COMMON LAW ARSON: Common law arson was defined (1 - Webster) as the malicious and willful burning of the dwelling house of another either by night or day. (1), (2), (3), (4), (5) Arson, like murder, was one of the few common law crimes to include the element of malice as part of its mens rea. It is a properly crime that involves damage or destruction to specific species of property, i.e., the dwelling house of another, through burning. Obviously, arson also entails potential risk of harm to persons, e.g., occupants of the building, firefighters and spectators, who may be present when the burning or explosion occurs.
Common law arson was viewed as a very serious felony, more than a mere property crime because the harm was done to the dwelling. Even at common law, every man's home, no matter how humble, was his castle. For a time, the ironic punishment was death by burning. Arson was a common law misdemeanor when one burned his own dwelling, i.e., the dwelling he occupied, if the burning was intentional and the house was situated in a city or town or so near other houses as to create a danger to them.
Arson is usually the result of intentional conduct, but intent to destroy or damage was not an essential element of common law arson. The mens rea was malice. (You've seen this same element in the common law definition of murder - a killing by one person of another person with malice aforethought.) Of course, one who intentionally burns the dwelling house of another with the purpose of destroying or damaging it meets the requirement of malice. But malice can occur under other circumstances. For example, if one without justification or excuse set a fire which obviously created an unreasonable fire hazard for another's dwelling, which was actually burned thereby, the result was common law arson, even if the burning of the dwelling was not an intended consequence, but there was reasonable certainty that it might happen. Though reckless burning was not considered as malicious, grossly reckless burning, akin to depraved heart extreme indifference to the value of human life malice in common law murder, could be viewed as malicious. Also, a negligent burning of another's dwelling was not arson.
Four elements were required for common law arson, namely:
- The burning must be willful and malicious, i.e., a desire to harm others or their property or a reckless disregard for the safety of others suffices.]
- The building burned must be the dwelling house, as in burglary. Like burglary, the "dwelling house" includes exterior and substructure of the building or structures within the curtilage (1), (2), (3), (4), (5), (6) or common enclosure. Out buildings such as a barn, not used as a dwelling, on a farm, were not considered as part of the dwelling or curtilage at common law.
- The dwelling house must be the dwelling place of another; however, occupancy, not ownership, is the test. Thus, we look to see if the occupant is someone other than the defendant or the defendant's family. At common law, setting fire to one's own dwelling house was not the felony of arson, irrespective whether one owned the dwelling house or not; while setting fire to a dwelling house that one owned but that was occupied by another, e.g,, a tenant, was arson;
- Real property (the house), not personal property (furnishings or furniture) had to be burned. Thus, there must be an actual burning of some part of the house, not items of personalty, e.g., a chair or sofa, that are not part of the building. The slightest burning, including charring where any fiber was consumed by flame, is sufficient even if it did not burst into flame. Mere scorching, blackening, smudging or blistering of the house is not sufficient to meet the burning requirement. If there was an explosion, it wasn't enough unless it actually caused fire that burned the dwelling.
Here's what is probably the best modern day web site dealing with arson: Interfire.
As you would expect, modern arson statutes typically eliminate the requirement that the building in question be the dwelling of anther.Also, these modern statutes broaden the definition of the sort of building that falls within the definition of arson.
MPC ARSON: Section 220.1 MPC defines the crime of arson as starting a fire or otherwise causing as explosion for the purpose of destroying another's building or occupied structure.
TPC ARSON: Section 28.02 TPC defines the offense of arson in terms of starting a fire, regardless of whether the fire continues after ignition, or causing an explosion with intent to destroy or damage (1) any vegetation, fence or structure on open-space land; or (2) any building, habitation or vehicle under any of six specified circumstances. Controlled burns of open-space land is an exception to (1). It is also a defense to exploding or burning under (2) that prior to an explosion or burn that the actor knew was within the limits of an incorporated city or town, the actor obtained a permit or other written authorization granted in accordance with a city ordinance, if any, regulating fires and explosions. (We've all seen those videos where demolition companies bring down enormous buildings with controlled explosions.) The customary second degree punishment is kicked up to first degree if bodily injury (not serious bodily injury under Section 1.07 TPC) or death was suffered by any person by reason of the commission of the arson or when the property intended to be damaged or destroyed by the actor was a habitation or place of assembly or worship. Notice that the offense is complete when the actor starts a fire with the required culpable mental state, regardless of whether damage of any kind actually occurs. See Mosher v. State, 901 S.W.2d 547 (Tex. App. - El Paso 1995).
Assault is a word of art used in both civil and criminal law. (1 - Webster), (2), (3) The word "assault" is used in the field of tort law (1), (2), where it is an actionable tort, and in criminal law, where it is a recognized criminal offense. (1), (2), (3), (4) The word assault is a word of legal art with one meaning in tort law and another in criminal law. These two separate branches of law, torts and crimes, serve different purposes. The purpose of the tort law is to provide compensation for harm or injury wrongfully inflicted and to deter such conduct. The purpose of the criminal law is to provide institutionalized punishment for specified misdeeds. The difference of purpose may result in liability under one branch of the legal system but not under the other. This would involve no difficulty or confusion were it not for the fact that each uses the same word, i.e., assault, with different meanings. In tort law, an assault is an intentional placing of another in apprehension of a battery. Within our field of interest , the criminal law, we will find that assault can be defined in two ways, i.e., either as (1) conduct attempting a battery or as (2) conduct intentionally putting another in apprehension of an imminent battery.
COMMON LAW OF CRIMINAL ASSAULT: In the early common law, a criminal assault was a failed attempt to commit a battery coupled with the present ability to do so. Attempted battery assault is a specific intent crime; this makes sense since general attempt is viewed by the common law as a specific intent crime. The specific intent was to commit a battery, i.e., to injure the other person or touch the other person in a manner the perpetrator knows or should reasonably believe the other will regard as offensive (offensive conduct). Simple attempted battery assault was a misdemeanor at common law.
Most jurisdictions today, borrowing from the concept of the tortious assault, also allow the definition of criminal assault to include threatening conduct done with the intent on the part of the criminal actor to injure or frighten the victim. Some refer to this a "frightening assault." In some jurisdictions the definition of frightening assault may require that the offenders frightening conduct actually create in the victim a reasonable apprehension of immediate or imminent physical harm, i.e., a battery.
In short, in most common law jurisdictions, a criminal assault my be committed either by: (1) attempt to commit a battery - which does not require apprehension on the part of the intended victim, or (2) physically, not merely verbal, threatening conduct committed with intent to create the expectation of bodily harm in another, i.e., putting the victim in reasonable apprehension of imminent bodily harm which conduct does not require an actual attempt to commit a battery - some jurisdictions requiring that the victim acually be put in fear, some not. Let's talk a bit more about each of these two types of criminal assault.
Attempt at battery form of criminal assault: The specific intent assault crime in the form of attempted criminal battery, e.g., where D (the aggressor), with intent to apply force to (batter) V (the victim), swings a club at V but misses, has the following characteristics at common law:
- conduct amounting to an attempt to commit a battery, i.e., actus reus sufficient to prove defendant intended to apply force to another, [Note: Since this is an attempt, the law applicable to the definition of attempt must be applied. A conditonal threat to apply force, e.g., "Shut up, lady, or I'll shoot you." is deemed sufficient, even though the defendant is indicating that he will not commit the forceful battery if the victim complies with his demands. ]
- with a specific intent to commit a battery, i.e., apply force to another [Note: Since this attempted battery form of assault is a specific intent crime, voluntary intoxication and a good faith mistake of fact, reasonable or not, are available to negate the specific intent to apply force to the other person. Also, if the defendant has a mens rea only of recklessness or criminal negligence, there can be no attempted battery assault .],
- (in some, probably a minority, jurisdictions) with a present ability to commit the battery, thus making physical impossibility a bar to conviction for the attempt unless the jurisdiction construes present ability broadly enough to include "apparent present ability" as well as "actual present ability." [Note: In a majority of jurisdictions today, it would probably be an attempted battery assault to point a gun at a person and pull the trigger, even though, unbeknownst to D, the gun was unloaded.
