ANSWERS - - PART I .

Question 1, Part A:

It is clear that Smith did not have the death of the victim as
his conscious objective thus did not "intend" to cause death. It is
also clear that he did not have awareness of the risk of death to his
victim when he shot the gun at the rat, at least there is no evidence
of awareness of such risk. Consequently, subject to the discussion in
Part B below, it is unlikely that Smith could be shown to have acted
"recklessly" toward his victim.

Only the offense of manslaughter in the third degree is a
realistic possibility. Assuming that Smith and Carter were not
committing an unlawful act in shooting at the city dump, a conviction
of Smith for third degree manslaughter would require proof of criminal
negligence. Criminal negligence is committed through conduct which
involves (i) a substantial and unjustifiable risk of death to another
and (ii) a gross deviation from the standard of care of an ordinary
reasonable person. To prove criminal negligence, the state need not
show that the accused was aware of this risk; it is enough if he failed
to perceive a risk of which he should have been aware.

The evidence in this case would be sufficient to show the kind of
risk needed for a finding of criminal negligence. Liability would
probably turn upon whether or not the second element of criminal
negligence can be proved. The conduct of Smith would surely constitute
ordinary negligence and be sufficient for tort liability, since only a
"deviation" from proper conduct is required for tort recovery.
Although the question is a close one, most courts would probably
conclude on the basis of this evidence that criminal negligence is
provable; on the basis of the evidence a jury would have to decide if
the devision was "gross" or "ordinary".

Question 1. Part B:

It is clear in all jurisdictions that voluntary intoxication is
not per se a defense to a criminal charge. The law will not excuse one
who commits an act while intoxicated simply because he would not have
committed it while sober. Thus, Smith will not be able to raise his
drinking as a general defense to the charges against him.

However this does not mean that intoxication is irrelevant to an
analysis of the case. The treatment of intoxication varies from
jurisdiction to jurisdiction:

The traditional position is usually stated as follows:
voluntary intoxication may be used to negate an element of
specific intent but not one of general intent. The difficulty
with this approach lies with the absence of a workable
distinction between the two kinds of mental elements. Most
commonly, a crime of specific intent is defined as one requiring
an intent beyond the intent to do the act which constitutes
the offense; all other offenses are defined as general

intent crimes. Under this definition, perhaps none of the
homicide offenses contained in the Lafferty statutes would
qualify as "specific intent" crimes. Some courts might
treat the "intent to kill" offenses as specific intent
crimes. Since Smith will be charged only with an offense
having recklessness or negligence as the mental state, the
traditional approach would probably deny him any use of
intoxication as a defense.

The Model Code, and modern statutes patterned after it,
provide for a broader application of voluntary intoxication.
Evidence of such intoxication may be intoduced to negate any
element of an offense which it will negate, with one exception.
Since it can negate only mental states, this means in effect that
intoxication can be used to disprove the mental states of
intention (by demonstrating no conscious objective) and knowledge
(by demonstrating no mental awareness). It could negate the
mental state of recklessness (by demonstrating no awareness of
risk) but for the fact that the MPC and other codes have denied
intoxication this impact. Of course, voluntary intoxication
cannot negate criminal negligence since it is committed through
failure to perceive a risk.

In a few jurisdictions, the courts have given intoxication
an even more limited role. Certainly, it would not in these
jurisdictions have a place in a case involving unintentional
homicide.

Conclusion: Since the offense most likely to be charged
against Smith is manslaughter committed through criminal
negligence, his voluntary intoxication could not be used to his
advantage. Could it be used to the advantage of the prosecution?
The answer is yes. It could be used as evidence of negligence,
i.e., showing a gross deviation from reasonable conduct in
shooting a gun while under the influence. Also, in a MPC
jurisdiction, it might even serve to allow a finding of
recklessness if it could be found that the accused was unaware of
risk solely because of his voluntary intoxication.

Question 1, Part C:

Since Carter did not himself commit the act which caused the
death of the victim, his liability (if any) would have to be under the
law governing accomplices.

Generally, one is guilty of accomplice liability when he either
encourages the commission of an offense or aids in its commission
(actus reus) and does so with an intention to promote the commission of
the offense (mens rea). Strictly construed, these elements might not
be provable against Carter. He did not encourage the commission of
homicide; certainly, he did not have an intention to promote the
commission of an offense of homicide.

