v Burt, 45 Cal 2d 311, 288 P2d 503,  51 ALR2d 948 (construing statute making solicitation to commit certain specified felonies a substantive offense); State v Blechman, 135 NJL 99, 50 A2d 152.

Footnote 14. Benson v Superior Court of Los Angeles County, 57 Cal 2d 240, 18 Cal Rptr 516, 368 P2d 116.

Footnote 15. State v Schleifer, 99 Conn 432, 121 A 805.

Footnote 16. Gervin v State, 212 Tenn 653, 371 SW2d 449. Compare State v Schleifer, 99 Conn 432, 121 A 805 (regarding solicitation as more dangerous than attempt).

V.  PARTICIPATION IN CRIME [163-182]

A.  In General [163-167]

At common law participants in crime were either principals or accessories. Principals were usually divided into principals in the first degree and principals in the second degree.  Persons concerned in the offense either before or after its commission were accessories before or after the fact. 17

Where defendant, in Montana, hired woman ostensibly as film courier, but in reality to transport drugs from Peru to Los Angeles, and woman was unaware that she was being hired for drug transportation, all evidence was properly admitted although many of acts took place outside of Montana; statute providing that one is guilty of solicitation when one "facilitates the commission of" an event was not unconstitutionally vague, although it did expand crime of solicitation beyond common law, and knowledge of person solicited that she was being solicited for crime was not necessary under "facilitate" language. State v Bush (1981, Mont) 636 P2d 849.

Evidence was sufficient to establish that the defendant had joint constructive possession of cocaine found in a bedroom of her apartment where (1) the defendant was the lessee of the apartment, (2) although she subleased the bedroom in question to her sister and brother-in-law, the bedroom was not locked and she had access to it, (3) on the day before the search, an informant witnessed a brick of cocaine being cut up in the kitchen of the apartment, and (4) a surveillance of the apartment disclosed several occasions in which people walked into the apartment with small packages and exited within a few seconds without the packages. Commonwealth v Aviles (1992, Super Ct) 615 A2d 398.

Footnote 17. Pierce v State, 130 Tenn 24, 168 SW 851.

There are some offenses which are so defined by statute or by the common law that they may be committed only by certain persons or classes of persons. 18   But a person not within the class of those by whom the crime may be personally perpetrated may, by aiding and abetting the commission of the offense, also render himself criminally liable. 19   Thus, a woman may be punished for aiding or abetting the commission of rape, 20  a husband may be an accessory to the crime of rape upon his own wife, 21   and a person who aids and assists the owner of property in burning it may be convicted under a statute making it an offense for the owner of property to burn it with the intent to defraud an insurer. 22  Similar rules prevail as to the commission of embezzlement 23  and other crimes. 24      

Under the federal aiding and abetting statute, 25   individuals aiding and abetting a federal offense may be punished as principals. 26  And under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 27   the operators of a drug distribution network may be prosecuted either as principals or as aiders and abettors for substantive manufacturing, distribution, and possession offenses. 28    

Practice Aids: Prosecution of female as principal for rape. (See also 65 Am Jur 2d, Rape § 27.)  67 ALR4th 1127.

Criminal responsibility under 18 USCS §  2(b) of one who lacks capacity to commit an offense but who causes another to do so.  52 ALR Fed 769.

Person incapable of personally committing specified crime because he was not officer, director, agent, or employee of agency receiving federal financial assistance was properly punished as principal under 18 USCS §  2(b) where he caused innocent agent meeting capacity requirements to engage in prescribed conduct. United States v Ruffin (1979, CA2 NY) 613 F2d 408,  52 ALR Fed 737.

Footnote 18. Garner v State, 26 Ala App 246, 158 So 543, cert den 229 Ala 600, 158 So 546; People v Young, 132 Cal App 770, 23 P2d 524; Dodd v State, 52 Okla Crim 385, 5 P2d 181.

Footnote 19. Gibbs v State, 37 Ariz 273, 293 P 976; State v Burns, 82 Conn 213, 72 A 1083; State v Nahoum, 172 La 83, 133 So 370; People v Chapman, 62 Mich 280, 28 NW 896; Quillin v State, 79 Tex Crim 497, 187 SW 199.

The aiding and abetting statute can even be applied where by statutory definition the defendant would be incapable of committing the substantive offense by himself.  Hutchins v Municipal Court for Santa Monica Judicial Dist. (2d Dist) 61 Cal App 3d 77, 132 Cal Rptr 158.

A person incapable of committing a specific crime may nevertheless be guilty of aiding and abetting its commission. State v Norman, 193 Neb 719, 229 NW2d 55.

Footnote 20. State v Pickel, 116 Wash 600, 200 P 316, different results reached on reh on other grounds 116 Wash 607, 204 P 184.

Footnote 21. People v Meli (Sup) 193 NYS 365.

Annotation:  84 ALR2d 1023, § 3.

Footnote 22. Haas v State, 103 Ohio St 1, 132 NE 158.

Footnote 23. Gibbs v State, 37 Ariz 273, 293 P 976.

Footnote 24. People v West, 3 Cal App 2d 568, 40 P2d 278 (fraud); Boggus v State, 34 Ga 275 (bigamy); Capshaw v State, 69 Okla Crim 440, 104 P2d 282 (bribery); Commonwealth ex rel. Giuffrida v Ashe, 137 Pa Super 528, 10 A2d 112 (arson).

Essential element of prosecution under 18 USCS §  2 is that a substantive offense was committed; however, defendant need not be legally capable of committing the specified offense himself; therefore, although the statute aimed at prohibition of receipt of illegal gratuities to a federal tax agent was aimed at a government agent, a private citizen could be liable as principal under 18 USCS §  2.  United States v Standefer (CA3 Pa) 610 F2d 1076, affd  447 US 10,  64 L Ed 2d 689,  100 S Ct 1999.

Footnote 25. 18 USCS §  2.

Footnote 26. Under 18 USCS §  2, aiders and abettors may be held vicariously liable regardless of the fact that they may be incapable of committing the specific violation which they are charged to have aided and abetted; once an aider and abettor has been treated as a principal, some of his lesser acts in furtherance of the central violation may merge into it, so that a decision to treat an aider and abettor as a principal may be inconsistent with prosecuting and punishing him for some individual acts of aiding and abetting.  Busic v United States,  446 US 398,  64 L Ed 2d 381,  100 S Ct 1747.

In the case of a criminal offense whose prohibition is directed at members of a specific class, such as federal employees, a person who is not himself a member of that class may nonetheless be punished as a principal under the federal aiding and abetting statute (18 USCS §  2) if he induces a person in that class to violate the prohibition.  Standefer v United States,  447 US 10,  64 L Ed 2d 689,  100 S Ct 1999.

In order to convict someone of the aiding and abetting violation of a certain federal statute, the government must first demonstrate that violation of the specific statute has occurred.  United States v Franklin (CA6 Ohio) 608 F2d 241.

Evidence was sufficient to convict defendant of aiding and abetting violation of 18 USCS §  113 despite defendant's contention that he did not share the criminal intent of his companions; the facts show that defendant and his companions had a community of intent to damage a car and do bodily damage to its occupants, one of whom was killed and the other injured, and defendant's participation was shown by his three visits to the parked car and his admitted actions of striking the car on the second visit; the fact that he was not shown to have physically injured any of the car's occupants does not detract from his voluntary involvement in the chain of events and by his own admissions he was more than a spectator. United States v Palmer (CA10 NM) 604 F2d 64.

It was not necessary that one charged as aider and abettor commit an overt act that served to accomplish the offense or that he had knowledge of the particular means his principals employed to carry out the criminal activity; criminal liability under 18 USCS §  2 resulted from the existence of the community of unlawful intent between the aider and abettor and the principal. United States v Austin (CA5 Miss) 585 F2d 1271.

One is no less aider and abettor because one's efforts, while diligent, are not successful in every way; success which is controlling is the actual consummation of the transaction.  United States v Pino (CA4 NC) 608 F2d 1001.

Former paramour of defendant could not have been convicted for aiding and abetting robbery when although she initially afforded hospitality to defendant and companions, she did not participate in the planning or execution of the robbery and when she later readmitted defendant and companions to use the basement, she was not told that the robbery had occurred.  United States v Jones (CA4 Md) 608 F2d 1004, cert den  444 US 1086,  62 L Ed 2d 773,  100 S Ct 1046.

Although conspiracy requires proof of agreement, the offense of aiding and abetting does not.  United States v Beck (CA7 Ill) 615 F2d 441.

In a prosecution for violation of 18 USCS §§  2 and  1001 by filing a false customs export declaration, aiding and abetting is proved if defendant voluntarily gave the false information or participated in the plan such that it was foreseeable that the false information would be used in statements made to government agencies in furtherance of the plan. United States v Beck (CA7 Ill) 615 F2d 441.

Aider and abettor of illegal export of firearms need not know that the principal needs or lacks an export license, but only that there be legal duty not to export the articles.  United States v Beck (CA7 Ill) 615 F2d 441.

Purchaser of stolen goods is not liable as an aider and abettor of a theft because he enters the plan too late.  United States v Beck (CA7 Ill) 615 F2d 441.

Defendant charged with violation of 18 USCS §  2(a) need not have knowledge of the particular means the principal in crime uses to carry out the criminal activity.  United States v Beck (CA7 Ill) 615 F2d 441.

No violation of 18 USCS §  2 occurs unless there has been completion of a substantive offense.  United States v Alvarez (CA5 Fla) 610 F2d 1250, on reh (CA5 Fla) 625 F2d 1196.

Evidence showing that defendant negotiated and participated in several narcotics sales with undercover officers and that defendant knew she was part of a larger narcotics operation was sufficient to establish defendant as an active participant and not a mere associate of the drug ring.  United States v Williams (CA8 Mo) 604 F2d 1102.

Individual can be convicted as principal even though the evidence establishes that he is only aided and abetted.  United States v Cook (CA5 Tex) 586 F2d 572, reh den (CA5 Tex) 589 F2d 1114 and cert den  442 US 909,  61 L Ed 2d 274,  99 S Ct 2821.

In order to be liable as principal under 18 USCS §  2, defendant must willfully associate himself in some way with the criminal venture and willfully participate in it as something he wishes to bring about. United States v Indelicato (CA1 Mass) 611 F2d 376.

Person who lacks capacity to perform acts prohibited by federal law but "causes" another to perform acts is liable as principal under USCS § 2(b).  United States v Ruffin (CA2 NY) 613 F2d 408,  52 ALR Fed 737.

Footnote 27. 21 USCS §  841.

Footnote 28. Bifulco v United States,  447 US 381,  65 L Ed 2d 205,  100 S Ct 2247.

Different views have been expressed on the question of whether a person who furnishes an instrumentality ordinarily used for lawful purposes with knowledge that it is to be used for criminal purposes is criminally responsible.  It has been said, for example, that persons who furnish telephone service to an establishment knowing that the telephone facilities will be used for gambling purposes are not chargeable with aiding in maintaining a gambling house. 29   On the other hand, persons who furnished material, ordinarily used for legal purposes, with knowledge that the material was to be used for the unlawful manufacture of liquor, have been held guilty of aiding and abetting or conspiring to violate prohibition laws. 30

Footnote 29. State ex rel. Dooley v Coleman, 126 Fla 203, 170 So 722.

Footnote 30. United States v Wilson (DC Wash) 59 F2d 97; Brown v Commonwealth, 156 Va 947, 157 SE 567.

An accomplice is said to be one who knowingly, voluntarily, and with a common interest with others participates in the commission of a crime either as a principal or as an accessory before the fact. 31    Thus, it has been stated that persons connected with the commission of an offense are referred to as principals, accessories, or aiders or abettors, but if, in the course of the trial, any of these persons is put on the witness stand and a question arises as to the necessity of corroborating his testimony, he is spoken of as an accomplice, 32  whose testimony is viewed with caution in both misdemeanors and felonies. 33  And under a statutory definition of an accomplice as a person liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given, the witness must have guilty knowledge and intent with regard to commission of the crime.  Where the facts are in dispute as to the asserted accomplice's knowledge and intent, his liability for prosecution, as contemplated by that statute, is a question for the trier of fact. 34   However, it has also been suggested that what is meant by the "accomplice rule" is that one who testifies while he is faced with criminal charges may be influenced to testify falsely by the hope of leniency, and ordinarily the defendant, on request, is entitled to have the jury so advised by an appropriate charge, and it makes no difference that the witness was not an accomplice of the defendant, or, indeed, that defendant had no connection with the transaction which led to the charges against the witness. 35

The federal statute 36   does not require a showing that an accomplice was innocent, but merely removes any requirement that an accomplice or an intermediary be guilty. 37        

Practice Aids: Limitations on Accomplice Liability. 6 Crim LJ 506, December 1982.

Dressier, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem. 37 Hast LJ 91, September, 1985.

Westerfield, The Mens REA Requirement of Accomplice Liability in American Criminal Law–Knowledge or Intent. 51 Miss LJ 155, June-September, 1980.

See Skillern v Estelle (1983, CA5 Tex) 720 F2d 839, § 628.

Indictment language charging defendant with "causing" something to be done need not be removed as surplusage, where indictment charges defendant as manager of medical corporation charged with Medicare fraud, because 18 USCS §  2, accomplice liability statute, applies generally to all federal criminal statutes and prohibits one from causing another to do any act that would be illegal if one did it personally. United States v Calhoon (1994, MD Ga) 859 F Supp 1496.

The trial court in a robbery prosecution erred in failing to give Standard Jury Instruction 2.04(b) pertaining to accomplices, where the defense requested the instruction in connection with the chief prosecution witness, who the defense claimed was an accomplice but who himself denied any involvement, where the witness had been seen fleeing the getaway car shortly following the robbery, and where the evidence revealed that the witness had been arrested and charged with attempted murder, robbery, theft, and possession of a firearm, and had agreed to testify in exchange for a reduced sentence; however, the error was harmless in light of the abundant evidence both of defendant's guilt and the witness' status as an accomplice. Taylor v State (1983, Fla App D1) 429 So 2d 1258.

The evidence was sufficient to prove that the defendant had the requisite knowledge and intent to be a joint venturer in a murder where (1) the defendant and the coperpetrator were seen together several times in the hours before the murder driving in the defendant's car near the victim's residence, (2) earlier in the morning, the coperpetrator shot and killed a cat from the passenger side window of the defendant's car while the defendant drove, (3) immediately after the murder, the coperpetrator ran directly to and entered the defendant's car which had been parked discreetly on a one-way street near the victim's residence, (4) the car instantly pulled away at high speed without any apparent conversation between the defendant and the coperpetrator, and (5) the defendant lied to a police officer at the scene of an accident that occurred as he and the coperpetrator attempted to flee by telling the officer that no one else had been in the car with him. Commonwealth v Stewart (1991) 411 Mass 345, 582 NE2d 514.

The evidence was insufficient to support a conviction for trafficking in cocaine on the basis of a joint venture where (1) the defendant and a bartender were arrested at a bar after the execution of a search warrant, (2) the bartender was found to be carrying over 39 grams of cocaine, and (3) the defendant was carrying no cocaine, but was in possession of $317 in cash, a piece of paper with a list of names and dollar amounts; although the evidence might have established that the defendant was involved in drug dealing, the Commonwealth failed to prove a nexus between the defendant and the bartender as the only evidence of a nexus was that a police officer had seen the defendant and bartender have 3 private conversations during a one hour period. Commonwealth v Meehan (1992) 33 Mass App 262, 597 NE2d 1384.

Lookout who stood outside beauty parlor with second lookout as defendant killed rival drug dealer inside should not be deemed defendant's accomplice as matter of law with regard to defendant's attempted murder of lookout and murder of second lookout as defendant left scene and sought to kill all witnesses, since defendant's attempted murder of lookout severed lookout's initial accomplice relationship to him, and was legally discrete for accomplice corroboration purposes from killings inside parlor. People v Breland (1994)  83 NY2d 286, 609 NYS2d 571, 631 NE2d 577.

Accomplice's presence directly behind robbery victim during attack by codefendant, which was sufficient to discourage her escape or resistance, constituted sufficient evidence of accessorial conduct to render accomplice culpable for robbery in second-degree. People v Crutchfield (1989, 3d Dept)  149 AD2d 857, 540 NYS2d 366, app den  74 NY2d 738, 545 NYS2d 112, 543 NE2d 755.

Court's use of phrase "defendant or an accomplice" in connection with elements of crimes charged was not error where court's charge repeatedly stressed that People had absolute burden of proving beyond reasonable doubt "that each person intended the unlawful act," and that burden applied to all submitted counts, thus conveying appropriate legal standard. People v Johnson (1992, 1st Dept)  181 AD2d 509, 580 NYS2d 357, app den  80 NY2d 833, 587 NYS2d 917, 600 NE2d 644 and app den  81 NY2d 763, 594 NYS2d 725, 610 NE2d 398.

Court did not err by failing to charge jury that 2 of People's witnesses were accomplices as matter of law, even though they were admittedly part of group that planned robbery, since they either voluntarily left group or were excluded when plans escalated to include kidnapping and murder. People v Rivera (1989, 2d Dept)  154 AD2d 630, 546 NYS2d 641, app den  76 NY2d 741, 558 NYS2d 903, 557 NE2d 1199 and app den  76 NY2d 742, 558 NYS2d 904, 557 NE2d 1200.

Trial court should have submitted to jury issue of whether accomplice's mother was also accomplice, despite her contention that she went with others only because her son was involved and she was concerned for him, where mother accompanied defendant, codefendant, her son, and another accomplice to victim's home knowing that they intended to harm him, she left son and accomplice in lobby and followed defendant and codefendant to apartment where others cornered victim and shoved him down stairs, and she watched as all 4 men beat him, she told her son to "whip" him, and she told victim that beating was consequence of stealing from her. People v Smith (1992, 2d Dept)  181 AD2d 803, 581 NYS2d 238.

Defendant's contention that trial court should have given accomplice charge sua sponte was without merit since, in order for witness to be deemed accomplice, it must be shown that jury could reach no other conclusion than that witness participated in offense charged or offense based on same or some of same facts constituting offense charged, and evidence adduced at defendant's trial did not establish such requirements. People v Albury (1989, 2d Dept)  156 AD2d 370, 548 NYS2d 325, app den  75 NY2d 866, 553 NYS2d 298, 552 NE2d 877 and app den  75 NY2d 963, 556 NYS2d 248, 555 NE2d 620.

Footnote 31.
Annotation:  74 ALR3d 560.

Government of Virgin Islands v Rivera Solis (CA3 Virgin Islands) 359 F2d 518 (misprision of a felony is a separate offense distinct from complicity in crime of murder).

In the absence of a statute granting immunity, a person of competent age who voluntarily participates in an act which without his participation could not be accomplished, which can be committed only by two persons, which is denounced as a crime by a law that declares both participants to be equally guilty without requiring specific intent, is as to that particular act an accomplice. People v Brocklehurst (4th Dist) 14 Cal App 3d 473, 92 Cal Rptr 340 (officer who participated with defendant in act of oral copulation was an accomplice).

Where defendant's first connection with an offense is after its commission, he may be an accessory after the fact, but he cannot be an accomplice.  Lucchesi v State, 232 Md 465, 194 A2d 266, cert den  376 US 932,  11 L Ed 2d 651,  84 S Ct 700.

The mere fact that the defendant was present at the scene in the company of those who committed the crime is insufficient to establish that he was an accomplice.  State v Martin (Mo) 428 SW2d 489.

The defendant who was merely present at the scene of the crime and did not report the incident until he was arrested some months later was not an accomplice.  State v Caldwell (Mo) 428 SW2d 727.

As to what constitutes principals and accessories, generally, see  §§ 168 et seq., infra.

Footnote 32. Levering v Commonwealth, 132 Ky 666, 117 SW 253; State v Helmenstein (ND) 163 NW2d 85.

Footnote 33. Guthrie v Commonwealth, 171 Va 461, 198 SE 481.

Footnote 34. People v Gordon, 10 Cal 3d 460, 110 Cal Rptr 906, 516 P2d 298.

Footnote 35. State v Mangrella, 86 NJ Super 404, 207 A2d 175. Compare State v Jennings (Iowa), 195 NW2d 351, holding that an accomplice is a person who wilfully unites in, or is in some way concerned in the commission of a crime.  The general rule for determining whether a witness is an accomplice is if he could be charged with and convicted of the specific offense for which an accused is on trial.

Footnote 36. 18 USCS §  2(b).

Footnote 37. United States v Rapoport (CA2 NY) 545 F2d 802, cert den  430 US 931,  51 L Ed 2d 775,  97 S Ct 1551.

