UNIVERSITY OF KENTUCKY
COLLEGE OF LAW
CRIMINAL LAW (8l0-l) PROFESSOR LAWSON
FINAL EXAMINATION DECEMBER l3, 1985

INSTRUCTIONS

THE EXAMINATION IS 3 HOURS LONG. THE WEIGHT OF EACH PART OF THE
EXAMINATION IS INDICATED ON THE EXAMINATION. YOU SHOULD ALLOT YOUR
TIME ACCORDINGLY.

I HAVE NOT INCLUDED ANY TRICK QUESTIONS IN THE EXAMINATION, AT
LEAST NOT INTENTIONALLY. IN GRADING THE EXAMINATION I WILL BE
LOOKING FOR CAREFUL ANALYSIS OF THE PROBLEMS PRESENTED FOR YOUR
CONSIDERATION AND PROPER APPLICATION OF THE LEGAL CONCEPTS TO WHICH
YOU HAVE BEEN EXPOSED. IN READING THE QUESTIONS, IF YOU BELIEVE THAT
CRUCIAL FACTS HAVE BEEN OMITTED AND FIND IT NECESSARY TO ASSUME THEIR
EXISTENCE. YOU SHOULD SO INDICATE IN YOUR ANSWER.

PRECISENESS AND CONCISENESS ARE ESSENTIAL TOOLS FOR THE G00D
LAWYER. YOU SHOULD KEEP IN MIND THAT:

(l) PRESENTATION OF IRRELEVANT MATTER WlLL OFTENTIMES
DETRACT FROM YOUR ANSWER EVEN TH0UGH IT MIGHT SHOW A GENERAL
KN0WLEDGE OF SOME ASPECT OF CRIMINAL LAW.

(2) EXCESSIVELY VERBOSE OR REPETITIVE MATERIAL MIGHT ALSO
DETRACT FR0M THE VALUE OF YOUR ANSWER.

(3) ON THE OTHER HAND, YOU SHOULD BE SURE TO PROVIDE A
COMPLETE, WELL-REASONED ANALYSIS OF THE PROBLEMS.

PART I.

THE STATE OF LAFFERTY HAS A CRIMINAL CODE CONTAINING THE
FOLLOWING STATUTES ON HOMICIDE:

Sec. 100 Third Degree Manslaughter

A person is guilty of manslaughter in the third degree
when he causes the death of another person (i) through
criminal negligence or (ii) through the commission of an
unlawful act not amounting to a felony.

Sec. 110 Second Degree Manslaughter

A person is guilty of manslaughter in the second degree
when he recklessly causes the death of another person.

Sec. 120 First Degree Manslaughter

A person is guilty of manslaughter in the first degree
when he causes the death of another person under
circumstances that would constitute murder except for the
fact that he acts under the influence of an extreme
emotional disturbance for which there is a reasonable excuse
or explanation.
2

Sec. l30 Murder
.

A person is guilty of murder when (i) he intentionally
causes the death of another person, (ii) he recklessly
causes the death of another person under circumstances
manifesting extreme indifference to life, or (iii) he causces
the death of another person during the commission or
attempted commission of a dangerous felony offense.

Sec. 140 Penalties

A person found guilty of manslaughter in the third
degree shall be imprisoned for no less than l year nor more
than 5. One found guilty of manslaughter in the second
deqree shall be imprisoned for no less than 6 years nor more
than lO. One found guilty of manslaughter in the first
degree shall be imprisoned for no less than ll years nor
more than 20. One found guilty of murder shall be
imprisoned for no less than 2l years nor more than life.

