ADMINISTRATION OF JUSTICE CRIMES AGAINST THE PERSON 1. The killing a. There need not be intent b. Legal definition of death: I.HOMICIDE A.Elements (1) A person shall be considered dead if he has suffered "total and irreversible cessation of brain function." c. Determination requires the opinion of one or two independent physicians depending on the state. 2. Of a human being, or a fetus a. a fetus becomes a human being when it has been born and has established its own independent circulation b. the current definition of a fetus is it must be viable (it moves) and must have reached the stage where it would be capable of living by itself if it were separated from the mother's womb. 3.By human act or agency a. Proximate cause, however, must be result of some human act, not necessarily the direct result. b. Can be caused by a person omitting to act when required by law 4. When death occurs within a specified period of time (for example in California the death must occur within 3 years and 1 day a. Any one of the elements can be proven by circumstantial evidence b. There need be no body produced in order for a conviction to be obtained B. Unlawful homicide 1. Elements of unlawful homicide - Murder first degree (most states) a. The unlawful killing b. Of a human being, or a fetus c. With malice aforethought (1) Expressed with purpose or design (a) deliberate intention to unlawfully take away the life of a fellow creature d. Murder is first degree (most states) when the killing is perpetrated by means of: (1)Willful deliberation and premeditation (2)Use of explosives, or destructive device (3)Use of Torture (4) Use of Poison (5)Lying in wait for the victim e. Murder is of the first degree in most states when the death results during the commission or attempt to commit one of the following crimes: (1)Child molesting (2)Arson (3)Rape (4)Robbery (5)Burglary f.When the killing results from one of the above statutory offenses, there need not be the intent to kill. (1)The killing can be by accident. 2.Elements of unlawful homicide murder second degree (most states) a. Implied no deliberation (1) Killing is not premeditated (2)When no considerable provocation appears (3) When the circumstances attending the killing show an abandoned and malignant heart (assumed from the action) b. If murder is committed during a felony other than those enumerated in first degree murder it will be at least second degree murder (1)Example a death which results from an illegal abortion c. If a wanton act is intentionally performed, and the natural consequences of that act would be dangerous to human life, any death resulting from said act would be murder of the second degree (1)Example parent who abandons a small child on a busy street at night and as a result the child panics running into traffic lanes. The child is hit by a car and dies, the parent would be guilty of second degree murder. d. Death as a result of driving while intoxicated can be classified as second degree murder in some states such as California 1. Voluntary a. Intent to kill is present (willful act) b. But, it is brought on by sufficient provocation (called "heat of passion") C. Manslaughter - Three Types c. Absence of premeditation deliberation, and malice aforethought d. May be generated by words of abuse or reproach (1) Example John gets mad at Bill and punches him in the nose while working at a construction site. Bill falls backward into a rod sticking out of a cement wall and his lung is punctured causing Bill to die 2. Involuntary a. In the commission of a misdemeanor (1) Example Joe goes hunting with his high powered rifle. He is up all night playing cards and getting drunk. The next morning he goes hunting for a deer and shoots wildly in a clump of moving bushes. Out rolls another hunter, shot through the head. b. In the commission of a lawful act which might produce death in unlawful manner, or without due caution and circumspection c. Failure to perform a legal duty, i.e. child neglect d. In involuntary manslaughter there is no intent to kill 3. Vehicular manslaughter a. No intent to kill is necessary b. In the commission of a misdemeanor involving gross negligence (1) Driving 60 miles an hour in a residential area, skidding around a corner and hitting a child c. In the commission of a misdemeanor but with no gross negligence (1)Driving 35 miles an hour in a 25 mile an hour zone and hitting a young child who runs into the street d. In the commission of a lawful act which might produce death, with gross negligence (1) Driving the speed limit, a friend leans out the window to hand something a friend in an adjacent car. The friend falls out the window and gets run over e. In the commission of a lawful act which might produce death, but with no gross negligence (1)Jack asks Sam for a ride home. Sam says it is okay and Jack must ride in the bed of his truck. Jack sits on the side railing and Sam makes a quick turn to avoid a car that pulls in front of him. Jack falls out and is killed. 