An aider or abettor is one who advises, counsels, procures, or encourages another to commit a crime. 38    A person is an aider and abettor if he or she actively assists in planning and preparing for the perpetration of a crime and assumes a station with the knowledge of the perpetrators where he or she may be able to assist either in the commission of the crime or in the escape immediately following in the perpetration of the crime. 39   And an aider and abettor need not know that the activity constitutes a crime.  It is enough that they know facts that are essential to constitute the activity as a crime.  Thus, a seller cannot be criminally liable as an aider and abettor for a buyer's use of pesticide which is inconsistent with this label simply because of the sale itself. 40

The mere presence and consent of the defendant are not sufficient to constitute him an aider and abetter in the commission of a crime. 41   On the other hand, an aider and abettor need not know every last detail of the substantive offense, but he must at least share in the principal's essential criminal intent. 42   The involvement of an aider and abettor may be shown circumstantially, and an act of slight importance may warrant a jury's finding of participation in the crime. 43  A person cannot aid and abet the commission of a crime unless another commits the offense; one cannot aid and abet himself in the commission of an offense. 44   Furthermore, one cannot be held criminally responsible for aiding and abetting, within the forum state, an act done in another state and not criminal by the laws of that state, though the act would have been criminal if done in the state where the aiding and abetting took place. 45

In at least one jurisdiction, a statute providing that whoever aids, abets or procures another to commit any offense may be prosecuted and punished as if he were the principal offender, is no longer limited in its application to felonies but covers all offenses, including misdemeanors. 46

Practice Aids: A Seville standard for aiders and abettors: The logic and implications of the Supreme Court's decision, 45 Case W Res LR 2:661 (1995).

Comment: Aider and Abettor Liability, The Continuing Criminal Enterprise, and Street Gangs: A New Twist in an Old War on Drugs. 81 J Crim L 348, Summer, 1990.

Criminal aiding and abetting liability under 18 USCS §  2 requires proof that the defendants in some way associated themselves with the venture, that they participated in the venture as something that they wished to bring about, and that they sought by their actions to make the venture succeed. Central Bank, N. A. v First Interstate Bank, N. A. (US)  128 L Ed 2d 119,  114 S Ct 1439.

Jury was entitled to find that defendant aided and abetted drug transaction, where it could properly conclude that his role was to monitor safe return of individual with money in order to assure that drug transaction was fully consummated, and that he assumed role knowingly, willfully, and intentionally, given accumulation of individual pieces of evidence insufficient in themselves. United States v O'Campo (1992, CA1) 973 F2d 1015.

Judge commits no error in failing to instruct jury on meaning of aiding and abetting where government contends only that defendant has caused bribe to be made. United States v Shulman (1980, CA2 NY) 624 F2d 384.

Conviction must be set aside, where it is not clear whether jury found defendant guilty as principal on erroneously charged theory of principal liability under 18 USCS §  894 or on correctly charged but more difficult to prove theory of aiding and abetting, where defendant's purpose was closely contested issue, whether he sought to aid in another's commission of crime or only to secure his broker's fee and provide individual with needed financing. United States v Scotti (1995, CA2 NY) 47 F3d 1237.

Conviction for aiding and abetting armed robbery of post office will not be disturbed, even though indictment failed to either track language of 18 USCS §  2 or charge aiding and abetting as separate count, because defendant may properly be convicted of aiding and abetting commission of crime even if indictment makes no reference whatsoever to his role as aider and abettor. Virella v United States (1990, SD NY) 750 F Supp 111.

Person is guilty of aiding and abetting where quite clearly, without such help, sales would have never taken place and such person participated in sales with manifest purposive attitude in making them succeed. United States v Reicherter (1981, CA3 Pa) 647 F2d 397.

Sentence of death imposed on recommendation of jury which has been erroneously instructed that death sentence may be recommended for defendant as aider and abettor whether or not he killed, attempted to kill or intended to kill, cannot be carried out, and defendant must be resentenced. Hyman v Aiken (1985, CA4 SC) 777 F2d 938.

Although 18 USCS §  2 does not establish separate crime of "aiding and abetting," it does allow jury to find person guilty of substantive crime even though that person did not commit all acts constituting elements of crime. United States v Pearson (1982, CA5 Ala) 667 F2d 12.

To aid and abet, defendant must share intent to commit offense as well as participate in some manner to assist its commission; defendant need not, however, commit all elements of substantive underlying offense as long as he aided and abetted each element. United States v Fischel (1982, CA5 Tex) 686 F2d 1082.

Person who is not only party to agreement to make false statements in acquisition of firearms, but who provides money to purchase firearms and ammunition, who asks other persons to accompany him to firearms dealer in order to sign government forms, who orders that guns be picked up, and who carries them to border may be convicted for aiding and abetting in falsification of forms required for sale of firearms; however, person assisting principal in acquiring weapon that is to be exported without license may not be convicted for aiding and abetting unless person shares principal's criminal intent. United States v Ortiz-Loya (1985, CA5 Tex) 777 F2d 973.

Defendant was liable as aider and abettor under 18 USCS §  2 for his role in murder of law enforcement officer under 21 USCS §  848, since statute does not apply only to "bosses" or "king pins." United States v Villarreal (1992, CA5 Tex) 963 F2d 725.

Real estate developers who agree to participate in loan transaction which would hide $5 million debt from federal bank regulators were guilty of bank fraud with requisite intent to defraud banks, even though they conspired with bank officials, since they aided and abetted officials' crime under 18 USCS §  2. United States v Saks (1992, CA5 Tex) 964 F2d 1514.

Although existence of stake or interest in outcome of transaction is factor to be considered in aiding and abetting prosecution, it is not controlling factor and moreover it is not necessary that defendant actually touched or possessed contraband drug; defendant has reckless intent to satisfy aiding and abetting in sale of drugs where he clearly knew what was going on, and he intended by his actions to make illegal venture succeed. United States v Winston (1982, CA6 Tenn) 687 F2d 832.

Evidence was sufficient that defendant aided and abetted individual's offense of carrying firearm during and in relation to drug offense in violation of 18 USCS §  924(c), where his act of wearing ski mask to protect himself, when combined with certainty that he must have observed weapon, led to reasonable inference that he likewise intended that weapon be used for protection, not from snakes, but from other individuals who might interfere with trafficking venture. United States v Morrow (1992, CA6 Tenn) 977 F2d 222.

Crime of aiding of abetting prosecribed by 18 USCS §  2 requires proof that defendant associates himself with criminal venture, participates in it as in something he wishes to bring about and seeks by his actions to make it succeed. United States v Garcia-Geronimo (1981, CA7 I11) 663 F2d 738.

Sports agent, acquitted of mail fraud, could not be found guilty under theory of aiding and abetting his own plot to circumvent NCAA rules by secretly signing up football players still in college, where indictment alleged scheme by agent, aiding and abetting was never argued to judge or jury, although "boilerplate 18 USCS §  2 instruction was given, and independent problems of proof would arise should indictment be so recast. United States v Penass (1993, CA7 Wis) 997 F2d 1227, cert den (US) 62 USLW 3335.

Evidence is sufficient to warrant finding of guilty on count of aiding and abetting delivery and sale of stolen securities where defendant met with other participants, he physically acted as lookout, both on street and in bank, and took substantial action to help venture succeed. United States v Miller (1982, ND Ill) 552 F Supp 827.

Intent to aid requirement of aiding and abetting is relaxed where defendant's physical participation in crime is substantial; absent such involvement, aiding and abetting requires either specific intent to aid or specific knowledge for crime charged. United States v Miller (1982, ND Ill) 552 F Supp 827.

In prosecution for aiding and abetting cocaine distribution, trial court's request that defendant rise, asking him, "Do you know of any reason why the court should not pronounce sentence? That is, are you ready to receive the Court's sentence?," to which defendant replied, "Yes, sir," satisfied right of allocution afforded under FRCP § 32(a)(1)(c). United States v Flores (1992, CA8 SD) 959 F2d 83, reh, en banc, den (CA8) 1992 US App LEXIS 7760 and petition for certiorari filed (Jul 23, 1992).

Evidence was sufficient that defendant aided and abetted drug conspiracy by going to train station to meet coconspirator who was bringing large quantity of cocaine with him, where he asked that coconspirator be paged under false name which he used, and defendant had $10,000 in his hotel room. United States v Thomas (1992, CA8 Mo) 971 F2d 147, reh den (CA8) 1992 US App LEXIS 20560.

Evidence was sufficient that defendant aided and abetted "use" during drug trafficking crime of gun which his brother, who was presumably guarding house, threw into pile of laundry in bedroom, which was defendant's by process of elimination, when arrest was imminent, where bullets in gun matched ammunition found under defendant's mattress. United States v Travis (1993, CA8) 993 F2d 1316, petition for certiorari filed (Jul 16, 1993) and petition for certiorari filed (Jul 26, 1993).

Participant in parachutist's jump from arch in federal park is guilty of violating 18 USCS §§  2 and  371, where federal regulations rather obviously prohibited unilateral climbing and jumping off monument from which previous jumper had died in 1980, because evidence that participant had operated radio transceiver, had videotaped jump, had transported equipment to site, and had run from park ranger afterwards proved that participant conspired in effort and aided and abetted unlawful jump. United States v Carroll (1993, ED Mo) 813 F Supp 698.

Judgment may validly incorporate 18 USCS §  2 by explicit reference to indictment in which aiding and abetting violation is specifically charged. United States v Allen (1980, CA9 Cal) 633 F2d 1282, rereported (CA9 Cal) 675 F2d 1373, cert den  454 US 833,  70 L Ed 2d 112,  102 S Ct 133.

Fact that alder and abettor's counsel and encouragement is not acted upon for long periods of time does not break actual connection between commission of crime and advice to commit it; encouraging and counseling another by providing specific information as to how to commit complex crime does not alone constitute aiding and abetting. United States v Barnett (1982, CA9 Cal) 667 F2d 835.

Kickbacks made by painting contractor to bank employee in return for low bid information in sealed bidding process did not aid and abet mail fraud scheme under 18 USCS §  1341, where contractor had been accused of violating 26 USCS §  7206(1) by deducting kickbacks on tax returns as costs of goods sold or as expense, because bank employee could not have been convicted of mail fraud under present law since the deceived party, the bank, did not have an interest in the proceeds from bribes. United States v Digirolamo (1992, ND Cal) 808 F Supp 1445.

Evidence showing more than presence at scene of crime is necessary in order to sustain conviction under 18 USCS §  2. United States v Sacks (1980, CAI0 Colo) 620 F 2d 239.

Defendant was properly convicted of aiding and abetting possession of methamphetamine, even though she may not have possessed or controlled drugs herself, since she willfully associated herself with offense in positive way. United States v Coyote (1992, CAI0 Okla) 963 F2d 1328.

Defendant who conceded that his trip to Houston to pick up cocaine which was eventually possessed by principal might support distribution of cocaine charge was guilty of aiding and abetting possession of cocaine with intent to distribute under 18 USCS §  2, since he gave purposeful support to another's endeavor. United States v Slater (1992, CA10 Kan) 971 F2d 626.

Although neither mere presence nor mere flight is sufficient to uphold conviction for aiding and abetting, presence or flight coupled with other evidence of guilt can be adequate to sustain conviction. United States v Bryant (1982, CA11 Fla) 671 F2d 450.

Evidence was insufficient to prove that defendant aided and abetted another defendant in using and carrying firearm during drug transaction in violation of 18 USCS §  924(c), where there was no evidence that he knew that codefendant carried gun, or that he was linked to gun in any way. United States v Thomas (1993, CA11 Ga) 987 F2d 697.

Evidence was insufficient that defendant aided and abetted codefendant's actual or constructive possession with intent to distribute cocaine, where, using false name, he traveled with codefendant, but said he didn't, the two split up after getting off bus, and there was expert testimony that drug couriers often travel with second person, since there was no proof that defendant knew that codefendant carried drugs, or that he actually participated in ensuring that codefendant's possession went undetected. United States v Teffera (1993, App DC) 985 F2d 1082.

An aider and abettor must share the specific intent of the perpetrator. "Share" does not mean that the aider and abettor is prepared to commit the offense by his or her own act should the perpetrator fail to do so, nor that the aider and abettor seeks to share the fruits of the crime. Rather, an aider and abettor will share the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime. The aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act that is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. People v Beardslee (1991) 53 Cal 3d 68, 279 Cal Rptr 276, 806 P2d 1311, 91 CDOS 2101, 91 Daily Journal DAR 3490, mod, reh den, 53 Cal 3d 1179a, 91 Daily Journal DAR 6607 and stay gr (Cal) and cert den (US) 1991 US LEXIS 6718, 60 USLW 3374.

The liability of an aider and abettor is not limited to the target crime which he or she knowingly and intentionally aids and encourages, but can include crimes committed by the perpetrator that are natural and reasonable consequences of the criminal course of conduct the aider and abettor knowingly aids and encourages. It is a question of fact whether the charged offense was a natural and reasonable consequence of the target offense knowingly encouraged, and the jury should be instructed of its responsibility to determine this factual issue. People v Godinez (1992, 4th Dist) 2 Cal App 4th 492, 3 Cal Rptr 2d 325, 92 CDOS 257, 92 Daily Journal DAR 241.

In homicide prosecution arising from gang attack, there was sufficient evidence from which jury could find that homicide was natural and reasonable consequence of gang attack in order to support defendant's conviction of involuntary manslaughter as aider and abettor, even though defendant did not actually participate in stabbing; however, trial court erred prejudicially in instructing jury that it must find homicide to be such a natural consequence, where jury could have believed defendant's testimony that he did not know his associates were carrying knives. People v Godinez (1992, 4th Dist) 2 Cal App 4th 492, 3 Cal Rptr 2d 325.

For a defendant to be convicted as an aider and abettor, there must be proof the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing or of encouraging or facilitating commission of the offense. People v Glenos (1992, 5th Dist) 7 Cal App 4th 1201, 10 Cal Rptr 2d 363, 92 CDOS 5828, 92 Daily Journal DAR 9145.

The continuing viability of the common law rule of aider and abettor liability for reasonably foreseeable consequences of the criminal act originally contemplated compels the conclusion that, in enacting Pen. Code, § 31 (governing aider and abettor liability), the Legislature intended that an aider and abettor may be found guilty of a lesser crime or lesser degree of crime than the ultimate offense the perpetrator is found to have committed, depending on which of the perpetrator's criminal acts were reasonably foreseeable under the circumstances and which were not. The fact that the perpetrator cannot be found guilty of both a greater and a necessarily included offense does not preclude an aider and abettor from being found guilty of an uncharged, necessarily included offense when the lesser, but not the greater, offense is a reasonably foreseeable consequence of the crime originally aided and abetted. People v Woods (1992, 3rd Dist) 8 Cal App 4th 1570, 11 Cal Rptr 2d 231, 92 CDOS 7287, 92 Daily Journal DAR 11740, review den (Cal) 1992 Cal LEXIS 5931.

When an alder and abettor is charged with the crime originally contemplated by the perpetrator as well as other crimes alleged to be reasonably foreseeable consequences of the original crime, the jury must employ a four-part analysis to determine aider and abettor liability. While the perpetrator and the aider and abettor need not be tried jointly, the jury first must determine the crimes and degrees of crimes originally contemplated and committed by the perpetrator. Next, it must decide whether the aider and abettor knew of the perpetrator's intent to commit those criminal acts and intended to encourage or facilitate their commission so as to render him or her vicariously liable for them. Then the jury must determine whether other crimes and degrees of crimes charged against the alder and abettor were committed by the perpetrator. If so, it must determine whether those crimes, though not necessarily contemplated at the outset, were reasonably foreseeable consequences of the original criminal acts, so as to make the alder and abettor vicariously liable for them. People v Woods (1992, 3rd Dist) 8 Cal App 4th 1570, 11 Cal Rptr 2d 231, 92 CDOS 7287, 92 Daily Journal DAR 11740, review den (Cal) 1992 Cal LEXIS 59J 1.

In enacting Pen. Code, § 31, governing aider and abettor liability, the Legislature abolished the common law distinctions between principals of the first and second-degree and between principals and accessories before the fact. However, a common law rule of aider and abettor liability that has survived in California is the doctrine that one who incites the commission of a crime can be liable not only for the crime incited, but also for any incidental consequences that reasonably might be expected to result from the intended wrong. Therefore, an aider and abettor is guilty of any reasonably foreseeable offense committed by the person he or she aids and abets. An aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator; knowledge that a criminal act was intended, and action intended to encourage or facilitate that act, are sufficient to make him or her liable for any reasonably foreseeable offense committed as a consequence by the perpetrator. People v Woods (1992, 3rd Dist) 8 Cal App 4th 1570, 11 Cal Rptr 2d 231, 92 CDOS 7287, 92 Daily Journal DAR 11740, review den (Cal) 1992 Cal LEXIS 5931.

Victim injury points were properly assessed, regardless of whether victim's injuries were inflicted by accused or a codefendant, where victim was struck in the face when she tried to escape and sustained other injuries during the sexual battery, and victim injury points were assessed against accused upon his conviction for false imprisonment, sexual battery, and aiding and abetting sexual battery despite his contention that the injuries were inflicted by codefendant, because one who aids and abets is a principal in the first-degree. Taylor v State (1993, Fla App D5) 619 So 2d 1017, 18 FLW D 1327.

An aider or abettor is a person who is actually or constructively present at the scene of the crime and who aids, advises, counsels, instigates or encourages another to commit the offense. Even though not actually present during the commission of the crime, a person may be an aider and abettor if he shares the criminal intent of the perpetrator and if, during the commission of the crime, he is in a position to render any necessary aid to the perpetrator. State v Barnette (1981) 304 NC 447, 284 SE2d 298.

Defendant could properly be convicted of assault with a deadly weapon with intent to kill inflicting serious injury under the theory that he acted in concert with the codefendant even though the codefendant was acquitted of that crime since inconsistent verdicts in the same trial are permissible. State v Reid (1994) 335 NC 647, 440 SE2d 776.

A defendant who enters into a common design for a criminal purpose is equally deemed in law a party to every act done by others in furtherance of such design; therefore, where defendant knew that his companion was going to rob a store, it did not matter that he did not know his companion was going to use a firearm. State v Ferree (1981) 54 NC App 183, 282 SE2d 587.

Defendant Poe was properly found guilty of aiding and abetting the commission of the offense of assault with a deadly weapon inflicting serious injury and damage to personal property not only because he was present when the crimes were committed but because his actions in driving the car from which several items were thrown by his passengers at other cars and in throwing items at other cars himself showed his consent to the criminal purpose and contribution to its execution. State v Poe (1995) 119 NC App 266, 458 SE2d 242, stay gr 340 NC 571, 459 SE2d 515, petition den (NC) 1995 NC LEXIS 522.

In a prosecution for kidnapping, extortion, and aggravated murder, evidence showing the defendant's complicity, the defendant's awareness that handguns were to be employed to accomplish the kidnapping, and also that the kidnapping was reasonably likely to produce the victim's death was sufficient to sustain a finding that the defendant purposely aided and abetted the kidnapping victim's murder. State v Scott (1980) 61 Ohio St 2d 155, 15 Ohio Ops 3d 182, 400 NE2d 375.

Defendant was improperly convicted of being party to crimes of intentional and reckless physical abuse of his daughter by intentionally aiding and abetting physical abuse inflicted by defendant's wife as, where defendant was charged under aiding and abetting statute, state was required to prove that defendant undertook some affirmative action against child and jury acting reasonably could not have inferred that any of alleged conduct aided and abetted abuse of child since earlier acts of apparently reasonable discipline did not support inference that, over 18 months later, such acts aided or abetted wife to commit abusive acts that resulted in child's permanent injuries and evidence did not support inference that defendant engaged in overt conduct which aided abuse or that defendant dressed child inappropriately to conceal her bruises from discovery thus, while evidence showed that defendant might be guilty of offense of failure to act to prevent bodily harm to child, evidence was insufficient to establish guilt as aider and abettor to crimes as charged (Stats §§  939.05,  948.03(2), (3), (4)). State v Rundle (1993)  176 Wis 2d 985, 500 NW2d 916.

Footnote 38. State v Derosia, 94 NH 228, 50 A2d 231.

A person aids and abets the commission of a crime if he knowingly and with criminal intent aids, promotes, encourages or instigates by act or advice the commission of such crime.  State v Nelson 88 SD 348, 220 NW2d 2, cert den  419 US 1110,  42 L Ed 2d 807,  95 S Ct 784.

Footnote 39. United States v Peichev (CA9 Cal) 500 F2d 917, cert den  419 US 966,  42 L Ed 2d 182,  95 S Ct 229.

Aiding and abetting requires proof by government that defendant had "purposeful attitude" and in some manner participated in unlawful deed; this requires essentially existence of some affirmative participation which at least encourages perpetrator. United States v Crow Dog (CA8 Iowa) 532 F2d 1182, cert den  430 US 929,  51 L Ed 2d 772,  97 S Ct 1547.

Footnote 40. United States v Corbin Farm Service (ED Cal) 444 F Supp 510, affd (CA9 Cal) 578 F2d 259.

Footnote 41. Jones v Commonwealth, 208 Va 370, 157 SE2d 907.

In the absence of a conspiracy or some preceding connection with the transaction, one does not aid and abet if he merely sees a crime being committed; mere approval or acquiescence without expressed concurrence or the doing of something to contribute is not aiding or abetting.  Columbus v Russell, 39 Ohio App 2d 139, 68 Ohio Ops 2d 327, 316 NE2d 897.