PROVIDE A BRIEF BUT CAREFUL ANALYSIS OF THE POTENTIAL LIABILITY OF
THE DFENDANT (OR DEFENDANTS) IN EACH OF THE FOLLOWING CASES:

l. Marvin Barto was in the construction business. He specialized in
additions to existing residences. In the summer of l985 he
contracted to add a room to the house of Ray Cupler. The contract
called for the room to be completed by September 1, l985 and had a
stiff penalty clause for failure to meet the deadline. Barto was
slow getting started on the project and found himself in mid-August
not even close tc completion. He started working almost around the
clock. Then he ran into a problem. His electrician came down with
pneumonia and had to be hospitalized.
About six months earlier Barto had fired a man named Paul Starr
for being drunk on a job. Starr was also an electrician. Desperate
for help, Barto reemployed Starr to do the electrical work on the
Cupler contract. On the second day of Starr's employment, late in
the day, Barto found him with a bottle of whiskey in his hand and the
smell of alcohol on his breath. He sent him home but let him return
the following day to complete the job, which he did. Barto finished
the room in time to avoid the penalty.
One month after the room was occupied, there was a fire in the
Cupler house. It started in the new room and quickly spread to an
upstairs bedroom which was occupied by Ray Cupler's elderly mother.
Ms. Cupler was overcome by smoke and died in the room. An
investigation completed by authorities after the fire uncovered
evidence indicating that the fire started as a result of defective
wiring in the roorm which had recently been added to the Cupler
residence. The investigation also revealed that Barto had failed to
obtain a building permit for the addition, as required by law.
(Violation of this requirement was punishable by fine of $500.) Had
he obtained such a permit there would have been an official
inspection of the electrical work for the room. As it turned out, no
inspection of the room was done at the end of the construction.
DISCUSS THF POTENTIAL LIABILITY OF BARTO FOR THE DEATH OF
CUPLER'S MOTHER. (15 points)

2. Chester and Myrtle Mathis had been married for 10 years. At
times the marriage was stormy, mostly because of the fact that both
were insanely jealous and suspicious. Toward the end of l984,
however, things went well for them; the marriage was calm for a
couple of months. They decided to celebrate with an evening out for
New Year's Eve.
Unfortunately, Chester did not work on the last day of the year.
He joined some friends early in the morning and started drinking. He
got home later than scheduled and this made Myrtle furious. They got
ready to go to the New Year's Eve Party, but argued furiously for
more than an hour. By the time they left for the party both were
fuming mad. Chester had continued to drink, which did not help the
matter.
At the party, Chester and Myrtle ran into some people with whom
Myrtle worked. At some point Myrtle was asked to dance by a man from
work and she consented. Chester said nothing, but it was apparent to
Myrtle that he was burning. She danced with the man three times
before Chester said anything about it. Then he called her a "slut"
and threatened to knock her teeth out. He continued to drink.
Myrtle continued to dance with her friend from work.
Chester left the hall where the party was being held and went to
his car. He kept a gun in the glove compartment. He got the gun,
returned to the dance floor, and found Myrtle on the dance floor with
her friend doing a slow dance at close quarters. Chester ran across
the floor shouting and shooting. He emptied the gun, He put three
shots in Myrtle and three in her friend. Both died instantly.
Chester was indicted for two counts of murder. The facts
described above were proved. In his own testimony Chester said he
loved his wife, intended her no harm, and was so drunk on the
occasion in question that he could not remember anything that
happened. The trial judge instructed the jury on intentional murder
and rejected the defendant's request for instructions on the lower
degrees of homicide. (As you know, a judge is obligated to give
instructions on lower degrees of an offense charged if the evidence
is sufficlent to support a finding on the lower degrees.) The judge
then instructed the jury as follows: "The defendant in this case was
voluntarily intoxicated, if he was intoxicated at all. It is not a
defense under the law for having committed a crime while so
intoxicated."
THE DEFENDANT WAS CONVICTED OF TWO COUNTS OF MURDER. HE APPEALS
THE CONVICTIONS ON THE GROUND THAT THE TRIAL JUDGE'S INSTRUCTIONS
WERE ERRONEOUS. DISCUSS. (15 points)

