CRIMINAL LAW
by
Douglas L. Grundmeyer, M.A., J.D.; W. A. Harrington, L.L.B.; David A.Hunter,
J.D.; and Bill Wishard, J.D.
TOPIC SCOPE
Scope of Topic:
This article discusses the general principles of criminal law and covers the nature and elements of
criminal offenses, capacity to commit crime or to be tried or punished, participation in crime,
criminal responsibility of one person for the acts of another, inchoate crimes of attempt and
solicitation, defenses, including insanity, and rights of the accused. Although, as indicated
below, the article does not include comprehensive coverage of criminal procedure, it does discuss
jurisdiction and venue in criminal cases, preliminary proceedings, interstate detainers,
arraignment, pleas, nolle prosequi, dismissal, and discontinuance, arrest of judgement, and
judgement and sentence. Punishment and disabilities attending conviction are also discussed, as
are such matters as the right of crime victims to reparation from state funds, and the liability of
principals in a criminal proceeding, including the defendant, for the costs incurred therein.
B. Strict-Liability Statutory Offenses [137-139]
§ 137 Generally [21 Am Jur 2d CRIMINAL LAW]
Though the common-law concept of crime as constituted only from the concurrence of an
evil-meaning mind with an evil-doing hand took deep and early root in this country, a completely
different category of crimes has arisen under modern statutes, especially in the area of public
welfare offenses. These are crimes which depend on no mental element, but consist only of
forbidden acts or omissions. 84 Where the legislature creates such an offense, criminal intent in
any of its forms is not an element of the crime and need not be proved to justify a conviction, 85
although some courts reconcile this with the older law of crimes by saying that where a statute
denounces the doing of an act as criminal, the law imputes criminal intent from the doing of the
act. 86 The moral turpitude or purity of motive which prompted the act, and knowledge or
ignorance of its criminal character, are immaterial on the question of guilt, and the only question
is whether the prohibited act was done or the required act omitted. 87 In other words, it is
immaterial that the defendant acted in good faith or did not know that he was violating the law,
88 since, in the interest of the public, the burden is placed upon the actor of ascertaining at his
peril whether his deed is within the prohibition of any criminal statute. 89
Page 1 of 575
Footnotes
Footnote 84. Morissette v United States, 342 US 246, 96 L Ed 288, 72 S Ct 240.
Footnote 85. People v McClennegen, 195 Cal 445, 234 P 91; People v Del Toro, 155 Colo 487,
395 P2d 357; People v Fernow, 286 Ill 627, 122 NE 155; State v Perkins, 143 Iowa 55, 120 NW
62; Hays v Schueler, 107 Kan 635, 193 P 311, 11 ALR 1433; Grand Rapids v Williams, 112
Mich 247, 70 NW 547; Haggerty v St. Louis Ice Mfg. & Storage Co., 143 Mo 238, 44 SW 1114;
State v Hennessy, 114 Wash 351, 195 P 211.
Footnote 86. Hargrove v United States (CA5 Tex) 67 F2d 820; State v Zichfeld, 23 Nev 304, 46
P 802.
Where an act forbidden by law is intentionally done, the intent to do the act is the criminal intent
necessary to be shown. State v McLean, 121 NC 589, 28 SE 140.
Footnote 87. United States v Balint, 258 US 250, 66 L Ed 604, 42 S Ct 301; Rooney v North
Dakota, 196 US 319, 49 L Ed 494, 25 S Ct 264; Borderland Constr. Co. v State, 49 Ariz 523,
68 P2d 207; People v Fernow, 286 Ill 627, 122 NE 155; Commonwealth v Anderson, 272 Mass
100, 172 NE 114; People v Snowberger, 113 Mich 86, 71 NW 497; State v Manos, 179 SC 45,
183 SE 582; Hunter v State, 158 Tenn 63, 12 SW2d 361; Boyd v State, 217 Wis 149, 258 NW
330.
While, in a certain sense, intent is essential to the commission of a crime and in some classes of
cases it is necessary to show moral turpitude in order to make out a crime, there is a class of
cases where purposely doing a thing prohibited by statute may amount to an offense, although the
act does not involve turpitude or moral wrong. Armour Packing Co. v United States, 209 US
56, 52 L Ed 681, 28 S Ct 428.
Footnote 88. United States v Balint, 258 US 250, 66 L Ed 604, 42 S Ct 301; State v Gaetano,
96 Conn 306, 114 A 82; Duncan v Commonwealth, 289 Ky 231, 158 SW2d 396;
Commonwealth v Murphy, 165 Mass 66, 42 NE 504; State v Ryan, 70 NH 196, 46 A 49; State v
Manos, 179 SC 45, 183 SE 582.
Although at common law crime, when committed by the individual, consists of acts done with an
evil intent, in statutory offenses created in the exercise of the police power, unless a wrongful
intent or guilty knowledge, commonly designated by the use of the word "wilfully" or
"maliciously" is made an essential element of the prohibited act, the violator may be convicted
and punished even if he had not designed to disobey the law. Commonwealth v New York C. &
H. R. R. Co. 202 Mass 394, 88 NE 764.
Footnote 89. United States v Balint, 258 US 250, 66 L Ed 604, 42 S Ct 301; Troutner v State,
17 Ariz 506, 154 P 1048; State v Sterrett, 35 Idaho 580, 207 P 1071; People v Billardello, 319 Ill
Page 2 of 575
124, 149 NE 781; State v Morton, 38 SD 504, 162 NW 155; Pappas v State, 135 Tenn 499, 188
SW 52; State v Hennessy, 114 Wash 351, 195 P 211.
§ 138 Constitutionality of statutes [21 Am Jur 2d CRIMINAL LAW]
Generally speaking, it is within the power of the legislature to declare an act criminal irrespective
of the intent or knowledge of the doer. 90 Due process is not violated by the fact that mens rea
is not a required element of a crime, 91 or the fact that a person is punished for an act in
violation of the law, though ignorant of the facts making it so. 92 However, the legislature's
power in this respect is not without limitations. 93 It is sometimes said that the legislature may
not declare that to be a crime which in its nature is and must be under all circumstances innocent.
94 And it has been held that there is no power to declare an act criminal which could not be
avoided by the utmost care and circumspection, 95 or the nonperformance of which is
impossible. 96 It has also been held unconstitutional to punish for an act committed by another
without the defendant's knowledge or consent. 97 And due process is violated where a mere
failure to act is punished as criminal despite the fact that defendant's conduct was wholly passive,
that he did not know of the duty to act, and that no showing was made of the probability of such
knowledge. 98
§ 138 – Constitutionality of statutes [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Felony provisions of Migratory Bird Treaty Act (MBTA), 16 USCS § 707(b), are, because it is a
strict liability offense, unconstitutional; in order to be convicted of felony under MBTA, a crime
unknown to common law which carries substantial penalties, Congress must require prosecution
to prove defendant acted with some degree of scienter. United States v Wulff (1985, CA6 Mich)
758 F2d 1121.
It is proper for legislatures to enact laws making violation thereof matter of strict criminal
liability without culpability requirement and to impose fine or imprisonment for violation of
offense without offending due process. State v McDowell (1981, ND) 312 NW2d 301.
