Criminal Law M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 1999

General instructions

This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.

The exam consists of two parts. You will have two and one-half hours to complete the exam. Recommended times are indicated for each part. Answer all questions.

Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):

"On my honor I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of."

Do not assume any additional fact or law, except those laws studied in the course, without stating explicitly your assumption and explaining why such additional information is necessary for your answer.

PART I. SHORT ANSWERS (30 minutes for this part--or an average of ten minutes for each question)

Instructions. Write a coherent, literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.

1. Sally Eisherz was the mother of a six-month-old infant, Bobbie. Eisherz had divorced Bobbie's father and was dating Karl Dangerson. Eisherz and Dangerson frequently drank too much and had arguments about marriage, children, and other matters.

During one evening of drinking and arguing at Dangerson's apartment, baby Bobbie began to cry. Dangerson said, "I wish you would not always bring the baby with you."

Eisherz responded, "You low life. Why don't you see what it's like having a baby all the time." She stormed out of Dangerson's apartment, leaving baby Bobbie behind.

Dangerson was furious and made no efforts to care for the baby. One week later, Eisherz called and asked how Bobbie was. Dangerson told her, "I have not fed him a drop of food or water. I have not changed his diapers. He has stopped crying and smells like dead meat. And I don't care."

Eisherz called the police who found the baby near death. Dangerson has been arrested. The prosecutor wants to charge Dangerson with attempted murder and asks your opinion. The jurisdiction follows the common law.

2. Same facts. At the time the police arrested Dangerson, baby Bobbie was taken to the emergency room of the local hospital. When Eisherz went to the hospital and saw the awful condition of her child, she flew into a rage. One week later at Dangerson's preliminary hearing, Eisherz rushed up to Dangerson and stabbed him with a knife. He died from the knife wounds.

Eisherz has been indicted for murder. You are representing her, and she asks you whether the crime may be mitigated to voluntary manslaughter. The jurisdiction follows the common law. Please explain.

3. Larry Lampliker coveted an antique Tiffany lamp owned by his neighbor, Fred MacGavran. One night when MacGavran was out of town visiting relatives, Lampliker decided to sneak over to MacGavran's house, break open the back door, and take the lamp.

Accordingly, he got a hammer, glass cutter, pliers, and other tools from the tool box in his basement. He took these tools with him and walked to MacGavran's house, planning to use them to break open the back door.

But as Lampliker approached MacGavran's back door, he began to have some second thoughts about taking the lamp. First, he knew it was wrong. Second, he wondered if he would really enjoy having the lamp, since he would always have to hide it from his neighbor. Third, he began to feel silly.

Suddenly, the clouds parted and MacGavran's back yard was flooded with the light of the full moon. Lampliker became nervous, realizing that he might easily be seen and identified in the moonlight. He immediately returned home but did not put the tools away, because he thought he might try to get the lamp later that night if the moon was again covered by clouds.

Later, after a snack, Lampliker decided that he just did not want the lamp. He put the tools back in the tool box in his basement.

Although Lampliker did not know it at the time, the lamp was no longer in MacGavran's house. MacGavran had sold it two weeks earlier.

Please evaluate Lampliker's liability for attempted burglary under the Model Penal Code.


Instructions. Write coherent, literate essays in the Blue Book that respond to each of the following problems.

A. The Case of the Dead Deer (60 minutes)

Bob Dobson was driving down a road in a Model State that has adopted the Model Penal Code with Jon Jonson as a passenger. It was a clear, sunny day and there was little traffic. Though the posted speed limit was 40 miles per hour, Dobson was driving 60 miles per hour. Suddenly, a deer bolted out in front of the car, Dobson lost control, struck and killed the deer, swerved off the road, and smashed into a utility pole. Dobson was unhurt but Jonson was unconscious, bleeding profusely from head wounds.

Dobson flagged down a passing motorist, Vickie Vickers. He pleaded with Vickers to transport Jonson to the nearest hospital, but Vickers refused. She explained that she was serving as juror in a trial and had to get to court on time. She was also nervous about transporting strange men, even if they were apparently injured.

Jonson was groaning weakly, and Dobson was afraid that Jonson would die from loss of blood if he did not receive medical aid quickly. He did not have a radio and did not know when another car would stop. Accordingly, he reached into his glove compartment, produced a handgun, pointed it at Vickers and ordered her to take Jonson and him to the Model State Hospital, twelve miles down the road.

Vickers drove the two men to the hospital. When they arrived, however, Jonson was dead. Medical experts have determined that he died in Vickers's car on the way to the hospital.

In addition to various traffic offenses, the district attorney has charged Dobson with assault, kidnapping, felonious restraint, negligent homicide, manslaughter, and murder, under the Model Penal Code.

The Model Penal Code provides:

Simple Assault. A person is guilty of assault if he...attempts by physical menace to put another in fear of imminent serious bodily injury.

Model Penal Code § 211.1. Simple assault in a misdemeanor.

Kidnapping. A person is guilty of kidnapping if he unlawfully removes another...a substantial distance from the vicinity where he is found...with any of the following purposes: (a) to hold for ransom or reward, or as a shield or hostage; or (b) to facilitate commission of any felony or flight thereafter; or (c) to inflict bodily injury on or to terrorize the victim or another; or (d) to interfere with the performance of any governmental or political function.

Model Penal Code § 212.1. Kidnapping is a felony.