3. Carl Boyd was in an upstairs bedroom in his residence doing his
exercises prior to retiring for the evening. It was near midnight.
Boyd had had a very hard day and was tired. During one of his deep
kneebends he glanced out the window and saw movement across the
street near his parked 1985 Mazda RX7. Upon a closer look he saw a
male figure trying to open the door on the driver's side of the car.
He grabbed a pistol that he kept loaded in a nightstand near his bed
and headed toward the street. Upon exiting his front door with gun
in hand he yelled at the figure near his car, "Hey, what do you think
you're doing!" It was a very dark night. Boyd was excited and he
was mad. The figure near his car yelled back, "It's me, dad, your
son Rich." Boyd thought the figure said, "It's too bad, you
son-of-a-bitch," and he ran toward the car. He saw the figure reach
into his jacket pocket. Still not recognizing the figure as his son
he raised his gun and fired, killing the figure instantly. It turned
out in fact that the deceased was his son who had come from his
nearby apartment for the purpose of borrowing the car to obtain a
pizza from a local shop.
BOYD IS INDICTED FOR MURDER. HE COMES TO YOU FOR AN ANALYSIS OF
HIS LEGAL SITUATION. PROVIDE HIM A WRITTEN EXPLANATION OF YOUR
THOUGHTS AB0UT HIS POTENTIAL LIABILITY. (UNDER THE LAW OF LAFFERTY,
AS IN ALL JURISDICTIONS, AN INDIVIDUAL HAS A RIGHT UNDER PR0PER
CIRCUMSTANCES TO USE FORCE AGAINST ANOTHER TO PROTECT HIS PROPERTY OR
TO PROTECT HIS PERSON.) (10 points)
PART II.

l. Lafferty is a small agricultural state located between two highly
industrialized states. It is sparsely populated and has lots of open
farm and pasture lands with many small rivers and streams. Within
the last few years. Lafferty has all too often been the dumping
ground for industrial wastes from the two adjoining states. State
officials have found deadly toxic substances in several locations and
usually in or near a river or stream. They believe that the
substances have been dumped from trucks in the middle of the night
The Legislature of Lafferty has taken action by enacting the
following statute:

A person is guilty of unlawfully possessing toxic
substances in the state of Lafferty if he possesses such
substances within the territorial boundaries of the state
without having on his person a licence to so possess.
The penalty for violation of this statute is 2 years in
prison, $5,000 fine, or both.

Bruce Clark is a resident of Lafferty. He makes his living by
hauling industrial garbage. He lives near the state border and hauls
materials from the adjoining state to Lafferty for disposal. Bruce
is poorly educated, drinks a little too much whiskey, but still makes
a decent living with the one truck he owns.

On June 1, 1985, Bruce hauled a load of garbage into Lafferty
from an adjoining state, took it to a remote garbage dump that was
unmanned (at least he so believed), and unloaded it. Before he could
move his truck, some police officers arrived on the scene, blocked
his truck, and exanined the load he had just dumped. The officers
discovered that Bruce had unloaded (among other things) two
cannisters of a very highly toxic chemical. He was arrested
immediately and charged with unlawfully possessing toxic substances.

At trial, the prosecution proved the facts described above.
Bruce took the witness stand to testify on his own behalf He made
no effort to contend that the substances in question were not toxic,
nor did he contend that they were not on his truck. He tried over
objection to testify (i) that he was intoxicated when he entered the
above described garbage dump on June 1, (ii) that he had been told
and believed that he had on his truck at the time wastepaper,
sawdust, old carpet, and ordinary household garbage, and (iii) that
he did not know that the law required him to have a license to haul
anything. The trial judge declared all this testimony inadmissable
and refused to let him so testify. He was convicted.

A. BRUCE DESIRES TO APPEAL THE CONVICTION AND SEEKS YOUR
ADVICE. HE THINKS THE JUDGE'S EVIDENCE RULINGS DENIED HIM
TO A FAIR DEFENSE. DO YOU AGREE OR DISAGREE? EXPLAIN FULLY.
B. WOULD YOUR ANSWER BE DIFFERENT IF THE APPLICABLE STATUTE READ AS FOLLOWS:

A person is guilty of unlawfully possessing toxic
substances in the state of Lafferty if he knowingly
possesses such substances within the territorial boundaries
of the state without having on his person a license to so
possess .

