Criminal Law § 1 M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 1996

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 three hours to complete the exam, and 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."

PART I. SHORT ANSWERS (recommended 60 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. For over six months David Davidson had been dating Sally. He had become so seriously involved with her that he was thinking about proposing marriage to her.

One night he went out for drinks with two of his friends to the local bar. After David had had a couple drinks, he started to overhear a loud conversation at the next table. As he listened he heard Vincent at the next table brag about having sex with Sally. Vincent further bragged about making a fool out of Sally's boyfriend, whom he called "some jerk named David Davidson."

The more David listened, the more enraged he became. Finally, he went over to the next table and announced "I am that jerk David Davidson." When Vincent started to stand up, David punched him in the face, and Vincent fell to the floor.

As Vincent started to rise from the floor, Vincent pulled out a gun, pointed it at David, and shouted "Get away from me!" David immediately grabbed a beer bottle and smashed it into Vincent's head. Vincent died from head injuries caused by the blow to his head.

You are working for the prosecutor in a jurisdiction with laws based on the Model Penal Code. The prosecutor asks you whether David has a valid defense of self defense to homicide crimes. Please explain.

2. Able and Baker agreed that they would rob a bank. They did not want anyone to get hurt, and they did not want to serve long sentences if apprehended, so they agreed that neither one would carry a weapon during the crime.

On the day arranged for the crime, they drove together and parked in the bank parking lot. Able and Baker both walked into the bank together. But after they entered the bank, they saw an armed guard standing by the teller windows and also noticed several security cameras. they started getting nervous. Able whispered to Baker, "I've changed my mind, let's not rob the bank today." Baker responded, "I agree, let's go."

Are Able and Baker guilty of attempted robbery under the Model Penal Code? Why or why not?

3. Same facts. But assume that the bank guard noticed Able and Baker behaving suspiciously and walked over towards them. Able and Baker ran away. The guard shouted, "Stop or I'll shoot."

When Able and Baker continued to run, the guard shot and killed Baker. Able is prosecuted for murder under laws based on the Model Penal Code. The defense moves for a directed verdict of acquittal on the ground that no reasonable jury could find that Able caused Baker's death. You are the trial judge. Please rule on the motion and explain.

4. Zack and Jimbo were cellmates in the state prison. Zack, who had been convicted of armed robbery, was fascinated to learn that Jimbo had been convicted of embezzlement and that Jimbo had worked for the Second National Bank at its main office in Newton prior to his arrest.

Zack confided to Jimbo that he had always wanted to rob the main office of that bank. He further told Jimbo that he hoped to rob it after he was released from prison. And he asked Jimbo many detailed questions about the bank, particularly about its hours, about the times when large amounts of money were present at the bank, and about where security devices were located at the bank.

Jimbo answered all of Zack's questions about the bank. Jimbo even drew a sketch of the floor plan of the bank, marking on it the location of all security devices. Jimbo also wrote a list of the days of the week and hours of the day when the bank was likely to have large amounts of money on the premises of its main office.

Shortly after his release from prison, Zack robbed the main office of the Second National Bank. He used Jimbo's sketch to avoid certain security devices, and he selected one of the times on Jimbo's list when the bank had a lot of cash at the main office.

Zack was subsequently arrested and became a witness for the state in its prosecution against Jimbo. Even though Jimbo remained in the state prison at all times, the state decided to prosecute him as an aider and abettor.

At trial the defendant objected to the state's proposed jury instruction that stated:

A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.

The state's law is based on the Model Penal Code. You are the trial judge. Rule on defendant's objection and explain.

5. Same facts. But assume in addition that the Second National Bank was federally insured and that Zack and Jimbo were also prosecuted by the federal government for violating a federal statute making it a crime to rob a federally insured bank.

In the federal prosecution of Jimbo as an aider and abettor to robbery, the United States Attorney wants to know whether the same jury instruction on aiding and abetting quoted in the previous question validly states the federal criminal law. Please advise the U.S. Attorney.

