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Legal Definitions: Ownership versus Possession, Conservatorship, Bailment, Intent, Violent Crimes and Gun Laws

May 6, 2011

OWNERSHIP: DEFINED

Ownership is the state or fact of exclusive rights and control over property, which may be an objectland/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. The concept of ownership has existed for thousands of years and in all cultures. Over the millennia, however, and across cultures what is considered eligible to be property and how that property is regarded culturally is very different. Ownership is the basis for many other concepts that form the foundations of ancient and modern societies such as moneytrade,debtbankruptcy, the criminality of theft and private vs. public property. Ownership is the key building block in the development of the capitalist socio-economic system.

The process and mechanics of ownership are fairly complex since one can gain, transfer and lose ownership of property in a number of ways. To acquire property one can purchase it with money, trade it for other property, receive it as a gift, steal it, find it, make it orhomestead it. One can transfer or lose ownership of property by selling it for money, exchanging it for other property, giving it as a gift, being robbed of it, misplacing it, or having it stripped from one’s ownership through legal means such as evictionforeclosure,seizure or taking. Ownership is self-propagating in that the owner of any property will also own the economic benefits of that property.

POSSESSION: DEFINED

The concept of possession developed from a legal system whose principal concern was to avoid civil disorder. The general principle is that a person in possession of land or goods, even as a wrongdoer, is entitled to take action against anyone interfering with the possession unless the person interfering is able to demonstrate a superior right to do so.

Possession refers to the exercise of dominion over property, holding or having property in one’s power. It is the right under which a person can exercise control over something to the exclusion of all others. It is a continuing exercise of a claim to the exclusive use of a material object. In Civil law, possession refers to detention or use of a physical thing with the intent to hold it as one’s own. Possession means holding property in one’s power or the exercise of dominion over property. By having possession one exercises control over something to the exclusion of all others.

In law, possession is the control a person intentionally exercises toward a thing. In all cases, to possess something, a person must have an intention to possess it. A person may be in possession of some property (although possession does not always imply ownership). Like ownership, the possession of things is commonly regulated by states under property law.

Intention to possess. An intention to possess (sometimes called animus possidendi) is the other component of possession. All that is required is an intention to possess something for the time being. In common law countries, the intention to possess a thing is a fact. Normally, it is proved by the acts of control and surrounding circumstances.

It is possible to intend to possess something without knowing that it exists. For example, if you intend to possess a suitcase, then you intend to possess its contents, even though you do not know what it contains. It is important to distinguish between the intention sufficient to obtain possession of a thing and the intention required to commit the crime of possessing something illegally, such as banned drugs, firearms or stolen goods. The intention to exclude others from the garage and its contents does not necessarily amount to the guilty mind of intending to possess stolen goods.

In law, possession is the control a person intentionally exercises toward a thing. In all cases, to possess something, a person must have an intention to possess it. A person may be in possession of some property (although possession does not always imply ownership). Like ownership, the possession of things is commonly regulated by states under property law.

When people possess places to which the public has access, it may be difficult to know whether they intend to possess everything within those places. In such circumstances, some people make it clear that they do not want possession of the things brought there by the public. For example, it is not uncommon to see a sign above the coat rack in a restaurant which disclaims responsibility for items left there.

Importance of possession. Possession is one of the most important concepts in property law.

In common law countries, possession is itself a property right. Absent evidence to the contrary, it provides evidence of ownership. Possession of a thing for long enough can become ownership. In the same way, the passage of time can bring to an end the owner’s right to recover possession of a thing.

In civil law countries, possession is not a right but a (legal) fact which enjoys certain protection by the law. It can provide evidence of ownership but it does not in itself satisfy the burden of proof. For example, ownership of a house is never proven by mere possession of a house. Possession is a factual state of exercising control over an object, whether owning the object or not. Only a legal (possessor has legal ground), bona fide (possessor does not know he has no right to possess) and regular possession (not acquired through force or by deceit) can become ownership over passage of time. A possessor enjoys certain judicial protection against third parties even if he is not the owner.

There may be varying degrees of rights to possession. For example, if you leave a book that belongs to you at a cafe and the waiter picks it up, you have lost possession. When you return to recover the book, even though the waiter has possession, you have a better right to possession and the book should be returned. This example demonstrates the distinction between ownership and possession: throughout the process you have not lost ownership of the book although you have lost possession at some point.

Obtaining possession. Possession requires both control and intention. It is obtained from the first moment that both those conditions exist simultaneously. Usually, intention precedes control, as when you see a coin on the ground and reach down to pick it up. Nevertheless, it is conceivable that a person might obtain control of a thing before forming the intention to possess it. If someone unknowingly sat on and therefore had control of a $10 note on the seat of a train, he or she could obtain possession by becoming aware of the note and forming the intention to possess it. People can also intend to possess things left, without their knowledge, in spaces they control.

Possession can be obtained by a one-sided act by which factual control is established. This can take the form of apprehension (taking an object not in someone’s possession) or seizure (taking an object in someone’s possession). It can also be obtained through a two-sided process of handing over the possession from one party to another. The party handing over possession must intend to do so.

Possession acquired by consent. Most property possessed is obtained with the consent of someone else who possessed it. They may have been purchased, received as gifts, leased, or borrowed. The transfer of possession of goods is called delivery. For land, it is common to speak of granting or giving possession.

A temporary transfer of possession is called a bailment. Bailment is often regarded as the separation of ownership and possession. For example, the library continues to own the book while you possess it and will have the right to possess it again when your right comes to an end. A common transaction involving bailment is a conditional sale or hire-purchase, in which the seller lets the buyer have possession of the thing before it is paid for. The buyer pays the purchase price in installments and, when it is fully paid, ownership of the thing is transferred from seller to buyer.

Possession acquired without consent. It is possible to obtain possession of a thing without anyone else’s consent. First, you might take possession of something which has never been possessed before. This can occur when you catch a wild animal; or create a new thing, such as a loaf of bread. Secondly, you might find something which someone else has lost. Thirdly, you might take something from another person without their consent. Possession acquired without consent is a property right which the law protects. It gives rise to a right of possession which is enforceable against everyone except those with a better right to possession.

Forms of transferring possession. There are various forms of transferring possession. One can physically hand over the object (e.g. handing over a newspaper bought at the newsstand) but it is not always necessary for the party to literally grab the object for possession to be considered transferred. It is enough that the object is within the realm of factual control (e.g. leaving a letter in the letterbox). Sometimes it is enough for a symbol of the object which enables factual control to be handed over (e.g. handing over the keys to a car or a house). One may also choose to terminate possession, as one throws a letter in the trash. Possession includes having the opportunity to terminate possession. If this were not the case, then police would be free to plant drugs on innocent people one second and charge them with criminal possession the next.

Weapon possession refers to a class of crime regarding the unlawful possession of a weapon by a citizen within an established society.

Many societies both past and present have placed restrictions on what forms of weaponry private citizens (and to a lesser extent police) are allowed to purchase, own, and carry in public. Such crimes are public order crimes and are considered mala prohibita, in that the possession of a weapon in and of itself is not evil. Rather, thepotential for use in acts of unlawful violence creates a possible need to control them. Some restrictions are strict liability, whereas others require some element of intent to use the weapon for an illegal purpose. Some regulations allow a citizen to obtain a permit or other authorization to possess the weapon under certain circumstances. Lawful uses of weapons by civilians commonly include hunting, sport, collection and self-preservation.

Types. Criminal possession of a weapon generally falls into one of several categories:

·         Mere possession – The strictest of standards, some weapons are prohibited from any form of private ownership at all, even if kept in one’s dwelling under secure conditions (such as a safe). Typically this covers dangerous military devices with almost no usefulness to civilians, such as bombs, artillery, machine guns, nuclear devices and chemical weapons. However, this may also include possession of otherwise legal weapons by a person who is prohibited by law or court-order from possessing them (reasons include prior criminal convictions, conditions of probation or parole, and court-documented mental illness).

·         Carry of a concealed weapon - A restriction on carrying of certain weapons on one’s person in such a manner that it is hidden from view of others. This can sometimes include somewhere in the same vehicle or close to one’s immediate surroundings where the weapon is easily reachable.