However, it is clear that under the law of most jurisdictions one
can be found guilty of being an accomplice to an offense which is

committed with recklessness or negligence. The Creamer case in our
casebook made this point clear; in that case, one who referred a woman
to an abortionist was held guilty of manslaughter for a death which
resulted from the abortion. In finding accomplice liability for
situations such as this, many courts are not real clear in their
reasoning. It is possible to see the situation as one in which the
accomplice participates in the conduct leading to the result and has
the necessary mens rea for commission of the offense charged (i.e.,
recklessness or negligence).

The MPC makes the matter much clearer. It has a special
provision for accomplice liability for result crimes such as homicide.
Conviction is appropriate if the defendant is shown to have aided or
encouraged the conduct causing the result and to have had the mens rea
necessary for commission of the offense.

Conclusion: Liability of Carter is possible since he was a
participant in the conduct leading up to the death in question. It
would be necessary to prove his mens rea which might be more difficult
than proving the mens rea of Smith.

Question 2:

ONE: What is Melrose guilty of, if anything? He should be
advised that the prosecution may be able to convict him of the highest
degree of homicide, namely, murder. Melrose obviously did not intend
to kill Vice since he did not have his death as a conscious objective.
However, he may be subject to an application of the felony murder rule
which is contained in the Lafferty murder statute. His action of
burning the kennel would probably be a felony under the law of
Lafferty. If determined to be a "dangerous felony", within the meaning
of the statute, he could be convicted of murder under this provision.
The crime would have to be viewed as dangerous in the abstract, rather
than the way it was committed. Ordinarily, the offense of arson
involves the burning of a building inhabited by people and such an
offense would trigger application of felony murder. Burning of a
building of this type might be subject to a different interpretation.
It should be remembered that felony murder is a strict liability
concept and courts tend to give it a narrow construction.

Even if not guilty of murder under the felony murder provision
Melrose might be subject to conviction under the extreme recklessness
provision of the murder statute. The prosecution would have to prove
the elements of recklessness (i.e., a substantial and unjustifiable
risk of death, a conscious disregard of this risk, and a gross
deviation from the standard of proper care) and then show that the
circumstances manifest extreme indifference to life. Starting a fire
in a building so near to a residence at night and so far from a fire
station and during a windy time would probably be sufficient for a
submission of the question to the jury. The lower offense of second
degree manslaughter (which would be recklessness without the extreme
indifference) is clearly a possibility. On the other hand, it is
arguable that Melrose had no awareness of the risk of death to Vice in
setting the fire, though he should have been aware, and thus could only

be convicted of third degree manslaughter through criminal negligence.
CONCLUSION: Probably the jury would have to be given instructions on
all three of these offenses and would decide which offense is proved.

NOTE: Although first degree manslaughter might seem to be
implicated in this problem, since Melrose was acting under an extreme
emotional disturbance for which there might have been a reasonable
explanation or excuse, it probably would not be applicable. Usually,
this concept comes into play to mitigate intentional killings from
murder to manslaughter. In this instance, Melrose clearly did not
intend the death in question. Probably, very few if any courts would
see this as a "voluntary manslaughter" situation.

TWO: Does Melrose have any realistic hope of making a defense?
There is a possibility that Melrose could gain relief under the law of
criminal causation. It is clear that his conduct would constitute the
"actual cause" of the death in question. But for his act of starting
the fire the death would not have occurred. Moreover, his act would be
a substantial (as opposed to a trivial) factor in causing the death.
He could argue, however, that there was at least one intervening cause
that should serve to supercede his own action and relieve him of
liability for the death of Vice.

Under the traditional law, intervening causes were broken into
dependent intervening causes (which were defined as actions which were
directly produced by the defendant's acts) and independent intervening
causes (which were defined as acts or events which merely operated upon
conditions produced by the defendant). Under this law, a dependent
intervening cause would not supercede and provide relief to a defendant
unless it was found to be an "abnormal" response to the defendant's
action; an independent intervening cause would not supercede if it was
reasonably foreseeable to the defendant. The Model Penal Code adjusted
this law and provided a rule which simply inquires if the manner in
which the result occurs is so accidental or remote that it would be
unjust to hold the defendant responsible for the result.