- and the victim need not be aware of the attempted violence.
When a person (D) has tried unsuccessfully to commit a battery upon a victim (V) without V being aware of the attempt, the position of the common law is that: (1) V has suffered no harm or injury and thus is not entitled to compensation under a tort theory, but (2) D has done an act sufficiently antisocial in its nature as to warrant the imposition of a criminal penalty upon him, but not a civil or tortious assault.
Frightening assault - Intentional creation of a reasonable apprehension of immediate physical harm, i.e., a battery: By comparison with the common law crime of attempted battery, the statutory assault crime of intent to create the reasonable apprehension of immediate harm, e.g., where a person (D) threatens a victim with injury but doesn't really mean it, which is similar to the civil tort of assault, has the following characteristics:
- the defendant must act with intent to place a person in reasonable apprehension or fear of immediate (imminent) bodily harm,
- the defendant's conduct must be of a type likely to induce apprehension or fear of immediate bodily harm in a reasonable person. [Mere words are typically not enough to establish such apprehension or fear, but words and conduct certainly can be.]
- (under some statutes) the victim must actually be aware of the threat of immediate bodily injury and, must, in fact apprehend (expect) immediate bodily harm to her/himself.
- (under some statutes) the defendant must act with apparent present ability to commit the battery
In some states, the early common law rule of assault being only an attempted battery has been frozen by statutory definition as the only type of criminal assault. With attempted battery assault, it matters not that the vicitm apprehend the attempted violence. In many jurisdictions the definition of criminal assault has expanded to include the reasonable apprehension of harm type of assault, i.e., frightening assault. Remember, for the reasonable apprehension of harm type of criminal assault, in some jurisdictions, the victim must apprehend the harm; also, the threat of harm must be of immediate battery, not a threat of what appears to be future harm. [Note: An interesting policy question is whether the threat of psychological rather than physical harm should qualify as bodily harm.]
HYPOTHETICAL RE ASSAULT:
Facts of Hypo: Suppose the defendant (D), without justification or excuse, made a violent motion which brought his fist within inches of victim's (V) face without touching V, and
- Scenario One: D intended to hit V and V feared that he would be hit but successfully dodged the intended blow.
- Scenario Two: D intended to hit V but misjudged the distance and missed; V, being blind, was totally unaware of any danger of harm to himself.
- Scenario Three: D purposefully and intentionally "pulled his punch" because his only purpose and intent was to frighten V, but V saw the blow coming and fully expected to be hit.
- Scenario Four: D purposefully and intentionally "pulled his punch" because his only purpose and intent was to frighten V; V, being blind, was totally unaware of any danger of harm to himself.
Legal Issue: Would D be guilty of common law assault in any of the four scenarios above?
- Scenario One: It would seem to be both a civil tortious assault and a criminal attempted battery assault.
- Scenario Two: It was probably not a civil tortious assault because V was not placed in apprehension, but it was a criminal attempted battery assault because D attempted to commit a battery, and the basic definition of a criminal assault includes an attempt to commit a battery.
- Scenario Three: It was a civil tortious assault because because V was placed in reasonable apprehension of immediate harm; it was not an attempted battery assault under the original common law definition that required an attempted battery because D did not intend to touch V. However, in those jurisdictions that have expanded the original common law definition of criminal assault to include the intent to create reasonable apprehension of immediate harm in the victim, D would be guilty of frightening assault.
- Scenario Four: D is not guilty of attempted battery assault. There was also apparently no common law tort. D acted with intent to frighten V by placing the victim in reasonable apprehension of immediate harm. If the jurisdictions's frightening assault crime requires that the victim actually be frightened, there is no crime because the blind victim was unaware of the effort to frighten him. If the frightening assault law of the jurisdiction does not require that V be aware of D's threatening or menancing conduct, then D would be guilty of frightening assault.
MODEL PENAL CODE CRIMINAL ASSAULT: The MPC deals with assault in Article 211. In Section 211.1, the MPC combines (consolidates or merges) the twin concepts of assault and battery. The MPC labels the section as "assault." Like Texas, the MPC divides the concept of assault into two separate crimes, i.e., "simple assault" and "aggravated assault." Unlike Texas, the MPC eschews the common law battery crime of "offensive touching" in its definition of assault. MPC assault simple assault covers three scenarios: (1) attempting to cause or purposely, knowingly, or recklessly causing bodily injury to another; (2) negligently causing bodily injury to another with a deadly weapon; or (3) attempting by physical menace to put another in fear of imminent serious bodily injury. Notice that under (3), unlike some forms of frightening assault, it is not necessary that the victim experience fear, it being enough that the defendant attempt by physical menace to put the victim in fear of imminent serious bodily injury. Simple assault is classified by the MPC as a misdemeanor, except that it is a petty misdemeanor when it is a fight or scuffle entered into by mutual consent. MPC "aggravated assault" takes two forms: (1) attempting to cause serious bodily injury to another or or causing such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (2) attempting to cause or purposely or knowingly causing bodily injury to another with a deadly weapon. Status of the victim, e.g., cop, fireman, licensed security guard, etc., does not play a part in the MPC definition of aggravated assault. The additional MPC crime of reckless endangerment is defined in MPC Section 211.2. The defense of consent to bodily harm is found in Sec. 2.11 MPC. TEXAS CRIMINAL ASSAULT: Following the lead of the MPC and other modern codes, the TPC treats the two common law crimes of assault and battery under the single broad heading of "Assault." It also divides assault into two general categories - simple assault which is typically a misdemeanor crime, and aggravated assault which is typically a felony. The crimes are covered in Chapter 22. The 1994 revision deleted many of the old special interest provisions that increased the degree of offense for certain victims. Simple assault is found in Section 22.01 TPC. With some exceptions stated in the statute, assault causing bodily injury is a class A misdemeanor (Punishment ranges are found in Chapter 12 TPC.); threatening with imminent bodily injury and provocative or offensive contact are class C misdemeanors. Aggravated assault is found in Section 22.02 TPC. Injury to a child, elderly person or disabled individual is also an offense under Section 22.04 TPC. Deadly conduct, analogous to reckless endangerment, is found in Section 22.05 TPC. Note that consent to assaultive conduct can be a defense to assault, aggravated assault and deadly conduct under certain circumstances. See Section 22.06 TPC In Texas, simple assault under Section 22.01 TPC can be committed in one of three ways: (1) intentionally, knowingly or recklessly causing bodily injury (See Section 1.07(8) TPC) to another person, including the spouse of the actor; it's a class A misdemeanor; (2) intentionally or knowingly threatening imminent bodily injury to another person, including the spouse of the actor; it's a class C misdemeanor; or (3) intentionally or knowingly causing physical contact (what the common law called an "offensive touching" battery) with another when the actor knows or should reasonably believe that the other person will regard the contact as offensive or provocative; it's a class C misdemeanor. Aggravated assault under Section 22.02 TPC can be committed in two separate ways, with variations within each of those categories. The two categories are as follows: (1) assault plus causing serious bodily injury (see Section 1.07(46) TPC) to another, including the spouse, and (2) using or exhibiting a deadly weapon (See Section 1.07 (17) TPC) during the commission of an assault. The basic aggravated assault crime is a second degree felony. It becomes a first degree felony when the victim or actor is a public servant or the assault is in retaliation against a witness, informant, etc. See Chapter 12 TPC. See also, Sufficiency of bodily injury to support charge of aggravated assault, 5 ALR5th 243 (1992).