IF YOUR ANSWER WOULD BE DIFFERENT, PLEASE EXPLAIN. (15 points
for both parts)

2. Jack Burgess is a coal miner who works and lives in the eastern
part of the state of Lafferty. Until rcently he lived with his wife
Mary and their 2 year old son. Jack works in the mine as a common
laborer, is poorly educated, can barely read, and drin!<s too much
when not working. He is not happy with his life but feels trapped by
his own inadequacies.
In March, 1984 he was asleep one evening on the couch when his
son threw a ball through a window and created a loud noise. When
this happened, Burgess jumped up from the couch and struck the child
in the face with his hand, knocking him to the floor. He had slapped
the child on other occasions, but this time he did more. He kicked
the child in the abdomen when he was on the floor, all in the
presence of his wife Mary.
The child became ill. His mother put him to bed early but did
not call or take him to the doctor. The child was still ill the next
morning. Before going to work, Jack Burgess checked on his son and
instructed his wife to take the child to the doctor that morning.
That evning, when he arrived home from work, he discovered that the
child had not been taken to a doctor by his mother and that he was
still ill, perhaps even moreso than before. Jack promptly took his
son to a physician, told the physician that his son had been
accidentally struck in the abdomen very hard by a much bigger boy,
and that he had been very ill ever since. The doctor examined the
child, told the father to keep him in bed for a couple of days, and
assured him that nothing really serious was wrong with the child.
Burgess followed the doctor's instructions. The child died
during the night. An autopsy revealed that internal injuries had
caused the child's death, specifically, a ruptured sma1l intestine
and swelling of the stomach which served to block passage into the
intestine.
Burgess has been indicted for murder. The prosecution proves all
of the facts described above. Burgess testifies that he did not
intend to hurt his son. He proves through the testimony of the
physician who performed the autopsy and through another expert
witness that the child could have been successfully treated for his
injuries if a proper diagnosis had been made on the evening he was
taken to the doctor for treatment. At the end of the evidence
Burgess moves for a directed verdict of acquittal which is denied.
He is convicted of murder.

BURGESS WANTS TO KNOW WHAT LEGAL ISSUES HE MIGHT BE ABLE TO USE
IN AN APPEAL OF HIS CONVICTION AND HE WANTS YOUR OPINION AS TO THE
LIKELY OUTCOME OF AN APPEAL. EXPLAIN FULLY THE REASONS FOR YOUR
ADVICE TO BURGESS. (TO THE EXTENT NECESSARY ASSUME THAT THE HOMICIDE
LAW APPLICABLE TO THE CASE IS IDENTICAL TO THAT SET FORTH IN PART I
OF THE EXAMINATION.) (15 points)