The defendant could argue that the lack of pressure on the water
line was an intervening cause which should relieve him of liability.
Since this would be an independent intervening cause under traditional
law the question would be whether or not it was fore- seeable. Under
the MPC the question would be whether or not the accused could be held
justly liable for the death. The defendant could argue that the
victim's action of going back into the burning building was an
intervening cause which should relieve him of liability. This would
probably be classified as a dependent intervening cause under
traditional law. The fact question would be whether or not this was a
normal response under the circumstances? Again, under the MPC the
inquiry would be in terms of whether or not it would be just to hold
the defendant liable for the death. The jury would have issues to
decide in the area of causation. But, clearly, Melrose has the
possibility of making a defense to the charge of homicide.

Question 3, Part A:

The only homicide offense possibly chargeable against Nuchols
would be third degree manslaughter. It is arguable that his conduct
constitutes criminal negligence, i.e., that it had a substantial and
unjustifiable risk of death in it and a gross deviation from the
standard of care of a reasonable man. Clearly Nuchols was not aware of
this risk of death, which assures that his mens rea is negligence and
not recklessness. Whether or not these elements could be proved is
somewhat questionable. It may be that a court would conclude that the
conduct of Nuchols did not create a sufficient risk of death for
homicide liability; also, it may be that courts would conclude that
there is a "deviation" from proper conduct but not a "gross deviation".
A stronger argument for liability for manslaughter, however, could be
made under the second part of the statute. Nuchols act of fighting
with Murphy could be seen as an illegal act not amounting to a felony
(i.e., assault) with death being the result of the illegal act; this is
known as misdemeanor manslaughter. The difficulty of proceeding
against Nuchols under this section of the statute may be that the
unlawful act is not "independent" of the homicide, a concept which
applies to felony murder and might be applied to this related concept.

There are two other difficulties involved in proceeding against
Nuchols for homicide. He may claim a defense of self-defense since his
blow to Murphy's chin was in response to an attempt by Murphy to strike
Nuchols. One does have a right to defend himself against an unlawful
attack by another. However, it may be that Nuchols act of provocation
(calling Murphy an S.O.B.) could serve to deprive him of the defense of
self-defense. The specific law of the jurisdiction would be
determinative. In addition, Nuchols may argue that the act of Banks
was an intervening cause of the death of Murphy which serves to
supercede his own actions in bringing about the death. The intervening
cause in this instance would be an independent one (operating upon
conditions produced by the defendant) and would be judged by the
"foreseeability" standard. Probably, it could be found foreseeable
since the fight occurred near the street.

Question 3, Part B:

Banks would be charged, if at all, under the statute creating the
offense of third degree manslaughter. It is possible but not very
likely that his conduct could be viewed as criminal negligence.
Certainly, driving a car on a street poses a substantial risk of death
to other people. The problem of proving criminal negligence against
Banks would be in establishing a "gross deviation". His driving in
excess of the speed limit would constitute a "deviation" from proper
care but it is very unlikely that this could be viewed as a "gross
deviation". However, it is clear that Banks was driving in excess of
the speed limit at the time of the incident. This is an unlawful act
not amounting to a felony and would be sufficient to trigger the
misdemeanor-manslaughter concept. So, it is possible for Banks to be
prosecuted for homicide.

Perhaps the best defense which could be made for Banks would be
that of lack of causation. Homicide is a result crime. It will be
necessary for the prosecution to prove that Banks' unlawful act was the
actual cause of the death in question. The inquiry is this: Can it be

said that "but for" Banks illegal act of driving above the speed limit
the death would not have occurred. It may be very difficult for the
prosecution to prove this element beyond a reasonable doubt. This
gives Banks a chance for acquittal.

Question 4:

The evidence is sufficient to support a finding that Dugan killed
Barton intentionally, i.e., with death of Barton being a conscious
objective of Dugan. His act of shooting the victim with a deadly
weapon is sufficient standing along to support the finding but there is
more evidence of intention. It is clear that Dugan had strong negative
feelings about Barton; shortly before the shooting he threatened to
kill him if he ever touched Joyce again. Unless Dugan can provide
evidence indicating a lack of intention to kill through his own
testimony, the analysis of liability will have to focus on the offenses
of murder and first degree manslaughter.