COMMON LAW COMMON BARRATRY: The offense of common barratry was described as the practice of frequently being a common mover, exciter or maintainer of groundless judicial proceedings, e.g., suits or quarrels in courts or otherwise. (1), (2), (3), (4), (5) Common barratry was a cumulative offense. The offense did not consist of a single act, however flagrant, but was in a succession of acts constituting a course of behavior. The offense of common barratry was said to be proved by evidence of the moving, exciting or prosecution of suits in which the party had no interest, or of false suits of his own, if designed to oppress the defendant, or of the spreading of false rumors and calumnies whereby discord and disquiet was spread among neighbors. Proof of commission of three such acts, at least, was necessary. The offender was charged as a common barrator and was entitled to notice of the particular acts to be proven by the prosecution. Punishment for common barratry was by fine or imprisonment and, in persons of any profession relating to law, the further punishment was added of being disabled to practice in the future, e.g., in the case of attorneys, conviction operated as a disability to practice in the future. An attorney practicing after conviction was subject on summary complaint to transportation the colonies for seven years. [Note: Distinguish common barratry from maritime barratry which was fraudulent conduct by the master of a vessel or by the mariners, to the injury of the owner of the ship or cargo, and without his consent.]
MODEL PENAL CODE: There is not barratry offense in the MPC.
TEXAS PENAL CODE BARRATRY, FALSELY HOLDING ONESELF OUT AS A LAWYER AND UNAUTHORIZED PRACTICE OF LAW: TPC Sections 38.12, 38.122. 38.123, which were changed in the 1993 revision of the TPC, describe the respective offenses of barratry and solicitation of professional employment (Section 38.12), falsely holding oneself out as a lawyer (Section 38.122) and unauthorized practice of law (Section 38.123). The 1993 legislation was a response to changes which occurred in solicitation of legal representation in the preceding decade. The opportunity to make enormous profits from the practice of soliciting cases transformed barratry from an activity involving a few unscrupulous attorneys contacting prospective clients to a sophisticated business involving lawyers and and also non-lawyers who acted as brokers of legal claims. Also, chiropractors, physicians, operators of wreckers and ambulances, as well as police and municipal employees received substantial sums of money to direct potential clients to these individuals. The barratry statute, Section 38.12 TPC, addresses two categories of conduct: (1) in-person solicitations and payments top those who participate in soliciting employment (Section 38.12 (a) and (b)), and (2) written communications by certain professions seeking employment (Section 38.12 (d)). See the statute for specifics. A person who falsely holds himself or herself out as a lawyer with intent to obtain economic benefit violates Section 38.122 TPC, the third degree felony crime of falsely holding oneself out as a lawyer, unless he or she is currently licensed to practice law in Texas, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed. Note that this statute applies not only to non-lawyers but also to lawyers whose licenses have been revoked or suspended or who are not is good standing with the State Bar of Texas. Finally, under Section 38.123 TPC one commits a crime for engaging in the unauthorized practice of law. This section provides that a non-lawyer who enters into a contract to provide legal representation, advice or counsel concerning personal injury claims with the intent to obtain an economic benefit is guilty of an offense. As illegal solicitation of prospective clients increased, unscrupulous lawyers and lay individuals turned to cops, wrecker operators, EMS technicians and others with immediate access to injured victims in an attempt to get information about victims as early as possible. Now, the Occupations Code Section 1701.313 and 1701.503, and the Local Government Code, Section 215.034, have been amended to provide that a person convicted of barratry is disqualified to be a cop and that any license, e.g., wrecker licenses issued by a municipality, may be suspended or revoked upon such a conviction. See the statute for specifics.
You wouldn't hit a guy with glasses, would you?
COMMON LAW CRIMINAL BATTERY: Battery is traditionally defined as the unlawful application of force to the person of another which results in bodily harm or offensive touching. (1), (2), (3) At common law, battery is defined in terms not only of the conduct but the specific result, i.e., causing bodily harm (injury) or unwanted touching of another person. Thus, battery is a result-oriented crime. While battery requires the unlawful application of force to the person of another, any unlawful injury, however slight, actually done to the person of another, directly or indirectly, will suffice as the required conduct. Indirect injury or touching, e.g., a vicious animal, suffices so long as the defendant puts the force in motion. At common law, battery exists as a separate and distinct offense from its common law cousin criminal assault. At common law, the separate crimes of assault and battery merge. If you have both crimes, e.g., D tries to hit V and is successful, D can be convicted of battery but not of battery and assault. In criminal battery, the application of force does not have to be intentional. Don't confuse criminal battery with the intentional tort of battery. (1 - tortious battery) Notice that consent that does not result in a breach of the peace may, in some cases, be a defense to battery.
The basic elements of the common law misdemeanor battery are as follows:
- voluntary conduct by the actor, i.e., unlawful application of force to the person of another
- a mens rea or culpable mental state, e.g., intent, recklessness, or gross (not ordinary) negligence
- a harmful result, i.e., bodily injury or offensive touching
In states with battery statutes, it is common to also have the crime of aggravated battery. (1) Often the aggravating factor will be the infliction of serious bodily injury and/or the use of a deadly weapon or the particular status of the victim, e.g., a law enforcement officer. Most states recognize an offensive touching, e.g., kissing a stranger, as a battery, though a few limit it to bodily injury. (VIDEO Sample: In this situation the bicyclist, Mr. Wong, was charged by NYC Police Officer Patrick Pogan Jr., a rookie cop whose father is on the NYPD terrorist task force, with assault (NY consolidates the common law crimes of assault and battery) on a police officer. Patrolman Pogan gave a deposition that may seem a bit inconsistent with the videotape taken by a tourist. As of August 1, 2008, the media reports that charges are still pending against Wong and Pogan is still a member of the thin blue line.)
Here are four hypothetical scenarios that may be useful in understanding criminal battery. [The idea for them came in part from a colleague, Mr. Wheeler.]
Suppose that defendant (D) is carrying a piece of lumber on his shoulder. D has no thought of hurting anyone but negligently hits victim (V) with the lumber and knocks V down. Would the common law view this as a criminal battery? Under common law, it would be a criminal battery. Why? At common law, a merely negligent blow was not deemed sufficient to warrant the imposition of a criminal penalty. Whereas, a blow administered with gross (wanton) negligence did reach the level of criminal battery. [In modern days, the general approach is to require a minimal culpable mental state of recklessness. Where a weapon is involved, an exception may be made in some cases allowing the mental state to drop to gross (wanton) negligence ]
Suppose D hits V with a rock, intentionally thrown for that purpose without justification or excuse. Is D guilty of battery? This would be battery at common law. [It would be assault under the MPC and TPC.]
Suppose the same facts in HYPO THREE except that V sees the rock and is able to dodge it. Is D guilty of criminal battery at common law? This would not be a common law battery, as there was no application of force to the person of V by D. [D would be guilty of assault under the common law, MPC and TPC.]
Suppose that V is asleep on the other side of a small stream. D throws several rocks at V in an effort to hit V. All of the rocks fall near V but do not awaken V or hit him. V did not find out about the incident until the next day. Would this be common law criminal battery? No. There was no application of force to the person of V by D. [It would be a common law assault (attempted battery) and assault under the MPC and TPC.]
MODEL PENAL CODE BATTERY: The Model Penal Code includes battery within its definition of assault. See Section 211 MPC.
Men are more often bribed by their loyalties and ambitions than by money.