·         Carry in plain sight – The opposite of concealed carry, some jurisdictions make it a crime to carry certain weapons in plain view of others. Reasoning may include to prevent intimidation or menacing, to create a friendlier-looking population by removing visual symbols of violence, or to spite/control a segment of the population known for the carry of certain weapons (such as the samurai caste during the Meiji era).

·         Carry on or about the person – A combination of the above, this type of restriction makes it illegal to carry the weapon at all, whether concealed or not. This may or may not include the person’s own land or place of business.

Strict Liability vs. Specific intent. All weapon possession crimes follow some standard of intent (mens rea), though this standard varies . The most common is “strict liability,” meaning that there is no requirement of intent whatsoever: Merely being caught by law enforcement with the weapon in question under the circumstances described in the law (possession, concealed, or open)is a crime in and of itself, with almost no possible defense other than proving the item is not an illegal weapon within the law’s definition. Some laws allow the accused a defense to the charge that the item in question was going to be used for a specific set of lawful purposes, such as one’s occupation (examples are sets of knives carried by a line cook en route to his job, or tools carried by a construction worker or craftsman). In this case, the burden of proof is often placed on the accused, requiring them to prove their lawful intent in court.

Other laws require proof of specific intent to commit a criminal act by the accused, thereby placing the burden on the state to produce evidence that the weapon was possessed with some unlawful purpose (such as an attempted homicide, robbery, or assault). The circumstances under which law enforcement discover the weapon often play a strong role in this.

Constructive possession is a legal fiction to describe a situation where an individual has actual control over chattels or real property without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a person with actual possession. (For example, if one’s car is sitting in one’s driveway, one has physical possession of the car. However, any person with the key has constructive possession, as they may take physical possession at any time without further consent from one.)

1.      Constructive possession is an important concept in both the criminal law regarding theft and embezzlement, and the civil law regarding possession of land and chattels. For example, if someone steals your credit card number, the actual credit card never leaves your actual possession, but the person who has stolen the number does have constructive possession, and could most likely be charged with theft of your credit card information.

2.      Constructive possession is also an important concept in cases of seizure of goods by private or government authorities. Take, for example, a large piece of equipment. Should money be loaned against the value of the equipment, and the loan goes into default, the creditor may find it difficult to actually remove the equipment in a timely manner. However, it may by notice to the borrower take constructive possession, which effectively prevents the borrower from further using the equipment pending its removal. Similarly, when a landlord exercises a contractual remedy of distraint of goods for unpaid rent, the landlord need not remove the goods from the premises, but may take constructive possession of the goods through a simple declaration. At that point, if the tenant attempted to remove them, the tenant would be guilty of theft.

3.      However, a person who makes it impossible to take possession of another’s property has taken actual possession, not constructive possession. For example, if someone chains someone else’s car to an immovable object, he or she has taken possession of it even though he or she has not moved it.

4.      Constructive possession can also refer to items inside of a vehicle. It is possible for the owner and driver of the vehicle to be in constructive possession of all items inside their car. If a minor were to be driving their car with passengers who have possession of alcohol or any illegal substance, the driver may be cited for constructive possession

5.      A person can be charged with constructive possession of an illegal device if they possess the otherwise legal material to assemble it. If a person has in his possession or control the ingredients to make an explosive device, he can be charged with constructive possession of that device.

Possessio bona fide means “possession in good faith”. A person is said to possess an object in good faith when s/he possesses such object being ignorant about the fact that any other person has a better title over the same than himself/herself. It is to be noted that such a possessor is entitled to all the benefits of the object.

The saying “possession is nine points of the law” is an old common law precept that means:

One who has physical control or possession over the property is clearly at an advantage or is in a better possession than a person who has no possession over the property. Even if a person is the rightful owner of the property but has no possession over it, the person who is in possession will be in a better position should the property ever be subject to challenge.

This is especially true with adverse possession. However mere possession alone does not grant the possessor rights in the property superior to those of the actual owner. This adage “possession is nine tenths of the law” is not a law but a logical rule of force that has been recognized across ages.

In re Garza, 984 S.W.2d 344, 347 (Tex. App. 1998), Texas court has held that “Despite the old saying that “possession is 9/10ths of the law,” mere possession and whatever right to the property that comes with mere possession does not grant the possessor rights in the property superior to those of the actual owner. J. CRIBBET, PRINCIPLES OF THE LAW OF PROPERTY 12-13 (1962); R. BOYER, SURVEY OF THE LAW OF PROPERTY 679-80 (1981).

In other words, there is a hierarchy of ownership, as reflected both in the common law and §1.07(35)(a) of the Penal Code:

One in possession of chattel has a greater right to it than one who lacks both possession and title. Yet, one who has title maintains a greater right over the chattel than 1) one who simply has possession and 2) one who has neither possession nor claim of ownership.Id. Indeed, it can be said that the title owner has the greatest rights to the property. With that greatest right comes the power to negate the authority of those with lesser right. Similarly, those who stand in the lesser position lack the power to override or negate the rights of the title owner.”

Possession of an instrument of crime is a criminal charge governed primarily by state laws, which vary by state. Such a charge is typically brought in cases involving drugs or weapons. The following is an example of a state law dealing with possession of an instrument of crime:

§ 907. Possessing an Instrument of Crime (c) Definitions.–As used in this section the following words and phrases shall have the meanings given to them in this subsection:

1.      “Instrument of crime.” Anything specially made or specially adapted for criminal use; or

2.      Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have. This shall include, but not be limited to, common burglary tools, tire irons, stun guns and baseball bats.

The offense of property possession of stolen property is made up of two parts.

  1. First, a person charged with this offense must have property that was (or was partly) gained by theft, fraud, orany other crime.
  2. Second, the person must have known that the property was stolen or gained by fraud. Also, if the prosecutor can show that it was obvious that a reasonable person would have thought the property was stolen and the accused failed to investigate whether it was stolen or not, he or she can be found guilty of possession of stolen property.

A person who is innocently in possession of stolen goods will not be guilty of a crime, but generally, the goods will be returned to the owner.

26 USCS § 5861 (d) makes it a Federal crime or offense to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record. In order for a person to be guilty of the offense, it should be proved beyond reasonable doubt that the person possessed a “firearm; and the “firearm” was not at that time registered to the person in the National Firearms Registration and Transfer Record.

Possessory Action is an action to obtain, recover, or maintain physical possession of property, and not title to it.

INTENT: DEFINED

Intent refers to the state of mind accompanying an act especially a forbidden act. It is the outline of the mental pattern which is necessary to do the crime. At times criminal intent is used in the sense of mens rea-the mental element requisite for guilt of the offense charged.

Malicious intent refers to the intent, without just cause or reason, to commit a wrongful act that will result in harm to another. It is the intent to harm or do some evil purpose.

Criminal intent means the intent to do something wrong or forbidden by law.

Example of a case law on criminal intent: Where a person intends to kill or injure someone, but in the course of attempting to commit the crime accidentally injures or kills a third party, the defendant’s criminal intent will be transferred to the third party. Under this doctrine called the Felony murder doctrine, the felonious intent involved by underlying felony may be transferred to supply intent to kill necessary to characterize the homicide as murder. [State v. Julius, 185 W.Va. 422, 431 (W.Va. 1991)]

WEAPONS AND WARRANTS

“Weapon.” Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and components which can readily be assembled into a weapon.

A post Adjudication warrant is a warrant that is issued after adjudication when a defendant fails to comply with the sentence.

Anticipatory search warrant is a search warrant that is issued on the basis of an affidavit showing probable cause that evidence of a certain crime will be located at a specific place in the future.

“Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time – a so-called “triggering condition.” For instance, that the execution of a search warrant would not occur unless and until specific contraband had been received by a person(s) and had been physically taken into the residence. If the government were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at the searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued.” [United Statesv. Grubbs, 547U.S.90 (U.S.2006)

The Armed Career Criminal Act of 1984 (ACCA)

The Armed Career Criminal Act of 1984 (ACCA) is a U.S federal law that provides sentence enhancements for felons who commit crimes with firearms, if convicted of certain crimes three or more times. This law imposes special mandatory prison term of fifteen years on a felon who unlawfully possessed firearm, and has had three or more previous convictions for "violent felony" amongst others.