To aid and abet means to assist perpetrator of crime while sharing in requisite criminal intent; crime consists of illegal assistance in criminal act and person may be convicted on basis of his overall participation in criminal venture; in order to sustain conviction for aiding and abetting, evidence must show that defendant was associated with criminal venture, participated in it as something he wished to bring about, and sought by his action to make it succeed.  United States v Martinez (CA5 Tex) 555 F2d 1269.

Proof that defendant was merely associated with criminal, or that defendant was present at scene of crime is not, without more, sufficient to sustain conviction for aiding and abetting criminal venture.  United States v Longoria (CA5 Tex) 569 F2d 422.

Footnote 42. United States v Sanborn (CA1 Mass) 563 F2d 488.

In prosecution for violation of 18 USCS §  656 and § 2 in that defendant aided and abetted in misapplication of bank funds by bank officer, evidence amply supported jury verdict where bank officer delivered $15,000 of bank's funds to defendant knowing that money was actually being channeled to third person, and that bank officer was able to so misapply funds through fiction of defendant's false application and statement of purpose, and which sham arrangement violated 18 USCS §  656.  United States v Kennedy (CA9 Cal) 564 F2d 1329, cert den  435 US 944,  55 L Ed 2d 541,  98 S Ct 1526.

In prosecution for aiding and abetting transporation of falsely made or counterfeit checks in interstate commerce, conviction did not require showing that defendant knew of interstate transportation of the checks, rather, all that had to be proven was the fact of interstate tranportation together with knowledge of the forgery or counterfeiting.  United States v Cowden (CA1 Mass) 545 F2d 257, cert den  430 US 909,  51 L Ed 2d 585,  97 S Ct 1181.

18 USCS §  2 rendered defendant criminally liable for violation of 15 USCS §  77x in connection with filing of SEC registration statements designed to conceal his status as true owner of certain stock although he did not sign statement, did not file it, and did not directly participate in its preparation since evidence sufficiently connected him with false filing of statement, by showing his knowledge of its existence and assistance in preparation, to support finding of his having aided and abetted filing. United States v Erb (CA2 NY) 543 F2d 438, cert den (US)  50 L Ed 2d 590,  97 S Ct 493.

In order to be convicted of aiding and abetting transporation of firearms in foreign commerce by convicted felon defendant must have assisted convicted felon in transportation of firearms knowing that convicted felon was in fact transporting firearms, thus, where jury asked judge during deliberations whether an individual could aid and abet crime without knowledge that crime was being committed it was improper for trial court to answer that question affirmatively on the assumption that jury was merely asking whether person could aid and abet without knowing that activity in question was criminal, since question could be interpreted as asking whether defendant could be guilty of aiding and abetting without knowing that principal was committing various forbidden elements of principal crime.  United States v McDaniel (CA9 Wash) 545 F2d 642.

Footnote 43. Shelton v United States (CA7 Ill) 292 F2d 346, cert den  369 US 877,  8 L Ed 2d 280,  82 S Ct 1149; Gans v Warden of Maryland Penitentiary, 233 Md 626, 196 A2d 632; Thomas v Warden, Maryland Penitentiary, 235 Md 636, 201 A2d 495; State v Clifford, 267 Minn 554, 126 NW2d 258.

In prosecution for conspiracy to intercept wire and oral communications and aiding and abetting such interception, in which defendant claimed that his lack of knowledge of illegality of his actions constituted circumstantial evidence tending to negate his active participation in conspiracy and as aider and abettor, jury should have been instructed as to relevance of defendant's ignorance and charged that although it was not excuse, they could consider it as bearing on credibility of claim that he was not knowing participant.  United States v Schilleci (CA5 La) 545 F2d 519.

Defendants, neither of whom were present at commission of substantive offense, were properly convicted of aiding and abetting as there was sufficient evidence to show they had associated themselves with, and participated in criminal undertaking with intent to make it successful; while mere association or knowledge of illegal activity is not sufficient for conviction, involvement may be shown circumstantially, and act of slight importance may warrant jury's finding of participation in crime.  United States v Rosa (WD Pa) 404 F Supp 602, affd without op (CA3 Pa) 535 F2d 1247 and affd without op (CA3 Pa) 535 F2d 1248, cert den  429 US 822,  50 L Ed 2d 83,  97 S Ct 71 and affd (CA3 Pa) 560 F2d 149, cert den  434 US 862,  54 L Ed 2d 135,  98 S Ct 191.

In prosecution for conspiracy to possess heroin with intent to distribute and with aiding and abetting distribution of heroin, in violation of 18 USCS §  2 and 21 USCS §§  841 and  846, accused need not have been present at actual sale to be convicted of aiding and abetting; conviction would be affirmed where evidence showed that sale was made by third person to police officer, and that negotiations leading to that sale were conducted over telephone registered in defendant's name, and defendant's role was that prior to sale he had conversation with officer focusing upon possible sale of "tires," which was private code name for "ounces of heroin," and defendant stated that while he would have to speak with other guy about cost, everything would be ready when officer called back, and evidence further showed that everything was indeed ready when officer called and third person informed officer that he was handling transaction for defendant and agreed to meet officer at very location officer and defendant had discussed, and completed sale shortly thereafter.  United States v Juarez (CA5 Tex) 566 F2d 511.

Conviction for violation of a statute making it a crime to place an obstruction upon the rails or track of any railroad, based on defendant's inciting or abetting of the placing of the obstructions by his antecedent speech and conduct, did not violate his First Amendment rights of freedom of speech; furthermore, the fact that he was not present and did not physically assist in the placement of the obstruction was irrelevant.  People v Bohmer (4th Dist) 46 Cal App 3d 185, 120 Cal Rptr 136, cert den  423 US 990,  46 L Ed 2d 308,  96 S Ct 402.

As to offense of aiding and abetting illegal possession of drugs or narcotics, see 25 Am Jur 2d,  Drugs, Narcotics, and Poisons § 21 supp.

Footnote 44. Morgan v United States (CA10 Okla) 159 F2d 85.

Footnote 45. State v Gruber, 116 Minn 221, 133 NW 571.

Footnote 46. State v Norman, 193 Neb 719, 229 NW2d 55.

B.  Principals and Accessories [168-174]

A principal in a crime must be actually or constructively present, aiding and abetting the commission of the offense. 47   It is not necessary that one do some act at the time in order to constitute him a principal, but he must encourage its commission by acts or gestures, either before or at the time of the commission of the offense, with full knowledge of the intent of the persons who commit the offense. 48   He must do some act at the time of the commission of the crime that is in furtherance of the offense. 49 

A person who encourages the commission of an unlawful act cannot escape responsibility by quietly withdrawing from the scene.  The influence and effect of his encouragement continue until he renounces the common purpose and makes it plain to the others that he has done so and that he does not intend to participate further. 50

The fact that person acts as the agent of another in the commission of an offense does not exonerate him from liability as a principal in the crime. 51

Under certain federal statutes, participants in an offense may be prosecuted either as principals or as aiders and abettors. 52  

Defendant cannot have benefit of claim that he and corporation are same entity without accepting burden of that claim and where in transactions, if defendant as person is in essence corporation, then defendant as person is licensee and would be capable of violating statute as principle. United States v Spiezio (1981, ED Pa) 523 F Supp 264.

Defendant "caused" government agent to travel in interstate commerce to exchange cash for checks, where travel was at defendant's request, even though agent acted under government instruction, since "causes to act" in 18 USCS §  2 does not mean that defendant must be sole and proximate cause of performance of act. United States v Levy (1992, CA5 La) 969 F2d 136.

Participant in bank robbery in which dangerous weapon is used may be convicted as principal regardless of fact that it is another participant in robbery who actually possesses weapon. United States v Schultz (1985, CA7 Wis) 769 F2d 431.

Although an accomplice had actually robbed the store at gunpoint, defendant's guilt as a principal in the commission of the crime was clearly established by evidence that he had planned the crime, had cased the store prior to the robbery, had furnished the gun, had furnished camouflaged hat and coat worn by the accomplice while robbing the store, had supplied and driven the get-away car, and had taken the money bag when the accomplice got back into the car after the robbery. Walker v State (1986, Miss) 493 So 2d 1323.

In a prosecution of multiple defendants on various charges of possession, manufacturing, and sale and delivery of heroin, the trial court committed prejudicial error in giving the jury instructions which permitted the jurors to find a defendant guilty as a principal to a crime at which he was not actually or constructively present because he participated in a conspiracy to commit the crime. State v Overton (1982) 60 NC App 1, 298 SE2d 695, app dismd, petition den (NC) 299 SE2d 652 and app dismd, petition den (NC) 299 SE2d 652 and app dismd, petition den (NC) 299 SE2d 653.

Sufficient evidence was adduced to support reasonable trier of fact in conclusion beyond reasonable doubt that every reasonable hypothesis of innocence on part of defendant was excluded and that he was principal in crime, where circumstantial evidence placed defendant with victim and other alleged malefactors, and direct evidence corroborated jailhouse informant's testimony concerning two weapons mentioned by defendant and included testimony of witness who placed defendant and other malefactors and victim together in early evening on night of offense. State v Pierre (1993, La App 3d Cir) 614 So 2d 1309.

Footnote 47. State v Burbank, 156 Me 269, 163 A2d 639,  95 ALR2d 166.

As to what constitutes aiding and abetting, see  § 167, supra.

Footnote 48. People v Marx, 291 Ill 40, 125 NE 719.

Footnote 49. People v Marx, 291 Ill 40, 125 NE 719; State v Spears, 268 NC 303, 150 SE2d 499; State v O'Shields, 163 SC 408, 161 SE 692; McAlister v State, 45 Tex Crim 258, 76 SW 760.

Without regard to any previous confederation or design, when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. State v Keller, 268 NC 522, 151 SE2d 56.

Footnote 50. Karnes v State, 159 Ark 240, 252 SW 1; People v Wilson, 76 Cal App 688, 245 P 781; Powers v Commonwealth, 110 Ky 386, 61 SW 735, supp op 110 Ky 462, 63 SW 976.

Footnote 51. Alt v State, 88 Neb 259, 129 NW 432; Buchanan v State, 4 Okla Crim 645, 112 P 32; Thompson v State, 105 Tenn 177, 58 SW 213.

Defendant's quotation of the price and his bringing together of the buyers and the seller constitute sufficient involvement to implicate him as a principal in the commission of the offense of sale of marijuana.  State v Hubbard (Fla App D2) 328 So 2d 465.

The driver of a getaway car is present at the scene of the crime, and he is a principal rather than an accessory before the fact.  State v Lyles, 19 NC App 632, 199 SE2d 699, cert den 284 NC 426, 200 SE2d 662.

Footnote 52.  § 167, supra.

At common law a principal in the first degree was one who did the act either in person or through an innocent agent. 53   A principal in the second degree was present at the time a crime was committed, lending countenance, aid, or encouragement, or keeping watch at some convenient distance while another person did the actual criminal act. 54   The immediate presence of a party was not necessary to qualify him for the role of a principal in the second degree. 55    It was sufficient if, pursuant to an agreement, he was in a position to give any necessary aid to the perpetration of the offense. 56   While a bystander, without more, was not deemed a principal, 57  his unexplained presence at the place of the commission of a crime might be considered as a circumstance tending to show complicity in the transaction. 58

Under many statutes, the distinction between principals of the first and second degree is not of much practical importance, and in some instances is entirely abolished.  The statutes in varying terms make all persons who are present and concerned in the commission of a crime guilty as principals. 59     

A person who actually commits an offense or who is present when another commits the offense and does some act in furtherance of the crime is a principal in the first-degree, while a person who is actually or constructively present when the crime is committed and who aids or abets another in its commission is a principal in the second-degree, and both are equally guilty. State v Davis, 301 NC 394, 271 SE2d 263.

A letter by defendant's counsel offering to waive the preliminary hearing and the grand jury indictment, and offering to have defendant plead guilty to third-degree burglary, did not prevent a subsequent prosecution for second-degree burglary, where the letter was sent to the district attorney at the time a complaint was issued, where although defendant could plead guilty to an information there was no authority for pleading guilty to a complaint, where the letter was insufficient to constitute either an effective waiver of the hearing or the proceeding or an effective plea of guilty, and where the purpose of allowing a guilty plea was to save defendant the expense and ordeal of trial, not to allow him to plead guilty to a charge less serious than was warranted by the facts. People v Montanye (1983, 3d Dept)  95 App Div 2d 959, 464 NY S2d 292.

Footnote 53. United States v Gooding,  25 US 460,  6 L ed 693; Johnson v State, 142 Ala 70, 38 So 182; State v Wilson, 235 Iowa 538, 17 NW2d 138; State v Minton, 234 NC 716, 68 SE2d 844;  31 ALR2d 682; Pierce v State, 130 Tenn 24, 168 SW 851; Red v State, 39 Tex Crim 667, 47 SW 1003.

Footnote 54. State ex rel. Dooley v Coleman, 126 Fla 203, 170 So 722; State v Wilson, 235 Iowa 538, 17 NW2d 138; State v Turner (Mo) 272 SW2d 266,  48 ALR2d 1008; State v Minton, 234 NC 716, 68 SE2d 844,  31 ALR2d 682; Pierce v State, 130 Tenn 24, 168 SW 851; Brown v Commonwealth, 130 Va 733, 107 SE 809.

To sustain a conviction of defendant as a principal in the second degree, the state's evidence was present, actually or constructively, with the intent to aid the perpetrator in the commission of the offense should his assistance become necessary and that such intent was communicated to the actual perpetrator. State v Rankin, 284 NC 219, 200 SE2d 182.

Footnote 55. Johnson v United States,  157 US 320,  39 L Ed 717,  15 S Ct 614; Pennington v State, 91 Fla 446, 107 So 331; State v Shon, 47 Hawaii 158, 385 P2d 830; Anarchists' Case, 122 Ill 1, 12 NE 865, error dismd  123 US 131,  31 L Ed 80,  8 S Ct 22; Commonwealth v Hollister, 157 Pa 13, 27 A 386.

An accused who waits at the scene of a crime to assist the actual perpetrators in getting away may properly be charged as a principal; presence of accused at the scene of the crime is to be determined not by mere spatial continguity but rather by the purpose to be served by waiting.  State v Raniello 113 RI 71 317 A2d 440.

Footnote 56. Pennington v State, 91 Fla 446, 107 So 331; State v Shon, 47 Hawaii 158, 385 P2d 830; Cavert v State, 158 Tenn 531, 14 SW2d 735.

Footnote 57. People v Woodward, 45 Cal 293; People v Cione, 293 Ill 321, 127 NE 646; People v Chapman, 62 Mich 280, 28 NW 896; State v Larkin, 250 Mo 218, 157 SW 600.

Mere presence of a nonparticipant when a criminal offense is committed does not constitute him a principal in the crime in the absence of evidence that he gave active encouragement to the actual perpetrator of the crime or made it known to the perpetrator that assistance was available if needed. State v Ham, 238 NC 94, 76 SE2d 346.

Footnote 58. People v Woodward, 45 Cal 293.

A person's presence at the scene of an offense may be considered in connection with other circumstances in determining whether he is a principal therein.  State v Cummings, 49 Hawaii 522, 423 P2d 438.

Proof that a person is present at the commission of a crime without disapproving or opposing it is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented, lent his countenance and approval to the act, and was thereby aiding and abetting. State v De Falco, 8 NJ Super 295, 74 A2d 338, certif den 5 NJ 483, 76 A2d 22.

Footnote 59. Ruthenberg v United States,  245 US 480,  62 L Ed 414,  38 S Ct 168; Kelly v United States (CA8 Neb) 61 F2d 843; 338; Pinson v Young, 100 Kan 452, 164 P 1102; State v Yohe, 203 Kan 855, 457 P2d 12; People v Galbo, 218 NY 283, 112 NE 1041,  2 ALR 1220; Haas v State, 103 Ohio St 1, 132 NE 158; Campbell v State, 63 Tex Crim 595, 141 SW 232.

A person not a fiduciary may be convicted of embezzlement if he has aided or abetted a fiduciary in the commission of the crime, where a statute provides that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet or advise and encourage its commission, are principals.  Gibbs v State, 37 Ariz 273, 293 P 976.

A federal statute provides that whoever directly commits any act of constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.  Kaufman v United States (CA2 NY) 212 F 613.

The distinction between principals in the first and second degree, in felony cases, has been abrogated in Idaho.  State v Oldham, 92 Idaho 124, 438 P2d 275.

One present when a forcible trespass is committed by another with a show of force, aiding and abetting the trespasser in what he does, is himself guilty of forcible trespass.  State v Tyndall, 192 NC 559, 135 SE 451.

Advice or encouragement given by words, acts, or signs may make one a principal in a felony. 60  So, a person may be a principal who watches at a proper distance to prevent surprise while others commit the unlawful act. 61  

Direct personal involvement constitutes violation of 18 USCS §  2 and 21 USCS §  841 where defendant came into room with gun, knowing that marijuana and cocaine would be present and deliberately gave gun to another defendant agreeing that it should be hidden along with measurable quantities of marijuana and along with cocaine that was intended for distribution. United States v Irizarry (1982, CA1 Puerto Rico) 673 F2d 554.

All persons participating in a crime are principals of the first or second-degree; the actual perpetrator is a principal of the first-degree, while a person who does not commit the crime with his own hands but is present, aiding or abetting the actual perpetrator, is a principal of the second-degree. State v Lowery (1982, Fla) 419 So 2d 621.

Footnote 60. Brennan v People, 15 Ill 511.

To aid and abet another in the commission of a crime means to assent to an act or to lend countenance or approval either by active participation in it or by in some other manner encouraging it.  State v Myers, ---- (Iowa) ----, 158 NW2d 717.

Footnote 61. State v Turner (Mo) 272 SW2d 266,  48 ALR2d 1008; State v Weekley, 40 Wyo 162, 275 P 122.

Conviction for criminal facilitation in fourth-degree pursuant to CLS Penal §  115.00(1) would be reversed and indictment would be dismissed where defendant shouted "Police! Police!" outside door of apartment as police officers were about to execute search warrant to look for drugs and related paraphernalia, since statute clearly contemplated that facilitated crime must occur in future, after intervention of facilitator, and at time of defendant's warning, felony of drug and paraphernalia possession by occupants of apartment was complete. People v Llanos (1989, 1st Dept)  151 App Div 2d 128, 546 NY S2d 584, app gr  75 NY2d 870, 553 NYS2d 301, 552 NE2d 880 and app gr  75 NY2d 870, 553 NYS2d 301,552 NE2d 880 and motion to dismiss app den  76 NY2d 746, 558 NYS2d 485, 557 NE2d 778 and affd  77 NY2d 866, 568 NYS2d 723, 570 NE2d 1072.

Where a crime requires the existence of a particular intent, an alleged aider or abettor cannot be held as a principal unless it is established that the aider knew that the perpetrator of the act had the required intent, 62  or that the aider himself possessed the required felonious intent. 63    If the intent of the aider is different from that of the perpetrator, the aider's guilt is measured by the intent that actuated him, though this may result in making him liable for a graver offense. 64

To prove a violation of the federal aiding and abetting statute, 65   the government must show that the defendant associated himself with the venture, participated in it as in something he wished to bring about, and sought by his action to make it succeed; and to prove association with the venture, there must be evidence that the defendant shared the state of mind required for the statutory offense, although defendant need not have the exact intent as the principal; but such criminal intent, often difficult to demonstrate by direct proof, may be inferred from the surrounding circumstances. 66

If one with felonious intent aids another in an act that the aider believes to be a crime, but the person aided had no criminal intent and was merely giving others an opportunity to catch the aider in the commission of an offense, the aider is not guilty of a crime unless in rendering his aid he has committed every overt act necessary to the commission of a crime. 67

Individual with requisite criminal intent may be liable as principal if he is cause in fact in commission of crime, notwithstanding that proscribed conduct is achieved through actions of innocent intermediaries. United States v Margiotta (1982, CA2 NY) 688 F2d 108.

In prosecution for aiding and abetting sale of narcotics defendant satisfies intent requirement where he was catalyst who put transaction together, he clearly knew what was going on, and he intended by his actions to make illegal venture succeed. United States v Winston (1982, CA6 Tenn) 687 F2d 832.

In a robbery prosecution against the man who drove the perpetrators from the scene of the crime, the trial court's instructional error in not requiring the jury to find that defendant intended to aid the perpetrators was harmless error beyond a reasonable doubt, where the jury found, pursuant to the instruction given, that defendant had knowledge of the perpetrators' intent to commit a robbery and where all of defendant's behavior after the robbery took place was consistent only with that conclusion. From such knowledge, an inference that defendant intended to aid the perpetrators followed of necessity. Further, automatic reversal was not required, even though the error was of federal constitutional proportions, since, in the setting of the instant case, the error was both unimportant and insignificant. People v Benson (1982, 1st Dist) 130 Cal App 3d 1000, 180 Cal Rptr 921.