Bribery can be considered as the giving or receiving of consideration with the intent to influence official conduct. The person who gives the bribe must intend to influence official conduct; the one receiving the bribe must receive it intending to use his position of trust for self-enrichment. (1), (2), (3)
MODEL PENAL CODE BRIBERY: Article 240 MPC defines the crimes of bribery and corrupt influence. Section 240.1 defines bribery in official and political matters. A person is guilty of the third degree felony of bribery if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another: (1) any pecuniary benefit as consideration for the recipient's decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter; or (2) any benefit as consideration for the recipient's decision, vote, recommendation or other exercise of official discretion in a judicial or administrative proceeding; or (3) any benefit as consideration for a violation of a known legal duty as public servant or party official. The MPC further provides that it is not a defense to prosecution for this crime that a person whom the actor sought to influence was not qualified to act in the desired way whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason.
Article 240 MPC also contains other crimes involving corrupt influence, namely, (1) threats and other improper influence in official and political matters (Section 240.2); (2) compensation for past official behavior (Section 240.3); (3) retaliation for past official action (Section 240.4); (4) gifts to public servants by persons subject to their jurisdiction (Section 240.5); and (5) compensating a public servant for assisting private interests in relation to matters before him (Section 240.6). TEXAS PENAL CODE BRIBERY: Chapter 36 TPC contains the criminal prohibitions against bribery and corrupt influence. Section 36.02 TPC defines the offense of bribery. FEDERAL - FOREIGN CORRUPT PRACTICES ACT - 15 USC Sections 78a, 78dd-1-3, 78ff (1 - Wiki) - an act designed to curtail and prevent bribery of foreign government officials by U.S. individuals and companies. For example of the corruption and bribery that some of our largest corporations engage in consider this: The FCPA was used in 2009 by the Justice Dept. to bring criminal FCPA charges against KBR (Kellogg Brown and Root) a subsidiary Halliburton, the company once ruled by former VP Dick Cheney, for bribing Nigerian government officials with huge amounts of money to get Nigerian construction contracts totalling $6,000,000,000. The SEC also brought civil charges against KBR and Halliburton. (1 - explains the settlement of the FCPA civil and criminal charges vs. KBR and Halliburton, including $402,000,000 in criminal fines based on a plea of guilty by KBR to five FCPA criminal charges, plus $177,000,000 in disgorgement by KBR and Halliburton), (2 - info re the civil charges that resulted in huge civil penalty payments by KBR to the government), (3 - the DOJ layman's guide to the FCPA; this guide, written in 2001, states, "The following criminal penalties may be imposed for violations of the FCPA's antibribery provisions: corporations and other business entities are subject to a fine of up to $2,000,000; officers, directors, stockholders, employees, and agents are subject to a fine of up to $100,000 and imprisonment for up to five years. Moreover, under the Alternative Fines Act, these fines may be actually quite higher -- the actual fine may be up to twice the benefit that the defendant sought to obtain by making the corrupt payment. You should also be aware that fines imposed on individuals may not be paid by their employer or principal.")
COMPOUNDING A CRIME
COMMON LAW COMPOUNDING A CRIME: Compounding a crime was a common law misdemeanor. (1), (2), (3) The offense is defined as agreeing, for consideration, not to prosecute another for a crime that has been committed. Proof of three elements is required for a prima facie case of compounding: (1) that the defendant was aware of the crime; (2) that the defendant agreed to forebear prosecuting or revealing the crime in return for receipt of some sort of consideration, e.g., compensation or reward; and (3) receipt of consideration pursuant to the agreement. The agreement not to prosecute in return for money payment, reparations, receipt of property or other recompense is the gist of the offense; it must be proven that the terms of the agreement entitled the defendant to receive something of value in return for his agreement to decline to prosecute. One example of an agreement to compound is where the owner of stolen property agrees to forego prosecuting the larcenist (thief) in consideration for the return of the stolen goods. Hale provided an example of compounding a felony as follows: "The act of a party immediately aggrieved , who agrees with a thief or other other felon that he will not prosecute him, on condition that he return to him the goods stolen or who takes a reward not to prosecute. This is an offense punishable by fine and imprisonment. The mere retaking by the owner of stolen goods is not offense, unless the offender is not to be prosecuted." Common law compounding of a crime was not restricted to compounding felonies. Compounding a misdemeanor of a public nature was also a crime. The English abolished the compounding offense in 1967. Today, many jurisdictions limit compounding to felonies, i.e., compounding of a felony. (1 - encarta), (2), (3), (4), (5), (6), (7), (8).
MODEL PENAL CODE COMPOUNDING: Section 242.5 MPC defines the misdemeanor offense of compounding as accepting or agreeing to accept any pecuniary benefit in consideration of refraining from reporting to law enforcement authorities the commission or suspected commission of any offense or information relating to an offense. It is an affirmative defense to prosecution for compounding that the pecuniary benefit did not exceed an amount which the actor believed to be due as restitution or indemnification for harm caused by the offense.
TEXAS PENAL CODE COMPOUNDING: Section 38.06 TPC of the former TPC defined compounding as an offense if, after criminal proceedings have been instituted, the actor solicited, accepted, or agreed to accept any benefit in consideration of abstaining from, discontinuing or delaying the prosecution of another for an offense; it was a defense that the benefit received was reasonable restitution and was pursuant to an agreement either negotiated by or acquiesced to by the prosecution. The 1994 revision of the Texas Penal Code deleted compounding as a discrete offense and combined it with Section 36.05 TPC which now provides that a witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will: (1) testify falsely; (2) withhold any testimony, information, document or thing; (3) elude legal process summoning him to testify or supply evidence; (4) absent himself from an official proceeding to which he had been legally summoned; or (5) abstain from, discontinue, or delay the prosecution of another. It is a defense to prosecution for (5) above, i.e., abstaining from, discontinuing or delaying the prosecution of another, that the benefit received was (1) reasonable restitution for damages suffered by the complaining witness as a result of the offense and (2) a result of an agreement negotiated with the assistance or acquiescence of an attorney for the state who represented the state in the case.
CRIMINAL (MALICIOUS) MISCHIEF
COMMON LAW CRIMINAL MISCHIEF: Criminal mischief (1- wiki) is sometimes called malicious mischief -(1), (2), (3), (4), vandalism - (1), or destruction of property. Like larceny it involves violating the property interest of a victim, but unlike larceny that involves an unlawful taking and intent to appropriate, criminal mischief involves an intent to damage or destroy another person's property. At common law (1) criminal (malicious) mischief is defined as the malicious destruction of, or damage (injury) to, the property of another, whether real or personal. It is a misdemeanor at common law, but modern statutes often define the crime as a felony or misdemeanor depending upon the nature of the property and/or the monetary damage or destruction inflicted upon it. Even though the definition of the offense says that the destruction must be done maliciously, it suffices to prove that the wrongdoer intended to inflict the damage or destruction or did so recklessly.
MODEL PENAL CODE CRIMINAL MISCHIEF: Criminal Mischief is defined in Section 220.3 MPC as: (a) damaging tangible property of another purposely, recklessly or negligently in the employment of fire, explosives or other dangerous means listed in Section 220.2(1) of the3 MPC (Paragraph (1) of Section 220.2, the crime of causing or risking a catastrophe, also includes flood, avalanche, collapse of building, release of poison gas, radioactive material or other harmful or destructive forces or substances, or by any other means of causing potentially widespread injury or damage.); (b) purposely or recklessly tampering with tangible property of another so as to endanger person or property; or (c) purposely or recklessly causing another to suffer pecuniary loss by deception or threat. The level of criminality is keyed to a consequences, e.g., if the actor purposely causes pecuniary loss in excess of $5,000 or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power,or other public service, the crime is a third degree felony; it's a misdemeanor if the actor causes pecuniary loss in excess of $100 and a petty misdemeanor if he purposely or recklessly causes pecuniary loss in excess of $25. Otherwise criminal mischief is only a violation. [Note that the MPC punishment provisions for criminal mischief were promulgated in 1962.] Be aware that there is an offense known as causing or risking a catastrophe in Section 220.2 MPC.