Footnotes
Footnote 90. Chicago, B. & Q. R. Co. v United States, 220 US 559, 55 L Ed 582, 31 S Ct 612;
People v Del Toro, 155 Colo 487, 395 P2d 357; People v Johnson, 288 Ill 442, 123 NE 543;
State v Hales, 256 NC 27, 122 SE2d 768, 90 ALR2d 804; Commonwealth v Junkin, 170 Pa 194,
32 A 617; Hunter v State, 158 Tenn 63, 12 SW2d 361; State v Labonte, 120 Vt 465, 144 A2d
792.
Page 3 of 575
It is not unconstitutional to define a crime in such a way that it may be committed by an innocent
mistake. State v Shevlin-Carpenter Co., 99 Minn 158, 108 NW 935.
It has been suggested that although the legislature can make acts misdemeanors without regard to
intent or knowledge, a different question might be presented if they were made felonies.
Hershorn v People, 108 Colo 43, 113 P2d 680, 139 ALR 297 (superseded by statute as stated in
Romero v Liquor & Beer Licensing Board (Colo App) 540 P2d 1152).
Footnote 91. United States v Greenbaum (CA3 NJ) 138 F2d 437.
Footnote 92. Williams v North Carolina, 325 US 226, 89 L Ed 1577, 65 S Ct 1092, 31 Ohio
Ops 83, 157 ALR 1366, reh den 325 US 895, 89 L Ed 2006, 65 S Ct 1560; United States v
Balint, 258 US 250, 66 L Ed 604, 42 S Ct 301.
Where the crime is statutory, the legislature is free to require or omit guilty knowledge as an
element. State v De Meo, 20 NJ 1, 118 A2d 1, 56 ALR2d 905.
Scienter is not, under the Constitution, a necessary element of an offense which is malum
prohibitum. People v Johnson, 288 Ill 442, 123 NE 543.
Footnote 93. Smith v California, 361 US 147, 4 L Ed 2d 205, 80 S Ct 215, 14 Ohio Ops 2d
459, reh den 361 US 950, 4 L Ed 2d 383, 80 S Ct 399.
Footnote 94. Gillespie v People, 188 Ill 176, 58 NE 1007; Lawton v Steele, 119 NY 226, 23 NE
878, reh den (NY) 23 NE 1151 and affd 152 US 133, 38 L Ed 385, 14 S Ct 499.
The knowing possession of contraband, as distinguished from knowledge of its illegal character,
is necessarily an element of the offense of possessing it, since otherwise seeming "possession" by
accident or the design of another, without the knowledge of the accused, would suffice, and it is
not within the competency of the lawgiver to render that criminal which in its very nature is
innocent and essentially nonculpable. State v Labato, 7 NJ 137, 80 A2d 617.
Footnote 95. State v Strasburg, 60 Wash 106, 110 P 1020.
Compare Hays v Schueler, 107 Kan 635, 193 P 311, holding an ordinance requiring a taillight on
a vehicle at night valid although wilfulness or wrongful intent is not required and although the
light might go out in spite of the utmost care.
A statute making it a misdemeanor to buy or receive fittings which have been unlawfully
removed from railway tracks or cars, without knowledge of the facts, is unconstitutional.
Kilbourne v State, 84 Ohio St 247, 95 NE 824.
A statute prohibiting the possession of certain weapons by any person who had been charged
Page 4 of 575
with a crime of violence was unconstitutional, since the mere bringing of charges against a
defendant rendered the defendant in violation of the statute even though the defendant had no
knowledge that any criminal charge had been brought against him, and the defendant, exercising
the utmost care and circumspection, would be unable to avoid commission of the proscribed
offense. Application of Markham, 178 Neb 544, 134 NW2d 84.
Footnote 96. Commonwealth v O'Harrah (Ky) 262 SW2d 385.
Footnote 97. Campellsburg v Odewalt, 24 Ky LR 1717, 72 SW 316 (city ordinance making
person in possession of premises liable to fine when liquor unlawfully sold or furnished on
premises).
Footnote 98. Lambert v California, 355 US 225, 2 L Ed 2d 228, 78 S Ct 240, reh den 355 US
937, 2 L Ed 2d 419, 78 S Ct 410.
Compare United States v Juzwiak (CA2 NY) 258 F2d 844, cert den 359 US 939, 3 L Ed 2d
639, 79 S Ct 652, holding the rule of Lambert case to be inapplicable where defendant's conduct
was not merely passive, but also involved a positive act, and where a showing of the probability
of his knowledge was made.
§ 139 Construction of statutes [21 Am Jur 2d CRIMINAL LAW]
Criminal intent is sometimes held not essential to statutory offenses, 99 although in other cases
it may be expressly 1 or impliedly 2 required. Where the statutory language does not clearly
indicate whether intent is an element of the offense, the question is whether the legislature has
made the act criminal without regard to criminal intent. 3 The law on this question is neither
settled nor static. 4 In determining the question the general rules of statutory construction are
followed, 5 and the controlling factor is the intent of the legislature. 6 Some authorities state
that legislative intention to dispense with the requirement of criminal intent must clearly appear.
7
Some cases find an intent requirement in a statutory offense by reading the statute in the light of
the common law. 8 And where the statute codifies a common-law offense, the intent required at
common law remains an element if the statute does not specifically eliminate it. 9 However, it
has been pointed out that where the statute merely adopts a common-law concept of crime,
silence as to intent may warrant inferences quite contrary to those warranted by the same silence
in creating an offense new to the general law, for whose definition courts have no guidance
except the statute. 10 In the latter situation, it has been held that the legislature's silence as to
the mental element of the offense indicates an intention that none should be required. 11
Some cases take the view that a criminal intent not expressed in the statute will not be required
where the offense is merely malum prohibitum, 12 or in case of misdemeanors created under
Page 5 of 575
the police power. 13 On the other hand, a criminal intent requirement will be implied, or is at
least more likely to be implied, in the case of a statutory offense which is malum in se. 14 At
least one case, however, has denied that interpretation of legislative intent as dispensing with
knowledge and wilfulness is limited to minor or police offenses, differentiable by their relative
lack of turpitude. 15
It has been said that intent requirements are omitted as a matter of policy in the case of "public
welfare offenses." 16 Other factors which have been noted as favoring a strict-liability
construction of statutory offenses are that the offense is capable of inflicting widespread injury,
17 or creates a danger or probability of injury which will be the same without regard to intent; 18
that an intent or scienter requirement would obstruct the purpose of the statute 19 or make it
difficult of enforcement; 20 and that the accused, even if he does not will the violation, is
usually in a position to prevent it with no more care than society might reasonably expect. 21
Another distinction which has been suggested is that where the means of knowledge are available
to the accused, or the act is such as to impose a duty on the actor to ascertain the facts at his peril,
knowledge is not an essential element of the statutory offense unless the statute so provides, but
that otherwise, proof of scienter is necessary even though the statute does not in terms require it.
22
§ 139 – Construction of statutes [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
In a prosecution for cruelty of animals against a landowner who purchased cattle but failed to
provide them with adequate food and water, the trial court erred in instructing the jury that the
crime of animal cruelty pursuant to RC § 959.13 was a strict liability crime which did not require
a showing of intentional or reckless activity because; although RC § 959.13 does not specify a
degree of culpability, and in such situations, RC § 2901.21(B) becomes relevant (which provides
that if an offense does not specify a degree of culpability, then culpability is not required for
conviction), prior case law has addressed the issue of animal cruelty and it has been determined
that the requisite mens rea to sustain a conviction is recklessness. State v Lapping (1991,
Trumbull Co) 75 Ohio App 3d 354, 599 NE2d 416, motion overr 63 Ohio St 3d 1441, 589 NE2d
45.