In a prosecution for attempted murder and other crimes arising out of the robbery of a jewelry store, in which defendant's only participation was as an aider and abettor by his driving the getaway car, it was not essential that it be proved that defendant harbored the specific intent to kill or that he intended to facilitate the offense of attempted murder, since all that was necessary for defendant to share in the perpetrator's intent was that defendant knowingly intended to assist the perpetrator in committing the planned crime which was shown by his agreement to drive the getaway car. Once that intent is formed, the liability of an aider and abettor then extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aided and encouraged and the perpetrator's commission of an attempted murder in the robbery was foreseeable from his possession of a gun and a pillow to use as a silencer. People v Hammond (1986, 1st Dist) 181 Cal App 3d 463, 226 Cal Rptr 475.

In a prosecution for burglary (Pen. Code, § 459), robbery (Pen. Code, § 211), and mayhem (Pen. Code, § 203), the trial court's error in failing to instruct that an aider and abettor must act with the intent to further the perpetrator's criminal purpose was harmless, where the necessary intent was established as a matter of law and no contrary evidence worthy of consideration existed. Defendant's fingerprint was found on the weapon used to beat the victim, the defense consisted primarily of attempts to impeach a witness who testified that defendant beat the victim and to establish that defendant's confession was involuntary, and the jury specifically found that defendant had personally inflicted great bodily harm in the commission of the crimes. People v Barker (1986, 5th Dist) 182 Cal App 3d 921, 227 Cal Rptr 578.

Pattern jury instructions on aiding and abetting are flawed if they fail to advise the jury not only that the defendant must have had knowledge of the criminal purpose of the perpetrator of the offense but also that he must have shared that purpose or intended to commit, encourage, or facilitate the commission of the crime. People v Johnson (1986, 2d Dist) 190 Cal App 3d 187, 237 Cal Rptr 479.

In order to be convicted of a crime on a theory of aiding and abetting, there must be proof that the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. When the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime, the aider and abettor must share the specific intent of the perpetrator. That is, an aider and abettor must know the full extent of the perpetrator's criminal purpose and give aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime. The liability of an aider and abettor also extends to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages. People v Beeman (1984) 35 Cal 3d 547; 199 Cal Rptr 60, 674 P2d 1318.

Footnote 62. Chapman v State, 43 Tex Crim 328, 65 SW 1098.

The evidence was sufficient to convict the defendant as an aider and abettor in the delivery of marijuana and cocaine, where the defendant told the prospective purchaser where to go and whom to contact, where the defendant himself tried to locate the seller, and where there was adequate proof of a sale, notwithstanding that the purchaser did not buy from the individual the defendant had instructed her to contact; criminal intent could not be found lacking on the basis that the defendant's accomplice was a law enforcement agent, where the evidence established that the defendant's accomplice was a confidential informant with a law enforcement agency, but had no authority to deal in drugs.  Beasley v State (Fla App D4) 360 So 2d 1275.

Although the word "aid" does not imply guilty knowledge or felonious intent, the word "abet" includes knowledge of the wrongful purpose of the perpetrator as well as counsel and encouragement in the crime.  State v Hinkley, 52 Wash 2d 415, 325 P2d 889.

Footnote 63. Coffin v United States,  162 US 664,  40 L Ed 1109,  16 S Ct 943; Woolweaver v State, 50 Ohio St 277, 34 NE 352.

Intent is seldom capable of direct proof.  It is usually inferred from the proved surrounding circumstances.  State v Kneedy, 232 Iowa 21, 3 NW2d 611.

Participation in criminal intent may be inferred from one's presence in and near the scene of the crime, and his conduct before or after the offense is committed.  State v Myers, ---- (Iowa) ----, 158 NW2d 717.

Footnote 64. Red v State, 39 Tex Crim 667, 47 SW 1003.

Footnote 65. 18 USCS §  2.

Footnote 66. United States v Beck (CA7 Ill) 615 F2d 441.

Footnote 67. State v Hayes, 105 Mo 76, 16 SW 514 (ovrld on other grounds State v Barton 142 Mo 450, 44 SW 239); State v Currie, 13 ND 655, 102 NW 875.

An accessory before the fact is a person whose will contributes to a felony committed by another as principal, and yet who is too far away to aid in the felonious act. 68   A statute may abolish the common-law distinction between an accessory before the fact and a principal, 69  and provide that an accessory may be indicted, tried, and convicted as a principal. 70    

Either advising or encouraging the commission of a criminal offense is sufficient to constitute one an accessory before the fact. 71   Mere concealment of knowledge that a felony is to be committed does not, however, make the party concealing it an accessory before the fact. 72

Practically all felonies except treason admit of accessories before the fact. 73  

In cases of misdemeanors, all who aid and abet, as well as those who perpetrate the acts, are principals. 74    In other words, there are no accessories at common law in the commission of misdemeanors. 75   It is said that the reason for this rule is that the law does not distinguish the different shades of petty offenses. 76

Reindictment after defendant's successful exercise of procedural right which reformulates charges to increase chance of conviction does not penalize defendant for exercise of his procedural rights since only "penalty" is normal risk of conviction faced by all litigants if prosecution decides to retry case after procedural motions. United States v Motley (1981, CA9 Cal) 655 F2d 186.

The defendant, who was convicted as an accessory before the fact to first-degree murder, was a capital defendant as that term is used in ALM GL ch 278 § 33E, which vests exclusive appellate jurisdiction in capital cases in the Supreme Judicial Court. Commonwealth v Angiulo (1993) 415 Mass 502, 615 NE2d 155, summary op at (Mass) 21 M.L.W. 2881.

Jury verdict finding defendant guilty of armed robbery as an accessory before the fact was amply supported by testimony of state's principal witness, the person who actually assaulted and wrestled jewels from the victim, that defendant masterminded the crime, which testimony was corroborated by another witness, and by testimony of the defendant placing himself with the co-defendants before the fact and with the stolen jewels on the evening of the crime. Malone v State (1986, Miss) 486 So 2d 360, later proceeding (Miss) 486 So 2d 367.

A jury instruction on accessory before the fact was inadequate where it did not instruct the jury to find beyond a reasonable doubt that the crime was actually committed, but only instructed the jury to determine whether the defendant was an accessory before the fact, leaving them to assume that the occurrence of the crime was an established fact. Wilson v State (1991, Miss) 592 So 2d 993.

In a prosecution for accessory after the fact to voluntary manslaughter where the trial court stated that if defendant "knowing Horne and Lagree or Horne or Lagree could have committed the crime of voluntary manslaughter, assisted Horne or Lagree in escaping or attempting to escape detection, arrest or punishment by concocting a story which was not true ... ," then he should be found guilty, the trial court committed prejudicial error. One item of proof of the crime of accessory after the fact is that the accused knew that the felony had been committed by the person assisted, and "considering all of the circumstances of the case" the error was prejudicial. G.S. 15A-1232. State v Earnhardt (1982) 307 NC 62, 296 SE2d 649.

There was substantial evidence of each of the three elements of accessory before the fact of murder where (1) there was testimony that defendant agreed to pay the principal $30,000.00 out of the insurance proceeds on her husband's life if the principal would kill defendant's husband, (2) the jury could reasonably infer that defendant was not present when the principal shot her husband, and (3) the principal admitted that he was the one who shot defendant's husband after lying in wait for him. Defendant's life sentence was proper in that the Legislature abolished the difference in guilt and sentencing treatment between the principal to the felony and an accessory by repealing G.S. 14-5, G.S. 14-5.1 and G.S. 14-6 and replacing them with G.S. 14-5.2. State v Woods (1982) 307 NC 213, 297 SE2d 574.

The trial court did not err by denying defendant's motions to dismiss charges of accessory before the fact to first-degree murder, first-degree burglary, armed robbery, and first-degree arson where an accomplice testified that the only purpose in going to the property was to steal items and there was no murder, arson, or robbery planned. Once an accessory before the fact has counseled, procured or planned a criminal event, he or she must answer for all crimes flowing from the accomplished event. State v Marr (1994) 113 NC App 774, 440 SE2d 275.

Footnote 68. Kaufman v United States (CA2 NY) 212 F 613; Moore v Lowe, 116 W Va 165, 180 SE 1, cert den  296 US 574,  80 L Ed 406,  56 S Ct 130 and (disapproved on other grounds State ex rel. Muldrew v Boles 151 W Va 1033, 159 SE2d 36).

At common law an "accessory before the fact" is one who, though not the chief actor in the offense or present at its performance, is in some way concerned therewith before the fact; one who, though absent at the time of the offense, yet procures, counsels, or commands another to commit it. Pierce v State, 130 Tenn 24, 168 SW 851.

At common law an accessory before the fact was one who was not actually or constructively present at the commission of the crime, but who procured, counseled, or commanded another to commit it. State v Wilson, 235 Iowa 538, 17 NW2d 138.

An accessory before the fact is distinguishable from an aider and abettor by the fact that the latter must be present at the commission of the offense. Sams v Commonwealth, 294 Ky 393, 171 SW2d 989.

Defendant was properly convicted of selling more than one kilogram of marijuana to an undercover agent, even though he did not personally deliver the marijuana to the agent, where the proof showed his participation as an accessory before the fact, thus rendering him subject to indictment and punishment as a principal. McGowan v State (Miss) 375 So 2d 987.

Footnote 69. Von Patzoll v United States (CA10 Okla) 163 F2d 216, cert den  332 US 809,  92 L Ed 386, 387,  68 S Ct 110, 111.

The distinction between an accessory before the fact and a principal in felony cases, has been abrogated in Idaho.  State v Oldham, 92 Idaho 124, 438 P2d 275.

Footnote 70. Burnett v People, 204 Ill 208, 68 NE 505; Commonwealth v Hicks, 118 Ky 637, 82 SW 265; State v Whitman, 103 Minn 92, 114 NW 363; People v Galbo, 218 NY 283, 112 NE 1041; State v Hopkins, 147 Wash 198, 265 P 481; cert den  278 US 617,  73 L Ed 540,  49 S Ct 21; State v Weekley, 40 Wyo 162, 275 P 122.

See State ex rel. Muldrew v Boles, 151 W Va 1033, 159 SE2d 36, holding that the West Virginia statute providing that every accessory before the fact shall be punishable as if a principal in the first degree, does not dispense with the need to indict, prosecute, and punish an accessory before the fact as such, and does not allow him to be indicted or convicted as a principal.

Footnote 71. Powell v State, 177 Ark 938, 9 SW2d 583.

Footnote 72. Smith v State, 23 Tex App 357, 5 SW 219.

Footnote 73. Kaufman v United States (CA2 NY) 212 F 613; State v Burns, 82 Conn 213, 72 A 1083; People v Bliven, 112 NY 79, 19 NE 638.

That all persons participating in or contributing to treasonable acts are principals, see 70 Am Jur 2d,  Sedition, Subversive Activities, and Treason § 13.

Footnote 74. United States v Mills  32 US 138  8 L Ed 636; Kaufman v United States (CA2 NY) 212 F 613; Slaughter v State, 113 Ga 284, 38 SE 854; State v Stark, 63 Kan 529, 66 P 243; Commonwealth v Brown, 154 Mass 55, 27 NE 776; Kansas City v Lane (Mo App) 391 SW2d 955; People v Bliven, 112 NY 79, 19 NE 638; State v Jones, 83 NC 605.

Footnote 75. Smith v State, 221 Miss 184, 72 So 2d 215; State v De Falco, 8 NJ Super 295, 74 A 2d 338, certif dismd 5 NJ 483, 76 A2d 22.

Footnote 76. State v Buzzell, 58 NH 257.

If the accessory withdraws his aid and advice before the crime is committed and communicates that fact to the person he previously inspired to commit the offense, he will not be liable if the crime is committed as the result of some new and intervening cause.  But a mere change of mind will not of itself exonerate the accessory. 77  

Footnote 77. Karnes v State, 159 Ark 240, 252 SW 1.

Practice Aids: Withdrawal from or Abandonment of Criminal Enterprise.   8 Am Jur Proof of Facts 2d 231.

At common law, an accessory after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists the felon, or in any manner aids him to escape arrest or punishment. 78    This is similar to statutory definitions. 79   Under one statute an accessory after the fact is a person who, after full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime. 80   

To be guilty as an accessory after the fact one must have known that a completed 81  felony was committed 82  and that the person aided was the guilty party, 83  and the person charged must have had an intention to shield the felon from the law. 84   

It is deemed that an accessory after the fact commits an offense separate and distinct from the crime of the principal. 85  Thus, the accessory must be charged and prosecuted for an offense not included in the criminal act of the principal. 86

Defendant's perjured testimony that was intended to persuade district court to grant drug distribution conspirators new trial was in respect to criminal offense of drug conspiracy within meaning of § 2J1.3(c)(1) and thus cross-reference to accessory after the fact § 2X3.1 applied, even though defendant, an unindicted coconspirator, was never convicted of underlying offense. United States v Colbert (1992, CA6 Mich) 977 F2d 203.

Post-offense aid that is not accompanied by an intent that the principal may avoid or escape from arrest, trial, conviction, or punishment is either not criminal or is culpable only under a statute pertaining to particular conduct, such as receiving stolen property. People v Brady (1987, 3d Dist) 190 Cal App 3d 124, 235 Cal Rptr 248.

In interest of justice, fact that accessory may not be principal in commission of substantive felony is no longer element in crime of accessory after fact, and thus conviction of murder was not inconsistent with verdict of guilty of accessory after fact. State v Hawkins (1992) 326 Md 270, 604 A2d 489.

FS 777.03, which permits certain family members to aid a related fugitive without fear of criminal prosecution, is neither unintelligibly vague in violation of the due process clause, nor irrationally conceived in violation of the equal protection clause; the terms "consanguinity" and "affinity" as used in such statute are synonymous with "blood" and "marriage," and the list of protected relatives in the statute is thus sufficiently definite so that people of common understanding and intelligence need not guess at its meaning. State v H. (1982, Fla App D4) 421 So 2d 62.

Footnote 78. Skelly v United States (CA10 Okla) 76 F2d 483, cert den  295 US 757,  79 L Ed 1699,  55 S Ct 914; Higgins v State, 136 Ark 284, 206 SW 440; Levering v Commonwealth, 132 Ky 666, 117 SW 253.

Footnote 79. State v Jones, 91 Ark 5, 120 SW 154; Reynolds v People, 83 Ill 479; State v Young, 7 Ohio App 2d 194, 36 Ohio Ops 2d 335, 220 NE2d 146; Blakely v State, 24 Tex App 616, 7 SW 233.

Footnote 80. Lowe v People, 135 Colo 209, 309 P2d 601.

Defendant was properly convicted of being accessory after the fact to homicide in violation of 18 USCS §  3, as sufficient evidence existed that felony had been committed, that defendant had actual knowledge of participants in crime, and that with such knowledge defendant in some way assisted participants in order to hinder or prevent their apprehension, trial, or punishment; it was not error for trial court to deny defendant's motion to require government to proceed either on count charging homicide in violation of 18 USCS §  1111(a) or count charging accessory after the fact since there was acquittal on homicide count and no prejudice was shown. United States v Day (CA10 Okla) 533 F2d 524.

Footnote 81. Reynolds v People, 83 Ill 479; Harrel v State, 39 Miss 702.

Footnote 82. Harris v State (Miss) 290 So 2d 924; State v Williams, 229 NC 348, 49 SE2d 617.

Footnote 83. Roberts v People, 103 Colo 250, 87 P2d 251; Harris v State (Miss) 290 So 2d 924.

Footnote 84. Harris v State (Miss) 290 So 2d 924; State v Potter, 221 NC 153, 19 SE2d 257.

Statement made by the sister of a bank robber to FBI agents in the course of admitting complicity in a robbery to the effect that the brother had told her he had not been photographed by a bank surveillance camera would be admissible against her for acting as accessory after the fact in a bank robbery in violation of 18 USCS §  3; although the sister had originally told the FBI agents in search of the brother that she did not know how to contact the brother, after the agents left her she met the brother at a certain place, and the brother's statements were made at that occasion; her statement shows that she concealed from the FBI that she knew how to contact the brother whom she knew had committed the offense.  United States v Garris (CA2 NY) 616 F2d 626, cert den  447 US 926,  65 L Ed 2d 1119,  100 S Ct 3021.

Footnote 85. Chambers v State, 194 Ga 773, 22 SE2d 487, ans conformed to 68 Ga App 338, 23 SE2d 545; People v Zierlion, 16 Ill 2d 217, 157 NE2d 72; State v Sullivan, 77 NJ Super 81, 185 A2d 410.

The statutory accessory "during the fact" cannot be charged as a principal.  Martinez v People, 166 Colo 524, 444 P2d 641.

Footnote 86. State v Key (Mo) 411 SW2d 100.

C.  Trial and Punishment of Joint Offenders [175-178]

An aider and abettor before the fact is fully responsible for the acts of the actual perpetrator of an offense, 87  and he may be indicted or tried separately or jointly with the principal. 88   At common law, however, the aider and abettor could not, unless he consented, be tried before the principal, 89  and conviction of the principal was necessary before the conviction of an aider or abettor could be sustained. 90   Under this rule a mere conviction by the verdict of a jury was not sufficient. 91

A statute may provide that an aider or abettor may be prosecuted and punished as if he were the principal offender, 92  or that he may be tried separately, notwithstanding the fact that the principal has not been tried. 93  Under such provisions an aider or abettor may be tried before the principal offender, 94  and a conviction may be sustained without showing the conviction of the principal. 95       
    

Practice Aids: Criminal procedure–the availability of severance based on the claim of antagonistic defenses– Commonwealth v Chester, 587 A2d 1367 (Pa. 1991), 65 Temp LR 1025 (1992).

Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecution. (See also 75 Am Jur 2d, Trial § 24.5.)  41 ALR4th 1189.

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor;  9 ALR4th 972. superseding  24 ALR 603.

Rule 14 of the Federal Rules of Criminal Procedure, which permits a Federal District Court to grant a severance of defendants if it appears that a defendant or the prosecution is prejudiced by a joinder, does not require severance as a matter of law where codefendants present mutually antagonistic defenses, given that (1) such defenses are not prejudicial per se, and (2) Rule 14 does not require severance even if prejudice is shown, but Rule 14 leaves the determination of risk of prejudice and the tailoring of the relief to be granted, if any, to the District Court's sound discretion. Zafiro v United States (1993, US)  122 L Ed 2d 317,  113 S Ct 933, 93 CDOS 535, 93 Daily Journal DAR 1049, 6 FLW Fed S 861.

Aider can be convicted even where principal is acquitted in light of 18 USCS §  2 which treats aiders and abettors as principals for purposes of federal law. United States v Brunson (1981, CA7 Ind) 657 F2d 110.

In prosecution for aiding and abetting employee of federally-insured savings and loan institution to fraudulently misapply funds, conviction of aider and abettor was proper, even after employee was acquitted on grounds of insufficient evidence, since apparent inconsistency in verdicts alone did not upset jury conviction of aider and abettor, in view of fact that there was reasonable possibility of legitimate explanation for apparent inconsistency, and fact that there was sufficient evidence otherwise to support conviction. United States v Upshaw (1982, CA9 Cal) 685 F2d 1202.

Accessory after fact may be tried and convicted, notwithstanding fact that principal felon may not have been arrested, tried, convicted, or amenable to justice, but accessory after fact cannot be convicted or punished where principal felon has been acquitted. State v Chism (1983, La) 436 So 2d 464.

Under statute allowing prosecution of accomplice even if principal has been acquitted, conviction of wife who pleaded guilty to accomplice role in murder of husband would not be reversed even though principal, alleged contract killer, was acquitted. State v Kaplan (1983) 124 NH 382, 469 A2d 1354.

Where evidence was insufficient to sustain conviction of municipal agency chairman for having unlawful interest in public contract, convictions of his wife and a property grantor as aiders and abettors were also reversed. State v Jacobozzi (1983) 6 Ohio St 3d 59, 6 Ohio BR 103, 451 NE2d 744.

Footnote 87. State v Shon, 47 Hawaii 158, 385 P2d 830.

Footnote 88. Christie v Commonwealth, 193 Ky 799, 237 SW 660.

Footnote 89. State v Wilson, 235 Iowa 538, 17 NW2d 138.

Footnote 90. Daughtrey v State, 46 Fla 109, 35 So 397; McCarty v State, 44 Ind 214; Commonwealth v Minnich, 250 Pa 363, 95 A 565; State v Hess,  233 Wis 4, 288 NW 275.

State v Jackson, 270 NC 773, 155 SE2d 236 (in separate trial of defendant as aider and abettor, state must prove guilt of principals independent of prior plea of guilty).

Footnote 91. Daughtrey v State, 46 Fla 109, 35 So 397; Commonwealth v Minnich, 250 Pa 363, 95 A 565.

Footnote 92. United States v Mimee (DC Mich) 89 F Supp 148; Hanoff v State, 37 Ohio St 178; Pierce v State, 130 Tenn 24, 168 SW 851.

Footnote 93. Commonwealth v Hicks, 118 Ky 637, 82 SW 265.

Footnote 94. State v Fley, 4 SCL 338.

Although an accessory may be tried before the principal is tried, the accessory may defend on the ground that the commonwealth has failed to prove the commission by the principal of the felony charged.  Commonwealth v Di Stasio, 298 Mass 562, 11 NE2d 799.

