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
Scope of Topic:
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]
§ 137 Generally
[21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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.
§ 138 Constitutionality of
statutes [21 Am Jur 2d CRIMINAL LAW]
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
§ 138 – Constitutionality
of statutes [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 139 Construction of
statutes [21 Am Jur 2d CRIMINAL LAW]
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
§ 139 – Construction of
statutes [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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]
§ 140 Generally; religious
belief [21 Am Jur 2d CRIMINAL LAW]
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
§ 140 – Generally;
religious belief [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: The Cultural Defense in
the Criminal Law. 99 Harv LR 1293, April, 1986.
Footnotes
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]
§ 141 Generally
[21 Am Jur 2d CRIMINAL LAW]
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
§ 141 – Generally
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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]
§ 142 Generally
[21 Am Jur 2d CRIMINAL LAW]
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
§ 142 – Generally
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 143 Mistaken belief as to
constitutionality of statute [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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).
§ 144 Reliance on judicial
decisions [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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.
§ 145 Advice of counsel
[21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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]
§ 146 Generally
[21 Am Jur 2d CRIMINAL LAW]
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
§ 146 – Generally
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Footnotes
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.
§ 147 Necessity [21 Am Jur 2d CRIMINAL LAW]
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
§ 147 – Necessity
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 148 Coercion, compulsion,
or duress [21 Am Jur 2d CRIMINAL LAW]
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
§ 148 – Coercion,
compulsion, or duress [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 149 Husband's coercion of
wife [21 Am Jur 2d CRIMINAL LAW]
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
§ 149 – Husband's coercion
of wife [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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).
Footnotes
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.
§ 150 Presumption as to
wife's coercion by husband [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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.
§ 151 – Offenses to which
presumption applicable [21 Am Jur 2d CRIMINAL LAW]
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
§ 151 – Offenses to which
presumption applicable [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Case authorities:
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.
Footnotes
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.
§ 152 – Rebuttal of
presumption [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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.
§ 153 Child acting under
parent's command [21 Am Jur 2d CRIMINAL LAW]
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
§ 153 – Child acting under
parent's command [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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]
§ 155 Intoxication –
voluntary [21 Am Jur 2d CRIMINAL LAW]
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
§ 155 – Intoxication –
voluntary [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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).
Case authorities:
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.
Footnotes
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.
§ 156 – Involuntary
[21 Am Jur 2d CRIMINAL LAW]
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
§ 156 – Involuntary
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 157 Narcosis
[21 Am Jur 2d CRIMINAL LAW]
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
§ 157 – Narcosis
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Benton et al., Drugs and
Criminal Responsibility. 33 Vand L R 1145, October, 1980.
Case authorities:
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.
Footnotes
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]
§ 158 Attempts
[21 Am Jur 2d CRIMINAL LAW]
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
§ 158 – Attempts
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 159 – Requirement and
sufficiency of overt act; preparation [21 Am Jur 2d
CRIMINAL LAW]
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
§ 159 -- Requirement and
sufficiency of overt act; preparation [SUPPLEMENT] [21 Am
Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 160 – Effect of
prevention or impossibility [21 Am Jur 2d CRIMINAL LAW]
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
§ 160 – Effect of
prevention or impossibility [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 161 Solicitation as
attempt [21 Am Jur 2d CRIMINAL LAW]
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
§ 161 – Solicitation as
attempt [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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).
§ 162 Solicitation as
substantive offense [21 Am Jur 2d CRIMINAL LAW]
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
§ 162 – Solicitation as
substantive offense [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Case authorities:
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.
Footnotes
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]
§ 163 Generally
[21 Am Jur 2d CRIMINAL LAW]
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
§ 163 – Generally
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
Footnote 17. Pierce v State, 130 Tenn
24, 168 SW 851.
§ 164 Participation in
offense one is incapable of committing personally [21 Am
Jur 2d CRIMINAL LAW]
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
§ 164 – Participation
in offense one is incapable of committing personally
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 165 Furnishing
instrumentality used by another [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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.