The Armed Career Criminal Act defines a “violent felony” as any crime punishable by imprisonment for a term exceeding one year that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. [18 U.S.C.S. § 924(e)(2)(B). ]

The Armed Career Criminal Act focuses upon the special danger created when a particular type of offender like a violent criminal or drug trafficker who possesses a gun. In order to determine which offenders fall into this category, the Act looks to past crimes. This is because an offender’s criminal history is relevant to the question whether s/he is a career criminal, or, more precisely, to the kind or degree of danger the offender would pose were he to possess a gun.[ Begay v.United States, 553 U.S. 137 (U.S. 2008)]

A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an Armed Career Criminal. See § 4B1.4. (18 USCS Appx § 2K2.1

CRIMINAL: DEFINED, INSTRUMENTALITY RULE, AND CRIMINAL HISTORY RECORDS

Criminal-Instrumentality Rule refers to a principle of criminal law that where the wrong was accomplished by a criminal act, the crime, and not the negligent act of the party which made it possible, is the proximate cause.

Criminal History Record Information (CHRI) means information about the history of an individual’s contacts with the state’s law enforcement agencies. CHRI is created by entering data from fingerprint cards and then such information is directly submitted to an automated system electronically. This information is then available for use by criminal justice agencies and other requestors of a person’s criminal record. However, CHRI does not include identification information such as fingerprint records that do not indicate criminal involvement of an individual and requests for confirmation of active warrants.[1]

According to 42 USCS § 3791 [Title 42. The Public Health and Welfare; Chapter 46. Justice System Improvement; Definitions], “criminal history information” includes records and related data, contained in an automated or manual criminal justice informational system, compiled by law enforcement agencies for the purpose of identifying criminal offenders and alleged offenders and maintaining as to such persons records of arrests, the nature and disposition of criminal charges, sentencing, confinement, rehabilitation, and release.

Criminal evidence means any exhibit or testimony presented in relation to a crime. It is evidence presented to prove a crime. Criminal evidence may be presented in different forms. Such evidences are used to establish crimes.

1.      Before deciding a case, it is very important to ensure that the criminal evidence that is presented is legal and accurate. The requirements relating to a valid criminal evidence differs between legal systems. Generally, both direct and circumstantial evidences are presented before a jury.

2.      Verbal or written testimony forms a major part of criminal evidence. Testimonies may come from many sources. It can come from principal parties such as the victim and the suspect, and also from parties who are not related to crimes, for example, experts. Physical criminal evidence may include things such as clothing, jewelry, weapons. It may also include DNA evidence such as saliva, nails, blood, hair, or bodily fluids. Physical evidence can be either direct or circumstantial, but always involves tangible objects.

Pursuant to 41 USCS § 706 [Title 41. Public Contracts; Chapter 10.Drug-Free Place], the term criminal drug statute means “a criminal statute involving manufacture, distribution, dispensation, use, or possession of any controlled substance.”

A criminal disposition sheet provides the details of disposition of a criminal case. It records the outcome of the case including any sentence which is imposed.

Criminal damage to property encompasses the crimes of: criminal mischief, criminal tampering, criminal use and possession of noxious substance, defacement, desecration, and criminal littering. A person commits the crime of criminal mischief in the first degree if, with intent to damage property, and having no right to do so or any reasonable ground to believe that he or she has such a right, he or she inflicts damages to property of a certain dollar amount.

Crimnial tampering is usually defined as when a person, having no right to do so or any reasonable ground to believe that he has such a right, tampers via an improper interference, meddling with or an unwarranted alteration in the condition of property of another.

Contempt is simply put, the disrespect for the rules of a court of law. The disrespect is shown with the aim of obstructing justice and comprises of acts like threatening a judge or witness, or disobeying an order to produce evidence. Since the judge of a court has the discretion to control the court, the judge shall impose a fine and /or jail time for an offender.

In a criminal conspiracya partnership in crime – is defined as “an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means.” In order to be convicted … a defendant must be shown to have “entered into an unlawful confederation for the criminal purposes alleged.”

According to the pattern jury instructions for criminal prosecutions … there are three essential elements of such a conspiracy offense:

 (1) “that the defendant and [another] entered into an agreement”;

(2) “that the agreement was to commit [a crime]“; and

(3) “that the defendant and [his coconspirator(s)] intended that the agreement be carried out at the time it was made.”United Statesv. White, 571 F.3d 365, 368 (4thCir.N.C.2009)

Criminal charge is a formal accusation of an offense. It is the preliminary step to prosecution.

Criminal case is “an action, suit, or cause instituted to punish an infraction of the criminal laws, and, with this object in view, it matters not in what form a statute may clothe it, it is still a criminal case . . .” People v. Nakamura, 125 Cal. App. 268, 273 (Cal. App. 1932).

Criminal behavior refers to conduct of an offender that leads to and including the commission of an unlawful act. Following are examples of case laws on criminal behavior:

1.      Sexual acts with a 10 year old child clearly constitute criminal behavior. The evidence of the appellant’s prior sexual acts was properly considered by the trial court as criminal behavior. [State v. Robinson, 1998Tenn. Crim. App. LEXIS 1325 (Tenn. Crim. App. 1998)].

2.      A trial court may utilize criminal behavior shown by a preponderance of the evidence to enhance a sentence without violating federal or state due process. [State v. Robinson, 1998Tenn. Crim. App. LEXIS 1325 (Tenn. Crim. App. 1998)].

Criminal action is an action instituted by the government to punish offenses against the public. A state can institute an action against an individual or group of individuals for violating state criminal laws. Criminal action is a procedure by which a person accused of committing a crime is charged, brought to trial and judged. Main part of a criminal action is the trial where innocence or guilt of accused is determined. If the accused is found guilty, fine (which goes to state), imprisonment or even death sentence will be imposed. It depends upon the punishment provided in the statute under which the accused is prosecuted.

Criminal act is an act committed by a person that violates a law and which is punishable by the government. Criminal acts are offenses against the public which are punishable. It can be any act or omission or possession which poses a threat to the public.

Crimes related to custody include escape or aiding escape, bail jumping, hindering arrest or prosecution, promoting prison contraband, and resisting arrest. Custody is generally defined as a restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court, but does not include mere supervision of probation or parole, or constraint incidental to release on bail. Custody may be confinement in a detention facility or penal facility.

Persons assisting others to evade custody may be criminally liable if the person:

1.      Harbors or conceals such person;

2.      Warns such person of impending discovery or apprehension; except that this subdivision does not apply to a warning given in connection with an effort to bring another into compliance with the law;

3.      Provides such person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension;

4.      Prevents or obstructs, by means of force, deception or intimidation, anyone except a trespasser from performing an act that might aid in the discovery or apprehension of such person; or

5.      Suppresses, by an act of concealment, alteration or destruction, any physical evidence that might aid in the discovery or apprehension of such person.

According to 8 USCS § 1227 [Title 8. Aliens and Nationality; Chapter 12. Immigration and Nationality; Immigration; Inspection, Apprehension, Examination, Exclusion, and Removal], “Crimes of moral turpitude” means “any alien who

1.      is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) [8 USCS § 1255(j)]) after the date of admission, and

2.      is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.”

Crimes against nature is a term that usually refers to sodomy (anal sexual intercourse) or bestiality (sex with an animal). A crime against nature may also refer to:

1. Buggery – anal intercourse between a man and either a man or a woman.

2. Pederasty – buggery committed between a man and a young boy.

3. Fellatio – the oral stimulation of the male sex organ.

4. Cunnilingus – the oral stimulation of the female sex organ.

Crimes against humanity are offences that involve a serious attack on humanity or which involves a humiliation or degradation of human beings. Crimes against humanity must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act can qualify as a crime against humanity. A single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offenses to be held liable.