TEXAS PENAL CODE CRIMINAL MISCHIEF: Criminal mischief is defined in Section 28.03 TPC which states that a person commits criminal mischief if, without effective consent of the owner: (1) he intentionally or knowingly damages or destroys the tangible property of the owner; or (2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or (3) he intentionally or knowingly makes markings, including inscriptions, slogans, drawings or paintings, on the tangible property of the owner. For the extensive punishment provision, consult Section 28.03 TPC. Interference with proprietary rights or abuse of property constitutes tampering. See Williams v. State, 596 S.W.2d 862 (Tex. Crim. App. 1980).
ENTICING (ABDUCTING, STEALING) A CHILD
COMMON LAW: At English common law, there was no crime of child abduction; however, there were early statutes, circa 1487, that were designed to prevent fortune hunters from taking young heiresses. One statute made it a felony for a person to take any woman against her will if such woman "had lands and goods or was the heir apparent of her ancestor."
MODEL PENAL CODE INTERFERENCE WITH CUSTODY OF CHILDREN: Under Section 212.4 (1) MPC a person commits the offense of interference with child custody if he knowingly or recklessly takes or entices any child under the age of 18 from the custody of its parent, guardian or other lawful custodian, when he has no privilege to do so. It is an affirmative defense that the actor believed that his action was necessary to preserve the child from danger to its welfare; or the child, being at the time not less than 14 years old, was taken away at its own instigation without enticement and without purpose to commit a criminal offense with or against the child. The section further provides that proof that the actor was below the critical ages gives rise to a presumption that the actor knew the child's age or acted in reckless disregard thereof. The offense is a misdemeanor unless the actor, not being a parent or person in equivalent relation to the child, acted with knowledge that his conduct would cause serious alarm for the child's safety,or in reckless disregard of a likelihood of causing such alarm, in which case the offense is a felony of the third degree.
TEXAS PENAL CODE ENTICING A CHILD UNDER THE AGE OF 18 FROM ITS PARENT,GUARDIAN OR LAWFUL CUSTODIAN: The offense of interference with child custody is found in Section 25.03 TPC. Agreement to abduct a child from custody is found in Section 25.031 TPC. Enticing a child is found in Section 25.04 TPC. The offense of harboring a runaway child is defined in Section 25.06 TPC.
BREACH OF PRISON, ESCAPE & RESCUE
Breach of Prison - Blackstone's Commentaries on the Law of England, Book IV, p. 130, tells us that the common law recognized the felony offense of "breach of prison" by the offender who is lawfully incarcerated on a criminal charge or sentenced for a crime. The breakout had to occur after the offender had been delivered to a place of confinement. The offense was not for mere escape from jail or prison. An actual breaking was required. So if a prisoner, lawfully incarcerated and awaiting trial or lawfully sentenced, walked out of the place of confinement, e.g., jail or prison, without obstruction, as by a door being left open, there was no breaking and, thus, no breach of prison (prison breach). Unlocking a door or opening a window qualified as breaking. The concept of "prison" was broader in common law days than it is today and included county jail, the stocks or other usual places of confinement. Today, if an inmate broke out of a county jail, we would call it a jail break, not a prison break. Blackstone tells us that the severity of making "breach of prison" a common law felony was mitigated by the statute de fangentibus prisonam, 1 Edw. II, which provided that no person should suffer the death penalty for breaking prison, unless the prisoner was committed for a capital offense, i.e., treason or a felony. Breaking prison when lawfully confined for any inferior offense, something less than treason or a felony, was punishable as a high misdemeanor by fine or imprisonment but not death.
Escape by the Escapee/ Arrestee - There was also a misdemeanor common law offense of "escape" that was punishable by fine or imprisonment. An arrestee was liable for the offense of escape when the arrestee in lawful custody for any crime, be it felony, treason or misdemeanor, escaped from the custodian, e.g., the person who arrested him, before he was delivered in due course of law, e.g., before being put in jail or prison. The idea is that the arrestee in custody regained his freedom before he was delivered to the place of confinement. Escape was considered as an offense against public justice.
Permitting Escape - Any person who had a prisoner in his lawful custody and who, knowingly, and with intent to save the prisoner from trial or punishment, permitted the prisoner to regain his liberty other than by due course of law, committed the common law offense of voluntary escape. It didn't matter that the prisoner was in jail, prison or simply under arrest for this offense to be committed. However, the escapee had to be guilty of the offense he escaped from. Consequently, the person who voluntarily allowed the prisoner to escape was liable for the offense the former prisoner was in custody for and was guilty of committing. For example, if the escapee was guilty and was in custody for a felony, the person who permitted escape was liable for the escapee's offense as an accessory after the fact. Also, if the escapee was in custody for and guilty of treason, the person who permitted escape was liable for treason (Remember that, at common law, there were no party complicity distinctions re treason; those who might be otherwise viewed as accessories before or after the fact were liable for treason as principals.). Finally, if the person who escaped was in custody for and guilty of a misdemeanor, the person who allowed escape was liable for that misdemeanor. The common law also recognized a lesser misdemeanor crime known as "negligent escape." The negligent escape crime occurred when a person by neglect of duty or ignorance of law permitted a person in his lawful custody to regain his liberty other than by due course of law.
Rescue - Rescue, at common law, meant the act of forcibly freeing a person from lawful custody, against the will of those who have the offender in custody. The person being freed had to escape. Rescue required that the person being freed be in lawful custody, either of an officer or off a private person (as in the case of a citizen's arrest). If in the person being freed was in custody of a private person, the rescuer had to have notice of the fact that the person being freed was in custody. At common law the rescuer was guilty of a like offense as the person whose escape he forcibly achieved by rescue. This is similar to the liability of the officer who was liable for the offense of permitting escape. (See permitting escape above.) So according to the offense that the person being rescued was guilty of committing, the rescue crime would be classified as treason, felony or misdemeanor.
MODEL PENAL CODE -
MPC Hindering Apprehension, Prosecution, Conviction or Punishment - Section 242.3 MPC says that a person commits an offense if, with purpose to hinder the apprehension, prosecution, conviction or punishment of another for crime, he: (1) harbors or conceals the other; or (2) provides or aids in providing a weapon, transportation, disguise, or other means of avoiding apprehension or effecting escape; or (3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence; or (4) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or (5) volunteers false information to a law enforcement officer. The offense is a felony of the third degree if the conduct which the actor knows has been charged against the person aided would constitute a felony of the first or second degree. Otherwise it is a misdemeanor.
MPC Escape - Section 242.6 MPC describes two offenses, namely, (1) escape and (2) permitting or facilitating escape.
Escape is described in Section 242.6(1) MPC. The offense of escape as unlawfully removing oneself from official detention or failing to return to official detention following temporary leave granted for a specific purpose or limited period. "Official detention" means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but it does not include supervision of probation or parole, or constraint incidental to release on bail.
Permitting or Facilitating Escape is described in Section 242.6(2) MPC. The offense of permitting an escape occurs when a public servant concerned in the detention knowingly or recklessly permits an escape. The offense of facilitating an escape occurs when a person, any person, knowingly causes or facilitates an escape.