1. Excusable homicide a.there is no intent to kill b. there is no law violated D.Lawful Homicide - Two Types c. there is no lack of due caution d.Key words to excusable homicide are accident and misfortune 2. Justifiable homicide a. there is the intent to kill or injure b. in obedience to any judgment of a competent court (execution) c. overcoming resistance to execution of some legal process or duty d. in retaking escaped felons e. arresting fleeing felons or arresting resisting fleeing felons f. generally, when resisting any attempt at murder or a felony, to do great bodily injury upon any person g.defense of habitation, property or person (1) against one who manifestly intends by violence or surprise to enter the habitation of another to commit a felony (2) or who manifestly intends in a violent, riotous, or tumultuous manner to enter the habitation of another for the purpose of offering violence to any person inside (5) no duty to retreat (3) no obligation to give warnings before shooting in defense of habitation (4) bare fear is not sufficient justification 1. The unlawful moving of a person from one place to another (asportation) - movement a. Case law has established that movement must be "substantial" not "trivial" II.KIDNAPPING A.Elements of Kidnapping 2. Against ones will a.Consent obtained by fraud is no consent III.ROBBERY A.Elements of Robbery 1. The felonious taking (asportation - movement) 2. Of the personal property of another a. property does not have to belong to the victim i.e. gas station attendant 3. From their person or immediate presence 4. Against his will 5. Accomplished by means of force or fear a. fear in robbery can be the threat of unlawful injury to (1) the victim (2) his property (3) any relative of his, or b. the fear of immediate and unlawful injury to (1) the person (2) his property (3) anyone in his company ( includes family) c.Case law has established that "intimidation" is the same as fear IV.ASSAULT A. Elements of Assault 1. An unlawful attempt (to commit battery) a. certain assaults are legal i.e. boxing, medical operations, force used in making lawful arrests, etc. 2. Coupled with the present ability a. must establish that the act attempted by assailant is capable of being carried out 3. To commit a violent injury upon the person of another a. "violent" injury merely means the unlawful application of physical force upon the person of another 1. Assault upon any of the following persons - may vary from state to state a. a peace officer includes police animals b. a firefighter B. Elements of Assault On A Peace Officer or Fireman c. an emergency medical technician or paramedic, doctor or nurse d. custodial officer (correctional institutions) e.uniformed peace officer working for school district f. traffic officer (non-peace officer) g. animal control officer h. park rangers 3. When the listed victim is actually engaged in the performance of his or her duties a. includes off - duty peace officer who intervenes in crime in progress when he identifies himself 2. When one person knows or should know that theperson assaulted is one of the listed persons V.BATTERY A.Elements of Battery 1. Any willful and unlawful 2. Use of force or violence a. Battery is a completed assault b. Assault is a lesser included offense 3. Upon the person of another B.Battery With Special Circumstances (Wobbler - The case may be filed as a felony or misdemeanor) 1. Committing battery upon the person of a. a peace officer b. a firefighter c. an emergency medical person d. a custodial officer e. a process server f. an operator or passenger of transportation for hire 2. When the person knows or should reasonably know that the victim is one of the listed persons 3. The victim is actually engaged in the performance of his duties 4.Other victims include: a. any person, when they suffer serious bodily injury as a result of the battery (1)serious injury is defined as a serious impairment or physical condition, including, but not limited to, the following conditions: (a)loss of consciousness (b) bone fracture (c)protracted loss or impairment of function of any bodily member or organ (d) a wound requiring extensive suturing (e) serious disfigurement b. a non-cohabitating former spouse c. a fianc or fiance d. a person with whom there is or was a "dating" relationship (prostitution is not covered by this enhancement) e. when the battery occurs on school grounds f. when the battery occurs in a publicly maintained or operated park (1) not when used for professional sports or commercial events VI.ASSAULT WITH A DEADLY WEAPON (ADW) A.Elements of Assault With A Deadly Weapon (ADW) 1. every person who commits an assault upon the person of another 2.with a deadly weapon, or a. a "deadly" weapon is any object, instrument, or weapon which, from the manner in which it is used, is capable and likely to produce death or great bodily injury b. depends not upon the purpose for which the instrument was made, but the manner in which it was used B.Sentence enhancements (reasons a