Footnotes
Footnote 99. United States v Balint, 258 US 250, 66 L Ed 604, 42 S Ct 301; Dill v People, 94
Colo 230, 29 P2d 1035, cert den and app dismd 292 US 609, 78 L Ed 1470, 54 S Ct 781; State
ex rel. Lanz v Dowling, 92 Fla 848, 110 So 522; Mitchell v Black, 72 Mass 100; People v
Sybisloo, 216 Mich 1, 184 NW 410, 19 ALR 133; State v Ryan, 70 NH 196, 46 A 49; State v
Southern R. Co., 122 NC 1052, 30 SE 133.
Page 6 of 575
Footnote 1. Noble v State, 248 Ind 101, 223 NE2d 755 (crime of false attestation as notary
requires criminal intent); State v McLarty (Mo) 414 SW2d 315; State v Huffman, 131 Ohio St
27, 5 Ohio Ops 325, 1 NE2d 313.
Footnote 2. People v Welch, 71 Mich 548, 39 NW 747.
In some cases, when the prohibition in a statute against doing a certain act or series of acts is
couched in general terms, courts have imported into the statute a proviso that the denoted act
shall be done from a guilty mind. Burnam v Commonwealth, 228 Ky 410, 15 SW2d 256; State v
Swett, 87 Me 99, 32 A 806; Faulks v People, 39 Mich 200; Pappas v State, 135 Tenn 499, 188
SW 52.
In the interpretation of federal criminal statutes courts attempt to discover by implication a
requirement of scienter, where there is no reason to suppose that the Congress, by deliberate
choice, omitted such a requirement. Delaney v United States (CA1 Mass) 199 F2d 107, 39
ALR2d 1300.
It has been stated that ordinarily a criminal intent is essential to a statutory offense, even when
not in terms required. State v Hefflin, 338 Mo 236, 89 SW2d 938; State v Shedoudy, 45 NM 516,
118 P2d 280.
Footnote 3. State v De Meo, 20 NJ 1, 118 A2d 1, 56 ALR2d 905.
Footnote 4. Morissette v United States, 342 US 246, 96 L Ed 288, 72 S Ct 240.
Footnote 5. Halsted v State, 41 NJL 552.
Whether a criminal intent or guilty knowledge is a necessary element of a statutory offense is a
matter of construction to be determined from the language of the statute in view of its manifest
purpose and design. People v McClennegen, 195 Cal 445, 234 P 91; State v Fulco, 194 La 545,
194 So 14; State v Hales, 256 NC 27, 122 SE2d 768, 90 ALR2d 804; Commonwealth use of
Allegheny County v Weiss, 139 Pa 247, 21 A 10; State v Hennessy, 114 Wash 351, 195 P 211.
Footnote 6. Troutner v State, 17 Ariz 506, 154 P 1048; State v Tabasso Homes, Inc., 42 Del 110,
28 A2d 248.
Footnote 7. Masters v United States, 42 App DC 350; State v Shedoudy, 45 NM 516, 118 P2d
280.
In some jurisdictions it is the rule by statute that intent or criminal negligence is an invariable
element of every crime, unless excluded expressly or by necessary implication. People v Stuart,
47 Cal 2d 167, 302 P2d 5, 55 ALR2d 705.
Page 7 of 575
Footnote 8. Masters v United States, 42 App DC 350; State v Shedoudy, 45 NM 516, 118 P2d
280.
Footnote 9. Seattle v Gordon, 54 Wash 2d 516, 342 P2d 604.
Footnote 10. Morissette v United States, 342 US 246, 96 L Ed 288, 72 S Ct 240.
Footnote 11. Razete v United States (CA6 Ohio) 199 F2d 44, cert den 344 US 904, 97 L Ed
698, 73 S Ct 284.
Footnote 12. Kirkham v North Little Rock, 227 Ark 789, 301 SW2d 559, 64 ALR2d 1032;
Duncan v Commonwealth, 289 Ky 231, 158 SW2d 396; State v Fulco, 194 La 545, 194 So 14;
People v Sybisloo, 216 Mich 1, 184 NW 410; People v Treen, 33 Misc 2d 571, 225 NYS2d 787;
Pappas v State, 135 Tenn 499, 188 SW 52; Seattle v Gordon, 54 Wash 2d 516, 342 P2d 604;
State v Chesapeake & Potomac Tel. Co., 121 W Va 420, 4 SE2d 257.
Footnote 13. Kirkham v North Little Rock, 227 Ark 789, 301 SW2d 559, 64 ALR2d 1032; State
v Striggles, 202 Iowa 1318, 210 NW 137; Duncan v Commonwealth, 289 Ky 231, 158 SW2d
396; Commonwealth v Closson, 229 Mass 329, 118 NE 653 (traffic ordinance).
Footnote 14. State v Shedoudy, 45 NM 516, 118 P2d 280; People v Treen, 33 Misc 2d 571, 225
NYS2d 787; Seattle v Gordon, 54 Wash 2d 516, 342 P2d 604.
Footnote 15. United States v Greenbaum (CA3 NJ) 138 F2d 437 (three months' imprisonment for
introduction of adulterated food in interstate commerce upheld, although guilty knowledge was
neither alleged nor proved).
Footnote 16. Morissette v United States, 342 US 246, 96 L Ed 288, 72 S Ct 240.
Many instances of strict liability are to be found in regulatory measures where the emphasis of
the statute is evidently upon the achievement of some social betterment rather than the
punishment of crimes, as in cases of offenses mala in se. United States v Balint, 258 US 250,
66 L Ed 604, 42 S Ct 301.
Footnote 17. United States v Greenbaum (CA3 NJ) 138 F2d 437.
Footnote 18. Morissette v United States, 342 US 246, 96 L Ed 288, 72 S Ct 240.
Footnote 19. United States v Balint, 258 US 250, 66 L Ed 604, 42 S Ct 301; United States v
Juzwiak (CA2 NY) 258 F2d 844, cert den 359 US 939, 3 L Ed 2d 639, 79 S Ct 652.
Compare Morissette v United States, 342 US 246, 96 L Ed 288, 72 S Ct 240, stating that the
purpose of every statute would be "obstructed" by requiring a finding of intent, if we assume that
Page 8 of 575
it had a purpose to convict without it, and that therefore the obstruction rationale does not help us
to learn the purpose of the omission.
Footnote 20. United States v Greenbaum (CA3 NJ) 138 F2d 437; Hays v Schueler, 107 Kan 635,
193 P 311.
Footnote 21. Morissette v United States, 342 US 246, 96 L Ed 288, 72 S Ct 240.
In the interest of the larger good, such legislation puts the burden of acting at hazard upon a
person otherwise innocent but standing in a responsible relation to a public danger. United States
v Dotterweich, 320 US 277, 88 L Ed 48, 64 S Ct 134, reh den 320 US 815, 88 L Ed 492, 64 S
Ct 367.
The penalty for violating a police regulation enacted for the protection of the public health is
imposed without regard to wrongful intention, in order to insure such diligence as will render a
violation of the law virtually impossible. State v Burnam, 71 Wash 199, 128 P 218.
Footnote 22. Toledo v Kohlhofer, 96 Ohio App 355, 54 Ohio Ops 360, 122 NE2d 20.