Felonious restraint. A person commits a felony of the third degree if he knowingly...restrains another unlawfully in circumstances exposing him to risk of serious bodily injury.

Id. § 212.2.

You represent Dobson. He asks whether he could possibly be convicted of these crimes and wants to know if he has any defenses. Please explain any theories that might establish his criminal liability for the offenses charged, identify elements of offenses, explain any potential defenses, and discuss the effect of any presumptions and burdens of proof.

B. The Case of the Bad Brother (60 minutes)

One morning, Jesse asked his brother Frank to give him a ride to the bank. Frank agreed. Although Frank knew Jesse committed crimes from time to time, he did not know then that Jesse planned to rob the bank that day.

But when they got to the bank, Frank saw Jesse take a gun and mask from the glove compartment. Jesse winked at Frank and said, "Be back in a minute."

Frank did not want his brother to get caught or hurt, so he said "You fool, be careful." Frank waited in the car. He heard a few gunshots coming from inside the bank. Jesse ran back to the car carrying a money bag. He jumped in and said, "Step on it." Frank drove away rapidly.

Frank later learned that Jesse had shot a guard while robbing the bank. The guard died two weeks later.

Frank has been arrested. You are working for the prosecutor who wants to know what crimes to charge Frank with.

Please identify crimes that Frank may have committed and explain any problems or defenses that the prosecution should anticipate. If it matters what jurisdiction you are in, explain why. Explain clearly elements of offenses, applicable defenses, and the effect of any presumptions and burdens of proof.



1. There facts present two major problems for common law attempted murder. First, defendant has done no acts, can be liable only if he had a duty to act, and appears to be in no status relationship or other category that imposes such a duty. Second, at common law (under the majority rule) attempt requires specific intent to commit the crime, and defendant was only extremely reckless.

2. There are two problems that would prevent mitigating this homicide to manslaughter at common law. First, the victim made no assault on the baby nor was there any other legally adequate provocation. Second, even if defendant was still in a heat of passion, a sufficient cooling off period has elapsed.

3. Defendant's uninvited trip to the neighbor's back door at night when the neighbor was gone with a handful of tools that served no earthly purpose but breaking and entering under the circumstances obviously establishes a substantial step strongly corroborative of criminal purpose. The absence of the target of the theft is irrelevant: the Model Penal Code rejects all forms of impossibility. The abandonment was neither complete (as it was postponed) nor voluntary (because it was induced by fear of apprehension).

Long Answers

A. Case of the Dead Deer

A good answer needed to discuss six important points:

1. Manslaughter requires actual awareness of risk of death, which seems absent since defendant was submitting himself to the same risk as the victim.

2. Murder is only possible on the theory that the death happened during the commission of kidnapping. Kidnapping provides only some evidence of extreme recklessness, which the prosecutor must still prove beyond a reasonable doubt. This requires both awareness of risk of death and extreme disregard for the value of human life. If there were a kidnapping, it occurred while defendant was rushing the victim to the hospital to save his life, so this should entirely rebut any inference of extreme recklessness.

3. Negligent homicide requires a full discussion of the definitions of negligence, identification of the risk of death of which defendant was required to have been aware, and a clear differentiation of this negligence from civil negligence or tort liability.

4. Defendant is not guilty of kidnapping because his purpose was not to interfere with a government function even though he knew that he was interfering with one (the jury trial).

5. The necessity defense is available for kidnapping, assault, felonious restraint (all of which require levels of culpability above recklessness). Defendant believed it was necessary to use force, and the harms sought to be avoided by these crimes are less than the death that he sought to prevent. Only for crimes of recklessness or negligence would necessity be unavailable in the event that defendant's own recklessness or negligence brought about the circumstances requiring the choice.

B. The Case of the Bad Brother

A good answer needed to address and discuss a number of issues, including the following:

1. Robbery liability on an accomplice theory. At common law the majority of jurisdictions require the accomplice to have the true purpose of aiding the principal. Mere presence and even knowledge that one's acts are helping would not be enough. A minority requires only knowledge. Frank clearly satisfies the minority but may not satisfy the majority rule.

2. Robbery liability on an accomplice theory under the Model Penal Code requires a finding that Frank had the purpose or promoting or facilitating Jesse's robbery. Knowledge is not enough.

3. Conspiracy liability also poses a mens rea problem: a conspirator must have the specific intent or purpose of furthering the conspiracy. Though providing help with knowledge of the criminal object is not enough, this behavior provides sufficient evidence from which the factfinder may infer the necessary purpose.

4. Conspiracy to commit a single robbery merges with the robbery under the Model Penal Code, so Frank could not be convicted of both under the Code.

5. Murder liability under the Model Penal Code would have to be based on the theory that Frank was accomplice to the robbery. While there is no felony murder doctrine, his participation in the robbery would nevertheless provide evidence from which the factfinder could find the necessary recklessness manifesting a disregard for the value of human life to convict of murder.

6. At common law, an accomplice to the inherently dangerous felony or robbery would be liable for murder under the felony murder theory for any death caused in the commission of the robbery. (Foreseeability is not required.)

7. In Mississippi, an accomplice to robbery would be liable for capital murder for the death caused in the commission of the robbery.

8. In federal practice and in any states following the Pinkerton doctrine, if Frank is a party to a conspiracy to rob, he could also be guilty of murder committed in furtherance of the robbery.