Footnote 95. Von Patzoll v United States (CA10 Okla) 163 F2d 216, cert den  332 US 809,  92 L Ed 386,  68 S Ct 110; State v Jones, 91 Ark 5, 120 SW 154; Lowe v People, 135 Colo 209, 309 P2d 601; Stone v State, 118 Ga 705, 45 SE 630; Levering v Commonwealth, 132 Ky 666, 117 SW 253; State v Gleim, 17 Mont 17, 41 P 998; Cody v State (Okla Crim) 361 P2d 307,  84 ALR2d 997.

An aider and abettor constitutes a principal in the first degree, and a conviction of the original offender is not a predicate to conviction of the aider and abettor.  Blackburn v State (Fla App D4) 314 So 2d 634, cert den (Fla) 334 So 2d 603 and cert den  429 US 864,  50 L Ed 2d 142,  97 S Ct 170, reh den  429 US 933,  50 L Ed 2d 303,  97 S Ct 342.

Aiding and abetting the commission of a crime is a substantive and independent offense for which aiders and abettors may be prosecuted and convicted as principals without the trial or conviction of the principal offender.  Prosecution of an aider or abettor does not require proof beyond a reasonable doubt that the principal violated the law.  State v Graven, 52 Ohio St 2d 112, 6 Ohio Ops 3d 334, 369 NE2d 1205.

The acquittal of the principal is no impediment to the trial and conviction of a person charged with aiding and abetting the commission of the crime, 96   unless a statute forbids conviction of an accessory after the principal has been tried and acquitted. 97  Neither the double jeopardy clause nor the due process clause of the Fifth Amendment forecloses putting a federal criminal defendant on trial as an aider and abettor simply because another jury has determined that his principal was not guilty of the offenses charged. 98   Likewise, an aider or abettor may be convicted of a felony although the principal has been convicted of a mere misdemeanor. 99   But if, in fact, no crime has been committed, no one can be convicted as an aider and abettor. 1   Thus, if the act alleged to be an offense is found on trial of the principal to have been justified–for instance, by the fact that the principal was acting in self-defense–no one can be convicted of being an aider and abettor of the act. 2

Practice Aids: Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor;  9 ALR4th 972. superseding  24 ALR 603.

Under FS § 777.011, which provides that whoever aids or abets in the commission or attempted commission of a criminal offense is a principle in the first-degree, defendant was properly convicted as an aidor and abettor of aggravated burglary notwithstanding the fact that the actual perpetrator of the crime had been convicted only of simple burglary, in that the statute does not require evidence that the principal perpetrator has been convicted of any crime, much less the same crime for which the aidor-abettor is ultimately convicted. Moreover, to require consistency in the judgments meted out to defendant and his partner in crime would invade the province of the jury, and accordingly the judgments and sentences, although inconsistent, would be deemed independent and would stand or fall on their own merits. Potts v State (1982, Fla) 430 So 2d 900.

Where defendant, who was charged as accessory before fact, and principal were placed on trial in separate proceedings in connection with beating death of robbery victim, defendant's conviction of first-degree murder was improper since principal, who was also charged with murder, was convicted only of assault and battery. Davis v State (1977) 267 Ind 152, 368 NE2d 1149.

Subsequent acquittal of principal in first-degree does not affect trial or conviction of principal in second-degree. Jeter v State (1971) 261 Md 221,274 A2d 337.

Fact that triggerman was convicted of first-degree manslaughter did not preclude first-degree murder conviction of 15-year-old defendant tried as co-principal in ambush killing by gunshots. Daugherty v State (1982, Okla Crim) 640 P2d 558.

A defendant could bc convicted as an aider and abettor of violating FS § 847.012(1), (2), which prohibits selling harmful material depicting sexual conduct to a juvenile, if the evidence established that he had authorized, instructed, induced or otherwise caused an employee to sell the material to a juvenile notwithstanding the fact that the employee charged with personally making the sale had been acquitted in her criminal trial on the same charge. State v Glassman (1982, Fla App D4) 414 So 2d 204.

On remand in prosecution of two defendants for murder, trial court properly denied motion of defendant who was accessory to reduce charge against him to second-degree murder since the jury was only allowed to find, on double jeopardy grounds, and did find, that defendant who was principal was guilty of second-degree murder, and since alder and abettor can be tried and convicted of higher degree of crime than principal if facts support conviction. State v Wilder (1980) 25 Wash App 568, 608 P2d 270,  9 ALR4th 965.

Footnote 96. Roberts v People, 103 Colo 250, 87 P2d 251; Christie v Commonwealth, 193 Ky 799, 237 SW 660; State v Thompkins, 220 SC 523, 68 SE2d 465.

A criminal defendant accused of aiding and abetting in the commission of a federal offense in violation of 18 USCS §  2 may properly be convicted after the named principal has been acquitted of that offense, the enactment of § 2 rendering all participants in conduct violating a federal criminal statute "principals" and, as such, punishable for their criminal conduct regardless of the fate of the other participants; accordingly, a federal criminal defendant may properly be convicted on all counts of an indictment charging him with aiding and abetting an agent of the Internal Revenue Service in accepting unlawful compensation in violation of 26 USCS §  7214(a)(2) and 18 USCS §  2, despite the fact that the agent, the only named principal, was previously acquitted on certain of the § 7214(a)(2) violations which the defendant was accused of aiding and abetting, the defendant being entitled to no more than a fair trial at which the government bears the burden of proving beyond a reasonable doubt that the agent violated § 7214(a)(2) and that the defendant aided and abetted him in that venture.  Standefer v United States,  447 US 10,  64 L Ed 2d 689,  100 S Ct 1999.

Under a statute abolishing the distinction between an accessory before the fact and a principal, a judgment in a separate trial acquitting the actual perpetrator of the crime is neither res judicata nor a bar to the prosecution of accused of the charge against him.  State v Young (Iowa) 211 NW2d 352.

Practice Aids: Conviction of Accessory Before Fact After Acquittal of Principal.  24 Marq L Rev 164.

Footnote 97. McCarty v State, 44 Ind 214; Pierce v State, 130 Tenn 24, 168 SW 851.

Footnote 98. Standefer v United States,  447 US 10,  64 L Ed 2d 689,  100 S Ct 1999.

Footnote 99. Christie v Commonwealth, 193 Ky 799, 237 SW 660.

Footnote 1. Bowen v State, 25 Fla 645, 6 So 459; Mulligan v Commonwealth, 84 Ky 229, 1 SW 417; Goucher v State, 113 Neb 352, 204 NW 967.

In prosecution for aiding and abetting exportation of firearms without license, burden is on government to prove that someone committed crime of exporting without license, thus where evidence was that:  (1) weapons were purchased by defendants or coconspirators, (2) weapons came into hands of authorities in Northern Ireland, (3) there were overt and clandestine meetings and discussions concerning lawful and unlawful purchase of weapons; but Government failed to produce one scintilla of evidence concerning the illegal exportation of weapons described in indictment, evidence was insufficient for jury to find beyond reasonable doubt that offense had been committed by anyone and thus conviction for aiding and abetting would be reversed.  United States v Byrne (ED Pa) 422 F Supp 147, affd in part and vacated in part on other grounds (CA3 Pa) 560 F2d 601, cert den  434 US 1045,  54 L Ed 2d 796,  98 S Ct 890.

To aid and abet commission of crime, there must be actual crime committed. United States v Hyatt (CA2 NY) 565 F2d 229.

Trial court properly instructed the jury that in order to convict someone on the basis of aiding and abetting, the criminal actions must have been committed by someone, even though defendant did not personally commit the criminal act.  United States v Gleason (CA2 NY) 616 F2d 2, cert den  444 US 1082,  62 L Ed 2d 767,  100 S Ct 1037 and cert den  445 US 931,  63 L Ed 2d 764,  100 S Ct 1320.

Other individual must have violated substantive federal law in order for defendant to be convicted under 18 USCS §  2(b).  United States v Ruffin (CA2 NY) 613 F2d 408,  52 ALR Fed 737.

Aider and abettor may be convicted under 18 USCS §  2(b) even though principal has not been prosecuted.  United States v Ruffin (CA2 NY) 613 F2d 408,  52 ALR Fed 737.

Instructions in prosecution for violation of 18 USCS §  2 while appropriate in instructing the jury primarily on the theory that defendant was charged under subsection (a) was incorrect in addition of phrase "otherwise you must acquit" since evidence permitted conviction of defendant as "causer" under subsection (b) which was also charged; however, the error did not preclude a finding that defendant was guilty under subsection (b), since the government had sought conviction under either subsection.  United States v Ruffin (CA2 NY) 613 F2d 408,  52 ALR Fed 737.

The proof must establish that the offense was committed by someone and that the person charged as an aider and abettor did aid and abet its commission.  However, it is not necessary to identify the actual perpetrator of the crime.  He may be unknown.  The fact that one mistakenly supposed to have committed a crime was tried therefor and acquitted does not affect the guilt of one proven to have been present aiding and abetting, so long as it is established that the crime was committed by someone.  Von Patzoll v United States (CA10 Okla) 163 F2d 216, cert den  332 US 809,  92 L Ed 386,  68 S Ct 110.

One cannot be criminally liable as an aider and abettor in the commission of an act which is not in fact criminal.  United States v Zerbst (DC SC) 111 F Supp 807.

Footnote 2. Kelley v State, 79 Fla 182, 83 So 909.

Unless a statute otherwise provides, an accessory before the fact operating solely from a foreign jurisdiction to abet a felonious act in another state is not triable in the state of the crime 3  if he does no act sufficient to establish actual or constructive presence in the jurisdiction where the crime is committed. 4   If, however, the jurisdiction in which the crime is committed has a statute providing that an aider or abettor shall be deemed a principal, an aider in one state who procures the commission of a crime in another state may be prosecuted and punished in the state of the crime as a principal. 5

There is a holding that the jurisdiction where the incitement to a crime originates may not punish for a crime committed in another state; 6  but a statute may provide for punishment of one who abets the commission in another state of an act that is a felony under the laws of the other state. 7

A state may provide by statute for the prosecution of an accessory before the fact in the county where the accessory acted or in the county where the principal offense was committed. 8

In misdemeanors there are no accessories and all who in any manner participate in the commission of the crime are regarded as principals. 9    Hence, if a person in one state procures the commission of a misdemeanor in another state, he is regarded as a principal in the offense and as being present at the place where it is committed and as answerable there for the crime. 10

In prosecution for violation of 18 USCS §  2, government is not required to offer direct evidence of venue where circumstantial evidence as whole supports inference that crime was committed in trial district; since prior actions of coconspirators in furtherance of conspiracy are attributable to one who later joins conspiracy, conversations between defendant and codefendant and defendant's drive through particular district on way to obtain contraband are attributable to third party who later joins conspiracy outside of such district and therefore venue is properly established with respect to third party in district in which conspiracy began. United States v Davis (1982, CA5 Ga) 666 F2d 195.

Footnote 3. State v Sigh, 38 Del 362, 192 A 682; Johns v State, 19 Ind 421.

Footnote 4. State v Sigh, 38 Del 362, 192 A 682.

Footnote 5. Newton v People, 96 Colo 246, 41 P2d 300; State v Grady, 34 Conn 118; People v Werblow, 241 NY 55, 148 NE 786.

Footnote 6. People v Werblow, 241 NY 55, 148 NE 786.

Footnote 7. Cruthers v State, 161 Ind 139, 67 NE 930.

Footnote 8. State v Sigh, 38 Del 362, 192 A 682; State v Moore, 26 NH 448.

An aider and abettor may be tried in the district in which the principal committed the substantive crime.  United States v Buckhanon (CA8 Minn) 505 F2d 1079.

Footnote 9.  § 172, supra.

Footnote 10. State v Chapin, 17 Ark 561.

Although joint actors in the commission of a crime are jointly tried and convicted, each must be separately punished as if he had committed the offense alone and each must respond in full to his own separate sentence. 11

At common law and under statutes an accessory before the fact is considered as guilty as the principal and is punished accordingly. 12    

Footnote 11. State v White, 125 Tenn 143, 140 SW 1059; Thompson v State, 105 Tenn 177, 58 SW 213.

Footnote 12. Warford v State, 214 Ark 423, 216 SW2d 781,  8 ALR2d 996; Chambers v State, 194 Ga 773, 22 SE2d 487, ans conformed to 68 Ga App 338, 23 SE2d 545; Spies v People, 122 Ill 1, 12 NE 865, error dismd  123 US 131,  31 L Ed 80,  8 S Ct 22; State v Wilson, 235 Iowa 538, 17 NW2d 138; Sams v Commonwealth, 294 Ky 393, 171 SW2d 989; Pierce v State, 130 Tenn 24, 168 SW 851.

D.  Criminal Responsibility for Acts of Another [179-182]

The criminal acts of one person cannot be charged to another without a showing that the other participated directly or constructively in the acts, 13   or a showing that the acts were done in furtherance of a common design or in prosecution of a common purpose for which the parties were combined. 14   But an instigator is responsible for acts done by an innocent or irresponsible person. 15

Ordinarily one person is not answerable for the misconduct of another who is not subject to contract of the first, 16  but a contractor has been held criminally liable for the act of an independent contractor. 17

Circumstancial evidence was sufficient to support giving of ostrich instruction, where defendant claimed he lacked guilty knowledge of fact that check which he cashed for "Doris" for exorbitant fee was stolen, where, contrary to "Doris's" testimony, he claimed to have met her that day, but did nothing to confirm her identify; effort to avoid guilty knowledge need not be physical, but may be psychological, a cutting off of one's normal curiousity by effort of will. United States v Stone (1993, CA7 Ind) 987 F2d 469.

Person in position of "passive" defendant may be held criminally liable for failing to seek emergency medical aid for child seriously injured by "active" defendant where defendants, as adults other than parents, have undertaken by contract to provide 24-hour custodial care for child and they have physical capacity to take necessary steps to secure any required medical care. People v Wong (1993)  81 NY2d 600, 601 NYS2d 440, 619 NE2d 377.

In prosecution for aggravated kidnapping, jury was not required to accept defendant's version of facts relating to defense of duress, and could reasonably have decided that defendant voluntarily participated in kidnapping and sexual abuse of complainant where complainant testified that defendant never argued with accomplice concerning her abduction or molestation, that she never heard accomplice threaten defendant or saw him point gun at defendant, that defendant never acted afraid, mad, or upset during episode, and that defendant voluntarily engaged in and seemed to enjoy sexual activity. Thornburg v State (1985, Tex App Houston (1st Dist)) 699 SW2d 918ec.

Footnote 13. Partridge v State, 88 Ark 267, 114 SW 215; Louisville R. Co. v Commonwealth, 130 Ky 738, 114 SW 343; People v Joseph,  11 Misc 2d 219, 172 NYS2d 463.

Footnote 14. Butler v People, 125 Ill 641, 18 NE 338; Commonwealth v Moore, 121 Ky 97, 88 SW 1085.

Footnote 15. People v Adams (NY) 3 Denio 190, affd 1 NY 173; Red v State, 39 Tex Crim 667, 47 SW 1003.

Footnote 16. Blocker v Commonwealth, 153 Ky 304, 155 SW 723.

Footnote 17. Commonwealth v Hong, 261 Mass 226, 158 NE 759.

If one combines with others to accomplish an illegal purpose, he is liable criminally for everything that is done by his confederates incidental to the execution of the common design, as one of its probable and natural consequences, even though what was done was not intended as a part of the original design or common plan. 18  This is true though the defendant was not present when the act was committed. 19  This rule of criminal responsibility for the acts of others is subject to the reasonable limitation that the particular act must be shown to have been done in furtherance or in prosecution of the common object and design for which the parties were combined. 20   But if one of a number of conspirators commits a fresh and independent act, wholly outside and foreign to the common design, the others are not held equally guilty of that act. 21

Footnote 18. Boyd v United States,  142 US 450,  35 L Ed 1077,  12 S Ct 292; Crow v State, 52 Ga App 192, 182 SE 685; State v Shon 47 Hawaii 158, 385 P2d 830; Spies v People, 122 Ill 1, 12 NE 865, error dismd  123 US 131,  31 L Ed 80,  8 S Ct 22; Jenkins v Commonwealth, 167 Ky 544, 180 SW 961 (ovrld on other grounds Commonwealth v Barnett 196 Ky 731, 245 SW 874); People v Friedman, 205 NY 161, 98 NE 471; Conrad v State, 75 Ohio St 52, 78 NE 957.

It is not necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.  State v Joyner, 297 NC 349, 255 SE2d 390.

Footnote 19. Romero v State, 101 Neb 650, 164 SW 554; Parish v Commonwealth, 206 Va 627, 145 SE2d 192, cert den  384 US 942,  16 L Ed 2d 540,  86 S Ct 1463.

Hibernation of participant for few months did not necessarily constitute discontinuance of single criminal conspiracy, and conspiracy was not terminated simply by turnover in some of personnel absent indication that major participants viewed mutual dealings as terminated, where significant relationships in conspiracy remained intact.  United States v Panebianco (CA2 NY) 543 F2d 447, cert den  429 US 1103,  51 L Ed 2d 553,  97 S Ct 1128,  97 S Ct 1129.

Footnote 20. Butler v People, 125 Ill 641, 18 NE 338; State v Furney, 41 Kan 115, 21 P 213; Powers v Commonwealth, 110 Ky 386, 61 SW 735, supp op 110 Ky 462, 63 SW 976; State v Hickam, 95 Mo 322, 8 SW 252.

Robbery of guard during armed escape attempt was probable consequence of execution of escape plans, and all principals in attempted escape were liable for robbery.  Thompson v State (Tex Crim) 514 SW2d 275.

Footnote 21. Butler v People, 125 Ill 641, 18 NE 338; Powers v Commonwealth, 110 Ky 386, 61 SW 735, supp op 110 Ky 462, 63 SW 976; State v Darling, 216 Mo 450, 115 SW 1002.

Unless he in some way participates in, counsels, or approves of what the servant does, or, as it is sometimes put, unless he counsels, commands, aids, or abets, or procures the commission of, an act, 22  an employer or principal is not, in the absence of a statute, criminally liable for the acts of his employee or agent. 23   An employer is, of course, responsible if he participates with his agent or employee in the commission of a crime, 24  or if he causes the illegal act to be done, or requests, commands, or in any way authorizes it. 25  It has been said that if a servant with the consent or connivance of the master commits a felony, the servant is the principal and the employer an accessory, except that if the offense is a misdemeanor, both are principals. 26

A statute may in certain instances fix criminal responsibility on an employer or principal for an act committed by his employee or agent. 27     

Footnote 22. Hipp v State (Ind) 5 Blackf 149; Commonwealth v Stevens, 153 Mass 421, 26 NE 992.

Footnote 23. People v Doble, 203 Cal 510, 265 P 184; Commonwealth v Stevens, 153 Mass 421, 26 NE 992; Commonwealth v Jackson, 345 Pa 456, 28 A2d 894; Spokane v Patterson, 46 Wash 93, 89 P 402.

It is a settled rule of law that a principal is not criminally liable for the criminal act of his agent unless he authorized, consented to, advised, aided or encouraged the specific act.  An exception to this rule is the doctrine of criminal liability without fault which has been applied to criminal statutes enacted for the public morals, health, peace and safety. In general, such statutes deal with offenses of a regulatory nature and are enforceable irrespective of criminal intent or criminal negligence. People v Travers (1st Dist) 52 Cal App 3d 111, 124 Cal Rptr 728.

Footnote 24. Commonwealth v Nichols, 51 Mass 259; Commonwealth v Gillespie (Pa) 7 Serg & P 469.

Footnote 25. Commonwealth v Nichols, 51 Mass 259; State v Armstrong, 106 Mo 395, 16 SW 604; State v Baker, 199 NC 578, 155 SE 249.

Footnote 26. People v Adams, 3 Denio (NY) 190, affd 1 NY 173; State v Kittelle, 110 NC 560, 15 SE 103.

Footnote 27. Weeks v United States,  245 US 618,  62 L Ed 513,  38 S Ct 219; Knight v Commonwealth, 194 Ky 563, 240 SW 40; Commonwealth v Sacks, 214 Mass 72, 100 NE 1019; John Barth Co. v Brandy,  165 Wis 196, 161 NW 766.

An employer is not required to answer criminally for acts done outside the scope of the servant's authority. 28   He is not responsible unless the criminal act was the result of opportunity afforded the servant by employment in the employer's business. 29   But where the act is shown to have been one that the employee or agent was engaged to perform, the employer or principal may be held responsible. 30

In trial for sale of controlled substance in third-degree, court erred in refusing to charge jury on agency defense where (1) undercover officer was sent to specified location to make buy of controlled substance after search warrant had been secured for specific apartment at location, (2) upon arriving at location, officer approached defendant and asked him "what's happening?" and defendant responded by asking if officer was "looking for some coke," and (3) after brief conversation, officer gave defendant $30, defendant went into building and returned with packet which he gave to officer, and officer gave defendant $1 tip; reasonable view of evidence would support inference that defendant was acting as agent of officer and receipt of tip did not, in and of itself, negate agency defense. People v Kirk (1988, 2d Dept)  143 App Div 2d 683, 532 NY S2d 925, app den  73 NY2d 856, 537 NYS2d 503, 534 NE2d 341.