C. Circumstances Tending to Negative Criminal State of Mind or
Moral Responsibility [140-157]
1. In General [140]
§ 140 Generally; religious belief [21 Am Jur 2d CRIMINAL LAW]
As a general rule, religious belief cannot be accepted as a justification of an act made criminal by
the law of the land. 23 For example, acts which would otherwise constitute bigamy cannot be
justified on the ground that they were sanctioned or required by the defendant's religious beliefs.
24 And the same is generally regarded as the rule in prosecutions growing out of failure to
furnish medical attention where the defendant was under a duty to provide such attention or a
statute made it an offense not to do so. 25 But where the crime is one in which representations
as to religious beliefs were charged to have been fraudulent, it has been held that all questions as
to the truth or falsity of such beliefs should be withheld from the jury. 26
§ 140 – Generally; religious belief [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: The Cultural Defense in the Criminal Law. 99 Harv LR 1293, April, 1986.
Page 9 of 575
Footnotes
Footnote 23. Reynolds v United States, 98 US 145, 25 L Ed 244; State v Cox, 138 Me 151, 23
A2d 634; Copeland v Donovan, 124 Misc 553, 208 NYS 765; Commonwealth v Palms, 141 Pa
Super 430, 15 A2d 481.
As to acts committed under delusion of Divine command, see § 41, supra.
Footnote 24. See 10 Am Jur 2d, Bigamy § 24.
Footnote 25. Craig v State, 220 Md 590, 155 A2d 684; People v Pierson, 176 NY 201, 68 NE
243; Rex v Lewis, 6 Ont L 132, 7 Can Crim Cas 261; Rex v Brooks, 9 Brit Col 13.
Annotation: 100 ALR2d 514, § 24.
As to prosecutions for homicide, see 40 Am Jur 2d, Homicide §§ 90, 118.
Footnote 26. United States v Ballard, 322 US 78, 88 L Ed 1148, 64 S Ct 882.
2. Ignorance or Mistake of Fact [141]
§ 141 Generally [21 Am Jur 2d CRIMINAL LAW]
Ignorance or mistake of fact, at least if reasonable, and not due to carelessness or negligence, is a
defense if it negatives a mental state required as an element of the offense charged. 27
Since
a guilty mind is a requisite of common-law crime, and even of most statutory offenses, at least
those mala in se, 28 it is also the general rule that where criminal mind or intent is dependent on
a knowledge of particular facts, ignorance or mistake as to these facts, honest and real, not
superinduced by the fault or negligence of the party doing the wrongful act, absolves from
criminal responsibility. 29 It has even been held that the necessary specific intent can be
negatived by a showing of mistake, despite want of proper care. 30
It is said that ignorance or mistake of fact, guarded by an honest purpose, affords at common law
a sufficient excuse for a supposed criminal act. 31 To put it conversely, at common law an
honest and reasonable belief in the existence of circumstances which, if true, would have made
the act done innocent, is a good defense. 32 And it has been held that the same applies to
statutory offenses unless excluded expressly or by necessary implication. 33 However, the extent
to which this is true seems to depend on the elements of the offense charged. Thus, mistake of
fact has been regarded as of no significance where the crime charged requires neither intent nor
knowledge. 34 And an act malum prohibitum is not excused by ignorance or mistake of fact
where the specific act is made punishable irrespective of motive or intent. 35 Moreover, despite
Page 10 of 575
some authorities to the contrary, 36 it appears to be the general rule that if a statute commands
an act to be done or omitted which, in the absence of the statute, might have been done or
omitted without culpability, ignorance of the fact or state of things contemplated by the statute
will not excuse its violation. 37 But the rule is otherwise where the statute makes the act
punishable only if knowingly done. 38
In a large class of cases where it is deemed necessary, for the protection of the public, to require
everyone to ascertain the facts at his peril, ignorance or mistake of fact is not a defense. 39
A
familiar example, in the realm of the more serious offenses, is the age of the female in cases of
prostitution 40 or statutory rape, although judicial opinion is not unanimous with respect to the
latter. 41 One court has explained cases of this type on the ground that there was a measure of
wrong in the act, even as defendant understood it, and has refused to apply the same principle
where the act, as defendant understood it, was completely innocent and proper. 42 However,
this qualification is by no means universally accepted, as may be seen from the fact that there is a
split of authority as to whether an honest and reasonable belief that a prior marriage has been
terminated by divorce, or by the death of the former spouse, is a defense to a bigamy charge. 43
Ignorance or mistake of fact will not avail in the case of strict-liability offenses. 44 Statutes
providing for strict criminal liability may be regarded as putting the actor under a strict duty to
ascertain the facts in order to guard against a possible violation. 45 For example, a seller of
food is generally held to be under a duty to ascertain at his peril whether what he sells conforms
to the standards fixed by law. 46
§ 141 – Generally [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Fletcher, mistake in the Model Penal Code: A False Problem. 19 Rut LJ 649,
Spring, 1988.
Fact that gun was unloaded as affecting criminal responsibility. 68 ALR4th 507.
Propriety of instruction of jury on "conscious avoidance" of knowledge of nature of substance or
transaction in prosection for possession or distribution of drugs. 109 ALR Fed 710.
Case authorities:
In prosecution under 18 USCS § 2241, trial court is not required to give instruction on
affirmative defense of reasonable mistake unless and until defendant introduces some evidence,
direct or circumstantial, of reasonable basis for having made mistake. United States v Norquay
(1993, CA8 Minn) 987 F2d 475.
Although persons incapable of committing a crime include those who commit an act under an
ignorance or mistake of fact, which disproves any criminal intent (Pen. Code, § 26, subd. 3), a
defendant charged with assault with a deadly weapon on an Amtrak conductor (Pen. Code, §
Page 11 of 575
245.2) could not assert the defense predicated on his alleged belief he was being followed by
enemies and that he assaulted the conductor on the train in order to be publicly arrested and thus
shielded from his enemies. As a matter of law, defendant could not establish that his conduct was
legally justified under the doctrine of necessity; even if the circumstances which confronted
defendant entitled him under the doctrine of necessity to resort to some criminal act for his own
protection, he was obligated to utilize the least costly alternative. Because he selected an
inappropriate means for attaining safety, defendant was foreclosed from taking shelter in the
doctrine of necessity. People v Raszler (1985, 3d Dist) 169 Cal App 3d 1160, 215 Cal Rptr 770.
One accused of intimidation in violation of RC § 2921.03(A) was properly convicted of same
upon evidence that sanitation facility inspector was assaulted and threatened by accused while
inspecting an improperly installed facility on accused's property, according to accused because he
mistook the inspector for a peeping tom. State v Troutman (1991, Lorain Co) 71 Ohio App 3d
755, 595 NE2d 414, motion overr 62 Ohio St 3d 1408, 577 NE2d 361.
Footnotes
Footnote 27. Gordon v State, 52 Ala 308; People v Wells, 33 Cal 2d 330, 202 P2d 53, cert den
338 US 836, 94 L Ed 510, 70 S Ct 43 (by statute); State v O'Neil, 147 Iowa 513, 126 NW 454.
The principle of the criminal law, "Ignorantia facti excusat," applies with great force where a
business is recognized as lawful. Haynes v State, 118 Tenn 709, 105 SW 251.
In a prosecution for injury to a child based on defendant's burning of her granddaughter in hot
bath water, defendant's testimony that she mistakenly believed that the temperature of the bath
water was normal, was sufficient to entitle her to an instruction on the defense of mistake of fact;
the trial court's refusal to give a charge that applied the law of mistake of fact to the very facts of
the case, over defendant's objection and in the face of a properly requested charge, was reversible
error. Beggs v State (Tex Crim) 597 SW2d 375.