3. Arthur Farley was the leader of a group of young adults who lived
together in a commune type arrangement. Bill Hardesty and Don Bush
members of the group and very closely associated with Farley.
The group lived on a small plot of farm land in a remote area of the
state of Lafferty. They sustained themselves partly by living off
the land and partly by engaging in illegal drug traffic in nearby
communities. Drug use and sexual activity was commonplace among
members of the group.
At some point, Phyllis Queen (a young woman of 22) came to the commune to live. Phyllis was a little different from others in the
group. She freely participated in the group's drug activity but had
no interest in sexual activity with the male memers of the group. A
number of problems developed within the group as a result of
Phyllis's "peculiarlity". Several of the men developed obscessions
of conquest of Phyllis; most of the women resented her attitudes on
sexual purity. Farley decided that he needed to take corrective
actions.
On July 1, 1984, he met with Hardesty and Bush and told them of
his intention to have sexua1 intercourse with Phyllis on the
following evening. He told them to bring her to his private cabin
(which was about 500 feet from the main house where everyone else
1ived) at 7:00 p.m. and to assist him in accomp1ishing the sexua1 act
with Phyllis which was necessary to restore peace and tranqui1ity to
the group. Hardesty got very excited when he heard of Farley's plan.
Bush manifested some reluctance but fina11y agreed to participate.
The following day Bush worked in the same area of the garden with
Phyllis Queen. In ta1k1ng with Phyllis he discovered she had some
very intense religious convictions about premarital sex. He said
nothing to her about the p1an for that evening, but he was even more
troubled than before about Farley's plan for solving the commune's
difficulties. Later that day he visited with Farley and tried to
persuade him to abandon the plan. Farley refused. Bush said nothing
about his own intentions but he knew at that time that he was not
going to deliver Phyllis to Farley's cabin.
Bush was nowhere to be found at 7:00 p.m. on July 2, l984.
Hardesty looked and looked for him and f1nally dec1ded to act on his
own. He approached Phyllis ln the main house, told her that Far1ey
wanted to see her, and accompanied her across the grounds to Farley's
cabin. Farley announced his intentions once Queen and Hardesty were
inside the cabin. Queen tried to run. Hardesty and Farley subdued
her, removed her clothes, and Farley consummated the act. When he
let her go, she uttered an obscenity and kicked him as hard as she
could in the groin. He grabbed a knife from a nearby table and
stabbed her in the chest. She died within a couple of minutes.
Bush learned of what happened in Farley's cabin and called the
police. Farley, Hardesty, and Bush were all taken into custody and
charged with criminal offenses.

PROVIDE AN ANALYSIS OF THE POTENTIAL CRIMINAL LIABILITY OF THE
THREE MEN. STATE CLEARLY THE PRINCIPLES UNDERNEATH YOUR ANALYSIS AND
DESCRIBE THE SPECIFIC GR0UNDS FOR IMPOSING LIABILITY ON THE OFFENDERS
FOR SPECIFIC CRIMES, IF YOUR ANALYSIS LEADS YOU TO THE CONCLUSION
THAT CRIMES HAVE BEEN COMMITTED BY ONE OR MORE OF THE ACTORS. ( IF
YOU NEED A PARTICULAR HOMICIDE LAW FOR USE IN YOUR ANALYSIS, ASSUME
THAT THE JURISDICTION HAS A LAW IDENTICAL TO THAT DESCRIBED IN PART I
OF THE EXAMINATION. TO THE EXTENT YOU NEED OTHER LAW FOR YOUR
ANALYSIS YOU MAY USE THE PREVAILING COMMON LAW, THE MODEL PENAL CODE, THE
KENTUCKY PENAL CODE, OR WHATEVER LAW YOU KNOW, SO LONG AS YOU
IDENTIFY YOUR SOURCES. ) ( 25 points)

4. Adams and baker were neighbors living in a narrow valley near a
coal mine. Directly across from their houses were a railroad track
and a highway used heavily by mining company trucks. Late one
evening near dark, Adams and Baker were walking along the highway
when they saw two men lying on the railroad tracks obviously
intoxicated and passed out. They also saw a loaded coa1 train just a
couple hundred feet up the track speeding toward the two drunks.
Adams yelled at Baker to help and rushed toward the two men on the
tracks. Baker did nothing. Adams grabbed one of the men, dragged
him off the tracks and laid him on the edge of the highway. He
turned just as the train ran over and killed the other drunk.
Enraged at Baker for making no attempt at rescue, Adams commenced to
yell and scream obscenities at his neighbor. At that moment a loaded
coal truck came speeding down the highway and struck the unconscious
drunk lying in its path, causing death instantly.

DISCUSS THE POTENTIAL CRIMINAL LIABILITY OF ADAMS AND BAKER. (TO
THE EXTENT YOU NEED A PARTICULAR HOMICIDE LAW FOR YOUR ANALYSIS, RELY
ON THE LAW DESCRIBED IN PART I OF THE EXAMINATION.) (10 poInts)