Under the law of Lafferty, murder is committed through an
intentional killing. However, a murder offense may be mitigated to the
lesser included offense of first degree manslaughter if it is shown
that the defendant killed while acting under an "extreme emotional
disturbance" for which there is "a reasonable excuse or explanation".
The Lafferty statute is based on the Model Penal Code proposal for
dealing with emotional killings. The traditional law provided
mitigation on the basis of (i) adequate provocation; (ii) heat of
passion; (iii) suddenness; and (iv) a killing caused by the provocation
and passion. The MPC is slightly more liberal but still seeks to
provide mitigation for an emotional killing that has a reasonable
explanation for it. The evidence in this case provides a classic
illustration of the situation in which the element of mitigation comes
into play. The evidence is sufficient to support a finding that the
defendant was acting under extreme emotional disturbance and it is also
sufficient for a finding of reasonableness. The jury would have to
decide.

The defendant has the possibility of complete acquittal on the
basis of self-defense. Under the traditional law, he would be relieved
of liability if he (i) believed that he faced a threat of death or
serious bodily injury at the hands of another; (ii) believed that he
used only such force as was necessary to defend himself against the
threat; and (iii) had reasonable grounds for his beliefs. He has a
chance to prove this defense. His greatest difficulty may come in
proving the last element. Brian was not in fact armed and to the
defendant's knowledge had never owned a gun. His statement that he
thought Brian was reaching in his pocket for a gun may be a little
lacking in credibility. The prosecution will be able to introduce
evidence showing hate by Dugan of Barton and will use this to show that
Dugan may have wanted an excuse to kill Barton. The evidence will have
to be submitted to a jury; the jury will have to decide if Dugan had
reasonable grounds for his beliefs that he faced a deadly threat and
that he did only what was necessary.

NOTE: The Model Code adjusted the law of self-defense by

allowing the defense on the basis of subjective beliefs. However, it
provided that a defendant having the subjective beliefs necessary for
the defense of self defense could possibly be convicted of lower
homicide or assault offenses if he was reckless or criminally
negligence in holding the beliefs.

PART II.

Question 1, Part A:

David's chances for reversal on appeal are probably nonexistent.
The reasons for this conclusion are as follows:

Evidence of intoxication: Voluntary intoxication is not a
defense to crime committed while intoxicated. However, in most
jurisdictions it can be introduced as evidence to negate elements
of mens rea, with its role varying somewhat from jurisdiction to
jurisdiction. The problem facing Sparks in this instance,
however, is that there is no mental element which can be negated
by his intoxication. The first offense (possession of
intoxicating beverages with intent to sell) has a mental element,
namely "intent to sell", but it is clear that Sparks'
intoxication at the time of the party could not negate this
element since it existed prior to his intoxication (i.e., from
the time of his purchase of the alcohol with an intention to sell
it at the party). The second offense (selling to a minor) is a
strict liability offense; obviously, intoxication cannot negate
any of its elements.

Evidence of Mistake of Fact: The law does not recognize
mistake of fact as a defense per se. This is illustrated best
perhaps by the general refusal of most jurisdictions to recognize
significance to a mistake as to the age of a statutory rape
victim. Of course, a mistake of fact may have an evidentiary
role in a case if it would serve to negate an element of the
crime charged. For example, one who takes another's property
believing it to be his own cannot be convicted of theft since the
prosecution would be unable (because of the mistake of fact) to
prove an intent to steal. When these well-established principles
are applied to the present situation, it is clear once again that
the judge corrected excluded the evidence of Sparks' belief that
everyone at the party was above the age of 18 years. The
crime of unlawfully selling to a minor had no mental state
requirement. Thus, the mistake of fact had no relevancy to
the issues.

Evidence of Ianorance of the Law: There is a maxim that
ignorance of the law is no excuse. It is designed to avoid the
situation where every person would establish his own code of
criminality through his ignorance and there would be no community
established code of criminality. So, it is uniformly held that
one may not defend a criminal charge by proving that he was
unaware of the existence of a law making his conduct a crime.
The situation here is a classic illustration of the application

of this concept. Therefore, the judge was correct in ruling that
Sparks' ignorance of the law requiring a license to sell
alcoholic beverages was irrelevant to the charges.

Question 1, Part B:

David's chances on appeal would improve substantially under the
second set of statutes. The statutes now have mental elements not
contained in the first set; the first offense requires that the accused
"knowingly possess" and the second offense requires that he "knowingly
sell".