An honest mistake of the defendant as to his title to property is a defense to an indictment for
unlawfully taking it, but not to a civil action for converting it. Stone v United States, 167 US
178, 42 L Ed 127, 17 S Ct 778.
Footnote 28. §§ 129 et seq., supra.
Footnote 29. Dotson v State, 62 Ala 141; State v Welch, 73 Mo 284; Reg. v Tolson (Eng) LR 23
QB Div 168.
The rule allowing a defense to a crime considered malum in se because of a mistake of fact is
subject to the qualification that the mistake must not be due to the negligence or carelessness of
the defendant. State v Dizon 47 Hawaii 444, 390 P2d 759.
Page 12 of 575
Footnote 30. One who takes another's property under the honest belief that it is his own does not
commit larceny, even though he may have acted carelessly. People v Devine, 95 Cal 227, 30 P
378; Green v State, 153 Tex Crim 442, 221 SW2d 612.
Footnote 31. State v Powell, 141 NC 780, 53 SE 515; Farrell v State, 32 Ohio St 456.
Footnote 32. People v Vogel, 46 Cal 2d 798, 299 P2d 850; People v Cohn, 358 Ill 326, 193 NE
150; Commonwealth v Bollinger, 197 Pa Super 492, 179 A2d 253.
Footnote 33. People v Vogel, 46 Cal 2d 798, 299 P2d 850.
Footnote 34. People v Young, 11 NY2d 274, 229 NYS2d 1, 183 NE2d 319.
Footnote 35. People v Treen, 33 Misc 2d 571, 225 NYS2d 787.
Footnote 36. Stern v State, 53 Ga 229; State v Powell, 141 NC 780, 53 SE 515; Farrell v State,
32 Ohio St 456.
Footnote 37. Ford v State, 85 Md 465, 37 A 172; State v Cornish, 66 NH 329, 21 A 180; Haynes
v State, 118 Tenn 709, 105 SW 251; State v Gilmore, 80 Vt 514, 68 A 658; State v Welch, 145
Wis 86, 129 NW 656.
It is no defense to a prosecution under a statute making criminal an act unobjectionable from a
moral point of view that the accused acted honestly and in good faith under a mistake of fact.
State v Cornish, 66 NH 329, 21 A 180.
Knowledge of the age of the person named in the complaint is not essential to the violation of a
statute forbidding the owner, keeper, or manager of a dance house to permit any person under 21
years of age to be or remain therein, when not so provided by the statute. State v Rosenfield, 111
Minn 301, 126 NW 1068.
Footnote 38. People v Flumerfelt, 35 Cal App 2d 495, 96 P2d 190 (defendant not guilty of
knowingly selling stocks without permit if she relied in good faith on erroneous information that
permit had been obtained); State v Welch, 145 Wis 86, 129 NW 656.
Footnote 39. Redmond v State, 36 Ark 58; Brown v State (Sup) 23 Del 159, 74 A 836; Nies v
District Court, 179 Iowa 326, 161 NW 316; Commonwealth v Murphy, 165 Mass 66, 42 NE 504;
State v Welch, 73 Mo 284; Territory v Harwood, 15 NM 424, 110 P 556 (not followed State v
Bazan (App) 90 NM 209, 561 P2d 482, cert den 90 NM 254, 561 P2d 1347); State v Sasse, 6 SD
212, 60 NW 853.
The principle that ignorance of the law is no defense applies whether the law is a statute or a duly
promulgated and published regulation. United States v International Minerals & Chemical Corp.,
Page 13 of 575
402 US 558, 29 L Ed 2d 178, 91 S Ct 1697.
Footnote 40. See 63 Am Jur 2d, Prostitution § 1.
Footnote 41. See People v Hernandez, 61 Cal 2d 529, 39 Cal Rptr 361, 393 P2d 673, 8 ALR3d
1092, holding that reasonable belief that a girl had reached the age of consent was a defense to
statutory rape, and overruling prior cases. The traditional view, however, has been to the
contrary. See 65 Am Jur 2d Rape § 36.
Footnote 42. State v Audette, 81 Vt 400, 70 A 833.
See also 2 Am Jur 2d, Adultery and Fornication §§ 4, 14, 15.
Footnote 43. See 10 Am Jur 2d, Bigamy §§ 18-20.
Footnote 44. § 137, supra.
Footnote 45. State v Welch, 145 Wis 86, 129 NW 656.
Footnote 46. See 35 Am Jur 2d, Food § 77.
3. Ignorance or Mistake of Law [142-145]
§ 142 Generally [21 Am Jur 2d CRIMINAL LAW]
That ignorance or mistake of law will not excuse an act in violation of the criminal laws is a
principle so universally accepted as to be axiomatic. 47 It has been said that chaos and
impossibility of law enforcement would ensue without this rule. 48 The law, in this respect,
makes a sharp distinction between honest mistakes of fact, which generally excuse, and honest
mistakes of law, which generally do not. 49 However, there are crimes which require a
particular evil condition of the mind, existing in actual fact. Ignorance or mistake of law, if it
makes that particular state of mind impossible, takes away the offense. 50 Thus a bona fide
mistake of law may negative wilfulness 51 or malice 52 where these are required elements of
the particular offense. On the other hand, where the statute punishes only one who
"intentionally" violates its provision, it has been held that a mistake of law is not a defense. 53
Mistake of law may also negative specific criminal intent. 54 Thus, one who takes property
under a bona fide but erroneous claim of right does not commit larceny, although his error may
have been one of law. 55 And one jurisdiction has held that a person who, before doing the act
for which he was ultimately prosecuted, made a diligent effort to ascertain the law relevant to
that act and to abide by it, adopting the best means available to him for that purpose, ought not to
be convicted of an offense which requires general criminal intent. 56 And a person's reasonable
Page 14 of 575
belief that his conduct does not constitute an offense is a defense if the offense is defined by an
administrative regulation or order which is not known to him and has not been published or
otherwise made reasonably available to him, and he could not have acquired such knowledge by
the exercise of due diligence pursuant to facts known to him. 57
The hardship which may arise from enforcing against innocent parties general laws so long in
disuse as to be no longer known to exist has been pronounced only an ameliorating factor in their
enforcement which does not bear on the continuing validity of such laws. 58
§ 142 – Generally [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
In prosecution for violation of 18 USCS § 1001 court is not obliged to give instruction on
ignorance of law where court concludes that no evidence was presented to warrant such type of
instruction inasmuch as defendant did not contend that he was not required to state material on
form which form specifically requested. United States v Cox (1983, CA11 Ga) 696 F2d 1294.
It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a
violation thereof. Of course, it is based on a fiction, because no man can know all of the law, but
it is a maxim that the law itself does not permit anyone to gainsay. It is expected that where it is
shown that the defendant actually was ignorant of the law and innocent of any intention to violate
it, the jury and the court will give the defendant the benefit of the fact, and will impose only a
light penalty. The rule rests on public necessity; the welfare of society and the safety of the state
depend upon its enforcement. People v Costa (1991, 6th Dist) 1 Cal App 4th 1201, 2 Cal Rptr 2d
720, 91 CDOS 10011, 91 Daily Journal DAR 15766.
Footnotes
Footnote 47. Lambert v California, 355 US 225, 2 L Ed 2d 228, 78 S Ct 240, reh den 355 US
937, 2 L Ed 2d 419, 78 S Ct 410; Hunter v State, 158 Tenn 63, 12 SW2d 361, 61 ALR 1148;
Medrano v State, 32 Tex Crim 214, 22 SW 684.