Footnote 28. Locke v Stearns, 42 Mass 560.

Footnote 29. Hipp v State (Ind) 5 Blackf 149; Dezarn v Commonwealth, 195 Ky 686, 243 SW 921; Commonwealth v Riley, 196 Mass 60, 81 NE 881; Hall v Norfolk & W. R. Co., 44 W Va 36, 28 SE 754.

Footnote 30. Commonwealth v Gillespie (Pa) 7 Serg & R 469; Spokane v Patterson, 46 Wash 93, 89 P 402.

VI.  DEFENSES [183-335]

A.  In General [183-191]

The law sanctions many defenses in order that persons charged with crime may not be unjustly convicted or be prosecuted a second time for the same act. 31   It is the right of an accused to utilize any and all defenses in his behalf, 32  and to present as many defenses as he has or thinks he has. 33  

An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it, 34  or, as in former jeopardy, to invoke a bar arising out of facts dehors the record. 35    Every reason offered as justification or excuse for the commission of an act, however, is not accepted. 36  Although the law throws safeguards around an accused, it does not seek technical excuses to enable criminals to escape the consequences of their crimes. 37   For example, it is no defense to an indictment under one statute that the accused may also be punished under another. 38    Likewise, the death of a prosecuting witness has no effect upon the crime charged and cannot be set up as a bar to a criminal prosecution, even though it may impair the ability of the state to prove its case. 39   And, since a crime is viewed as a wrong against the state rather than an individual, it is immaterial whether a particular victim suffered physical harm, or whether there even was an individual victim of the defendant's criminal conduct. 40

Although the prosecution must prove beyond a reasonable doubt every element of the crime charged, 41   it need not disprove beyond a reasonable doubt every fact constituting an affirmative defense. Consistently with due process, a state may require a defendant to prove his affirmative defense by a preponderance of the evidence, so long as the prosecution is not thereby relieved of its burden of proving the facts constituting the crime. 42    

Practice Aids: Thorpe and Baumeister, The Death of Diminished Capacity and the Birth of Diminished Actuality: A Recent California Review. 8 Am J Foren Psych 21, 1990.

Fletcher, Self Defense As A Justification For Punishment, 12 Car LR 859, 1991.

Cultural conflicts in court: Should the American criminal justice system formally recognize a "cultural defense"? 99 Dick LR 1:141 (1994).

Note, The Availability of the Cultural Defense" as an Excuse for Criminal Behavior. 16 Ga J Int & Comp L 535, 1986.

Richards, The Jurisprudence of Prevention: The Right of Societal Self-Defense Against Dangerous Individuals. 16 Hast LJ 329, Spring, 1989.

Morawetz, Reconstructing the Criminal Defenses: The Significance of Justification. 77 J Crim L 277, Summer, 1986.

The Use of Necessity Defense by Abortion Clinic Protesters. 81 J Crim L 677, Fall, 1990. Moral reasoning and the criminal law: the example of self-defense, 30 Am Crim LR 97 (1992).

Battered woman syndrome evidence in the courtroom: A review of the literature. Special Issue: Expert evidence, 16 Law & Hum Behav 3:273 (1992).

Battered woman syndrome testimony: Justice is done by the expansion of the battered woman syndrome, 25 U Toledo LR 4:1039 (1995).

Trespass: state prosecution for unauthorized entry, or occupation, for public demonstration purposes, of business, industrial, or utility premises.  41 ALR4th 773.

As to religious beliefs as defense to crime; Constitutional Law § 475. 16A Am Jur Legal Forms 2d § 475.

Defense contingent upon assumption of fact may not be determined upon pretrial motion. United States v Wecker (1985, DC Del) 620 F Supp 1002.

Court affirmed conviction for firearms offense, notwithstanding defendant's argument that government's conduct of undercover operation was "so outrageous as to shock the conscience of the court" and consequently violated his Fifth Amendment right to due process, where evidence revealed that defendant had not hesitated to violate law by providing automatic shotguns, but merely held out for advantageous financial arrangements, and that he had not been directly intimidated by government agents; further, confidential informant's contacts with one coconspirator and with defendant had been authorized by Internal Revenue Service as by-product of ongoing investigation of other coconspirator for money laundering. United States v Jones (1992, CA4) 976 F2d 176, cert den (US)  124 L Ed 2d 260,  113 S Ct 2351.

Court affirmed convictions for narcotics offenses, in spite of defendants' contention that reverse sting tactics used by police were unconstitutional, where police conduct had not been so outrageous as to deprive defendants of due process of law; government involvement in undercover operation may violate principles of due process only if so outrageous and shocking that it exceeds bounds of fundamental fairness. United States v Huff (1992, CA8 Minn) 959 F2d 731, 35 Fed Rules Evid Serv 414, cert den (US)  121 L Ed 2d 110,  11 S Ct 162 and cert den (US)  113 S Ct 162.

First Amendment does not provide defense to criminal charge simply because actor uses words to carry out his illegal purpose; crimes frequently involve use of speech as part of criminal transaction and use of speech in perpetrating crime does not immunize perpetrator from search or prosecution. United States v Barnett (1982, CA9 Cal) 667 F2d 835.

In prosecution under 18 USCS §  111, giving of jury instruction which would preclude acquittal based on excessive force theory of defense was not plain error, where defendants requested only general self-defense instruction and did not rely on this theory at trial, although defense asserted that instruction they offered was broad enough to encompass this theory, and they asserted it during conference in chambers; jury instruction on right of defendant to resist unlawful arrest not supported by probable cause was properly refused; instruction that told jury that officers were engaged in official duties was not reversible error, and did not foreclose acquittal based on excessive force theory of defense, although preferred course would have been to submit to jury question whether marshals were engaged in official duties. United States v Span (1992, CA9 Ariz) 970 F2d 573, 92 CDOS 6028, 92 Daily Journal DAR 9500.

Defendant's being charged with possession of marijuana and psilocybin did not violate his right to freedom of religion, although he claimed that he worshipped marijuana plants as gods and used marijuana and psilocybin in his religious practices, since religious creed is no defense to criminal charge. Rheuark v State (1992, Ala App) 601 So 2d 135, reh den, without op (Ala App) 1992 Ala Crim App LEXIS 309, cert den, without op (Ala) 1992 Ala LEXIS 945.

It is constitutional to place on a criminal defendant the burden of proving an affirmative defense. Constitutional requirements are satisfied if the prosecution is required to prove all of the essential elements of the offense. People v Tenner (1992, 2nd Dist) 10 Ca/App 4th 1251, 13 Cal Rptr 2d 200, 92 CDOS 9094, 92 Daily Journal DAR 15020.

An instruction estopping one from asserting self-defense is not proper except in the few rare cases where all the elements of estoppel are clearly present; the reason for permitting a self-defense theory to be decided by a jury far outweighs the reasons for estopping one from asserting this most basic right. Thompson v State (1992, Miss) 602 So 2d 1185.

Although defendant testified that he feared fight with decedent, he repeatedly stated that shooting was accidental; accordingly, he was not entitled to charge on self-defense. Koritta v State (1992) 206 Ga App 228, 424 SE2d 799, 92 Fulton County D R 2495, cert gr (Ga) 1993 Ga LEXIS 615.

The prevention of possible future harm does not excuse a current systematic violation of the law in anticipation of the eventual overall benefit to the public. Commonwealth v Leno (1993) 415 Mass 835, 616 NE2d 453, summary op at (Mass) 21 M.L.W. 3126.

The defendant participants in a needle exchange program to combat the spread of acquired immune deficiency syndrome could not defend in a prosecution for the distribution of hypodermic syringes without a prescription on the basis of justification by necessity since the prevention of possible future harm does not excuse a current systematic violation of the law in anticipation of the eventual overall benefit to the public. Commonwealth v Leno (1993) 415 Mass 835, 616 NE2d 453, summary op at (Mass) 21 M.L.W. 3126.

Aside from claim of mental disease or defect, defendant is under no obligation to inform state of his defense prior to trial; thus, in prosecution for robbery and kidnapping, prosecutor improperly told jury that state first learned of particular defense while case was being tried, implying defense counsel had suborned perjury or fabricated defense. State v Harris (1983, Mo App) 662 SW2d 276.

Although trial court did sufficiently instruct jury with respect to reasonable belief element of justification defense and failed to properly instruct jurors that they should consider both subjective and objective factors in determining whether defendant's conduct was reasonable, reversal of defendant's conviction in interest of justice was not warranted where there was strong evidence of guilt to rebut justification defense. People v Kopera (1992, 4th Dept)  184 AD2d 1007, 584 NYS2d 245.

Defense of justification is based on real emergency to avoid immediate public or private injury as determined by ordinary standards of morality and intelligence, and it cannot be used to legitimize unlawful action intended to limit advancement of ideas contrary to one's own. People v Scutari (1990)  148 Misc 2d 440, 560 NYS2d 943.

Where each defendant contended not only that other defendant had stabbed victim but that he himself was blameless eye-witness, defenses were irreconcilable. Woodruff v State (1992, Okla Crim) 825 P2d 273.

In a prosecution for criminal solicitation and criminal attempt based on a reverse sting operation in which undercover officers arranged to sell 100 pounds of marijuana to the defendant, the court would reject the defendant's contention that police involvement in the reverse sting operation was so outrageous that the prosecution would be barred on due process grounds. The defendant's due process rights were not violated by the fact that the police used an untrained informant who was permitted to make the initial contact without police supervision, by the fact that the police provided the defendant with a marijuana sample and offered him an opportunity to make a substantial profit or by the fact that the police used an informant who was paid a contingency fee. Commonwealth v Mance (1995, Pa) 652 A2d 299.

In a prosecution for, inter alia, recklessly endangering another person arising from the starvation death of the defendants' 14-year-old son and the malnutrition of their 12-year-old daughter, the court properly refused to instruct the jury that, if the jury found the children to be of sufficient intellect and maturity and to have voluntarily refrained from eating based on their religious beliefs, then they must conclude that the defendants did not have a legal duty to provide food to their children since the fact that the children might have been mature enough to assert a religious identity (1) had no bearing on whether they were mature enough to decide to refrain from eating for 42 consecutive days, and (2) did not dispel the defendants' duty to provide parental care, direction and sustenance. Commonwealth v Cottam (1992, Super Ct) 616 A2d 988.

In a prosecution for, inter alia, recklessly endangering another person arising from the starvation death of the defendants' 14-year-old son and the malnutrition of their 12-year-old daughter, although the defendants alleged a defense of mistake of fact in that they believed in divine intervention, they had no choice but to seek help, despite their religious beliefs, when they were faced with a condition which threatened the lives of their children. Commonwealth v Cottam (1992, Super Ct) 616 A2d 988.

In a prosecution for, inter alia, recklessly endangering another person arising from the starvation death of the defendants' 14-year-old son and the malnutrition of their 12 year-old-daughter while the defendants had about $3,000 at their disposal, the sincerity and validity of the defendants' religious beliefs were not unconstitutionally called into question by testimony that tithe money is given to a church to distribute, which contradicted the defendants' stated belief that tithe money must remain with the individual. Commonwealth v Cottam (1992, Super Ct) 616 A2d 988.

A defendant on trial for pointing and presenting a firearm was not entitled to a directed verdict based on self-defense where it was undisputed that he approached a Wildlife Officer's unmarked truck on a public road with his rifle in his hand, and the officer testified that the defendant then shouldered the gun and ordered him to stop under threat of death. State v Davis (1992, SC App) 419 SE2d 820.

Statute governing the renunciation defense, would be interpreted to mean that a person establishes the defense of renunciation if the person avoids committing the object offense and circumstances show voluntary and complete renunciation of the attempt to commit the object offense; thus, the fact that defendant's conduct constituted a completed attempt did not prevent invocation of the renunciation defense, though a rational trier of fact could have found that the evidence did not prove voluntary and complete renunciation by a preponderance. Thomas v State (1986, Tex Crim) 708 SW2d 861.

Footnote 31. Commonwealth v Hargreaves, 50 Pa D & C 641.

As to injunctions against criminal prosecutions and arrests, see 42 Am Jur 2d,  Injunctions §§ 188,  238-246.

Footnote 32. Tschuor v Meck, 72 Ariz 200, 232 P2d 848.

Footnote 33. People v De Rosa, 378 Ill 557, 39 NE2d 1.

Practice Aids: Clinton, The Right to Present a Defense:  An Emergent Constitutional Guarantee in Criminal Trials.  1976, 9 Ind L Rev 711.

 13 Am Jur Trials 465, Defending Minor Felony Cases.

Footnote 34. United States v Parr (CA5 Tex) 516 F2d 458; Halko v State (Sup) 54 Del 180, 175 A2d 42.

Footnote 35. As to defense of former jeopardy generally, see  §§ 243 et seq., infra.

Footnote 36. State v Swan, 55 Wash 97, 104 P 145.

Footnote 37. Ford v Commonwealth, 177 Va 889, 15 SE2d 50.

Footnote 38. State v Donahue, 75 Or 409, 144 P 755,  5 ALR 1121, adhered to 75 Or 420, 147 P 548.

Footnote 39. Commonwealth v Cunningham, 15 Ky 292

Practice Aids: Death of Prosecuting Witness.  1 Wharton's Criminal Law (14th ed) § 50.

Footnote 40. State v Forcier, 65 NH 42, 17 A 577

Practice Aids: Harm.  1 Wharton's Criminal Law (14th ed) § 75.

Footnote 41. 29 Am Jur 2d,  Evidence §§ 148, et seq.

Footnote 42. 29 Am Jur 2d,  Evidence § 156.

As to existence of affirmative defense as question for jury, see 75 Am Jur 2d,  Trial § 425.

Generally, as to weight and sufficiency of evidence and degree of proof required for defenses in criminal prosecutions, see 30 Am Jur 2d,  Evidence §§ 1160,  1176.

As to jury instructions on defenses in criminal prosecutions, see 75 Am Jur 2d,  Trial § 727.

Practice Aids: Defenses, in general.  1 Wharton's Criminal Law (14th ed) § 39.

Good character or reputation of the accused is not a defense as a matter of law, but is a fact for the jury's consideration in connection with other facts. 43   The object of laying the good character of the accused before the jury is to induce them to believe, from the improbability that a person of good character would have conducted himself as alleged, that there is some mistake or misrepresentation in the evidence by the prosecution. 44    It is not a distinct, substantive defense. 45   If the evidence as a whole, including that relating to his good character, establishes his guilt beyond a reasonable doubt, the defendant should be convicted. 46 

Footnote 43. Hermansky v United States (CA8 Neb) 7 F2d 458; Springfield v State, 96 Ala 81, 11 So 250; State v McGuire, 84 Conn 470, 80 A 761; Greer v State, 159 Ga 85, 125 SE 52; People v Munday, 280 Ill 32, 117 NE 286; Dorsey v State, 179 Ind 531, 100 NE 369; State v Hillman, 203 Iowa 1008, 213 NW 603; Hallengren v State, 14 Md App 43, 286 A2d 213; State v Demaree (Mo) 362 SW2d 500,  17 ALR2d 312; People v Miller,  35 NY2d 65, 358 NYS2d 733, 315 NE2d 785; Heartsill v State (Okla Crim) 341 P2d 625; State v Totten, 72 Vt Cupps v State,  120 Wis 504, 97 NW 210, reh den, adhered to  120 Wis 532, 98 NW 546.

As to jury instructions on character of accused, see 75 Am Jur 2d,  Trial §§ 793-808.

As to good faith or beneficent intent of intervenor who comes to aid victim of struggle as excluding criminal liability for assault or assault and battery, see 6 Am Jur 2d,  Assault and Battery § 21.

Practice Aids: Weight and effect of character evidence.  1 Wharton's Criminal Evidence (13th ed) § 239.

Footnote 44. State v Baldwin (Mo) 349 SW2d 212; State v Barth, 25 SC 175.

As to admissibility of evidence of good character, see 29 Am Jur 2d,  Evidence §§ 339, et seq.

Footnote 45. David v State, 143 Ga App 500, 238 SE2d 557

But see Taylor v State, 13 Ga App 715, 79 SE 924, later app 17 Ga App 787, 88 SE 696, recognizing that proof of the accused's good character as a substantive fact may, in some cases, not merely raise a reasonable doubt of his guilt, but provide an absolute defense by discrediting the witness upon whose testimony the criminal charge rests.

Footnote 46. 29 Am Jur 2d,  Evidence § 1127.

A custom or usage prevailing in a community or neighborhood cannot be set up as a defense to a prosecution for crime, even though such custom or usage may have been for a long time acquiesced in by the community in which it prevails. 47   It is said that custom and practice do not nullify or repeal criminal laws 48  and that the prohibited conduct is no less a crime merely because other persons in the locale customarily engage in it. 49  In other words, custom involving criminality cannot justify a criminal act, 50  and it is no defense that the accused believed that a custom permitted him to commit the crime with which he is charged. 51  Nevertheless, where public officers act in conformity with a long established local custom, there is authority for the view that an individual may assume that he will not be covertly prosecuted by such officials for accepting the validity of such custom.  Thus, the conviction of a defendant as an absconding witness has been reversed where his failure to appear before a petit jury had resulted from his being served only once with a grand jury subpoena, a procedure that was contrary to the established local custom of the public officers to issue two separate subpoenas for the attendance of witnesses before grand and petit juries. 52

Although it is generally not an excuse for the crime charged, proof of custom may be relevant to show that the accused lacked a requisite criminal intent to commit the offense. 53 

Practice Aids: Note, The Availability of the "Cultural Defense" as an Excuse for Criminal Behavior. 16 Ga J Int & Comp L 335, 1986.

Morawetz, Reconstructing the Criminal Defenses: The Significance of Justification. 77 J Crim L 277, Summer, 1986.

As to religious beliefs as defense to crime, Constitutional Law § 475. 16A Am Jur Legal Forms 2d § 475.

Record established that defendant's counsel adequately warned him of penal consequences of guilty plea to charge of willful injury, and that defendant's plea had been entered voluntarily, knowingly, and intelligently, where record indicated that attorney had explained to defendant essentials of offense with which he had been charged, maximum penalty, and that previous conviction of forcible felony would render defendant ineligible for parole until he had served one-half maximum sentence, and where record indicated that defendant had attended one year of college in Panama and had served seven years in United States Army, negating his claim to difficulty with English language. Victor v State (1983, Iowa App) 339 NW2d 617.

Footnote 47. State v Evans (Fla App D3) 225 So 2d 548, cert den (Fla) 229 So 2d 261, cert den  397 US 1053,  25 L Ed 2d 668,  90 S Ct 1393; Bolln v State, 51 Neb 581, 71 NW 444, affd  176 US 83,  44 L Ed 382,  20 S Ct 287.

A custom by undertakers to conduct at their homes funerals of persons whose bodies they have prepared for burial at their business establishments does not justify an undertaker in doing so where he thereby violates a zoning ordinance excluding undertaking establishments from residential districts. Ullrich v State, 186 Md 353, 46 A2d 637.

Practice Aids: Custom.  1 Wharton's Criminal Law (14th ed) § 49.

Footnote 48. United States v Slapo (SD NY) 285 F Supp 513; State v Dabbs, 228 La 960, 84 So 2d 601.

Footnote 49. Reynolds v United States,  98 US 145,  25 L Ed 244; Barnes v District of Columbia, 27 App DC 101; Garrett v State, 28 Ala App 78, 178 So 825; Everhart v People, 54 Colo 272, 130 P 1076; Hendry v State, 39 Fla 235, 22 So 647; People v Klein, 305 Ill 141, 137 NE 145; Bankus v State, 4 Ind 114; Clark v Commonwealth, 111 Ky 443, 63 SW 740; Commonwealth v Perry, 139 Mass 198, 29 NE 656; State v Sugarman, 126 Minn 477, 148 NW 466; State v Welch, 73 Mo 284; Crockford v State, 73 Neb 1, 102 NW 70; Hopper v Sage, 112 NY 530, 20 NE 350; Columbus & H. Coal & Iron Co. v Tucker, 48 Ohio State 41, 26 NE 630; Jackson v National Bank of McMinnville, 92 Tenn 154, 20 SW 802; Vick v State (Tex Crim) 69 SW 156.

Footnote 50. Burnett v United States (CA6 Ky) 222 F2d 426; Smith v United States (CA9 Ariz) 188 F2d 969; State v Atkins, 205 SC 450, 32 SE2d 372 (custom of automobile dealers with reference to use of dealers' tags of license plates in violation of statute).

Footnote 51. Cain v State, 18 Ala App 624, 93 So 263 (custom for tenants of company to move improvements from any part of premises to any other part of company property without permission).

Footnote 52. Commonwealth v Wilson, 158 Pa Super 198, 44 A2d 520

Footnote 53. As to custom as proof of accused's lack of requisite fraudulent intent, see 29 Am Jur 2d,  Evidence § 304.