Crimen omnia ex se nata vitiat  means ‘crime vitiates every thing which springs from it.’ This phrase is a part of both civil and common law. It states that a crime vitiates every thing that proceeds from the crime. For example, a property obtained by the crime is tainted.

Crimen falsi literally means the crime of falsehood or crime of deceit. According to common law the main elements of crimen falsi are falsehood and fraud. Examples of crimen falsi include;

1.      forgery,

2.      falsehood,

3.      fraud,

4.      willful imposition,

5.      perjury,

6.      conspiracy,

7.      subornation of perjury,

8.      use of false weights and measures and fraudulent making

9.      or alteration of writing.

According to 18 USCS § 3771, the term crime victim means “the person against whom the State offense is committed or, if that person is killed or incapacitated, that person’s family member or other lawful representative.”

Crime victim’s rights refer to the rights offered by state and federal laws to a person who has become a victim of any crime. Almost every state in theU.S. has passed laws protecting the victims of crime. Although the specifics vary from state to state, generally most victim rights laws provide the following rights to the victims: the right to be treated with dignity and compassion; the right to protection from intimidation and further harm; the right to be informed about the progress of the case through the criminal justice system, including notice of a plea bargain; the right to receive compensation for damages; the right to equal treatment in court and the right to have their property returned promptly, if found by the police.

The following is an example of a federal statute on crime victims rights:

According to 18 USCS § 3771, a crime victim has the following rights:

1.      The right to be reasonably protected from the accused.

2.      The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.

3.      The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

4.      The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.

5.      The reasonable right to confer with the attorney for the Government in the case.

6.      The right to full and timely restitution as provided in law.

7.      The right to proceedings free from unreasonable delay.

8.      The right to be treated with fairness and with respect for the victim’s dignity and privacy.

Collateral consequences of criminal charges are the various consequences which are beyond the terms of the conviction under federal and state laws, but not intended by the judge while convicting. It is the result of the arrest, prosecution or conviction that is not part of the sentence imposed. For example, disenfranchisement, disentitlement of education loans, loss of professional licenses, or eviction from public housing are the collateral consequences attached with the conviction for felony. It is also known as the “Four C’s.” Sometimes it also includes the unintended or unforeseen impact of the charge, without a conviction or a trial. For instance, the arrest itself may have serious consequences such as loss of a job due to unavailability of bail, loss of public housing and social stigma.

VIOLENT CRIMES: DEFINED

The definition of violent crime suggests that

Violence is a behavior by persons, against persons or property that intentionally threatens, attempts, or actually inflicts physical harm.

The seriousness of the injuries to the victim(s), whether or not guns or other weapons were used and/or whether or not the alleged perpetrator has a criminal record will alter the crime’s seriousness.

Often times, violent crimes against individuals and their property are typically infused with hatred, or at the very least an incredible disregard for the worth and rights of another human being which may also alter the crimes severity in the eyes of a judge or jury. The most common violent crimes are:

  1. aggravated assault,
  2. arson,
  3. assault and battery,
  4. domestic violence,
  5. hate crimes,
  6. homicide,
  7. manslaughter,
  8. mayhem,
  9. murder,
  10. terrorism and
  11. theft/larceny.

Of all violent crimes, homicides are the most serious — a crime that results in the death of another human being. Homicide can be charged as an intentional killing such as murder or manslaughter or as a negligent killing such as involuntary manslaughter.

1.      Murder and manslaughter are the most serious homicides which can result in lengthy prison terms or a death sentence.

2.      Involuntary manslaughter, a crime where there is no intention to kill or do grievous bodily harm, also can result in a long prison sentence.

The law generally differentiates between levels of criminal culpability based on the state of mind of the perpetrator.  This is particularly true with respect to the law of homicide.  Intentional murder requires an intent to kill, usually referred to as malice.  However, there a several mitigating factors that can reduce an intentional murder to a crime of manslaughter.

Manslaughter consists of two distinct categories: voluntary manslaughter and involuntary manslaughter.

Voluntary manslaughter occurs when the defendant has the intention to kill or cause serious harm.  However, unlike a planned murder in which there was malice aforethought, in case of voluntary manslaughter there are certain mitigating circumstances which reduce culpability.  Traditionally, the mitigating factor for voluntary manslaughter was provocation or a murder committed in “the heat of passion.”  That is, a murder committed in response to a provoking circumstance such as coming home and finding a spouse with his/her lover.  The defenses used to mitigate murder to voluntary manslaughter include:

1.      Provocation: The occurrence of an event which would cause a reasonable person to lose control and thereby result in the killing.

2.      Imperfect self-defense: This is allowed as a defense only in a limited number of jurisdictions in theUnited States.  Self-defense is generally a complete defense to murder.  However, in the case of an imperfect self defense, a person who acted in an honest but unreasonable belief that deadly force was necessary for self-defense could still be convicted of voluntary manslaughter or deliberate homicide committed without criminal malice.

3.      Diminished capacity or a mental breakdown:  This can be a defense to negate the mental state of “malice”.  The law of theUnited States permits a state legislature to choose a diminished mental state to justify the finding of a lesser crime.  Even though insanity is also permitted as a defense under law, this defense is different from the defense of insanity.

In case of involuntary manslaughter, there is an improper use of reasonable care or skill while performing a legal act, or while committing an act that is unlawful but not felonious.  There are two types of involuntary manslaughter statutes: criminally negligent manslaughter and unlawful act manslaughter.

1.      In case of criminally negligent manslaughter, death of the person results due to a high degree of negligence or recklessness on the part of the accused.

2.      Unlawful act manslaughter occurs when someone causes a death while committing or attempting to commit an unlawful act, usually a misdemeanor.

Suicide is the taking of one’s own life. Suicide and attempted suicide used to be crimes, but no longer are criminal offenses.

Assisted suicide is a crime in almost all states, so incidents are almost always kept secret to avoid possible prosecution, although this is extremely rare.

“Violent” for purposes of 18 U.S.C.S. § 924 is defined as

 “resulting from extreme or intense force and as vehemently or passionately threatening.”

 United States v. White, 571 F.3d 365 (4thCir.N.C. 2009)

Violence is the exertion of any physical force so as to injure or abuse. West v. Schriro, 2007U.S. Dist. LEXIS 90802 (D.Ariz. Nov. 28, 2007).

THE VIOLENCE AGAINST WOMEN ACT

Violence Against Women Act (VAWA) is a broad-based law formulated in 1994 in response to the increasing violence against women inAmerica. The Act has provisions starting from funding of domestic-violence programs to new civil rights remedies for women who were victims of gender-based attacks.

VAWA provides for education, research, treatment of domestic and sex-crime victims, creation of rape crisis centers and battered women’s shelters. The Act also authorizes additional local police, prosecutors, victim advocates, and a domestic violence hotline to check the increasing violence. It distributed funds to increase safety for women on public transportation, for shelters, and for youth education programs.

Funds were also made available to provide special training for judges who hear domestic violence cases. VAWA in short expanded rape shield laws, created offenses for interstate spousal abuse, and allowed victims of gender-based crimes to sue those responsible in federal court.

According to 24 CFR 5.100 (Title 24 – Housing And Urban Development Subtitle A – Office Of The Secretary, Department Of Housing And Urban Development; Part 5 – General HUD Program Requirements; Waivers; Subpart A – Generally Applicable Definitions And Federal Requirements; Waivers), violent criminal activity means “any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage.” (24 CFR 5.100)

According to 8 USCS § 1227 [Title 8. Aliens and Nationality; Chapter 12. Immigration and Nationality; Immigration; Inspection, Apprehension, Examination, Exclusion, and Removal], “violators of protection orders” means

“any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable.”

For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.”

Violent death refers to death resulting from a sharp blow, stabbing, explosion, gunfire, or the like. The death is accelerated by human intervention. It is the opposite of natural death which occurs due to natural reasons.