An intention of the accused to keep within the law, but to get as near the line as possible, will not
help him if in fact he violates the law. Horning v District of Columbia, 254 US 135, 65 L Ed
185, 41 S Ct 53.
As to failure to take affirmative action, required under criminal sanctions, where defendant has
no knowledge of the requirement, see § 6, supra.
As to ignorance of law as defense in case of child charged with simple misdemeanor, see § 28,
supra.
Page 15 of 575
Footnote 48. State v De Meo, 20 NJ 1, 118 A2d 1, 56 ALR2d 905.
Footnote 49. People v Flumerfelt, 35 Cal App 2d 495, 96 P2d 190 (reliance on attorney's
misstatement of fact); People v McCalla, 63 Cal App 783, 220 P 436, error dismd 267 US 585,
69 L Ed 799, 45 S Ct 461 (reliance on attorneys misstatement of law), and (disapproved on other
grounds People v Elliot 54 Cal 2d 498, 6 Cal Rptr 753, 354 P2d 225 (ovrld on other grounds
People v Pompa-Ortiz 27 Cal 3d 519, 165 Cal Rptr 851, 612 P2d 941)); People v Cohn, 358 Ill
326, 193 NE 150; Hunter v State, 158 Tenn 63, 12 SW2d 361.
Footnote 50. People v Goodin, 136 Cal 455, 69 P 85.
As to belief that actions are legal as defense to kidnapping, see 1 Am Jur 2d, Abduction and
Kidnapping § 27.
Footnote 51. United States v Murdock, 290 US 389, 78 L Ed 381, 54 S Ct 223.
Footnote 52. A public officer, in obeying a regulation which has not been tested in the courts,
does not act "maliciously," even if the regulation is illegal. Fears v State, 33 Ariz 432, 265 P
600.
Footnote 53. If one intentionally adopts certain conduct in certain circumstances known to him,
and that conduct is forbidden by the law under those circumstances, he intentionally breaks the
law in the only sense in which the law ever considers intent. Ellis v United States, 206 US 246,
51 L Ed 1047, 27 S Ct 600; Borderland Constr. Co. v State, 49 Ariz 523, 68 P2d 207.
Footnote 54. Long v State (Sup) 44 Del 262, 65 A2d 489.
Footnote 55. See 50 Am Jur 2d, Larceny § 41.
Footnote 56. Long v State (Sup) 44 Del 262, 65 A2d 489.
Footnote 57. 1962 Ford Thunderbird v Division of Narcotic Control of Dept. of Public Safety, 49
Ill App 2d 8, 198 NE2d 155, 10 ALR3d 554.
Footnote 58. District of Columbia v John R. Thompson Co., 346 US 100, 97 L Ed 1480, 73 S
Ct 1007, on remand 93 App DC 373, 214 F2d 210.
§ 143 Mistaken belief as to constitutionality of statute [21 Am Jur 2d CRIMINAL LAW]
Violation of a valid criminal statute cannot be excused on the ground that the defendant believed
in good faith that the statute was unconstitutional, 59 even though he acted on advice of
counsel. A claim of belief in the unconstitutionality of a statute is a plea of ignorance of the law
Page 16 of 575
and therefore inadmissible. 60 On the other hand, despite the general theory that an
unconstitutional statute is void and hence affords no protection, 61 reliance on a statute later
held unconstitutional is frequently held to be a good defense. 62 The theory is that a legislative
act is presumptively valid and entitled to obedience until held unconstitutional by competent
authority. 63 Thus a public officer cannot be criminally punished for obeying a statute later held
invalid. 64 And, on the ground that a veto is also a legislative act and presumptively valid, it has
been held that one cannot be penalized for failing to obey a vetoed statute in reliance on the
constitutionality of the veto, even though it is later held that the veto was invalid and that the
statute took effect. 65 And where a criminal statute has been repealed and the repealing act has
been upheld by an intermediate court, it has been held unjust to punish a citizen for violating the
original statute in reliance on the repealer, even if the latter should be deemed unconstitutional
and therefore ineffective to repeal the original act. 66 On the other hand, it has been held that
prosecution under a general criminal statute is not precluded by the fact that defendant's act
would have been authorized under a later amendment, which the court held void. 67
Footnotes
Footnote 59. Warren v United States (CA10 Kan) 177 F2d 596, cert den 338 US 947, 94 L Ed
584, 70 S Ct 485; Hunter v State, 158 Tenn 63, 12 SW2d 361.
Footnote 60. Hunter v State, 158 Tenn 63, 12 SW2d 361.
Footnote 61. See 16 Am Jur 2d (Rev) Constitutional Law § 256.
Footnote 62. Texas Co. v State, 31 Ariz 485, 254 P 1060; State v Godwin, 123 NC 697, 31 SE
221.
Footnote 63. Texas Co. v State, 31 Ariz 485, 254 P 1060.
Footnote 64. State v Godwin, 123 NC 697, 31 SE 221.
Footnote 65. Texas Co. v State, 31 Ariz 485, 254 P 1060.
Footnote 66. East Lake Lot Owners Asso. v Prince's Lakes, 246 Ind 333, 205 NE2d 821 (lack of
saving clause in repealed criminal statute as terminating prosecutions thereunder); Lutwin v
State, 97 NJL 67, 117 A 164.
Footnote 67. Commonwealth v Malco-Memphis Theatres, Inc., 293 Ky 531, 169 SW2d 596. See
also Carolina-Virginia Racing Asso. v Cahoon (CA4 NC) 214 F2d 830 (refusing to enjoin
enforcement of criminal statute).
Page 17 of 575
§ 144 Reliance on judicial decisions [21 Am Jur 2d CRIMINAL LAW]
Where a criminal statute has been first held unconstitutional by the court of last resort and then
later held constitutional, a person who committed the prohibited act during the interval between
the two decisions is not liable to punishment. 68 And where a decision holding a criminal
statute inapplicable has been overruled, the same rule is applied. 69 Some courts take the view
that the opposite result would make the later decision, at least in substance, an ex post facto law,
70 or would amount, under the circumstances, to cruel and unusual punishment. 71 Others
simply take the view that the court has exercised, and under such circumstances should exercise,
the power to give its overruling decision a solely prospective effect. 72
There is some authority to the effect that reliance on a lower court decision is no defense. 73 It
has been held, however, that one is entitled to rely on an express decision of unconstitutionality
by any competent court of general jurisdiction having authority to decide that question, at least
where the act would be only malum prohibitum should the statute subsequently be upheld by a
higher court. 74
Where an injunction against the enforcement of a criminal statute has been sought on the ground
of its unconstitutionality, and a temporary injunction has been granted, it has been held that the
purpose of the latter order is to preserve the status quo pending a decision on constitutionality,
not to decide the rights of the parties. Accordingly, one who violates the statute while the
temporary injunction is in effect does so at his peril and he may be punished if the injunction is
later dissolved and the statute upheld. 75
Footnotes
Footnote 68. Chavers v Harrell, 122 Fla 669, 166 So 261, adhered to 122 Fla 670, 166 So 262
and reh den 122 Fla 700, 166 So 574; State v O'Neil, 147 Iowa 513, 126 NW 454; State v Stout,
90 Okla Crim 35, 210 P2d 199.
Footnote 69. Commonwealth v Trousdale, 297 Ky 724, 181 SW2d 254; State v Longino, 109
Miss 125, 67 So 902; State v Jones, 44 NM 623, 107 P2d 324.