sentence may be increased) 1. when assault with a deadly weapon is committed against (1)a peace officer (2) a firefighter (3) a transportation worker, or passenger (4) a custodial officer (5) a school employee (6) when listed categories are actually engaged in the performance of their duties 2. with an instrument (other than a firearm), or 3. by any means of force likely to produce great bodily injury (GBI) C.Special Types of Felonious Assaults 1. throwing missiles at vehicle 2. throwing or shooting at trains 3. assault or attempted murder upon government officials 4. assault with intent to commit rape, sodomy, mayhem, robbery, oral copulation, child molestation, 5. assault with caustic chemicals 6. assault with firearms on inhabited dwelling or occupied building, vehicle, etc. 7. negligent discharge of a firearm 8. shooting at an aircraft or building 9. assault or battery on police horse or police dog 10. firing a gun from or at an occupied vehicle 11. battery against cohabitating person VII.RAPE A.Elements of Rape 1. An act of sexual intercourse a. penetration of the woman by a man is required, however, slight 2. Accomplished with a person a. can involve woman raping a man 3. Not the spouse (husband or wife) of the perpetrator a. spousal rape is covered under another section a. where a person is incapable because of mental disease, defect, or disorder, or because of physical disability, of giving legal consent, and this condition is known or should be reasonably known to the perpetrator 4. Under any of the following circumstances: b. it is accomplished against a person's will by means of force or fear of immediate and unlawful bodily injury on the person of another c. where the person is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution, or by any intoxicating, narcotic, or anesthetic substance, administered by or with the privity of the accused d. where the person is at the time unconscious of the nature of the act, and this is known to the accused e. where the person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with the intent to induce the belief f. where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or by any other person, and there is a reasonable possibility that the perpetrator will execute the threat g. accomplished by threat to use authority of a public official to incarcerate, arrest, or deport, the victim or another, and the victim has reasonable belief that the perpetrator is a public official B. Bureau of Statistics crimes and victims statistics on rape. 1. U.S. Department of Justice studies between 2000 and 2003: a. Around the world at least 1 woman in 3 has been beaten, coerced into sex or otherwise abused in her lifetime. b. 77% of rapes are committed by someone known to the person raped. c.Among female victims, 61% are under age 18 e. 6 out of 10 rapes are reported by victims to have occurred in their own home or home of a friend, relative or neighbor. d.15% of females raped are under the age of 12. g. Only about 20% of all rape victims report the crime. f. Approximately 80% of rape victims are under the age of 30 years. C.Rape of Spouse (husband or wife) 1. Corpus of Spousal Rape a. sexual intercourse b. with a spouse c. when accomplished by (1) force, or (2) fear of immediate and unlawful bodily injury to spouse or other persons (3)threat of future retaliation against the victim or other person, if it is reasonably possible d. when reported within a specified period of time of the commission of the act (to authorities) D.Unlawful sexual intercourse 1. Corpus (elements) of unlawful sexual intercourse a. sexual intercourse b. accomplished with a female c. not the wife of the perpetrator d. when the victim is under the age of 18 years (standard in most states) 2. Parent (s) may authorize medical examination of minor daughter to obtain verification evidence 3. Parent (s) may bring charges against offender without consent/involvement of their minor child VIII.CHILD MOLESTATION A.Elements of Child Molestation 1. Any person who willfully and lewdly commits any lewd or lascivious act *lewd manner not considered decent *lascivious showing or causing lust *lust strong desire for something 3. Of a child under a certain age ( 14 years of age in most states) a. victim may be either male or female 2. Upon the body or any part or member thereof 4. With the intent of a. arousing, b. appealing to, or c. gratifying the lust, passion, sexual desires 5. Of either the perpetrator or the child a. immaterial whether victim participated willingly or not IX.INDECENT EXPOSURE A.Elements of Indecent Exposure 1. Every person who willfully and lewdly 2.Either exposes his person or private parts thereof a. nude sunbathing is not violation of this section because the act is not being done lewdly 3. In any public place, or in any place where there are present persons to be offended or annoyed thereby b. city ordinances may prohibit nude sunbathing 4. Second and subsequent convictions are felonies this concludes Crimes Against the Person