A defendant may, by proper evidence, prove that another person committed the crime with which he is charged where the guilt of such other person is consistent with the defendant's innocence; 54   but the fact that persons other than the accused have also violated or are violating the law is no defense, 55  although the particular violation may be of long standing, 56  and although the other offenders have not been prosecuted. 57   An offender may be prosecuted under an unrepealed criminal statute that has been dormant for many years. 58   It has been said that the criminality of one person's act cannot rationally depend on whether the state decides to prosecute another, 59  and that uniform operation of criminal justice does not require the release of the guilty for failure to prosecute others equally guilty. 60   In other words, a defendant's conduct cannot be excused by showing that someone else equally guilty has not been prosecuted, but proof that another committed the crime charged is a proper defense where the other's guilt tends to prove the defendant's innocence. 61

The law of agency as applied to civil cases has no application in criminal prosecutions, 62  at least where it is specifically provided by statute that all persons concerned in the commission of a crime are principals. 63   Individuals are personally responsible for their violation of law even when committed in the course of representative action. 64   The criminal law does not recognize the doctrine of agency as a defense to a criminal charge; it deals with the person committing the overt act. 65  Accordingly, it is no defense or justification that the accused committed the alleged crime simply as an agent, 66  employee, 67     or servant 68  of another.

Practice Aids: Bakker, The Defense of Obedience to Superior Orders: The Mens Rea Requirement. 17 Am J Crim L 55, Fall, 1989.

Admissibility of evidence of commission of similar crime by one other than accused  22 ALR5th 1.

Where a trial court, at the defendant's request, had admitted testimony that another individual, during the course of plea negotiations for other similar offenses, had confessed to the murder and sex offense with which the defendant was charged and had stated that he acted alone, the court abused its discretion in refusing to admit corroboration of this defense claim in the form of evidence of those other offenses and the circumstances of his confession to them. People v Cruz (1994) 162 Ill 2d 314, 205 Ill Dec 345, 643 NE2d 636.

In a prosecution for sale of a controlled substance, Penal Law §§ 220.41, subd. 1 and 220.30, defendant, who had sold cocaine to an undercover agent in a transaction arranged by an informant and who, a few days later, communicated through the informant that she had a larger quantity for sale, sold the officer a larger quantity, and refused to bargain as to price on the ground that she would otherwise not make any money on the transaction, was not entitled to a charge on an agency defense where there was no evidence that defendant participated in the sale of narcotics out of a desire to accommodate a friend rather than for commercial purposes, and where, even assuming that because the first sale was based on an introduction by the informant, the jury could find that the defendant was merely acting as the informant's agent, this would not demonstrate that defendant was the buyer's agent or was acting as an extension of the buyer. People v Simpson (1982, 1st Dept)  85 App Div 2d 306, 448 N S2d 170.

Before agency charge is warranted, evidence must be indicative of relationship with buyer, not merely raise ambiguities about defendant's connection to seller. People v Herring (1994)  83 NY2d 780, 610 NYS2d 949, 632 NE2d 1272, on remand (App Div, 1st Dept) 611 NYS2d 517.

Footnote 54. The defense that the act was in fact done by another without the assistance or participation of the defendant is recognized.  State v Smith (Mo) 377 SW2d 241.

As to admissibility of evidence incriminating persons other than accused, see 29 Am Jur 2d,  Evidence § 441.

Footnote 55. Grell v United States (CA8 Mo) 112 F2d 861; Patterson v State, 18 Ala App 55, 88 So 360; Brown v State, 57 Ga App 838, 197 SE 77; Callan v State, 156 Md 459, 144 A 350; Caroli v Saxl, 192 Misc 887, 81 NYS2d 213; State v Stern, 64 ND 593, 254 NW 765; State v Tyler, 82 Okla Crim 112, 166 P2d 1015; McWhorter v Commonwealth, 191 Va 857, 63 SE2d 20.

Footnote 56. Caroli v Saxl, 192 Misc 887, 81 NYS2d 213

Footnote 57. United States v Rickenbacker (CA2 NY) 309 F2d 462, cert den  371 US 962,  9 L Ed 2d 509,  83 S Ct 542; United States v Manno (DC Ill) 118 F Supp 511; State v Haase, 97 Ohio App 377, 56 Ohio Ops 144, 68 Ohio L Abs 193, 116 NE2d 224: State v Mellenberger, 163 Or 233, 95 P2d 709; State v Carologos, 101 Vt 300, 143 A 284.

Practice Aids: Conviction or acquittal of another; failure to prosecute another.  1 Wharton's Criminal Law (14th ed) § 48.

Footnote 58. Everhart v People, 54 Colo 272, 130 P 1076

Footnote 59. Roy v State, 87 Nev 517, 489 P2d 1158.

Footnote 60. State v Smith (Mo) 422 SW2d 50, cert den  393 US 895,  21 L Ed 2d 176,  89 S Ct 150

Footnote 61. State v Krueger (ND) 124 NW2d 468.

Footnote 62. Medlock v State, 66 Okla Crim 27, 89 P2d 377.

Footnote 63. Beacham v State (Okla Crim) 289 P2d 397.

There can be no such thing as agency in the perpetration of a crime; all persons actively participating are principals.  Mo Yaen v State, 18 Ariz 491, 163 P 135.

Footnote 64. New York v Flynn, 140 Misc 497, 250 NYS 488.

Footnote 65. State v Chauvin, 231 Mo 31, 132 SW 243.

Footnote 66. Fisher v State, 161 Ark 586, 256 SW 858; Alt v State, 88 Neb 259, 129 NW 432; Commonwealth v Hansell, 185 Pa Super 443, 137 A2d 816; Thompson v State, 105 Tenn 177, 58 SW 213; State v Ferry Line Auto Bus Co., 99 Wash 64, 168 P 893.

The actual perpetration of a crime through a guilty agent ordinarily constitutes the agent a principal.  Commonwealth v Mannos, 311 Mass 94, 40 NE2d 291.

Whether a person who acts as an agent for another in making sales of goods is to be held penally or criminally responsible on the ground that the article sold was such as to be within the prohibition of a statute defining the character, quality, etc., of such merchandise will ordinarily depend on whether knowledge is a necessary element of the liability and, if so, on whether the agent had knowledge that the statute was not being complied with. State v Faulkner, 175 NC 787, 95 SE 171.

Footnote 67. Giugni v United States (CA1 Puerto Rico) 127 F2d 786; Leonard v State, 38 Ala App 138, 79 So 2d 803, cert den 262 Ala 702, 79 So 2d 808; La Vielle v People, 113 Colo 277, 157 P2d 621; State v Chauvin, 231 Mo 31, 132 SW 243; State v Western Union Tel. Co., 12 NJ 468, 97 A2d 480, app dismd  346 US 869,  98 L Ed 379,  74 S Ct 124; Commonwealth v Hansell, 185 Pa Super 443, 137 A2d 816.

The behest of an employer furnishes no excuse for the commission of an offense.  Cassi v State, 86 Tex Crim 369, 216 SW 1099.

Footnote 68. Lochnar v State, 111 Md 660, 75 A 586.

In criminal cases, a master-and-servant relationship may constitute both as principals.  Grantham v State, 190 Miss 887, 2 So 2d 150.

Contributory negligence is not available as a defense in a criminal prosecution; 69   it cannot purge an act otherwise constituting a public offense of its criminal character. 70  Specifically, one who is guilty of criminal neglgience is not relieved from criminal responsibility by the contributory negligence of the person injured or killed. 71   However, in some cases in which defendant's guilt is based on his negligence, evidence of negligence on the part of a victim of the defendant's act is admissible on behalf of the defendant as bearing on the question of his negligence. 72   Thus, although the victim's contributory negligence is not a defense, it may be considered as tending to show that the defendant was not culpably negligent or that his acts were not a proximate cause of the wrong. 73   Furthermore, it has been recognized that a felony victim's contributory negligence, though not barring conviction, may afford argument for mitigation. 74

The doctrine of particeps criminis has no place in the administration of criminal law; 75  it is no defense that the victim of a crime may also be guilty of wrongdoing. 76

Contributory negligence of the victim is not a defense in criminal prosecutions. In order to exonerate a defendant, the victim's conduct must not only be a cause of his or her injury, it must be a superseding cause. A defendant may be criminally liable for a result directly caused by his or her act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of the defendant's original act, the intervening act is "dependent" and not a superseding cause, and will not relieve the defendant of liability. Thus, it is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause. People v Morse (1992, 2nd Dist) 2 Cal App 4th 620, 3 Cal Rptr 2d 343, 92 CDOS 357, 92 Daily Journal DAR 485, review den.

Footnote 69. United States v Kreimer (CA5 Ga) 609 F2d 126; Broxton v State, 27 Ala App 298, 171 So 390; People v Tracy (1st Dist) 199 Cal App 2d 163, 18 Cal Rptr 487; State v McKinstry, 2 Conn Cir 42, 193 A2d 905; State v Taylor, 67 Idaho 313, 177 P2d 468; State v Plasphol, 239 Ind 324, 157 NE2d 579; State v Custer, 129 Kan 381, 282 P 1071; Thiede v State, 106 Neb 48, 182 NW 570; State v Phelps, 242 NC 560, 89 SE2d 132; State v Hanahan, 111 SC 58, 96 SE 667; Keller v State, 155 Tenn 633, 299 SW 803; Fox v State, 145 Tex Crim 71, 165 SW2d 733; State v Lunz,  86 Wis 2d 695, 273 NW2d 767; Maxon v State,  177 Wis 379, 187 NW 753.

As to contributory negligence of deceased as defense in homicide cases, see 40 Am Jur 2d,  Homicide §§ 93,  113.

Footnote 70. State v Thomlinson, 209 Iowa 555, 228 NW 80.

Footnote 71. Cain v State, 55 Ga App 376, 190 SE 371; Hart v State,  75 Wis 2d 371, 249 NW2d 810.

Footnote 72. State v Phelps, 242 NC 540, 89 SE2d 132.

Footnote 73. See, for example, 7A Am Jur 2d,  Automobiles and Highway Traffic § 336; 40 Am Jur 2d,  Homicide § 113.

Practice Aids: –Contributory negligence of victim.  1 Wharton's Criminal Law (14th ed) § 47.

Footnote 74. Welch v State, 45 Ala App 657, 235 So 2d 906.

Footnote 75. State v Mellenberger, 163 Or 233, 95 P2d 709.

Footnote 76. State v Posey, 88 SC 313, 70 SE 612.

Practice Aids: –Guilt of victim.  1 Wharton's Criminal Law (14th ed) § 74.

The idea that a prisoner already convicted of an offense and serving an imprisonment therefor cannot be held for another offense while in confinement seems to have had its source in the English doctrine that a person convicted of felony could not be prosecuted for another offense. 77   This was known as the plea of "autrefois attaint." 78   In the United States this doctrine is practically obsolete.  Hence, a conviction and sentence for one felony do not constitute a bar to an indictment or trial for another, and a convict, while imprisoned in the penitentiary, is not exempt from trial and sentence for another crime, whether charged to have been committed before or during such imprisonment. 79   Nor may one in prison on conviction of one crime complain if one sovereignty waives its strict right to exclusive custody of him to allow another to subject him to a prosecution for another crime. 80    

If a convict escapes while serving a sentence, and is afterward sentenced for another offense under another name assumed by him, and while serving the second sentence is recognized as an escaped convict, his imprisonment will not prevent his being compelled to serve out the unexpired former sentence. 81

Footnote 77. Singleton v State, 71 Miss 782, 16 So 295; Ex parte Tramner, 35 Nev 56, 126 P 337; Crenshaw v State, 8 Tenn 122; People v Flynn, 7 Utah 378, 26 P 1114; State v Keefe, 17 Wyo 227, 98 P 122.

Footnote 78. Formerly in England, because of the attainder consequent on conviction of felony, the doctrine was that a plea of autrefois attaint was a bar to prosecution for another felony of the same grade, for the reason that a second trial would be wholly superfluous.  Where, therefore, any advantage, either to public justice or to private individuals, would arise from a second prosecution, the plea would not prevent it, as where the punishment was more severe.  Blitch v Buchanan, 100 Fla 1202, 131 So 151, adhered to 100 Fla 1242, 132 So 474; Singleton v State, 71 Miss 782, 16 So 295.

Footnote 79. Kelley v Oregon,  273 US 589,  71 L Ed 790,  47 S Ct 504; Ex parte Lamar (CA2 NY) 274 F 160; affd  260 US 711,  67 L Ed 476,  43 S Ct 251; Blitch v Buchanan, 100 Fla 1202, 131 So 151, adhered to 100 Fla 1242, 132 So 474; Huffaker v Commonwealth, 124 Ky 115, 98 SW 331; Rigor v State, 101 Md 465, 61 A 631; Singleton v State, 71 Miss 782, 16 So 295; Ex parte Tramner, 35 Nev 56, 126 P 337; Commonwealth v Ramunno, 219 Pa 204, 68 A 184; Arrowsmith v State, 131 Tenn 480, 175 SW 545; State v Keefe, 17 Wyo 227, 98 P 122.

Practice Aids: –Former conviction, autrefois attaint.  1 Wharton's Criminal Law (14th ed) § 53.

Footnote 80. Ponzi v Fessenden,  258 US 254,  66 L Ed 607,  42 S Ct 309.

Footnote 81. Henderson v James, 52 Ohio St 242, 39 NE 805.

The general principle is that private persons cannot license crime, and it is no excuse that the evildoer has anyone's consent thereto. 82  Invitation and consent to the perpetration of a crime do not constitute defenses, adequate excuses, or provocations. 83   But there are exceptions to this general principle, and it would be more accurate to state that whether consent of the party injured by a crime constitutes a defense depends on the character of the particular crime. 84      If the doing of a particular act is a crime regardless of the consent of anyone, consent is, of course, no excuse. Instances of crimes of this character are homicide 85   and statutory rape. 86   On the other hand, if want of consent is an element of a crime, it is equally clear that an act done with the consent of the person affected cannot be made the basis of a criminal charge. 87     Thus, one accused of rape other than statutory rape may defend on the ground that the alleged victim consented to having sexual intercourse, at least if the consent was given at any time before penetration. 88    Likewise, consent is a defense to a criminal assault or battery provided that the consent was not obtained by duress or by fraud, and provided that the act otherwise amounting to an assault or battery is not one that is prohibited by law. 89  

Where a person arranges for a crime to be committed against himself or his property and aids, encourages, or solicits the commission thereof, such facts are a good defense to the accused. 90    A charge of larceny cannot be based on a taking of property with the consent of the owner, 91    and for the same reason a taking of money or goods from the owner's person is not robbery if it is done with his consent. 92    And, since entry into a dwelling without the consent of its occupant is an indispensible element of burglary, unless otherwise provided by statute, the occupant's consent to the breaking and entering by the alleged burglar is a possible defense to that crime. 93    However, if a person does not induce, encourage, aid, or advise the commission of a crime against himself or his property, he may wait passively for a would-be criminal to perpetrate an offense 94   or create the condition under which an offense against the public may be committed, 95   and his doing so is no defense for the criminal. One who knows of a crime contemplated against him may remain silent and permit matters to go on, for the purpose of apprehending the criminal, without being held to have assented to the act. 96   

Even in those cases where the victim's consent negates a necessary element of the crime, the victim must have acted voluntarily and intelligently in the absence of fraud, threats, force, or duress. 97   Significantly, however, a distinction has been made between fraud in the fact, which vitiates consent, and fraud in the inducement, which does not.  Thus, for a crime having lack of consent as a necessary element, consent obtained through misrepresentation alone does not constitute the required element of nonconsent, unless a statute provides otherwise. 98

Practice Aids: Necessity or permissibility of mental examination to determine competencyor credibility of complainant in sexual offense prosecution.  45 ALR4th 310.

Admissibility, at criminal prosecution, of expert testimony on rape trauma syndrome. (See also 65 AmJur 2d, Rape § 68.5.)  42 ALR4th 879.

Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient.  99 ALR3rd 854.

Convicted rapist's federal habeas petition is denied, despite argument that state did not prove beyond reasonable doubt that victim was incapable of giving consent due to mental deficiency or disease, because evidence showed that victim suffered from epilepsy, dysthymia, and borderline personality disorder, and that she told rapist she was epileptic, and that he knew that she was slow and had mental problem. Griggs v State (1993, DC Kan) 814 F Supp 60.

Footnote 82. State v West, 157 Mo 309, 57 SW 1071; Davis v State, 70 Tex Crim 524, 158 SW 288.

Practice Aids: –Consent.  1 Wharton's Criminal Law (14th ed) § 46.

Footnote 83. Martin v Commonwealth, 184 Va 1009, 37 SE2d 43.

Footnote 84. State v West, 157 Mo 309, 57 SW 1071.

As to effect of victim's consent or lack thereof on crimes of abduction and kidnapping, see 1 Am Jur 2d,  Abduction and Kidnapping §§ 15-16.

As to consent as defense to charge of mayhem, see 53 Am Jur 2d,  Mayhem and Related Offenses § 12.

As to victim's consent as defense in prosecution for sodomy, see 70 Am Jur 2d,  Sodomy § 18.

Footnote 85. See 40 Am Jur 2d,  Homicide § 111.

Footnote 86. See 65 Am Jur 2d,  Rape §§ 16,  38.

Footnote 87. Allen v State, 40 Ala 334; People v Hanselman, 76 Cal 460, 18 P 425; Connor v People, 18 Colo 373, 33 P 159; Tones v State, 48 Tex Crim 363, 88 SW 217; State v Hochman,  2 Wis 2d 410, 86 NW2d 446,  77 ALR2d 784.

Footnote 88. See 65 Am Jur 2d,  Rape § 38.

Footnote 89. See 6 Am Jur 2d,  Assault and Battery § 66.

Practice Aids: –The Consent Defense:  Sports, Violence, and the Criminal Law. 1975, 13 Am Crim L Rev 235.

Footnote 90. People v Hartford Life Ins. Co., 252 Ill 398, 96 NE 1049; State v Snider, 111 Mont 310, 111 P2d 1047; State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181.

Footnote 91. See 50 Am Jur 2d,  Larceny §§ 23,  139.

Footnote 92. See 67 Am Jur 2d,  Robbery § 29.

Footnote 93. See 13 Am Jur 2d,  Burglary §§ 10,  64.

Footnote 94. Love v People, 160 Ill 501, 43 NE 710; State v Neely, 90 Mont 199, 300 P 561; State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181; State v Currie, 13 ND 655, 102 NW 875.

Footnote 95. People v Hartford Life Ins. Co., 252 Ill 398, 96 NE 1049; State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181.

Footnote 96. People v Hanselman, 76 Cal 460, 18 P 425 (larceny); Lowe v State, 44 Fla 449, 32 So 956 (larceny); Thompson v State, 18 Ind 386 (burglary); Commonwealth v Nott, 135 Mass 269 (larceny from building); State v Decker, 326 Mo 946, 33 SW2d 958 (bank robbery); State v Neely, 90 Mont 199, 300 P 561 (larceny); State v Sneff, 22 Neb 481, 35 NW 219 (burglary); State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181; State v Currie, 13 ND 655, 102 NW 875 (burglary); Commonwealth v Hollister, 157 Pa 13, 27 A 386 (larceny); Tones v State, 48 Tex Crim 363, 88 SW 217 (robbery).

The criminal liability for breaking and entering a store building and taking goods therefrom at night is not defeated by the fact that a clerk of the proprietor knew that the offense was to be committed and, at the request of an officer acting as a detective, had loaned his key in order to permit a duplicate to be made for the burglar's use, of the burglar, where it does not appear that the clerk had charge of the building or had any right to admit persons therein after it was closed for the night, and his conduct was not known to the proprietor, since the clerk's assent to the entry will not be imputed to the master.  State v Abley, 109 Iowa 61, 80 NW 225.

Footnote 97. United States v Ancarola (CC NY) 1 F 676; People v Hanselman, 76 Cal 460, 18 P 425; People v Dong Pok Yip, 164 Cal 143, 127 P 1031; Love v People, 160 Ill 501, 43 NE 710; State v Abley, 109 Iowa 61, 80 NW 225; State v Sneff, 22 Neb 481, 35 NW 219; State v Currie, 13 ND 655, 102 NW 875; Commonwealth v Hollister, 157 Pa 13, 27 A 386; People v Morton, 4 Utah 407, 11 P 512; Curran v State, 12 Wyo 553, 76 P 577.

Footnote 98. People v Harris (1st Dist) 93 Cal App 3d 103, 155 Cal Rptr 472.

Practice Aids: –Consent.  1 Wharton's Criminal Law (14th ed) § 46.