Footnote 70. State v Longino, 109 Miss 125, 67 So 902.
Footnote 71. State v Longino, 109 Miss 125, 67 So 902.
As to what constitutes cruel and unusual punishment, see §§ 625 et seq., infra.
Footnote 72. State v Jones, 44 NM 623, 107 P2d 324; State v Bell, 136 NC 674, 49 SE 163.
Footnote 73. Leon v United States (Mun Ct App Dist Col) 136 A2d 588; State v Striggles, 202
Page 18 of 575
Iowa 1318, 210 NW 137.
Footnote 74. State ex rel. Williams v Whitman, 116 Fla 196, 150 So 136, later op 116 Fla 198,
156 So 705, 95 ALR 1416.
Footnote 75. State v Wadhams Oil Co. 149 Wis 58, 134 NW 1121.
Compare Marysville v Cities Service Oil Co., 133 Kan 692, 3 P2d 1060, holding injunction
restraining enforcement of a city ordinance to be complete defense to prosecution for its violation
during the life of the injunction suit where the ordinance was regulatory in its nature, where its
validity depended on facts which could be established only through judicial inquiry, and where
the injunction suit was prosecuted promptly and in good faith.
§ 145 Advice of counsel [21 Am Jur 2d CRIMINAL LAW]
As a general rule, it is no defense to a criminal prosecution that the defendant acted in good faith,
relying on the advice of counsel. 76 This situation is considered to fall within the general rule
that ignorance or mistake of law will not excuse. 77 However, advice of counsel may be shown
where it tends to disprove the intent requisite to the particular offense. 78 Thus, where the
offense is one which requires a fraudulent intent, 79 an evil motive or bad purpose, 80 or
malice, 81 the advice of reputable counsel, 82 given on full disclosure of the facts and followed
in good faith, 83 though not an absolute defense, may be shown as tending to rebut the mental
element requisite to the particular offense. And one jurisdiction has gone so far as to hold that
even general criminal intent may be rebutted by showing, not merely that defendant relied on
advice of counsel, but that his conduct throughout in seeking to ascertain the law and relying on
the advice received manifested good faith and diligence beyond reproach. 84 However, advice
of counsel is of no avail where the statute forbids an act regardless of intent. 85
Footnotes
Footnote 76. Miller v United States (CA4 SC) 277 F 721; Barnett v State, 89 Ala 165, 7 So 414;
Staley v State, 89 Neb 701, 131 NW 1028; Smith v State, 46 Tex Crim 267, 81 SW 936.
The fact that defendant public officers followed the official opinions of the state attorney general
shows absence of wrongful intent, but does not excuse. Lindquist v State, 213 Ark 903, 213
SW2d 895.
Belief, supported by advice of counsel, in the unconstitutionality of a statute, is no defense in a
prosecution for its violation. Hunter v State, 158 Tenn 63, 12 SW2d 361.
Footnote 77. People v McCalla, 63 Cal App 783, 220 P 436, error dismd 267 US 585, 69 L Ed
Page 19 of 575
799, 45 S Ct 461 and (disapproved on other grounds People v Elliot 54 Cal 2d 498, 6 Cal Rptr
753, 354 P2d 225 (ovrld on other grounds People v Pompa-Ortiz 27 Cal 3d 519, 165 Cal Rptr
851, 612 P2d 941)); Staley v State, 89 Neb 701, 131 NW 1028.
Footnote 78. Reed v State, 248 Ala 196, 27 So 2d 25.
As to advice of counsel as defense to perjury charge, see 60 Am Jur 2d, Perjury § 48.
Footnote 79. Bisno v United States (CA9 Cal) 299 F2d 711, cert den 370 US 952, 8 L Ed 2d
818, 82 S Ct 1602, reh den 371 US 855, 9 L Ed 2d 94, 83 S Ct 51; Shushan v United States
(CA5 La) 117 F2d 110, 133 ALR 1040, cert den 313 US 574, 85 L Ed 1531, 61 S Ct 1085, reh
den 314 US 706, 86 L Ed 564, 62 S Ct 53 and cert den 313 US 574, 85 L Ed 1532, 61 S Ct
1086 and (ovrld on other grounds United States v Cruz (CA5 Fla) 478 F2d 408, reh den (CA5
Fla) 478 F2d 1403 and cert den 414 US 910, 38 L Ed 2d 148, 94 S Ct 231, 94 S Ct 258, 94 S
Ct 259); Wacksman v United States (Mun Ct App Dist Col) 175 A2d 789.
Footnote 80. United States v Phillips (CA7 Ill) 217 F2d 435 (income tax evasion).
Footnote 81. Krasner v State, 248 Ala 12, 26 So 2d 526 (criminal libel).
Footnote 82. Wacksman v United States (Mun Ct App Dist Col) 175 A2d 789.
Footnote 83. Shushan v United States (CA5 La) 117 F2d 110, 133 ALR 1040, cert den 313 US
574, 85 L Ed 1531, 61 S Ct 1085, reh den 314 US 706, 86 L Ed 564, 62 S Ct 53 and cert den
313 US 574, 85 L Ed 1532, 61 S Ct 1086 and (ovrld on other grounds United States v Cruz
(CA5 Fla) 478 F2d 408, reh den (CA5 Fla) 478 F2d 1403 and cert den 414 US 910, 38 L Ed 2d
148, 94 S Ct 231, 94 S Ct 258, 94 S Ct 259).
Footnote 84. Long v State (Sup) 44 Del 262, 65 A2d 489.
Footnote 85. People v Aresen, 91 Cal App 2d 26, 204 P2d 389, reh den 91 Cal App 2d 38, 204
P2d 957.
4. Absence of Choice or Volition [146-153]
§ 146 Generally [21 Am Jur 2d CRIMINAL LAW]
Generally one does not commit a crime unless some feasible and lawful alternative was open to
him. Thus, nonperformance cannot be made a crime where performance is impossible. 86 And
nonperformance should not be treated as criminal where performance would have violated some
other law 87 or a court order. 88 And it has been held that one should not be penalized for
following police instructions, though it later develops they had no legal basis. 89
Page 20 of 575
The criminality of an act cannot be made to depend on the happening of a subsequent event
which may not have been in the actor's contemplation at the time of the act and which may be
brought about by others against his will. 90
§ 146 – Generally [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Justification defenses and just convictions, 24 Pac LJ 1233 (1993).
Automobiles: necessity or emergency as defense in prosecution for driving without operator's
license or while license is suspended, 7 ALR5th 73.
Footnotes
Footnote 86. Port Huron v Jenkinson, 77 Mich 414, 43 NW 923.
Footnote 87. People v Kent, 151 Mich 134, 114 NW 1012 (property owner cannot be held
criminally liable for condition he had no right to abate).
Footnote 88. A litigant should not be exposed to punishment for not doing an act commanded by
statute where a court, acting within its jurisdiction and authority, has issued an injunction
commanding him to refrain from doing it. State v Chicago, M. & St. P. R. Co. 130 Minn 144,
153 NW 320.
Footnote 89. Schiff v People, 111 Colo 333, 141 P2d 892.
Footnote 90. United States v Fox, 95 US 670, 24 L Ed 538, holding that the fact that
fraudulently obtaining goods on credit occurs within three months before commencement of
either voluntary or involuntary bankruptcy proceedings is not ground for making it a federal
offense.