VIOLENT FELONY: DEFINED AND TYPES OF OFFENSES

A violent felony is defined as

“any crime punishable by imprisonment for a term exceeding one year . . . that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

United Statesv. Thrower, 2009U.S.App. LEXIS 22484, 4-5 (2dCir.N.Y.Oct. 14, 2009)

According to 42 USCS § 3797u-2 [Title 42. The Public Health and Welfare; Chapter 46. Justice System Improvement; Drug Courts], the term “violent offender” means a person who–

(1) is charged with or convicted of an offense that is punishable by a term of imprisonment exceeding one year, during the course of which offense or conduct:

(A)  the person carried, possessed, or used a firearm or dangerous weapon;

(B)   there occurred the death of or serious bodily injury to any person; or

(C)   there occurred the use of force against the person of another, without regard to whether any of the circumstances described in subparagraph (A) or (B) is an element of the offense or conduct of which or for which the person is charged or convicted; or

(D)  has one or more prior convictions for a felony crime of violence involving the use or attempted use of force against a person with the intent to cause death or serious bodily harm.

(b) Definition for purposes of juvenile drug courts. For purposes of juvenile drug courts, the term “violent offender” means a juvenile who has been convicted of, or adjudicated delinquent for, a felony-level offense that–

(1) has as an element, the use, attempted use, or threatened use of physical force against the person or property of another, or the possession or use of a firearm; or

(2) by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Felony offense is defined as

“any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.”

United Statesv. White, 2009U.S.App. LEXIS 25063, 6-7 (11thCir.Ga.Nov. 16, 2009)

A definition of “aggravated felony” can be found in the commentary to the U.S. Sentencing Guideline Manual § 2L1.2:

“aggravated felony,” as used in 8 USCS § 1326(b)(2), means any crime of violence, as defined in 18 USCS § 16, not including a purely political offense, for which the term of imprisonment imposed, regardless of any suspension of such imprisonment, is at least five years. The Immigration Act provided that the amended definition of aggravated felony applied to “offenses committed on or after the date of the enactment of this Act [November 29, 1990].”

United Statesv. Lazo-Ortiz, 136 F.3d 1282 (11thCir.Fla.1998)

Prior to the enactment of IIRIRA, the law defined an aggravated felony as including; inter alia,

“an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $ 200,000.” 8 USCS § 1101(a)(43)(M)(i). IIRIRA, however, changed the definition of “aggravated felony” by changing the requisite loss amount from $ 200,000 to $ 10,000. Furthermore, IIRIRA provides specifically that “the amendments made by this section shall apply to convictions entered on or after the date of enactment of this Act,” IIRIRA § 321(b), and that “the amendments . . . shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred”, IIRIRA § 321(c).

[Bazuaye v. United States INS, 1997U.S.Dist. LEXIS 2996, 4-5 (S.D.N.Y. Mar. 17, 1997)].

OFFENSES: DEFINED

Another felony offense is defined as

“any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.”

United Statesv. Hill, 2009U.S.App. LEXIS 23082, 4-5 (8th Cir.Mo.Oct. 22, 2009)

Another offense means

“any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, regardless of whether a criminal charge was brought, or a conviction obtained.”

(18 USCS Appx § 2K2.1)

Arrestable Offense refers to an offense for which the punishment is fixed by law or for which a statute authorizes imprisonment for five years. It can also be an attempt to commit such an offense. No arrest warrant is required to arrest a person who is accused or suspected of, or is about to commit, an arrestable offense. This statutory category was created in 1967 and it abolished the traditional distinction between felonies and misdemeanors.

Cognate offense refers to a lesser offense that is related to the greater offense because it shares several of the elements of the greater offense and is of the same class or category. For example, shoplifting is a cognate offense of larceny because both crimes require the element of taking property with the intent to deprive the rightful owner of that property.

At common law a jury might convict of a cognate offense of the same character but of a less aggravated nature if the words of the indictment were wide enough to cover such an offence. [People v. Novak, 163Ill.2d 93 (Ill.1994)

The act of doing or perpetrating an offense or immediate flight after doing an offense is called commission of an offense.

Compound offense refers to an offense composed of one or more separate offenses. For example, robbery is a compound offense as it is composed of larceny and assault.

Cumulative offense is an offense committed by repeating a similar act at different times. It is a divisible offense. It can also be a crime that includes one or more crimes of lesser grade. For example, murder is a divisible offense comprising of assault, battery, and assault with intent to kill.

Admissible evidence is that evidence which may be received by the judge or jury in a case in order to decide the merits of a controversy. Rules of evidence, which vary by jurisdiction, determine the admissibility of evidence. It is the judge's duty to apply the rules of evidence in the case at hand to determine its admissibility, however, the judge need not introduce all admissible evidence.

For example, evidence which is cumulative (duplicative) of previously introduced evidence may be excluded in the interest of judicial economy. Judges may also exclude evidence when its probative value (tendency to prove the truth or falsity of an issue in controversy) is outweighed by considerations of its prejudicial effect on the passions of the jury, tendency to mislead or confuse the jury, or unwarranted consumption of court time.

Under 26 USCA § 861 (a), firearms is defined as

"a shot gun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition."

United Statesv. Adams, 11 F. Supp. 216, 217 (S.D.Fla.1935)

Law involving firearms governs the registration of any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device.

Title 26, U.S.C., Sec. 5861(d), makes it a Federal crime or offense for anyone to possess certain kinds of firearms which are not registered to him in the National Firearms Registration and Transfer Record. Laws govern who may own firearms, such as prohibiting felons to carry guns, childrens' access to firearms, recordkeeping, transport, and licensing of those dealing in firearms. Federal law makes it unlawful for any person except a licensed dealer to engage in the business of dealing in firearms. Some states have also adopted dealer regulations.

Federal law does not regulate the carrying of concealed weapons. It does, however, provide that persons who have been issued state permits to purchase or possess firearms are exempt from background checks if those permits were issued: 1) within the previous five years in the state in which the transfer is to take place; and 2) after an authorized government official verified that possession of a firearm would not be unlawful. States may adopt laws requiring background checks under such circumstances, however. Most states allow the carrying of concealed weapons by persons who obtain a permit.

The Brady Handgun Violence Prevention Act of 1993 amended the Gun Control Act to require federally licensed firearms dealers - but not private sellers - to perform background checks on prospective handgun purchasers to ensure that the firearm transfer would not violate federal or state law. Prior to the adoption of the Brady Act, gun sales were governed by the “honor system,” i.e., a dealer was permitted to rely upon the representations of a purchaser regarding his or her eligibility to own firearms.

The following is an example of a state law dealing with possession of firearms by felons:

"Ownership or possession prohibited, when; penalty.

(a) No person who is a fugitive from justice shall own, possess, or control any firearm or ammunition therefor.

(b) No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.

(c) No person who:

Is or has been under treatment or counseling for addiction to, abuse of, or dependence upon any dangerous, harmful, or detrimental drug, intoxicating compound as defined in section 712-1240, or intoxicating liquor;

2.      Has been acquitted of a crime on the grounds of mental disease, disorder, or defect pursuant to section 704-411; or

3.      Is or has been diagnosed as having a significant behavioral, emotional, or mental disorders as defined by the most current diagnostic manual of the American Psychiatric Association or for treatment for organic brain syndromes;shall own, possess, or control any firearm or ammunition therefor, unless the person has been medically documented to be no longer adversely affected by the addiction, abuse, dependence, mental disease, disorder, or defect.

(d) No person who is less than twenty-five years old and has been adjudicated by the family court to have committed a felony, two or more crimes of violence, or an illegal sale of any drug shall own, possess or control any firearm or ammunition therefor.

(e) No minor who:

1.      Is or has been under treatment for addiction to any dangerous, harmful, or detrimental drug, intoxicating compound as defined in section 712-1240, or intoxicating liquor;

2.      Is a fugitive from justice; or

3.      Has been determined not to have been responsible for a criminal act or has been committed to any institution on account of a mental disease, disorder, or defect; shall own, possess, or control any firearm or ammunition therefor, unless the minor has been medically documented to be no longer adversely affected by the addiction, mental disease, disorder, or defect.”

Criminal Possession refers to

unlawful possession of certain prohibited articles like illegal drugs or drug paraphernalia, firearms or stolen property.

It is possession for which there are criminal sanctions because the property is not lawfully possessed.