In order to ascertain David's chances on appeal, it will be
necessary to determine the exact meaning of the statutory requirements
of knowledge contained in the two statutes, for the exact scope of the
requirements is not clear. Does the first statute require only that
the accused have knowledge of his possession of alcoholic substances
within Lafferty or does it require in addition to this that he have
knowledge of the legal requirement of a license? Similarly, does the
second statute require only that the accused have knowledge that he is
selling alcoholic substances or does it require in addition that he
know that the person he is selling to is under the age of 18?
Resolution of these questions of interpretation is essential to a
determination of the correctness of the evidence rulings by the trial
judge. In some modern statutes, there can be found a provision which
requires that any mental state contained in a statutory offense must be
applied to all the elements of the crime unless otherwise clearly
indicated. If this rule of construction is followed, knowledge would
apply in both offenses to the two elements described above. Analysis
of the judge's rulings would be as follows:

Intoxication: In most jurisdictions, voluntary intoxication
could be introduced to negate an element of knowledge, which is
defined as mental awareness. Since the defendant could be guilty
of selling to a minor only if he knew that the buyer was under
18, evidence of intoxication would be relevant to this issue. It
would probably not be relevant to any other element.
Mistake of Fact: The evidence of Sparks' mistake of fact as
to the age of people in attendance would be relevant under the
modified statute. A sale to one known to be under 18 would be an
element of the offense; the mistake of fact would prevent proof
of this element.

Ianorance of Law: When a statute requires knowledge of the
unlawfulness of conduct, then the maxim described above must give
way. Construing the statute on unlawfully possessing for sale as
requiring knowledge of a license requirement would make evidence
of Sparks' ignorance of the law relevant.

Question 2, Part A:

Under the general doctrine of complicity a individual is guilty
of offenses committed by another when he aids in the commission or
planning of that offense or encourages its commission (actus reus) and

does so with an intention to promote its commission. Ordinarily, one
is not guilty of complicity when he merely knows that an offense is
being committed and that he has done something to aid its commission;
his mens rea must reach the level of having the commission of the
offense as his conscious objective. (It should be noted that a few
jurisdictions have created a special offense to deal with this latter
situation; it is called criminal facilitation and is committed when one
does some act which aids the commission of a crime with knowledge of
that fact.)

The principles described above apply rather easily to offenses
which involve criminal conduct (such as robbery, theft, and burglary)
but do not apply easily to result offenses (such as homocide or
assault). Since a result which is an element of a crime may be
unintentional (not a conscious objective) in so far as an accomplice is
concerned, a special provision for accomplice liability for such
offenses is necessary and exists in most jurisdictions. The Creamer
case, and others we studied, make it clear that one can be guilty as an
accomplice for result offenses which are not intended. The Model Penal
Code deals with this situation explicitly by providing that one can be
guilty of a result offense when (i) he encourages or aids in the
conduct which causes the result and (ii) has the mental state needed
for commission of the offense charged. Thus, under both the
traditional law and the MPC, an accomplice who is reckless or negligent
can be guilty of a result crime through participation in conduct which
causes that result.

Applying these principles to the facts of our case we get the
following:

Albert: He is clearly guilty of the burglary of the jewelry
store, the robbery of the liquor store, and the auto theft. He
aided or encouraged all of these offenses and he intended to
promote their commission. He did not intend to promote the
offense of assault on the police officer. But assault is a
result crime and he did intend to promote the conduct which
resulted in this offense; if it can be proved that
he was either reckless (consciously disregarded a risk that death
or injury would result because of the robbery with a gun) or
criminally negligent (failed to perceive such a risk and a gross
deviation from proper conduct) then he could be convicted of
reckless or negligent assault (assuming the jurisdiction has such
an offense).

Baker: He is guilty of the burglary of the jewelry store
since he committed the offense. He knows of the plan to rob the
liquor store but does not have this offense as his conscious
objective. Also, he does nothing to aid or encourage the
commission of this offense. No accomplice liability for this
offense.

Carter: He is guilty of robbery and assault of the officer
since he committed these offenses. But his liability for the
burglary committed by Baker is subject to the same analysis as
provided above for Baker. Knowledge of a plan to commit a crime

is not sufficient mens rea for guilt as an accomplice. He had no
lntentlon to promote the commission of the burglary. The same is
true with respect to the car theft; his connection to this
offense may be a little troublesome for him, but the facts do not
indicate participation in this offense. Mere knowledge that it
was going to be committed would not be sufficient for guilt.

