APT English Legal Terminology 2008/2009 Academic Year

APT – English Legal Terminology 2008/2009 Academic Year

Prof. Robert Turk University of Ljubljana School of Law

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2008/2009-APT-File-3-IntroToCrimes

Introduction to 'crimes' / 'criminal offenses'

Looking back into English history, crimes or 'criminal offenses' were divided into two main categories: felonies and misdemeanors.

The term 'felony' was a general term used to distinguish certain more serious or 'high' crimes from minor or 'less serious' offenses which are called 'misdemeanors'.

An offense may be called a 'felony' today, in some jurisdictions, because:

-it was known in the early English 'common law' as one of the original

'common law felonies', including:

'felonious homicide',

mayhem,

rape,

robbery,

arson,

burglary,

larceny;

AND / OR -it has been declared to be a 'felony' by some statute (legislative enactment).

Some statutes may also define what offenses are 'felonies' in terms of :

--an offense punishable 'by death or imprisonment'

--or perhaps 'by death,

or a term of imprisonment over one year'.

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In contrast, the term 'misdemeanor' is a general term used to classify certain minor offenses which are considered to be less serious than felonies. Misdemeanors may be defined in some statutes as different from felonies because of the difference in possible or actual punishments, by the lengh of imprisonment (such as 'less than one year), or, perhaps even by the 'place' or location of imprisonment (such as in some facility where longer-term felons are not housed).The term 'misdemeanors' was used 'at common law' to refer to all indictable offenses below felonies.

David Walker observes in the Oxford Companion to Law (Oxford, 1980) that English law abolished all distinctions between felonies and misdemeanors in 1967; the distinction never existed in Scotland. But it is still a common distinction in the United States. Some modern statutes have abandoned the use of the traditional 'felony / misdemeanor' distinction, preferring to classify various offenses according to 'degrees'.

Comparing Specific CRIMES: Felonies at 'Common Law'
and
in 'Modern Statutes'

'Felonious Homicide'

Homicide is the legal term for ''the killing of one person by another''. Black's Law Dictionary (8th ed. 2004). Consider for a moment the variety of different situations which could possibly be encompassed by that definition.

Under common law, 'felonious homicide' was a killing ''committed unlawfully, without legal justification or excuse. This is the category into which murder and manslaughter fall.'' Id. Originally, some felonies were punishable by death; ('mayhem' was punished by 'mutilation').

The right of the kindred ('close family members') to demand private vengeance was

superseded ('replaced') by the right of the King to exact ('to demand') 'forfeiture'

('loss of all property to the sovereign, because of a crime, etc.') where the homicide was a felony;

(forfeiture was a penalty implying disregard for the duties that had been owed to the King).

It was, however, [a] long [time] before it was clearly settled which forms of

homicide were criminal and which merely tortious or even legally justifiable. …

Justifiable homicide is causing death in circumstances authorized by law (such as a

'killing in self-defense' or 'an execution by the State in a capital case') …

Accidental, negligent or excusable homicide is causing death unintentionally, …

without gross or culpable negligence ('culpable negligence' is also known as 'criminal

negligence', which would be negligence so extreme that it is punishable as a crime),

(Examples of 'accidental, negligent, or excusable homicide' could include a typical,

so-called traffic 'accident', or 'during unsuccessful surgery').

See 'Homicide' in David Walker, Oxford Companion to Law (1980); (emphasis and definitions in parentheses added).

Murder was known at common law as homicide with 'malice aforethought', which is the required mental state that includes any one of the following:

1) intent to kill;

2) intent to inflict great bodily harm;

3) extremely reckless indifference to the value of human life; or 4) intent to commit a felony.

Manslaughter was, and is, defined as homicide without 'malice aforethought'.

It is interesting to note that there was no subdivision of 'degrees of murder' at common law. While some modern statutes subdivide murder by degrees, the Model Penal Code does not.

© Robert Turk 2003-2009 (Page 2 of 6)

Some modern statutes, however classify 'felonious homicide' into:

Murder (1st degree and 2nd degree), and

Manslaughter (Voluntary and Involuntary).

Murder:

1st degree: such as an unlawful killing that is willful, deliberate, or premeditated,

(or , in some jurisdictions, also if it is committed during the course of another serious felony, but sometimes limited to: rape, kidnapping, robbery, burglary, arson).

2nd degree: such as an unlawful killing, also with 'malice aforethought' ( as defined

above), BUT which is not willful, deliberate, or premeditated).