Criminal negligence is

“Negligence which requires a greater degree of culpability than the civil standard of negligence.

1.      The civil standard of negligence is defined according to a failure to follow the standard of conduct of a reasonable person in the same situation as the defendant.

2.      To show criminal negligence, the state must prove beyond a reasonable doubt the mental state involved in criminal negligence.

3.      Proof of that mental state requires that the failure to perceive a substantial and unjustifiable risk that a result will occur must be a gross deviation from the standard of a reasonable person.

Criminal negligence is conduct which is such a departure from what would be that of an ordinary prudent or careful person in the same circumstance as to be incompatible with a proper regard for human life or an indifference to consequences. Criminal negligence is negligence that is aggravated, culpable or gross. The following is an example of one state’s statute defining criminal negligence:

”A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

Criminal mischief is a crime governed by state laws, which vary by state. It generally involves any damage, defacing, alteration, or destruction of tangible property with criminal intent. The following is an example of a state law governing criminal mischief:

Criminal mischief in the fourth degree. A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he has such right, he:

·         Intentionally damages property of another person; or

·         Intentionally particpates in the destruction of an abandoned building as defined in section one thousand nine hundred seventy-one-a of the real property actions and proceedings law; or

·         Recklessly damages property of another person in an amount exceeding two hundred fifty dollars.

Criminal mischief in the fourth degree is a class A misdemeanor.

S 145.05 Criminal mischief in the third degree. A person is guilty of criminal mischief in the third degree when

·         with intent to damage property of another person, and

·         having no right to do so nor any reasonable ground to believe that he has such right,

·         he damages property of another person in an amount exceeding two hundred fifty dollars.

Criminal mischief in the third degree is a class E felony.

S 145.10 Criminal mischief in the second degree. A person is guilty of criminal mischief in the second degree when

·         with intent to damage property of another person, and

·         having no right to do so nor any reasonable ground to believe that he has such right,

·         he damages property of another person in an amount exceeding one thousand five hundred dollars.

Criminal mischief in the second degree is a class D felony.

S 145.12 Criminal mischief in the first degree. A person is guilty of criminal mischief in the first degree when

·         with intent to damage property of another person, and

·         having no right to do so nor any reasonable ground to believe that he has such right,

·         he damages property of another person by means of an explosive.

Criminal mischief in the first degree is a class B felony.

Criminal libel is a crime and can be prosecuted in a criminal court like any other crime. The procedure is known as the criminal libel action. In a criminal libel action the state is the accuser and the punisher. Any person convicted in a criminal libel action can be imposed with a fine or with imprisonment.

Criminal intent means the intent to do something wrong or forbidden by law.

Intent refers to the state of mind accompanying an act especially a forbidden act. It is the outline of the mental pattern which is necessary to do the crime. At times criminal intent is used in the sense of mens rea-the mental element requisite for guilt of the offense charged.

Example of a case law on criminal intent: Where a person intends to kill or injure someone, but in the course of attempting to commit the crime accidentally injures or kills a third party, the defendant’s criminal intent will be transferred to the third party. Under this doctrine called the Felony murder doctrine, the felonious intent involved by underlying felony may be transferred to supply intent to kill necessary to characterize the homicide as murder.[State v. Julius, 185 W. Va. 422, 431 (W. Va. 1991)]

A criminal conspiracy is

an agreement between two or more persons to commit an illegal act, or to achieve a legal objective through illegal means, accompanied by an overt act in furtherance of the agreement. 

1.      Generally, a conspiracy to commit a crime is an offense separate and distinct from the crime that is the object of the conspiracy.

2.      Conspiracy is punishable irrespective of whether its object fails, or if the crime has or has not been committed.

3.      There is no limit on the number of individuals participating in the conspiracy, and no requirement that any steps have been taken to put the plan into effect.

4.      The guilty act for the offense of conspiracy is a continuing one, and all parties, who join the plot later on will also be charged with conspiracy and be jointly liable along with the co-conspirators.

5.      There is no requirement that the conspiracy needs to be planned in secret.

6.      Conspiracy law does not require proof of specific intent to injure any specific person.

7.      The law only requires the conspirators agree to engage in a certain illegal act.

8.      Initially, the crime of conspiracy was just an agreement to engage in an unlawful act with the intent to carry out the act.  However, federal statutes as well as several state statutes now require not only agreement and intent but also the commission of an overt act in furtherance of the agreement. Following are the elements required for a conspiracy to take place:

a.       There should be an agreement between two or more persons.  The agreement must be made voluntarily and with intent to participate in furthering a common illegal purpose;

b.      The conspirators should have done the acts with a criminal intent.  Both the parties must intend to and agree to engage in the unlawful act. Either the purpose of the agreement or the means by which it is accomplished must be illegal.  One who provides services to conspirators will not be guilty of conspiracy if that person has not participated in the agreement and does not know that a conspiracy exists; and

c.       An overt act should have been committed.  The overt act must follow the agreement and must be executed with intent to carry out the purpose of the conspiracy.

d.      When measures are taken to conceal evidence of the crime, the act also amounts to conspiracy.  A person who did not participate in the original agreement can become a co-conspirator after the actual criminal act if the person joins in the concealment of the conspiracy.

An overt act, in the context of criminal law, is

an action which might be innocent itself but if part of the preparation and active furtherance of a crime, can be introduced as evidence of a defendant’s participation in a crime.

Although the mere contemplation or intention to commit a crime is insufficient to convict a person of a criminal attempt, conspiracy or treason, a manifestation of such an intent by an overt act is sufficient.

The overt act required to charge someone with an attempted crime goes beyond preparatory steps and is a direct movement toward the commission of the offense.

For example, a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson to applying a burning match to a haystack, even if no fire results.

The overt act need not be the last act essential to the consummation of the offense.

Criminal Conversion. A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion.

1.      The element of knowledge is found when the accused person engages in the conduct and he is aware of a high probability that he is doing so.

2.      An essential element of criminal conversion is that “the property must be owned by another and the conversion thereof must be without the consent and against the will of the party, to whom the property belongs, coupled with the fraudulent intent to deprive the owner of the property.”[2]

Unlike criminal conversion, the mens rea is not an element and good faith is not a defense in the case of tortious conversion.

Conversion, as a tort, consists

“either in the appropriation of the personal property of another to the party’s own use and benefit, or in its destruction, or in exercising dominion over it, in exclusion and defiance of the rights of the owner or lawful possessor, or in withholding it from his possession, under a claim and title inconsistent with the owner’s.” [3]

Conversion is also different from unjust enrichment.  An unjust enrichment action is based on moral principles and holds that one who has received a benefit has a duty to make restitution to the aggrieved party where retaining such a benefit would be unjust.[4]

Criminal intent is the most crucial element in a criminal conversion action.[5]  The intention or mens rea requirement differentiates criminal conversion from the less serious breach of contract or failure to pay debt crimes.[6]  However, this does not mean that the person committing the crime should have actual knowledge of the law regarding conversion, but such person should know the facts pertaining to the crime.

Knowledge coupled with the intentional exertion of unauthorized control forms the crux of the crime of conversion.

Exerting control over property means

“to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber or possess property, or to secure, transfer, or extend a right to property.”[7]

These factors make the crime more akin to theft.  However, the distinguishing factor between a crime of conversion and theft is the degree of knowledge rather than the control factor.

Similarly, conversion of bailed property is a crime.[8]  Thus, if property is bailed by one person to another for a purpose beneficial to both parties and if one party converts the property to his own use, such person will be guilty of a criminal conversion. [9]

An attorney tampering with the funds provided by his/her clients will be liable for criminal conversion.  Attorneys are bound by the professional code of conduct to safeguard the interests of their clients and have a duty to keep the property of clients and third parties held in a trust separate from their own[ix].  For instance, an attorney who uses his client’s personal injury settlement funds deposited into his trust account to pay operating expenses for his law practice is guilty of criminal conversion.”[10]

General intent is defined the state of mind required for the commission of certain common law crimes not requiring specific intent and it usually takes the form of recklessness or negligence.