Effect of Legal Irregularity in Detention Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority , shall not be a defense to prosecution under this Section if the escape is from a prison or other custodial facility or from detention pursuant to commitment by official proceedings. In the case of other detentions, irregularity or lack of jurisdiction shall be a defense only if : (a) the escape involved no substantial risk of harm to the person or property of anyone other than the detainee; or (b) the detaining authority did not at in good faith under color of law.
Grading the Offense of Escape An offense under this Section is a felony of the third degree where: (a) the actor was under arrest for or detained on a charge of felony or following conviction of crime; or (b) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or (c) a public servant concerned in detention of persons convicted of crime purposely facilitates or permits an escape for a detention facility. Otherwise an offense under this section is a misdemeanor.
MPC Implements for Escape: Other Contraband - Section 242.7 provides two crimes, namely: (1) escape implements and (2) other contraband.
Escape Implements provides that a person commits a misdemeanor if he unlawfully introduces within a detention facility, or unlawfully provides an inmate with, any weapon, tool or other thing which may be useful for escape. An inmate commits a misdemeanor if he unlawfully procures, makes, or otherwise provides himself with, or has in his possession, any such implement of escape. "Unlawfully" means surreptitiously or contrary to law, regulation or order of the detaining authority.
Other Contraband provides that a person commits a petty misdemeanor if he provides an inmate with anything which the actor knows it is unlawful for the inmate to possess.
TEXAS PENAL CODE -
- (a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the state, or with intent to hinder the arrest of another under the authority of a warrant or capias, he: (1) harbors or conceals the other; (2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or (3) warns the other of impending discovery or apprehension.
- (b) It is a defense to prosecution under Subsection (a)(3) that the warning was given in connection with an effort to bring another into compliance with the law.
- (c) Except as provided by Subsection (d), an offense under this section is a Class A misdemeanor.
- (d) An offense under this section is a felony of the third degree if the person who is harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, including an offense under Section 62.102, Code of Criminal Procedure, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony, including an offense under Section 62.102, Code of Criminal Procedure, and the person charged under this section knew that the person they harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony.
- (a) A person commits an offense if he escapes from custody, [See Lawhorn v. State, 898 S.W.2d 886 (Tex. Crim App. 1995) re departure from custody but not flight being sufficient for escape.] when he is: (1) under arrest for, charged with, or convicted of an offense, [See Medford v.State, 13 S.W.3d 769 (Tex. Crim. App. 2000) re when an arrest is complete.]; (2) in custody pursuant to a lawful order of a court; (3) detained in a secure detention facility, as that term is defined by Section 51.02, Family Code; or (4) in the custody of a juvenile probation officer for violating an order imposed by the juvenile court under Section 51.02, Family Code.
- (b) Except as provided in Subsections (c), (d), and (e), an offense under this section is a Class A misdemeanor.
- (c) An offense under this section is a felony of the third degree if the actor: (1) is under arrest for, charged with, or convicted of a felony; (2) is confined in a secure correctional facility; or (3) is committed to a secure correctional facility, as defined by Section 51.02, Family Code, other than a halfway house, operated by or under contract with the Texas Youth Commission.
- (d) An offense under this section is a felony of the second degree if the actor to effect his escape causes bodily injury.
- (e) An offense under this section is a felony of the first degree if to effect his escape the actor: (1) causes serious bodily injury; or (2) uses or threatens to use a deadly weapon.
TPC Permitting or Facilitating Escape - Section 38.07 TPC describes the offense of permitting or facilitating escape as follows:
- (a) An official or employee of a correctional facility commits an offense if he knowingly permits or facilitates the escape of a person in custody.
- (c) Except as provided in Subsections (d) and (e), an offense under this section is a Class A misdemeanor.
- (d) An offense under this section is a felony of the third degree if the person in custody: (1) was under arrest for, charged with, or convicted of a felony; or (2) was confined in a correctional facility other than a secure correctional facility after conviction of a felony.
- (e) An offense under this section is a felony of the second degree if: (1) the actor or the person in custody used or threatened to use a deadly weapon to effect the escape; or (2) the person in custody was confined in a secure correctional facility after conviction of a felony.
- (f) In this section, "correctional facility" means: (1) any place described by Section 1.07(a)(14); or (2) a "secure correctional facility" or "secure detention facility" as those terms are defined by Section 51.02, Family Code.
TPC Effect of Unlawful Custody - Unlike the common law, where lawful custody was required before breach of prison or escape or permitting escape applied, Section 38.08 TPC specifies that "It is no defense to prosecution under Section 38.06 or 38.07 that the custody was unlawful."
- (a) A person commits an offense if, with intent to facilitate escape, he introduces into a correctional facility, or provides a person in custody or an inmate with, a deadly weapon or anything that may be useful for escape.
- (b) An offense under this section is a felony of the third degree unless the actor introduced or provided a deadly weapon, in which event the offense is a felony of the second degree.
- (c) In this section, "correctional facility" means: (1) any place described by Section 1.07(a)(14); or (2) a "secure correctional facility" or "secure detention facility" as those terms are defined by Section 51.02, Family Code.
COMMON LAW FALSE IMPRISONMENT: False imprisonment at common law was the intentional and unlawful confinement of a person by compelling him to go or stay through the use of force, threat of force or fraud without such person's consent. False imprisonment was a common law misdemeanor. Imprisonment was not false if it was lawful,e.g., lawful arrest by an officer, lawful confinement of a child by the parent, etc. Also, the confinement had to be significant, i.e., not trivial. (1), (2), (3)
Notice that some states in modern times provide for a separate false imprisonment offense; others prefer to handle this sort of confinement under the kidnapping and abduction statutes. Note also that assault and battery merge into false imprisonment.
False imprisonment and false arrest are also intentional torts (1); the tort of false imprisonment has been defined as occurring when a defendant intentionally by threatening words or actions causes a plaintiff (victim) to be totally confined for an unreasonable period of time within boundaries, physical or intangible, established by the defendant with no reasonable means of escape available to the victim and to the contemporaneous knowledge of the victim or to the victim's harm without the victim's consent or other legal justification.
MODEL PENAL CODE FALSE IMPRISONMENT: Section 212.3 MPC defines the misdemeanor offense of false imprisonment as knowingly restraining another unlawfully so as to interfere substantially with his liberty.
TEXAS FALSE IMPRISONMENT: The crime of false imprisonment is contained in Section 20.02 TPC. Note that the offense is based on unlawful restraint of the person; also, it is an affirmative defense if the person restrained is a child under 14 and the actor is a relative whose sole intent was to assume control over the child. Note also that arrest and custody, if lawful, is not false imprisonment. See Austin v. State, 541 S.W.2d 162 (Tex. Crim. App. 1976). See also Ex parte Gutierrez, 600 S.W. 2d 933 (Tex. Crim. App. 1980). Interference with liberty must be substantial. See Rogers v. State, 687 S.W. 2d 337 (Tex. Crim. App. 1985).
KIDNAPPING (also KIDNAPING)
COMMON LAW KIDNAPPING: At common law, kidnapping (1), (2), (3), (4) was akin to an aggravated false imprisonment. i.e., asportation - moving the victim and confining her in a secret place. At English common law, the misdemeanor crime of kidnapping was defined as the forcible abduction and stealing away of a man, woman or child from his/her own country and sending him/her to another. (1) One might think of kidnapping as false imprisonment aggravated by conveying the victim out of the country. The stealing away of the victim was not limited to the use of force. One might steal the victim by fraud or the threat of force. Also, at common law there was no requirement for a demand of ransom or an intent to commit a sexual act with the victim. Assault, battery, and false imprisonment merged into kidnapping. The famous jurist Blackstone described it as the crime of carrying someone away from their homeland and depriving them of their personal liberty. It is said that kidnapping first denoted taking young people from Britain and transporting them to another country, e.g., to North America as indentured servants. (1) [Note: In the fifteenth century, a statutory felony known as abduction (1), (2) was enacted; abduction was defined as the taking of any woman against her will, when such woman owned real or personal property or was an heir apparent to such.]