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Manslaughter: (known from 'common law' as homicide with no 'malice aforethought').

Voluntary: such as an unlawful killing committed under circumstances that

'reduce' or lower the intent (for example, 'in an angry rage').

Involuntary: such as homicide resulting from: recklessness, or criminal negligence.

'Mayhem'

Under the 'common law', 'mayhem' was a very serious injury, resulting in some kind of 'dismemberment' (of a so-called body 'member', especially a part of the body that would be useful in fighting for the sovereign). Originally, felonies were 'punishable' by the death of the felon (but 'mayhem' was punished by 'mutilation'). Here again, the focus was on the 'failure' or 'disregard' of a duty owed to the sovereign (meaning, for example, that the victim represented one less fighter able 'to take up arms' and fight for the king).

Under some modern statutes, the felony 'mayhem' is re-labeled one of various offenses such as: 'malicious injury', 'aggravated battery' (or some other form of a 'battery'), 'aggravated assault' (where 'assault' is meant or understood here as 'physical attack', even including 'contact' which has been traditionally understood as a requirement of a 'battery'.)

© Robert Turk 2003-2009 (Page 3 of 6)

'Rape'

Under the 'common law' felony of 'rape', elements included:

--unlawful sexual intercourse (called 'carnal knowledge')

--through force or the threat of force

--despite utmost resistance---even though the victim tried to the utmost to resist

Under modern statutes, the felony of 'rape' …

--has been re-defined in some states as 'sexual assault'

--has been re-defined under the federal statute as 'aggravated sexual abuse'

Modern statutes tend to be 'gender neutral', meaning that the offender and the victim could be either male or female.

Modern statutes focus on use of force or threat of force, perhaps recognizing that ability to resist may depend on the circumstances.

Many modern statutes may abandon:

--the need for corroboration by evidence other than the victim's own testimony.

--husband 'shield laws' (which had formerly protected husbands from a charge of rape).

'Robbery'

Under the 'common law' felony of 'robbery', elements included:

--felonious taking

--of property

--from the person of another

--by violence

or by putting him in fear (at the present time or immediately preceding in time).

Modern Statutes (such as the Model Penal Code) provide:

A person commits robbery…

IF, in the course of committing a theft, he:

--inflicts serious bodily injury upon another person,

--threatens another person with, or purposely puts him in fear of

immediate serious bodily injury, or

--commits or threatens to commit any felony of the first or second degree.

An act shall be deemed 'in the course of committing a theft',

IF it occurs…

--in an attempt to commit a theft

or --in flight after the attempt or commission (of the theft)

(See Model Penal Code § 222).

'Arson'

Under the 'common law' felony of 'arson', elements included:

--willfully and

--maliciously

--burning

--the dwelling-house

--of another person.

Under modern statutory definitions of 'arson', elements may include:

--willfully and

--maliciously

--burning { or EXPLODING, etc.}

--the dwelling-house { or various kinds of places or structures}

--of another person { possibly some jurisdictions would enlarge the definition to include even

one's own property, destroyed for purposes of collecting on insurance, etc.}

'Burglary'

Under the 'common law' felony of 'burglary', elements included:

--breaking and

--entering

--into a dwelling place

--of another person

--at night

--with intent to commit

--a felony.

Under modern statutory definitions of 'burglary', elements may include:

--breaking and

--entering

(OR any unlawful entry into or remaining inside of…)

--a building (perhaps EVEN a vehicle)

--of another person

--(AT ANY time, perhaps not limited only to 'night')

--with intent to commit

--ANY crime (either felony or misdemeanor.)

'Larceny'

Under the 'common law' felony of 'larceny', elements included:

--felonious taking and

--carrying away

--of the personal property

--of another person

--without his consent

--with intent to permanently deprive the owner

--and convert it to the use of the taker or some person other than the owner.

Modern statutory definitions of 'larceny' may include many (or all) of these same elements.

In the United States, some jurisdictions classify 'larceny' as 'grand larceny' or 'petit (or 'petty') larceny', depending on the value of items of property taken, or the methods employed in 'taking'. Some jurisdictions now re-define offenses of this kind as 'theft' or they may use other terminology in their criminal codes.

English law abolished the grand/petty distinction in 1861, and replaced some crimes ('larceny', 'embezzlement', 'fraudulent conversion') with the statutory offence 'theft' in 1968.