6. Tom, who was thirteen, and Jane, who was fifteen, lived next door to each other. They spent a lot of time with each other and became romantically involved. Because his fourteenth birthday fell on a Tuesday, Tom celebrated his birthday on the preceding Saturday.

After his birthday party was over, Tom's parents went out to a P.T.A. meeting. While they were gone, Jane came over to Tom's house. She told Tom that now that he was fourteen he was grown up, and she suggested to Tom that they have sexual intercourse. Tom did not tell her that he was still only thirteen. Jane did not use force, and Tom consented eagerly. The two subsequently engaged in sexual intercourse.

The next day, Tom told his father what happened. Tom's father has come to you for advice and asks you whether Jane committed a crime under the law of Mississippi. Please advise.

PART II. ANALYTIC ESSAYS (recommended two hours total for this part)

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

A. The Case of the Unlucky Dog (recommended one hour)

Danny Danielson long coveted his neighbor's fine pedigreed Australian Waterspaniel dog, named "Aussie." One night he decided to steal Aussie. The dog was usually kept in the neighbor's house. Danielson waited until all the lights were turned out in the house. He waited another hour until he believed the neighbor was asleep. Then he walked over to the neighbor's house. He slowly opened the back door, entered, and began quietly to look for Aussie.

Finally, he found Aussie, asleep on the couch in the living room. But, as he looked at Aussie asleep, he started to reconsider his criminal plan. He decided that he really would not enjoy Aussie as stolen property because he would always worry about being caught. Accordingly, he decided not to take Aussie.

But Danielson also grew more and more jealous of Aussie's owner as he looked at the fine dog. So he decided to let Aussie escape. He let the dog out the back door and ran after the

dog, chasing it in the direction of a nearby highway. In so doing, Danielson knew that the dog might get lost, stolen, or hit by a car.

Danielson then went back home and fell asleep. Fifteen minutes later, Aussie ran out in the highway in front of a car driven by Victor Vickers. Vickers swerved off the highway in order to avoid hitting the dog. His car collided with a tree, and he died instantly. Aussie's owner recovered the dog unhurt the next morning.

Evaluate Danielson's criminal liability at common law.

B. The Case of the Cantankerous Killer (recommended one hour)

Chadwick Malady lived with his wife Jenny in a mobile home at the Shady Grove Trailer Park in Lamar City, Mississippi. One night he came home, drunk as usual. He went into the kitchen, got himself a beer from the refrigerator, and sat down at the kitchen table. Jenny was standing at the kitchen sink.

Chadwick tried to start an argument with Jenny. But she knew from experience that he could become violent when drunk, so she tried not to argue with him. Her refusal to argue made him more and more angry.

Finally, he slammed his hand on the table and said, "Stop agreeing with me all the time!"

When she responded, "Yes, dear," he flew into a rage and threw a beer bottle as hard as he could at her.

The bottle missed Jenny but struck a gas heater. Neither Chadwick nor Jenny realized it, but by striking the heater, the bottle caused a small hole in the heater, and it began to leak gas.

Chadwick got himself another beer and sat down at the table, cursing Jenny. About five minutes later, he attempted to light a cigarette. When he struck a match, the gas that had leaked into the room's air exploded. Parts of the mobile home caught on fire. Chadwick ran out of the house and suffered minor burns. He did not run back in to try to save Jenny, nor did he make any effort to try to put the fire out or to call the fire department.

A few minutes later, Jenny walked out of the mobile home, suffering from smoke inhalation and severe burns.

The kitchen was totally destroyed, and the mobile home was damaged. Jenny was hospitalized for three weeks before dying from infections that she contacted because of her burns.

Mississippi law provides:

Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other outhouse that is part thereof, or belonging to or adjoining thereto, whether the property of himself or of another, shall be guilty of arson in the first degree, and upon conviction thereof, be sentenced to the penitentiary for not less than two nor more than twenty years.

Miss. Code Ann. § 97-17-1.

Evaluate Chadwick's criminal liability under Mississippi law.