Unlike the common law felonies that typically mandated a death sentence, the common law misdemeanor of kidnapping was punished by fine, imprisonment and the pillory. Under modern statutes, kidnapping is typically a serious felony, and in its special form - kidnapping for ransom, see below, is regarded as one of the most dangerous crimes against the person.
The common law definition would generally be considered kidnapping in contemporary jurisdictions. However, kidnapping statutes typically go beyond the common law definition, e.g., the most common extension being that kidnapping occurs if the false imprisonment occurs secretly with the state (country).
KIDNAPPING STATUTES: Modern kidnapping statutes typically define the crime as the unlawful removal of a victim from the place where s/he was originally found by the kidnapper to a place a substantial distance therefrom or the unlawful confinement of the kidnapping victim for a substantial period of time. Because the modern crime of kidnapping usually carries severe penalties, it is important that kidnapping be defined in a way that does not permit a kidnapping conviction where the confinement or removal of a victim is both trivial and merely incidental to the commission or attempted commission of a lesser crime.
There is no kidnapping if the person was confined or transported with his or her own consent, assuming no legal, physical or mental disability and lack of coercion, threat or fraud. A child under the age of consent is incapable of giving legally recognized consent to his confinement or transportation, assuming that the child stealing statute sets up such age of consent. [Child stealing was generally a statutory misdemeanor in common law days. Typically, there will me a child stealing statute in most jurisdictions, e.g., See Sections 25.03, 25.04 TPC, that provide a penalty for one who shall lead, take, entice or detain a child under specified age with intent to keep or conceal it from the parent, guardian or other person having lawful custody or care thereof. We are all familiar with the crime of kidnapping for ransom, an offense that first became more common during the late nineteenth century. Two famous federal cases of kidnapping for ransom occurred twentieth century United States history. The first was the 1932 kidnapping for ransom of the Lindbergh baby, the infant son of Charles and Anne Morrow Lindbergh. (1 - TruTV crime library), (2 - Wiki), (3 - Bruno Hauptmann Trial), (4 - skeptics) The second was the 1974 kidnapping for ransom of Patty Hearst, daughter of William Randolph Hearst, heir to the Hearst fortune. (1 - Wiki), (2 - TruTv Library) The Lindbergh case gave rise the so-called federal "Lindbergh Law" (18 USC Section 1201) - re kidnapping for ransom. See 18 USC Chapter 55 for the entire panoply of federal kidnapping statutes. [Of course my favorite kidnappings for ransom were of Jerry's wife June in Fargo, Dakota Fanning when Denzel took a couple of slugs trying to fend off Mexican policia who were moonlighting as kidnappers in Man on Fire, and of Mel Gibson's kid by Captain Dan in Ransom.]
Kidnapping for ransom typically has three elements:
- (1) unlawful seizure of the victim;
- (2) secret confinement; and
Kidnapping for ransom includes those who act as go-betweens (accomplices or aiders under general theories of complicity) to collect ransom for the actual abductors.
As previously mentioned, modern kidnapping statutes have expanded by adding fraud or enticement as an alternative to force. Confinement, detention or taking the victim to another place within the jurisdiction is typically added as an alternative to removal of the victim from his own country. In some statutes, an abduction with intent to remove the victim is sufficient.
MODEL PENAL CODE KIDNAPPING: The definition of kidnapping is found in Section 212.1 MPC, i.e., " a person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes: (a) to hold for ransom or reward, or as a shield or hostage; or (b) to facilitate commission of any felony or flight thereafter; or (c) to inflict bodily injury on or to terrorize the victim or another; or (d) to interfere with the performance of any governmental or political function." Notice that under the MPC the voluntary release of the victim alive and in a safe place prior to trial reduces the degree of the offense from a first degree felony to a second degree felony. "Removal" or "confinement" is unlawful if it is accomplished by force, threat or deception, or in the case of person who is under the age of 14 or incompetent, if it is accomplished without consent of a parent, guardian or other person responsible for the general supervision of his welfare.
In Article 212 MPC, you will also find definitions of the crimes of (1) felonious restraint (Section 212.2) - restraint being defined as "to restrict a person's movements without consent, so as to interfere substantially with a person's liberty, by moving the person from one place to another by confining the person."; (2) false imprisonment (Section 212.3) meaning to "knowingly restrain another unlawfully so as to interfere substantially with his liberty"; (3) interference with custody of children and committed persons (Section 212.4); and (4) criminal coercion (Section 212.5) defined as threatening, with the purpose unlawfully of restricting another's freedom of action to his detriment, to: (a) commit any criminal offense; or (b) accuse anyone of a criminal offense; or (c) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute; or (d) take or withhold action as an official, or cause an official to take or withhold action.
TEXAS PENAL CODE: Kidnapping is defined in Texas in Section 20.03 TPC. Note that the crime of kidnapping is based on abduction. See Sanders v. State, 605 S.W.2d 612 (Tex. Crim. App. 1980). "Abduct" is defined in Section 20.01 TPC as "to restrain a person with intent to prevent his liberation by (A) secreting or holding him in a place where he is not likely to be found or (b) using or threatening to use a deadly weapon." Note also that a relative may lawfully take the subject where the intent is to assume lawful custody and there is not intent to use or threaten Deadly force. See Reynolds v. State, 679 S.W..2d 715 (Tex. App. - Houston 1984) for a case discussing abduction. Concerning aggravated kidnapping in Texas, under Section 20.04 TPC kidnapping becomes aggravated, a first degree felony, when (1) for ransom or reward; (2) to use the victim as a shield or hostage, see Butler v. State, 645 S.W.2d 820 (Tex. Crim. App 1983); to aid a felony, see Jernigan v. State, 706 S.W. 2d 813 (Tex. App. - Ft Worth 1986); to inflict bodily injury or sexual violation; to terrorize, see Padgett v. State, 683 S.W.2d 453 (Tex. App. - San Antonio 1983); or to interfere with government or political function. Elements of aggravated kidnapping are spelled out in Bowers v. State, 570 S.W.2d 929 (Tex. Crim. App. 1978). In Texas, voluntary safe release of the victim lowers the degree of aggravated kidnapping from a first to a second degree felony. See Thornburg v. State, 699 S.W.2d 918 (Tex. App. - Houston 1985). The 1994 revision of Section 20.04(d) TPC makes it clear that the the defense has a preponderance of the evidence burden of production and persuasion on the voluntary safe release issue. FEDERAL KIDNAPPING LAWS: The federal kidnapping laws are contained in 18 USC Sections 1201-1204. The Federal Kidnapping Act, Chapter 55 of the 18 USC, popularly known as the Lindbergh Law, makes it a federal felony to take a kidnapped person from one state to another if the captive was held for ransom or reward or otherwise; it also makes it an offense to send a kidnapping demand through the mail and provides the FBI with power to pursue kidnappers who have fled across state lines. See 18 USC Section 1201. As previously mentioned, this law grew of the kidnapping for ransom of the infant son of Charles Lindbergh. Richard Bruno Hauptmann was tried convicted and executed for the death of the kidnapped child. The FBI web site provides the government view of Lindbergh-Hauptmann case. TruTV also details the case. ASPORTATION IN KIDNAPPPING: Should there be a requirement that the victim of a kidnapping be moved from one place to another as opposed to simply confining the victim where s/he is found? In Texas, under Section 20.03 TPC the law doesn't seem to require the carrying away of the victim in order for kidnapping to occur. See Bowers v. State, 570 S.W.2d 929 (Tex. Crim. App. 1978). If so, is it possible to have a technical cased of kidnapping in most aggravated robberies and rapes. Concerning rape, you may find it interesting to read about the case of Caryl Chessman, the famed Red Light Bandit of Mulholland Drive, who was convicted of kidnapping and executed in 1960. Chessman was convicted under the California Little Lindbergh law of kidnapping when he took a woman from her car to his car where he raped her. California law at the time punished kidnapping with injury to the victim more severely than rape. Such a kidnapping was a capital offense. At his kidnapping trial, Chessman decided to represent himself. (1), (2) The best-selling author turned out to be a poor lay lawyer. In light of the present law regarding capital punishment, Chessman could not be executed for rape or kidnapping of a person who wasn't killed. See Kennedy v. Louisiana, __ U.S. __ (2008); Coker v. Georgia, 433 U.S. 584 (1977).