§ 166 Accomplices
[21 Am Jur 2d CRIMINAL LAW]
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
§ 166 – Accomplices
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 167 Aiders and abettors
[21 Am Jur 2d CRIMINAL LAW]
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
§ 167 – Aiders and abettors
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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]
§ 168 Who are principals
[21 Am Jur 2d CRIMINAL LAW]
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
§ 168 – Who are principals
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 169 Principals in first
and second degrees [21 Am Jur 2d CRIMINAL LAW]
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
§ 169 – Principals in first
and second-degrees [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 170 – Manner of aiding
[21 Am Jur 2d CRIMINAL LAW]
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
§ 170 – Manner of aiding
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 170.5 -- Criminal
Facilitation [NEW] [21 Am Jur 2d CRIMINAL LAW]
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.
§ 171 – Intent
[21 Am Jur 2d CRIMINAL LAW]
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
§ 171 – Intent
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 172 Accessories before
the fact [21 Am Jur 2d CRIMINAL LAW]
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
§ 172 – Accessories before
the fact [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 173 – Effect of
withdrawal of aid and advice [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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.
§ 174 Accessories after the
fact [21 Am Jur 2d CRIMINAL LAW]
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
§ 174 – Accessories after
the fact [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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]
§ 175 Trial of aider and
abettor – necessity that principal be first convicted [21
Am Jur 2d CRIMINAL LAW]
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
§ 175 – Trial of aider and
abettor–necessity that principal be first convicted
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 176 – Effect of
principal's acquittal or conviction of lesser offense [21
Am Jur 2d CRIMINAL LAW]
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
§ 176 – Effect of principal's acquittal or conviction of
lesser offense [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 177 Jurisdiction and
venue where offense in one jurisdiction is aided and abetted in
another [21 Am Jur 2d CRIMINAL LAW]
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
§ 177 – Jurisdiction and
venue where offense in one jurisdiction is aided and abetted in another
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 178 Punishment of joint
offenders [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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]
§ 179 Generally
[21 Am Jur 2d CRIMINAL LAW]
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
§ 179 – Generally
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 180 Acts of confederates,
coconspirators, and the like [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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.
§ 181 Acts of agents,
servants, or employees [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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.
§ 182 – Relation of act to
employment [21 Am Jur 2d CRIMINAL LAW]
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
§ 182 – Relation of act to
employment [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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]
§ 183 Generally;
affirmative defenses [21 Am Jur 2d CRIMINAL LAW]
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
§ 183 – Generally;
affirmative defenses [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 184 Good character or
reputation of accused [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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.
§ 185 Custom or usage
[21 Am Jur 2d CRIMINAL LAW]
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
§ 185 – Custom or
usage [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 186 Guilt of or agency
for another [21 Am Jur 2d CRIMINAL LAW]
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.
§ 186 – Guilt of or agency
for another [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 187 Contributory
negligence or wrongful act of person injured [21 Am Jur 2d
CRIMINAL LAW]
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
§ 187 – Contributory
negligence or wrongful act of person injured [SUPPLEMENT]
[21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 188 Accused in prison for
another crime [21 Am Jur 2d CRIMINAL LAW]
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
Footnotes
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.
§ 189 Consent of victim or
person affected [21 Am Jur 2d CRIMINAL LAW]
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
§ 189 – Consent of victim
or person affected [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
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.
Case authorities:
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.
Footnotes
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.
§ 190 Condonation or
compromise; pendency of civil action [21 Am Jur 2d
CRIMINAL LAW]
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
§ 190 – Condonation of
compromise pendency of civil action [SUPPLEMENT] [21 Am
Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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.
§ 191 Inconsistent defenses
[21 Am Jur 2d CRIMINAL LAW]
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
§ 191 – Inconsistent
defenses [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
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.
Footnotes
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]
§ 192 Generally; what
constitutes; purpose and effect [21 Am Jur 2d CRIMINAL LAW]
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
§ 192 – Generally; what
constitutes; purpose and effect [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Practice Aids: 27 Am Jur Proof of
Facts 2d 431, Alibi defense.
Case authorities:
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.
Footnotes
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]
§ 193 Generally; validity
of alibi notice statutes [21 Am Jur 2d CRIMINAL LAW]
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