Criminal Law

Spring 2000

Prof. Edmundson                                     Your exam number: ___
 


FINAL EXAMINATION

INSTRUCTIONS - PLEASE READ CAREFULLY


1. This is a closed-book, closed-notebook examination. Remember the Honor Code.
 

2. The examination is to be answered in the blue books provided for you. What is not in the blue book cannot be credited.
 

3. Put your EXAMINATION NUMBER ONLY in the space provided at the top of this sheet and on each blue book.DO NOT PUT YOUR NAME ON YOUR EXAM PAPERS.
 

4. When you have finished the examination, number your blue books to show how many you used and in which order (e.g. "1 of 2" and then "2 of 2"). Then please put the examination questions inside your first blue book, put any additional blue books inside the first, and then put the exam and blue books, so arranged, on the table at the front of the room. You must return the exam.
 

5. You will have three hours to work on the examination.
 

6. If more facts are needed to answer any part of a question, state what they are and why they are needed. Organization will be counted in determining your grade. Think BEFORE you begin to write. Illegible responses cannot be credited. Concise answers are welcomed.
 
 

EXAMINATION



Alton and Bellsnyder are juniors at the University of Potrzebie, and are members of Beta Alpha Delta, a social fraternity. Culpepper, who appears to be older than his seventeen years, and his girlfriend, Dusenberg, are freshmen at the University. Alton and Bellsnyder are on the fraternity rush committee, and have invited Culpepper to attend a rush party to be held Saturday night at the frat house.
 

Early Saturday evening, Alton and Bellsnyder gag, blindfold and handcuff Ellington, a sophomore pledged to the fraternity, who agrees to undergo this treatment as an initiation rite. Alton and Bellsnyder lead Ellington into a nearby wooded area and leave him with instructions to remain there until morning. After standing alone for what seems to him to be a very long interval, Ellington decides not to join the fraternity after all. He eventually manages to loosen the blindfold and tries to make his way back to the frat house to ask to be released from his bonds.
 

Shortly after Alton and Bellsnyder return to the party, Culpepper and Dusenberg arrive. Alton and Bellsnyder urge Culppper to "pledge Beta," and encourage Dusenberg likewise to persuade Culpepper to pledge. After several hours of drinking and dancing to extremely loud music, Culpepper agrees to pledge to join the fraternity. Alton, Bellsnyder, Culpepper, and Dusenberg then agree to walk into downtown Potrzebie to an all-night tatoo and body-piercing parlor, where Culpepper will have his nose pierced and fitted with a fraternity pin.
 

On the way, Bellsnyder notices that they are being followed by a dog. Bellsnyder knows that Alton is licensed to carry a concealed pistol. Bellsnyder asks Alton for Alton's pistol and fires a round at the dog, nearly missing it but fatally striking Ellington, who is still bound and gagged but has fallen behind a bush along the road. The dog snarls and lunges toward Bellsnyder, but is called off by Farnsworth, a University policewoman who is conducting a routine campus drug patrol with the dog's assistance. The dog excitedly sniffs at Alton, who then consents to be searched by Farnsworth. Farnsworth discovers a marijuana pipe in Alton's possession and places all four under arrest, confiscating the pipe and the gun.
 

Ellington's body is not discovered until daylight. After an autopsy, his death is judged to have been instantaneous, and to have occurred shortly after midnight.
 

The following special statutes have been adopted in the jurisdiction:
 

16-5-40. Kidnapping

15-5-71.1 Piercing of the body.
 

(a) It shall be unlawful for any person to pierce the body, with the exception of the ear lobes, of any person under the age of 18 for the purpose of allowing the insertion of earrings, jewelry, or similar objects into the body, unless the prior written consent of a custodial parent or guardian of such minor is obtained.

(b) Any person violating the provisions of subsection (a) of this Code section shall be guilty of a misdemeanor.
 

16-11-105 Discharge of firearm on Sunday.
 

(a) It shall be unlawful for any person wilfully or wantonly to fire or discharge a firearm on Sunday.

(b) This Code section shall not apply to law enforcement officers or to persons who fire or discharge a firearm in the defense of person or property.

16-11-107 Destroying or injuring police dog or police horse.
 

Any person who destroys or causes serious or debilitating physical injury to a police dog or police horse, shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years, or a fine not to exceed $10,000.00, or both. This section shall not apply to the destruction of a police dog or police horse for humane purposes.
 

Discuss possible criminal liability arising under the above facts. Mere possession of a "drug related object" is not an offense in the jurisdiction, and you may assume that the consumption of alcohol at the party was not in itself unlawful.

END OF EXAMINATION

Have a good summer!


Partial Pretty Good Answer: Bellsnyder’s Liability for firing Alton’s Pistol after midnight

Ellington died instantly, soon after midnight, when struck by the bullet B fired from A’s gun.  The statute reads:
 

16-11-105 Discharge of firearm on Sunday.
(a) It shall be unlawful for any person wilfully or wantonly to fire or discharge a firearm on Sunday.

(b) This Code section shall not apply to law enforcement officers or to persons who fire or discharge a firearm in the defense of person or property.

 Any person who violates subsection (a) of this Code section is guilty of a misdemeanor.


B discharged a firearm on Sunday, but did he commit this offense?   The fact that B had been partying suggests that he may not have been aware of the time, and therefore not of the day of the week.  The firing having been “on Sunday” is a material element—it goes to the harm the state wishes to prevent, the desecration of the sabbath—and so, under the MPC, the state must not only prove when the shot was fired, it must show culpability, unless the offense is a violation and there is no culpability language in the statute.  Here, the offense is a misdemeanor and there is culpability language in the statute: “wilfully or wantonly.”  The MPC tells us that this language will spread to all material elements unless there is some grammatical or other clue to the contrary—and there is no such clue here.  So, the state must show that B was “wilful or wanton” with respect to its being Sunday.  “Willful” is defined under the MPC as “knowing”—and absent further evidence B should be acquitted if the state must prove he knew it was Sunday.  But the statute says “willful or wanton,” which alerts us to the possibility that the state may convict B even if it can’t prove that B knew it was Sunday.  If “wanton” means anything, it should mean something other than “knowing”—otherwise it would be “mere surplusage” in the statute.  Unfortunately, the MPC does not define “wanton,” but common law cases suggest that it means “recklessly.”  This is consistent with the MPC’s presumption that at least recklessness must be shown as to each material element of an offense.

If “wanton” means “recklessly” then the state may convict B by showing that B was aware of a substantial and unjustifiable risk that it was Sunday when he fired. (The substantial and unjustifiable risk relates to the element “on Sunday”; it does not refer, here anyway, to the risk of injuring someone.)  Showing that B was aware that it might be after midnight is easier than showing that B knew it was after midnight.  B’s self-induced intoxication makes it unlikely that he knew it was after midnight, but his intoxication is irrelevant to the issue of his awareness of this risk.  Where recklessness is at issue, B is deemed to have been as aware as he would have been had he been sober.

So, if “wanton” means “knowingly” B should be acquitted; if it means “recklessly” B should be convicted.  (A lot can hang on a word!)