Specific intent requires that a criminal defendant intended to achieve some result additional to the criminal act in order to prove all the elements needed to be found guilty of the crime. It differs from general intent, which only requires proof that the defendant intended to do the prohibited act. For example, the crime of larceny requires not only the general intent to take property, but also the specific intent to permanently deprive another of the property.

Abandoned property refers to the property to which the owner has relinquished all rights. When property is abandoned, the owner gives up the reasonable expectation of privacy concerning it. The person finding the abandoned property is entitled to keep it. A police officer shall take possession of abandoned property as evidence without violating the Fourth Amendment to the U.S. Constitution.

Accountability is generally the state of being liable, answerable, or accountable.

When applied to a legal context, accountability means that some legal rule(s) exists under which a theory or claim can be made to find one liable in a civil law suit or culpable in a criminal matter.

Legal accountability for a crime is based on the suspect’s assistance before or during the commission of the criminal act. The following is an example of a case law on legal accountability.

A person may be convicted of a crime committed through the conduct of another if he is legally accountable for the crime. One incurs legal accountability for the conduct of another by acting as an accomplice. [State v. Ayers, 433 A.2d 356 (Me.1981)]

The term legacy has different meanings, but in a legal sense, it is used to refer to a bequest in a will. Technically, legacy does not include real property (which is a “devise”), so legacy usually refers to a gift of personal property or money to a beneficiary (legatee) of a will.

A residuary legacy is a bequest of all the testator’s personal estate, not otherwise  effectually disposed of by his will.

A vested legacy is one by which a certain interest, either present or future in possession, passes to the legatee.

A contingent legacy is one which is so given to a person, that it is uncertain whether any interest will ever vest in him.

A legacy may be lost by abatement, ademption and lapse. When the legatee dies before the testator or before the condition upon which the legacy is given be performed or before the time at which it is directed to vest in interest have arrived, the legacy is lapsed or extinguished.

A law of nature which is thought to be unchanging in principle, even though circumstances may vary the way in which it is applied. Its similar to natural law which is the rule of conduct supposedly inherent in the relations between human beings.

Absolute law is thought to be discoverable by way of reason. Absolute law is based upon an innate moral sense. It is the law of nature or the laws of nature, collectively.


LEASES AND BAILMENTS — POSSESSORY RIGHTS AND OWNERSHIP

A bailment is the act of placing property in the custody and control of another, usually by agreement in which the holder (bailee) is responsible for the safekeeping and return of the property. Examples include securities left with the bank, autos parked in a garage, animals lodged with a kennel, or a storage facility (as long as the goods can be moved and are under the control of the custodian).

There are different types of bailments:

1.      “bailments for hire” in which the custodian (bailee) is paid,

2.      “constructive bailment” when the circumstances create an obligation upon the custodian to protect the goods, and

3.      “gratuitous bailment” in which there is no payment, but the bailee is still responsible.

There is a lower standard of care imposed upon the bailee in a gratuitous bailment, and the parties may contract to hold the bailee free from liability in any bailment. As the law of bailments establishes a lower standard of care for the bailee in a gratuitous bailment agreement, such an agreement or receipt should indicate explicitly that the bailee is acting without compensation.

When a bailment is for the exclusive benefit of the bailee, the bailee owes a duty of extraordinary care. If the bailment is for the mutual benefit of the bailee and bailor, the bailee owes a duty of ordinary care. A gratuitous bailee must use only slight care and is liable only for gross negligence.

To create a bailment, the alleged bailee must have actual physical control with the intent to possess.

·         Physical control and intent to possess will be interpreted according to the expectations of the parties.

·         If a court thinks that liability would be unexpected or unfair, it can usually find that the defendant did not have “physical control” or “intent to possess.”

A lease is a contract calling for the lessee (user) to pay the lessor (owner) for use of an asset.[1] A rental agreement is a lease in which the asset is tangible property.[2] Leases for intangible property could include use of a computer program (similar to a license, but with different provisions), or use of a radio frequency (such as a contract with a cell-phone provider). A gross lease is when the tenant pays a flat rental amount and the landlord pays for all property charges regularly incurred by the ownership from lawnmowers and washing machines to handbags and jewelry.[3]

A cancelable lease is a lease that may be terminated solely by the lessee or solely by the lessor. A non-cancelable lease is a lease that cannot be so terminated. In common parlance, “lease” may connote a non-cancelable lease, whereas “rental agreement” may connote a cancelable lease.

  1. The lease will either provide specific provisions regarding the responsibilities and rights of the lessee and lessor, or there will be automatic provisions as a result of local law. In general, by paying the negotiated fee to the lessor, the lessee (also called a tenant) has possession and use (the rental) of the leased property to the exclusion of the lessor and all others except with the invitation of the tenant. The most common form of real property lease is a residential rental agreement between landlord and tenant.[4] The relationship between the tenant and the landlord is called a tenancy, and the right to possession by the tenant is sometimes called aleasehold interest. A lease can be for a fixed period of time (called the term of the lease) but (depending on the terms of the lease) may be terminated sooner.
  2. A lease should be contrasted to a license, which may entitle a person (called a licensee) to use property, but which is subject to termination at the will of the owner of the property (called the licensor). An example of a licensor/licensee relationship is a parking lot owner and a person who parks a vehicle in the parking lot. A license may be seen in the form of a ticket to a baseball game. The difference would be that if possession is subject to ongoing, recurrent payments and is generally not subject to termination except for misconduct or nonpayment, it is a lease; if it’s a one-time entrance onto someone else’s property, it’s probably a license. The seminal difference between a lease and a license is that a lease generally provides for regular periodic payments during its term and a specific ending date. If a contract has no ending date then it may be in the form of a perpetual license and still not be a lease.

Under normal circumstances, owners of property are at liberty to do what they want with their property (for a lawful purpose), including dealing with it or handing over possession of the property to a tenant for a limited period of time. If an owner has surrendered possession to another (i.e., the tenant) then any interference with the quiet enjoyment of the property by the tenant in lawful possession is itself unlawful.

It is also possible for property to pass from one person to another independently of the consent of the property owner. For example, this occurs when a person dies intestate, goes bankrupt, or has the property taken in execution of a court judgment.

In a residential lease for consideration, a tenant may not be removed except for cause, even in the absence of a written lease. If a landlord can terminate the tenancy at will, a tenant by operation of law is also granted a reciprocal right to terminate at will. However, a lease that expressly continues at the will of the tenant (“for as long as the tenant desires to live on this land”) does not automatically provide the landlord with a reciprocal right to terminate, even for cause. Rather, such language may be construed to convey to the tenant a life estate or even a fee simple.

A tenancy at will terminates by operation of law, if:

  1. the tenant commits waste against the property;
  2. the tenant attempts to assign his tenancy;
  3. the landlord transfers his interest in the property;
  4. the landlord leases the property to another person;
  5. the tenant or the landlord dies.

A tenancy at will is a leasehold such that either the landlord or the tenant may terminate the tenancy at any time by giving reasonable notice. It usually occurs in the absence of a lease, or where the tenancy is not for consideration. Under the modern common law, tenancy at will can arise under the following circumstances:

  1. the parties expressly agree that the tenancy is at will and not for rent.
  2. a family member is allowed to live at home without formal arrangement. A nominal consideration may be required.
  3. a tenant wishes to occupy the property urgently, but there was insufficient time to negotiate and execute a lease. The tenancy at will terminates in this case as soon as a written lease is completed. If a lease fails to be realized, the tenant must vacate the property.

Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of the estate, the remaining estate forms the “Intestate Estate.”

Intestacy law, also referred to as the law of descent and distribution or intestate succession statutes, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.

CONSERVATORSHIP

Conservatorship orders divide various parental rights and duties, including (1) the right to make major decisions regarding the children; (2) the right to have physical possession of the children; and (3) the duty to financially support the children among the parents after the divorce. The possessory conservator may be virtually eliminated from the process of making decisions concerning health, education and welfare. The sole managing conservator takes sole responsibility for a child, making all the important decisions regarding health (both mental and physical), education, and moral or religious upbringing alone.