COMMON LAW MAYHEM: At common law, the felony crime of mayhem (1 -defined), (2- defined), (3 - defined), (4 - defined) was a felony that included the malicious dismemberment, maiming (1), (2) (mutilation), disfigurement, or disabling of a person. The mayhem mens rea of acting maliciously generally translates to an intent to injure. Consent was not a defense. Mayhem referred to conduct that rendered a person less able to fight. History teaches us that mayhem was the only common law felony that did not carry the death penalty; instead, mutilation of the same body part lost by the victim was the common law punishment for mayhem. Later, the punishment became imprisonment. Disablement occurred when the victim was permanently and maliciously deprived of one of his members proper for defense in a fight, such as an arm, leg, eye or fore-tooth or those parts, the loss of which abates a man's courage. At common law, a jaw tooth, ear or nose were not covered as disablement because these body parts were supposed to be of no use in fighting. Consequently, loss of these body parts were treated by the common law as a battery rather than the felony of mayhem by disablement. [Note that modern statutes typically make no distinction between one member and another with regard to the offense of cutting or wounding.] Disfigurement occurred when the actor maliciously injured the victim so as to permanently change the victim's appearance. Examples of disfigurement include cutting off an ear or finger, castration or putting out an eye. The John Wayne and Lorena Bobbitt penis removal incident may provide an example
MODEL PENAL CODE: The MPC does not contain the crime of mayhem. What would otherwise be mayhem is treated as an (aggravated) assault. See Section 211.1 MPC. Under Section 211.1 (2) MPC, a person is guilty of aggravated assault if s/he attempts to cause serious bodily injury to another or causes such injury purposely knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or attempts to cause or purposely or knowingly causes bodily injury with a deadly weapon.
TEXAS PENAL CODE: The TPC does not treat mayhem as a separate crime. Instead, it is treated as an assault or aggravated assault. See Chapter 22 TPC. See also the discussion of TPC "assault" above. [Note: Prior to the enactment of the 1974 revised TPC, Texas did have separate crimes of maiming, disfigurement, and castration. See Sensobaugh v. State, 244 S.W. 379 (Tex. Crim. App. 1922) where the defendant, having discovered his wife in an act of adultery, proceeded to remove his wife's paramour's penis with a straight razor.]
COMMON LAW PERJURY: At common law, perjury is the willful giving of a false statement under oath regarding a material matter in a judicial proceeding. (1), (2), (3), (4), (5) Note that common law perjury required two witnesses, the idea being that a person should not ever be convicted of perjury on the word of only one witness. Every lawyer should also be aware of the offense of subornation of perjury (1) which criminalizes the act of persuading, inducing, encouraging, directing, aiding, or commanding another person to commit perjury.
MODEL PENAL CODE PERJURY: Section 241.1 MPC says that a person is guilty of perjury, a third degree felony, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true. On the issue of materiality, the MPC makes it clear that falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding; it is not a defense that the declarant mistakenly believed the falsification to be immaterial. The issue of whether falsification is material in a factual situation is a question of law. Note that, under the Section 241.1 (4) MPC, a person cannot be guilty of perjury if he retracted the falsification in the course of the proceeding in which it was made before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding. Also, pursuant to Section 241.1 (6), no person can be convicted of MPC perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant.
Article 241 MPC contains other crimes regarding falsification in official matters, e.g., false swearing (Section 241.2); false alarm to agencies of public safety (Section 241.4); false reports to law enforcement authorities (Section 241.5); tampering with witnesses and informants and retaliation against them (Section 241.6); tampering with or fabricating physical evidence (Section 241.7); tampering with public records or information (section 241.8); and impersonating a public servant (Section 241.9).
TEXAS PENAL CODE PERJURY: In Texas, perjury is committed pursuant to Section 37.02(a) TPC if a person with intent to deceive and with knowledge of a statement's meaning: (1) makes a false statement under oath or swears to the truth of a false statement previously made; and (2) their statement is required or authorized by law to be made under oath or makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code (1) See Mitchell v. State, 608 S.W.2d 226 (Tex. Crim. App. 1980); Yarborough v. State, 617 S.W.2d 221 (Tex. Crim. App. 1981). Aggravated perjury is defined in Section 37.03 TPC.
Society can't tolerate rebellion. Yet our own democracy was the result of the American Revolution, a violent uprising of colonists who threw off the yoke of English repression and created the United States. See the Declaration of Independence and the U.S. Constitution. Today most of us would agree that the revolutionaries were heroes. If the British had won, would our heroes have been tried as traitors to the Crown and executed? If so, it was a risk they were willing to take. Modern day revolutionaries would face similar risks. List of some people convicted of treason worldwide. COMMON LAW: Treason (1), (2), (3), (4) was a common law offense. During early common law days, the English royalty intentionally kept the law of treason unwritten in order that it could be used flexibly against enemies of the Crown. Eventually, in 1351, Parliament enacted the English Treason Act of 1351. Note that the English crime of High Treason (1 - wiki), (2) (3), (4), (5), (6) differs from the now-defunct offense of petty (petit) treason. (1) (2). [Note : Treason was regarded by the common law as such an atrocious offense that a party to it was treated as a principal regardless of whether s/he would otherwise be considered an accessory before or after the fact.] TEXAS LAW: The Texas Constitution, Article I, Section 22, defines the state crime of treason when it provides: "Treason against the state shall consist only in levying war against it, or adhering to its enemies, giving then aid and comfort; and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court." Also, Article 1.20 CCP provides: "No person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court." The Texas Constitution, Article 4, Section 11, provides: "With advice and consent of the Legislature, the Governor may grant reprieves, commutation of punishment and pardons in cases of treason." FEDERAL LAW: The federal crime of treason against the United States is defined in the United States Constitution. It's the only crime in the Constitution. See Article 3, Section 3, U.S. Const. which states: "Treason against the United States shall consist only of levying War against them or in adhering to their Enemies, giving them Aid and Comfort." (1) See Cramer v. United States, 325 U.S. 1 (1945) indicating that the culpable mental state of treason is the intent to betray the United States. See also D'Aquino v. United States, 192 F2d 388 (9th Cir. 1951) the treason case against a woman believed at the time to be "Tokyo Rose." The actus reus of treason is either (1) levying war against the United States or (2) adhering to their enemies by giving them aid and comfort. Article 3, Section 3, also states: "No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt act or on Confession in Open Court." See Treason, Sedition and Subversive Activities (18 USC Sections 2381-2390) for a list of federal crimes dealing with those three subjects and including a treason statute modeled on the the Article 3, Section 3 U.S. Const. definition above. See The Treason trial of Aaron Burr. For a related crime, see The Roseberg Trial in which Julius and Ethel Rosenberg were convicted of the crime of espionage and executed.