Dawkins: He is guilty of theft. Knowledge that he is
facilitating the commission of robbery by providing the vehicle
is not equal to an intention to promote the commission of that
offense. His liability should be individualized and he
specifically did not intend to participate in the robbery. He
might be guilty of facilitating the robbery in a jurisdiction
which has such an offense.

Question 2, Part B:

Conspiracy is used as a basis for vicarious liability in most
jurisdictions. There are two propositions pertinent to the present
case: (1) all conspirators are liable for offenses committed by
coconspirators when those offenses were the objective of the
conspirary; and (2) conspirators are liable for offenses which were not
the objective of the conspiracy if they were a natural and probable
consequence thereof. The extent to which conspiracy will be used to
extend liability to actors involved in group activity varies from
jurisdiction to jurisdiction. The MPC probably has the most restricted
rules and essentially limits accomplice liability to instances in which
the offender has the underlying offense as his conscious objective,
subject of course to the possibility of convicting one for result
crimes on the basis of lesser mental states.

The analysis of liability under this law would be as follows:

Albert: Once again he would be liable for all the offenses.
The burglary, robbery, and theft were the objectives
of separate conspiracies with each of the principal offenders and
the offenses were committed pursuant to the conspiracy. Only the
assault of the police officer was not a specific objective of the
conspiracy. However, it was foreseeable as a consequence of the
conspiracy to commit armed robbery and would be viewed as a
"natural and probable consequence" of the conspiracy.

Baker: It is possible that Baker could be viewed as having
joined a broad conspiracy which included commission of the
robbery offense by Carter. He had awareness of the intention to
commit it and it is clear that one can be a conspirator without
knowing the identity or seeing face to face other conspirators.
Some jurisdictions might be willing to see this as a chain
conspiracy situation and, since Baker knew of the broader scope
of the criminal enterprise, they might extend vicarious liability
far enough to include him. However, he does have a good argument
that he did not commit the offense of conspiracy to rob the
liquor store since he never "agreed" to participate in that
offense; of course, agreement is essential to the existence of a
conspiracy. Under the MPC he would not be guilty of the offenses

committed by Carter.

Carter: The analysis described above would apply equally
well to Carter in so far as the jewelry store burglary is
concerned. A stronger argument could be made to hold Carter
responsible for the automobile theft, assuming that he knew it
was being planned and that it was for the purpose of providing a
vehicle for the robbery. It would be easier for jurisdictions to
find that he was a conspirator in a plan which included as
objectives the car theft and subsequent robbery. However, the
MPC would still not hold him responsible for this crime since it
was not his conscious objective.

Dawkins: Dawkins might find himself more involved in this
criminal enterprise than he would like to be. Knowing that the
vehicle he planned to steal was going to be used in a robbery
might make it possible for courts to find him to be a conspirator
in an endeavor which included the robbery of the liquor store.
Of course, if found to be a conspirator in this broad plan he
could be found guilty of the robbery and also the assault which
occurred as a natural and probable consequence of it. Once
again, MPC would look at his mental state with respect to each
offense; his liability would probably be limited to theft.

Question 3:

Roberts' indictment for attempted shootina into residence: The
offense of attempt is generally defined as an act toward the commission
of a crime with an intention to commit that crime. The mens rea is
intention, meaning that the actor must have had the underlying crime as
his conscious objective. Under this law it is clear that not every act
done with an intention to commit an offense will be an attempt. The
actor must go beyond mere "preparation" in order to commit the offense;
he must cross a line between preparation and "perpetration" in order to
satisfy the act requirement. Several standards of measurements have
been used to determine whether or not a person has gone far enough to
commit attempt. Probably the two most common standards predating the
MPC were the "physical proximity" standard (which required the actor to
come dangerously close to success) and the "probable disistance"
standard (which required the actor to go so far that it was probable he
would have completed the offense absent outside interference). The MPC
has provided another standard which has been widely adopted; it
requires that the actor have taken a substantial step toward commission
of the offense, with this defined to mean that his act must be strongly
corroborative of his intention. All of these tests are designed to
accomplish the same thing, namely, to provide some assurances that the
actor has an intention to commit an offense and that his intention is a
firm one.

Conclusion: The prosecution may have trouble proving intent to
shoot into the house. If this obstacle is overcome, a jury would have
to decide if his act crossed the line between preparation and
perpetration under the applicable test.