Conservatorship is governed by state laws. For example, the legal presumption inTexas is that the parents should be named joint managing conservators, so that parental rights and responsibilities are divided between the parents or exercised by agreement. When joint managing conservatorship is awarded, the parties or the judge must decide on how to divide the rights and duties, which is written into the decree.

The following is an example of a law governing possessory and managing conservators:

Family Code § 153.005. Appointment of Sole or Joint Managing Conservator:

  • In a suit, the court may appoint a sole managing conservator or may appoint joint managing conservators. If the parents are or will be separated, the court shall appoint at least one managing conservator.
  • A managing conservator must be a parent, a competent adult, an authorized agency, or a licensed child-placing agency.

Family Code § 153.006. Appointment of Possessory Conservator:

  • If a managing conservator is appointed, the court may appoint one or more possessory conservators.
  • The court shall specify the rights and duties of a person appointed possessory conservator.
  • The court shall specify and expressly state in the order the times and conditions for possession of or access to the child, unless a party shows good cause why specific orders would not be in the best interest of the child.

Suppression of the truth is equivalent to expression or suggestion of false statement.

1.      Suppression is done by making a false statement, knowing it to be untrue.

2.      It can also be by concealing a material fact which should be disclosed. The concealment of material fact is known as suppressio veri.

3.      Usually, a material fact or circumstance which the party is legally or morally bound to disclose is suppressed to prevent inquiry, escape from investigation, or to mislead or hinder the acquisition of information disclosing a right of action

OTHER LEGAL TERMS

Expressio falsi means a false statement.

Actus me invite factus non est meus actus is a legal maxim in Latin. It means

‘The act done by me against my will is not my act.’

For example, if someone points a gun to your head and ask you to make a threatening phone call, then you are basically innocent. This is because you did not do the phone call voluntarily, instead you were forced to.

Actus legis nemini facit injuriam is a Latin term that means:

“An act of law does no one any injury.”

The general presumption is that law does not do any wrong. Therefore, no one can be injured by any legal action. Generally, laws are created for the good of the state. Some laws that are for public good may be detrimental to some persons. However, for such detriments there are no available remedies. Law is equal to everyone and therefore, changes in law cannot be made for the interest of a minor group of people.

Actus inceptus cujus perfectio pendet ex voluntate partium revocari potest; si autem pendet ex voluntate tertiae personae, vel ex contingenti, revocari non potest is a legal maxim in Latin. It means:

“An act already begun, the completion of which depends on the will of the parties, may be revoked. But if the act depends on the consent of a third person, or on a contingency, it cannot be revoked.”

The ex post facto clause generally prohibits states from enacting any law that

“changes the punishment… than the law annexed to the crime, when it was committed.”

For example, sex offender registration laws have been held not to violate the ex post facto clause on the basis that they are not intended as punishment, but as a deterrent against future offenses.

Actus fictus in fraudem legis is a Latin term which means:

“A fictitious act in fraud of the law. “

Actus fictus” means fictitious act and “in fraudem legis” means in fraud of lawActus fictus in fraudem legis is void and therefore not enforceable.

Actus dei nemini facit injuriam is a Latin legal maxim. This means that:

“An act of God does no injury to anyone.”

In other words, no one is responsible for inevitable accidents. It is also known as Act of God. When an event is caused by the effect of nature without interference from humans it can be called an act of God.

The event foreseen cannot be considered as act of God. If nature’s act was foreseeable and a person’s negligence led to an accident, the jury considers the extend of negligence before giving verdict.

Actus Non Facit Reum Nisi Mens Sit Rea is a Latin maxim which means that

“An act to be illegal, the person should do it with a guilty mind. Conviction of a crime requires proof of a criminal act and intent.”

A crime generally consists of two elements:

1.      a physical, wrongful deed (the “actus reus”), and

2.      a guilty mind that produces the act (the “mens rea”).

A crime ordinarily is not committed if the mind of the person doing the act is innocent.This Latin phrase is often given as a pinnacle of the common law criminal justice system and was valued by jurists. It was an essential component to all criminal cases.

Actus reus is a Latin term that refers to a guilty act.

1.      When the actus reus is proved beyond a reasonable doubt, as well as the existence of criminal intent, a person may be convicted of a crime.

2.      An actus reus may be an action taken or the failure to take a required action. The purposeful, reckless, or negligent absence of an action is considered a voluntary action that is an actus reus.

Novus actus interveniens is a Latin term which means

“A new intervening act.”

It is an act or event that breaks the causal connection between a wrong or crime committed by the defendant and subsequent happenings. The new event relieves the defendant from responsibility for the happenings. The term is different from Nova causa interveniens, which means a new intervening cause.

The term ‘Nova Causa Obligationis’ is a Latin term which means

“A new ground of obligation.”

1.      Generally, actions containing penal conclusions are personal and do not transmit against heirs on the death of a defender.

2.      However, if the parties have proponed their respective pleas or if the proof of facts allow, penal action transmit even after the death of the defender.

By this a new obligation is introduced to abide by the decision that may be pronounced. Nova causa obligation differs from the original obligation.

Causa justa is a Latin term that means

“On a just cause.”

Just cause means a legally sufficient reason. Causa justa means a reasonable and lawful ground for an action. The burden is on a plaintiff to prove that the action is based on just grounds.

Causa causans literally means

“The primary cause or the originator of an action.”

It is the foundation of all the causes. It refers to the immediate cause that resulted in the damage.

1.      To get the damages the claimant must prove that the defendant’s breach of duty caused the harm.

2.      But the defendant need not prove the original cause of the harm.

3.      However while determining the question of harm the court will consider if the defendant has given explanation as to the original cause of the harm.

Cogitationis poenam nemo patitur means that

“No one suffers punishment for mere intent.”

1.      No one is punished for merely thinking of a crime.

2.      However, if a crime is followed up by some act both the action and intention is punishable.

3.      If the act does not happen and there is a mere attempt, the attempt to commit the crime is also punishable.

4.      General rule is that, when an act is criminal, the intention is also criminal.

However, intention alone without any action according to the intention is not punishable.

Sui Juris is a Latin phrase meaning “in one’s own right.” It means a person who is able to make contracts and sue others, or be sued himself. A person sui juris is one who is not bankrupt, mentally incapable or a minor. It is the legal capacity to manage one’s own affairs. Most adults are considered as sui juris.

Accusare nemo se debet nisi coram deo is a latin legal maxim meaning

“No one ought to accuse himself except in the Presence of God.”

This legal maxim denotes that any accused person is entitled to make a plea of not guilty, and also that a witness is not obliged to give a response or submit a document that will incriminate himself. A very similar phrase to the maxim is nemo tenetur seipsum accusare.


[1] The following is an example of a state statute defining the term criminal history record information. According to 2010 Va. ALS 621, 1, “criminal history record information” means records and data collected by criminal justice agencies on adult individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, or other formal charges and any disposition arising there from. The term shall not include juvenile record information which is controlled by criminal justice intelligence information, criminal justice investigative information, or correctional status information.

[2] People v. Fielden, 162 Colo. 574, 576 (Colo. 1967)

[3]Indiana & Michigan Electric Co. v. Terre Haute Industries, Inc., 507 N.E.2d 588 (Ind. Ct. App. 1987)

[4] Watts v. Watts, 137Wis. 2d 506 (Wis. 1987)

[5] Sam & Mac, Inc. v. Treat, 783 N.E.2d 760, 766 (Ind. Ct. App. 2003)

[6] Gilliana v. Paniaguas, 708 N.E.2d 895 (Ind. Ct. App. 1999)

[7] Irvin v. State, 501 N.E.2d 1139, 1141 (Ind. Ct. App. 1986)

[8] Heughan v. State, 82Ga. App. 640 (Ga. Ct. App. 1950)

[9] Ford v. State, 144Ga. App. 599 (Ga. Ct. App. 1978)

[10] In re Quinn, 738 N.E.2d 678, 681 (Ind. 2000)

*  *  *

These definitions are derived from U.S. Legal online, Black’s Dictionary, and appropriate case law pertinent to this information.



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