Because a crime is by definition a public wrong, one against all the people of the state, it is ordinarily no defense that a person injured by the crime condoned the offense. 99    Although condonation or settlement with the criminal may bar the victim from recovering damages in a civil action, it generally does not prevent the state from prosecuting the offender for the crime. 1    Hence, a criminal offender cannot, by restitution, payment or otherwise, before or after the commencement of the prosecution, take away the state's right to insist upon a conviction for the crime committed. 2   Thus, for example, forgiveness, compromise, or settlement between the offender and the victim is no bar to a prosecution for seduction, in the absence of a statute providing otherwise; the victim's personal preference concerning the decision to prosecute is immaterial. 3   

There are exceptions, however, to the general rule that condonation or compromise between the offender and the victim is no defense to a criminal prosecution.  It has been held that condonation may be a defense where the crime involved is not against society or good morals, but relates solely to the redressing of wrongs involving private property. 4   Moreover, statutes may specifically authorize a compromise of both the criminal and civil liability arising out of certain conduct.  Such provisions usually allow dismissal of prosecutions for minor offenses or misdemeanors only, and require the court's consent and the injured party's acknowledgement of receipt of satisfaction for the injury. 5  

It has been said that although a father would naturally not be inclined to prosecute his own son and although any person might not be inclined to prosecute a neighbor or acquaintance who had stolen property, the offense would, nonetheless, be a crime and the state would still have an obligation to prosecute. 6  In cases where the victim is unwilling to testify against the defendant, the prosecutor may subpoena the victim and examine him as a hostile witness. 7     Furthermore, beyond the issue of condonation and compromise as defenses available to a criminal offender, a victim who agrees not to inform against or prosecute the offender in return for a reward, bribe, or reparation for injury may himself be guilty of the criminal offense of compounding a crime. 8  

When a crime is also a private wrong, the victim's right to bring a civil action to recover damages is a separate and independent remedy from the state's right to prosecute the crime. Hence, the pendency or enforcement of a civil action is no defense to the criminal charge. 9   

The legislative purpose behind allowing civil compromise of criminal offenses (Pen. Code, §§ 1377-1379) is not to insure that the victim is maximally compensated for his injury, but to remove from criminal prosecution those offenses for which there is a civil remedy available. The rationale is that the public interest in those cases is best served by requiring the accused to make restitution directly and immediately to the individual victim instead of subjecting him to criminal sanctions for the welfare of society in general. People v Stephen (1986) 182 Cal App 3d Supp 14, 227 Cal Rptr 380.

Footnote 99. Gilbert v United States (CA9 Cal) 359 F2d 285, cert den  385 US 882,  17 L Ed 2d 109,  87 S Ct 169; Williams v State, 126 Ala 50, 28 So 632; State v Garoutte, 95 Ariz 234, 388 P2d 809; Donohoo v State, 59 Ark 375, 27 SW 226; People v O'Rear, 220 Cal App 2d Supp 927, 34 Cal Rptr 61; Wooldridge v State, 49 Fla 137, 38 So 3; Lowe v State, 111 Ga 650, 36 SE 856; State v Fowler, 13 Idaho 317, 89 P 757; Young v People, 193 Ill 236, 61 NE 1104; Reed v Carrigan, 190 Ind 29, 129 NE 8,  13 ALR 411; State v Pingel, 128 Iowa 515, 105 NW 58; State v Dye, 148 Kan 421, 83 P2d 113; State v Dejean, 159 La 900, 106 So 374; Commonwealth v Brown, 167 Mass 144, 45 NE 1; Hilbun v State, 167 Miss 725, 148 So 365; State v Thomas, 318 Mo 605, 300 SW 823; People v Britton, 134 App Div 275, 118 NYS 989; State v Dunn, 138 NC 672, 50 SE 772; Ex parte Warford, 3 Okla Crim 381, 106 P 559; State v Cooper, 120 SC 280, 113 SE 132; State v Allen, 21 SD 121, 110 NW 92; Busby v State, 51 Tex Crim 289, 103 SW 638; Cook v Commonwealth, 178 Va 251, 16 SE2d 635; State v Austin, 93 W Va 704, 117 SE 607; Guenther v State,  137 Wis 183, 118 NW 640.

Practice Aids: –Condonation and Compromise.  1 Wharton's Criminal Law (14th ed) § 45.

Footnote 1. Commonwealth v Slattery, 147 Mass 423, 18 NE 399; State v Tull, 119 Mo 421, 24 SW 1010.

As to illegality of agreement to compromise a criminal offense, see 15A Am Jur 2d,  Compromise and Settlement § 28.

Footnote 2. Dean v State, 147 Ind 215, 46 NE 528.

Footnote 3. 70 Am Jur 2d,  Seduction § 23.

Footnote 4. Holsey v State, 4 Ga App 453, 61 SE 836; State v Engle, 111 Iowa 246, 82 NW 763.

Footnote 5. See 15A Am Jur 2d,  Compromise and Settlement § 26.

Footnote 6. Breaker v State, 103 Ohio St 670, 134 NE 479.

Footnote 7. People v Michaels, 335 Ill 590, 167 NE 857; People v Hill, 236 Mich 672, 211 NW 39; People v Burnstein, 261 Mich 534, 246 NW 217; Commonwealth v Reeves, 267 Pa 361, 110 A 158; State v Laymon, 40 SD 381, 167 NW 402, State v Lapke, 62 SD 187, 252 NW 38; Farino v State,  203 Wis 374, 234 NW 366.

As to persons subject to subpoena, in general, see 81 Am Jur 2d,  Witnesses, § 11.

Footnote 8. See 15A Am Jur 2d,  Compounding Crimes §§ 1-4.

Footnote 9. Freeman v United States,  217 US 539,  54 L Ed 874,  30 S Ct 592; Donohoo v State, 59 Ark 375, 27 SW 226; State v Keller, 8 Idaho 699, 70 P 1051; People v Kenyon, 93 Mich 19, 52 NW 1033; State v Hogard, 12 Minn 293; People v Hayes, 140 NY 484, 35 NE 951; People v Judges (NY) 13 Johns 85; Commonwealth v Hurd, 177 Pa 481, 35 A 682.

Practice Aids: –Civil or criminal action pending.  1 Wharton's Criminal Law (14th ed) § 44.

Generally, inconsistent defenses may be interposed in a criminal case. 10   The defenses of insanity and self-defense are inconsistent within the purview of this rule. 11  Likewise, a defendant may raise the alternative defenses of intoxication and noninvolvement in the offense. 12   On the other hand, although there is contrary authority, it has been held that a defendant who denies the offense cannot raise the defense of entrapment, since the invocation of that defense necessarily assumes that he committed the acts charged. 13  

The Federal Rule of Civil Procedure that a party may plead as many separate defenses as he has, regardless of consistency, has no counterpart in the Federal Rules of Criminal Procedure.  It has been held that no such rule would be appropriate since all possible defenses not raised by appropaiate motion are embraced within the plea of not guilty. 14  

Insanity and alibi are not inconsistent defenses; proof of one does not disprove the other.  A defendant in a criminal case may rely on both and show that he was not at the place where the crime was committed, and also introduce evidence to prove that he does not have sufficient mental capacity to be responsible for the offense charged. 15

Cal. Pen. Code, §§ 28, 29, and 188, which bar the reduction of murder to nonstatutory voluntary manslaughter due to diminished responsibility arising from voluntary intoxication and/or mental disorder, do not bar the imperfect self-defense doctrine, which reduces an intentional killing from murder to manslaughter when a person kills under an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury. The imperfect self-defense doctrine is not a variety of the former diminished responsibility defense, which reduced the culpability of one who unlawfully and intentionally killed under mitigating circumstances. Rather, imperfect self-defense is a killing done without malice, and emanates from an individual's desire to protect himself or herself. Thus, the policy reasons behind the elimination of the diminished responsibility defense would not be met by the elimination of imperfect self-defense. In re Christian S. (1992, 4th Dist) 10 Cal App 4th 1325, 13 Cal Rptr 2d 232, 92 CDOS 9122, 92 Daily Journal DAR 15070.

Footnote 10. Whittaker v United States, 108 App DC 268, 281 F2d 631; Love v State, 16 Ala App 44, 75 So 189; People v West, 139 Cal App 2d Supp 923, 293 P2d 166; People v Jersky, 377 Ill 261, 36 NE2d 347; Bartram v State, 33 Md App 115, 364 A2d 1119, affd 280 Md 616, 374 A2d 1144; People v Hansma, 84 Mich App 138, 269 NW2d 504; State v Wright, 352 Mo 66, 175 SW2d 866; People v Gaimari, 176 NY 84, 68 NE 112 (ovrld on other grounds People v Miller  39 NY2d 543, 384 NYS2d 741, 349 NE2d 841).

Footnote 11. State v Morris (Mo) 248 SW2d 847.

Footnote 12. People v McLean, 52 Mich App 182, 217 NW2d 138.

Footnote 13.  § 208, infra.

Footnote 14. Henderson v United States (CA5 Fla) 237 F2d 169,  61 ALR2d 666, pointing out further that the common goal of all trials, civil or criminal, of issues of fact is to arrive at the truth, and that it would seem that inconsistent positions should be permitted according to whether they might help or hinder a search for the truth.

Footnote 15. State v Lora (Mo) 305 SW2d 452.

B.  Alibi [192-201]

1.  In General [192]

The literal significance of the word "alibi" is "elsewhere"; 16  as used in criminal law, it indicates that line of proof by which an accused undertakes to show that because he was not at the scene of the crime at the time of its commission, 17   having been at another place at the time, 18  he could not have committed the crime.  In other words, by an alibi the accused attempts to prove that he was at a place so distant that his participation in the crime was impossible. 19   To be successful, his alibi must cover the entire time when his presence was required for accomplishment of the crime. 20   To establish an alibi, the accused must show that he was at another specified place at the time the crime was committed, thus making it impossible for him to have been at the scene of the crime.  It is not enough for the accused to say that he was not at the scene and must therefore have been elsewhere.  The latter statement does not constitute an alibi. 21   And since an alibi defense derives its potency from the physical impossibility of the accused's guilt, 22  a purported alibi that leaves it possible for the accused to be the guilty person is no alibi at all. 23  Thus, in a conspiracy prosecution, the defense of alibi is not allowed since the presence or absence of one of the conspirators at the precise time covered by the crime is immaterial. 24    Alibi is a proper defense, however, when a direct issue is raised concerning the defendant's absence at the time of the very formation of the conspiracy. 25

It is said that an alibi, if established, constitutes a complete, 26  legitimate, 27  and effective 28  defense, and that it precludes the possibility of guilt. 29   It is also said that an alibi is the most perfect, physically conclusive evidence of the accused's innocence, 30   and, since it is a complete defense by itself, that it is neither helped nor hurt by other defenses. 31

Although an alibi is sometimes classified as an affirmative defense, 32   and although from an evidential standpoint it may be defensive in nature, 33  it is not an affirmative defense, strictly speaking. 34     It is simply a denial that the accused committed the crime. 35    An offer to establish an alibi is not the offer of an affirmative issue advanced by the accused; it is merely an offer to show facts inconsistent with the essential element of the criminal charge. 36   In other words, it is a denial of part of what is incumbent on the state to prove as a part of its case, that is, that the accused was at the scene of the crime. 37    It merely negatives the prosecution's required proof that the defendant was personally present at the place when the offense was committed. 38

Since an alibi is shown by evidence that the accused was at a point where he could not have been guilty of participating in the offense, any evidence that tends to establish his whereabouts at the time of the alleged offense is admissible in support of his defense and competent to weaken or destroy the state's case. Furthermore, such evidence is not excluded even though the defendant is unable to cover the exact time of the offense or every minute of the time involved. 39      If the accused's alibi evidence raises a reasonable doubt in the minds of the jury as to his presence when the crime was committed, it is sufficient for acquittal. 40   Although they are easily fabricated, and therefore subject to searching scrutiny, alibis must be given fair consideration. 41  

Practice Aids:  27 Am Jur Proof of Facts 2d 431, Alibi defense.

The defendant was denied effective assistance of counsel by his counsel's rejection of the trial judge's offer of an alibi charge where alibi was the sole theory of the defense and, based on the prosecutor's summation remarks, the absence of the charge gave rise to a conclusion by the jury that it was impermissible for them to consider alibi as a defense. Riddle v State (1992, SC) 418 SE2d 308.

Court properly stated to jury that, although they might consider defendant's own alibi testimony, they could not consider his testimony that his employer had written letter certifying that he was working on day of crime, even though testimony regarding letter was not stricken from record, since neither letter nor testimony of employer were admitted in evidence, and thus statements in letter constituted hearsay. People v Quesada (1992, 1st Dept)  182 AD2d 440, 582 NYS2d 167, app den  80 NY2d 896, 587 NYS2d 927, 600 NE2d 654.

An alibi defense is not required to place the defendant at some minimum distance away from the scene of the crime; all that is required is that the defendant, because of the separation, could not possibly have committed the crime. Commonwealth v Johnson (1994, Pa) 646 A2d 1170.

The defendant was not entitled to an alibi instruction where testimony by his wife stated only that he was home for most of the evening of the crime except for one period when he went out for not very long and testimony by the owner of a sub shop stated only that the defendant was there at some point during the evening of the crime; the testimony did not necessarily place the defendant at a location other than that of the crime scene at the time of the crime. Commonwealth v Repaci (1992, Super Ct) 615 A2d 796.

The defendant in a prosecution for drug offenses was not entitled to an alibi instruction where the relevant testimony did not place him at a location away from the scene of the crime but instead implied that the defendant was at the scene but that the police mistakenly identified him as the one who hid a bag of cocaine. Commonwealth v Johnson (1992, Super Ct) 618 A2d 415.

Footnote 16. Azbill v State, 19 Ariz 499, 172 P 658; State v Hubbard, 351 Mo 143, 171 SW2d 701; State v Poole, 161 Or 481, 90 P2d 472.

Footnote 17. Tomlinson v United States, 68 App DC 106, 93 F2d 652, cert den  303 US 642,  82 L Ed 1102,  58 S Ct 645 and cert den  303 US 646,  82 L Ed 1107,  58 S Ct 645; Singh v State, 35 Ariz 432, 280 P 672; Blackwell v State, 79 Fla 709, 86 So 224 (not followed on other grounds Dixon v State (Fla App D4) 227 So 2d 740, cert den (Fla) 237 So 2d 179); State v Hubbard, 351 Mo 143, 171 SW2d 701; State v Steen, 185 NC 768, 117 SE 793; State v Payne, 104 Ohio App 410, 5 Ohio Ops 2d 87, 77 Ohio L Abs 558, 149 NE2d 583; State v Poole, 161 Or 481, 90 P2d 472; Commonwealth v Russell, 149 Pa Super 326, 27 A2d 494.

Footnote 18. Jones v State (Fla App D2) 128 So 2d 754 (disagreed with on other grounds Dixon v State (Fla App D4) 227 So 2d 740, cert den (Fla) 237 So 2d 179); State v Wagner, 207 Iowa 224, 222 NW 407; Huckett v State, 121 Neb 364, 237 NW 159; Commonwealth v McQueen, 178 Pa Super 38, 112 A2d 820; Windham v State, 162 Tex Crim 580, 288 SW2d 73.

Footnote 19. People v Thomas, 393 Ill 573, 67 NE2d 192; State v Baker, 246 Iowa 215, 66 NW2d 303; State v Ovitt, 126 Vt 320, 229 A2d 237.

Practice Aids: Alibi.  1 Wharton's Criminal Law (14th ed) § 43.

Footnote 20. Jones v State (Fla App D2) 128 So 2d 754 (disagreed with on other grounds Dixon v State (Fla App D4) 227 So 2d 740, cert den (Fla) 237 So 2d 179); People v Todaro, 14 Ill 2d 594, 153 NE2d 563; Johnson v Commonwealth, 210 Va 16, 168 SE2d 97.

Footnote 21. Commonwealth v McQueen, 178 Pa Super 38, 112 A2d 820.

Footnote 22. Singh v State, 35 Ariz 432, 280 P 672; Kitchens v State, 209 Ga 913, 76 SE2d 618; State v Searles, 82 NJ Super 210, 197 A2d 384; Baxter v State (Okla Crim) 364 P2d 705; State v Gordon, 208 Or 455, 302 P2d 214.

Footnote 23. Singh v State, 35 Ariz 432, 280 P 672; Yarber v Denver, 116 Colo 540, 182 P2d 897; Commonwealth v Larue, 158 Pa Super 219, 44 A2d 535.

Footnote 24. State v McManaman, 120 Kan 376, 244 P 225; State v Johnson, 40 Kan 266, 19 P 749; State v Gatlin, 170 Mo 354, 70 SW 885; Cain v State, 42 Tex Crim 210, 59 SW 275.

In a prosecution of a man and three women for murder and conspiracy to commit murder arising out of two successive multiple homicides, the male defendant, who was the alleged leader of the group, was not entitled to a jury instruction on alibi, where the prosecution never contended he was present at the time of the actual commission of any homicide and his presence was not a requirement for culpability.  People v Manson (2d Dist) 61 Cal App 3d 102, 132 Cal Rptr 265, cert den  430 US 986,  52 L Ed 2d 382,  97 S Ct 1686 and later app (2d Dist) 113 Cal App 3d 280, 170 Cal Rptr 189.

Footnote 25. Jenkins v State, 45 Tex Crim 173, 75 SW 312.

As to defenses to a conspiracy prosecution, generally, see 16 Am Jur 2d (Rev) Conspiracy §§ 35 et seq.

Footnote 26. Haynes v Commonwealth, 304 Ky 753, 202 SW2d 400; Commonwealth v Bonomo, 187 Pa Super 521, 144 A2d 752, affd 396 Pa 222, 151 A2d 441.

Footnote 27. State v Johnson, 70 SD 322, 17 NW2d 345; Markoff v State, 52 Wyo 457, 75 P2d 773.

Footnote 28. State v Martin, 2 Ariz App 510, 410 P2d 132, reh den 3 Ariz App 119, 412 P2d 294; Anderson v Commonwealth, 291 Ky 727, 166 SW2d 30.

Footnote 29. Basoff v State, 208 Md 643, 119 A2d 917.

Footnote 30. 30 Am Jur 2d,  Evidence § 1162.

Footnote 31. People v Doody, 343 Ill 194, 175 NE 436.

Footnote 32. People v Perroni, 14 Ill 2d 581, 153 NE2d 578, cert den  359 US 980,  3 L Ed 2d 929,  79 S Ct 899, reh den  359 US 1005,  3 L Ed 2d 1034,  79 S Ct 1141 and (ovrld on other grounds People v Nunn 55 Ill 2d 344, 304 NE2d 81, cert den  416 US 904,  40 L Ed 2d 108,  94 S Ct 1608); Witt v State, 205 Ind 499, 185 NE 645; State v Rourick, 245 Iowa 319, 60 NW2d 529.

Footnote 33. State v Stump, 254 Iowa 1181, 119 NW2d 210, cert den  375 US 853,  11 L Ed 2d 80,  84 S Ct 113; State v Hubbard, 351 Mo 143, 171 SW2d 701; Hall v State, 135 Neb 188, 280 NW 847; State v Minton, 234 NC 716, 68 SE2d 844,  31 ALR2d 682.

Footnote 34. People v Bradley, 71 Cal App 2d 114, 162 P2d 38; Halko v State, 54 Del 180, (Sup) 175 A2d 42; State v Baker, 246 Iowa 215, 66 NW2d 303; Parsley v Commonwealth (Ky) 321 SW2d 259; State v Hubbard, 351 Mo 143, 171 SW2d 701; State v Mucci, 25 NJ 423, 136 A2d 761; Commonwealth v Stein, 103 Pa Super 198, 158 A 600, revd on other grounds 305 Pa 567, 158 A 563.

Alibi is not an independent affirmative defense in the same sense that insanity is regarded as an affirmative defense.  Hall v State, 135 Neb 188, 280 NW 847,  118 ALR 1300.

As to nonaffirmative nature of defense as affecting burden of proof of alibi, see 29 Am Jur 2d,  Evidence § 157.

Footnote 35. State v Minton, 234 NC 716, 68 SE2d 844,  31 ALR2d 682.

Footnote 36. State v Searles, 82 NJ Super 210, 197 A2d 384.

Footnote 37. Parham v State, 120 Ga App 723, 171 SE2d 911.

As to presence of accused at place and time of crime as element of offense to be proven by prosecution, see 29 Am Jur 2d,  Evidence § 151.

Footnote 38. People v Bradley, 71 Cal App 2d 114, 162 P2d 38; People v Pearson, 19 Ill 2d 609, 169 NE2d 252.

Footnote 39. 29 Am Jur 2d,  Evidence § 440.

As to admissibility of other crimes to rebut alibi, see 29 Am Jur 2d,  Evidence §§ 321,  440.

Practice Aids: Alibi testimony.  Bailey & Rothblatt, Cross-examination in Criminal Trials, §§ 149, 314-315, 333-336.

Difficult alibis; alibi witnesses.  Bailey & Rothblatt, Investigation and Preparation of Criminal Cases, §§ 108, 141.

Footnote 40. 30 Am Jur 2d,  Evidence § 1162.

As to burden of proving alibi, see 29 Am Jur 2d,  Evidence § 157.

As to alibi as question for jury where evidence is conflicting, see 75 Am Jur 2d,  Trial § 425.

As to degree of proof and sufficiency of evidence of alibi, see 30 Am Jur 2d,  Evidence § 1178.

As to jury instructions on alibi, see 75 Am Jur 2d,  Trial §§ 729-737.

Footnote 41. 30 Am Jur 2d,  Evidence § 1162.

2.  Notice Requirements [193-201]

Although an accused is not ordinarily required to give advance notice of the details of his claim of alibi, 42  many states, by statute or rule of court, require him to notify the prosecution of his intention to rely on alibi as a defense and, commonly, to specify the place at which he clai