Duncan's indictment for attempted murder: Had Duncan caused the
death of the farmer's daughter by his act of shooting into the
residence he could have been convicted of murder. His mens rea would
have been extreme recklessness which manifested extreme indifference to
human life. This makes it appear at first blush that his unsuccessful
act might constitute attempted murder. However, there would be a
serious proof problem in making a case under this indictment. As
stated above, an attempt is defined to require that the actor have the
underlying offense as his conscious objective. If the prosecution can
prove that Duncan intended to kill the farmer or his daughter then
attempted murder can be proved. But absent that proof the offense was
not committed by Duncan. Of course he is guilty of the offense of
shooting into an occupied residence, which in a sense is in the nature
of an attempt crime. At least it is an inchoate offense designed to
deal with individuals whose actions threaten injury or death.

Roberts and Duncan indictment for consiracy: A conspiracy is
not committed unless there is an agreement between two or more people
that one or more of them will commit an offense. While an agreement
need not be express and may be implied from the circumstances, it is
clear that an agreement must be proved before this inchoate offense is
committed. There is no evidence here of an agreement between the two
actors. Roberts seems to have been acting on his own. While Duncan
may have been motivated to act by Roberts attempt, it is still very
difficult to see how evidence could be introduced showing an agreement
between the two.
PART III.

Ouestion 1: The MPC definition of insanity requires that an accused
suffer from a mental disease or defect which causes him to lack either
(i) a substantial capacity to appreciate the criminality of his conduct
or (ii) a substantial capacity to conform his conduct to the
requirements of the law. Under the M'Naghten test the accused must
also suffer a mental disease or defect. As a result of this he must
either lack the capacity to know what he is doing or, if he knows what
he is doing, lack to capacity to determine the wrongfulness of his
conduct. In more modern versions of the M'Naghten test, the "knows
what he is doing" portion of the standard has been dropped as
redundant. The principal differences between the two tests are these:
(1) the MPC standard has a "control" element which M'Naghten does not
have (although most jurisdictions supplemented M'Naghten with
irresistible impulse); (2) the MPC uses "criminality of conduct" in
lieu of wrongfulness to eliminate the notion that the issue is one of
ethics or morality; and (3) the use of "substantial" is designed to
recognize that one can be legally insane although not extremely ill.

Ouestion 2: The critical point in time for the insanity concept is the
date of the alleged criminal act; the crucial time for the incompetency
to stand trial concept is the date of the legal proceeding. Although
both deal with mental illness of an accused for the most part, the type
of illness may be very different. The standard of measurement is very
different. An accused lacks the competency to stand trial when he
lacks the capacity to understand the proceedings and to participate
rationally in his own defense. The standard for legal insanity is
described in Question 1. The consequence of a finding of legal
insanity is acquittal of the offense; the consequence of incompetency
to stand trial is that the accused cannot be tried under the charges
until his competency is regained.

Question 3: The principle of legality is fundamental to the criminal
law. It prohibits the imposition of criminal penalties unless there
existed a criminal prohibition properly enacted prior to the conduct
that is in question. The maxim nulla poena sine lege--no punishment
without law--states the principle. As a part of this principle, a
legislature cannot create a crime and give it retroactive effect; a
court cannot create a crime to fit conduct of the accused. In
addition, a court may not construe an existing statute in such a way as
to violate this basic principle.

Question 4: All of these concepts are labels used as common law to
describe parties to crime. The aider and abettor was a principal in
the second degree; he was not the perpetrator of the offense but he was
present (actually or constructively) at the time of the offense and was
ready to give aid if necessary. The accessory before the fact was a
participant in an offense committed by a principal but was not present
at the time of the commission of the offense. A solicitor or a
conspirator (not present at the time a crime was committed) was an
accessory before the fact. An accessory after the fact was one who
aided other participants in the commission of an offense by helping
them escape apprehension or prosecution. He was an obstructor of
ustlce .

Question 5: Criminal solicitation is an inchoate offense which is
committed when an actor requests, encourages, or commands another
person to commit a crime with an intention to have that other person
commit the offense. A solicitor is guilty of criminal attempt if the
person solicited attempts the offense and he is guilty of the completed
offense as an accomplice if the offense is committed. The real
significance of the crime of solicitation is in its application to a
rejected request of command to commit an offense. Criminal
facilitation is an offense which exists in only a few jurisdictions.
It is committed by one who aids another in the commission of an offense
through conduct or action, knowing that the offense is going to be
committed and that his conduct will contribute to its commission.