§ 147 Necessity [21 Am Jur 2d CRIMINAL LAW]
There is some authority to the effect that an act done from compulsion or necessity is not a crime.
91 But the necessity or compulsion which will excuse a criminal act must be clear and
conclusive and must arise without negligence or fault on the part of the defendant. 92 The case
does not become one of necessity unless all other alternatives have been exhausted. 93 And in a
prosecution for an offense not requiring intent, it has been held that the defense of necessity is
not available, at least where the defendant could have avoided the emergency by taking advance
precautions. 94 Specific aspects of the law of necessity, such as self-defense, 95 defense of
other persons, 96 defense of habitation, 97 and defense of property 98 are treated elsewhere.
Page 21 of 575
Economic necessity is not a justification for a positive criminal act, such as larceny, 99 but it has
been held that failure to act cannot be made criminal where indigence would make compliance
impossible. 1
§ 147 – Necessity [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Reeve, Necessity: The Right to Present a Recognized Defense. 21 N Eng LR 779,
1985-1986.
Commonwealth v. Hutchins [575 N.E.2d 741 (Mass. 1991)]: a defendant is denied the right to
present a medical necessity defense, 27 New Eng LR 1101 (1993).
Bayles, Reconceptualizing Necessity and Duress. 33 Wayne LR 1191, Summer, 1987.
Levitin, Putting the Government on Trial: The necessity defense and social change. 33 Wayne
LR 1221, Summer, 1987.
Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense,
8 ALR5th 713.
Driving while intoxicated: "choice of evils" defense that driving was necessary to protect life or
property. (See also 7A Am Jur 2d, Automobiles and Highway Traffic § 296.) 64 ALR4th 298.
Trespass: state prosecution for unauthorized entry, or occupation, for public demonstration
purposes, of business, industrial, or utility premises. 41 ALR4th 773.
Case authorities:
In a prosecution for trespass, the trial court did not err in barring the defense of necessity.
Defendants' offer of proof, that they had no choice but to trespass on the premises of a defense
contractor to distribute leaflets protesting the development of a certain missile, because they
believed that their presence would bring about an end to the threat of nuclear holocaust, was
legally insufficient, the most obvious deficiency being their failure to present legally sufficient
evidence that they lacked an adequate alternative to criminal trespass. Defendants' theories that
development of the missile violated international law, and that adequate alternatives did not exist
in that defendants had tried lawful leafletting, political campaigning, and other courses of action
without successfully averting the threat of nuclear war, were insufficient. In a free society, neither
the political process nor the avenue of lawful protest is an exhaustible remedy for an unwise
policy decision, and compliance with international law must be sought through the ballot box, or,
where appropriate, by court action. Illegal conduct designed to influence policies cannot be
considered necessary where such lawful avenues are available. In re Weller (1985, 1st Dist) 164
Cal App 3d 44, 210 Cal Rptr 130.
Page 22 of 575
Although persons incapable of committing a crime include those who commit an act under an
ignorance or mistake of fact, which disproves any criminal intent (Pen. Code, § 26, subd. 3), a
defendant charged with assault with a deadly weapon on an Amtrak conductor (Pen. Code, §
245.2) could not assert the defense predicated on his alleged belief he was being followed by
enemies and that he assaulted the conductor on the train in order to be publicly arrested and thus
shielded from his enemies. As a matter of law, defendant could not establish that his conduct was
legally justified under the doctrine of necessity; even if the circumstances which confronted
defendant entitled him under the doctrine of necessity to resort to some criminal act for his own
protection, he was obligated to utilize the least costly alternative. Because he selected an
inappropriate means for attaining safety, defendant was foreclosed from taking shelter in the
doctrine of necessity. People v Raszler (1985, 3d Dist) 169 Cal App 3d 1160, 215 Cal Rptr 770.
In a prosecution of three persons for engaging in criminal conduct while participating in
antiabortion demonstrations outside a medical clinic, defendants were not entitled to have the
jury instructed on the defense of necessity. There was no justification for defendants to commit
crimes for the purpose of interfering with the exercise by others of their constitutional rights to
an abortion, recognized by the state and federal constitutional rights to privacy. People v
Garziano (1991, 2nd Dist) 230 Cal App 3d 241, 281 Cal Rptr 307, 91 CDOS 3669, 91 Daily
Journal DAR 5869.
In prosecution for unlawful possession of knife by inmate, trial court did not err in finding that
inmate failed to produce sufficient evidence to warrant instruction on affirmative defense of
necessity, where unsubstantiated events about which inmate testified could have taken place any
time between 1987 and discovery of knife in 1989, and thus did not support finding of specific
and immediate threat. People v Kite (1992) 153 Ill 2d 40, 178 Ill Dec 769, 605 NE2d 563.
The defense of "necessity," which provides that where a person reasonably believes that he or she
is in danger of physical harm he or she may be excused for some conduct which ordinarily would
be criminal, would be recognized in Mississippi. Under the doctrine of necessity, the question is
not whether an explicit threat was made, but whether a reasonable person under all of the
circumstances would feel threatened for his or her personal safety. Knight v State (1992, Miss)
601 So 2d 403.
The trial court committed reversible error by refusing to instruct the jury on the defense of
necessity where the defendant, charged with driving with a suspended license, testified that he
did so because his 6-month pregnant wife had developed pains in her back and stomach, that he
did not have a telephone, that the neighbor who did have a telephone was out, and that he was
thus required to drive to the nearest telephone to call for assistance. State v Cole (1991) 304 SC
47, 403 SE2d 117.
Page 23 of 575
Footnotes
Footnote 91. United States v Ashton (CC Mass) F Cas No 14470 (mutiny held justifiable where
vessel was unseaworthy and captain refused to put into port); Browning v State, 31 Ala App 137,
13 So 2d 54 (motorist attempting to escape from officers who were shooting at him to make
unlawful arrest not guilty of reckless driving).
The rule that a person voluntarily doing an act which the law forbids will be charged with
criminal intent does not apply to acts done under compulsion or necessity. Chesapeak & O. R.
Co. v Commonwealth, 119 Ky 519, 84 SW 566.
A criminal statute ought not to be given an application which, though within its literal language,
would take away a person's natural right of self-defense, or a parent's natural right to defend his
child. State v Jackson, 71 NH 552, 53 A 1021.
As to necessity as defense in homicide cases, see 40 Am Jur 2d, Homicide § 112.
As to bad prison conditions or fear of illtreatment by custodian as defense to charge of escape,
see 27 Am Jur 2d, Escape, Prison Breaking, and Rescue § 16.
Practice Aids: Arnolds & Garland, Defense of Necessity in Criminal Law. 1974, 65 J Crim L &
Criminology 289.
Tiffany & Anderson, Legislating the Necessity Defense in Criminal Law. 1975, 52 Denver L J
839.
Footnote 92. Ross v State, 169 Ind 388, 82 NE 781.
Footnote 93. United States v Holmes (CC Pa) F Cas No 15383; People v Whipple, 100 Cal App
261, 279 P 1008 (escape not justified by bad prison conditions and inhuman treatment, especially
where no attempt has been made to obtain relief by lawful means).
State prison inmate, who was convicted of introducing contraband after he was found to be in
possession of a knife, was properly denied an instruction on the choice of evils defense where he
alleged only a general fear of injury as his reason for retaining the knife and could not point to
definite, specific, and imminent threat to his person. People v Robertson, 36 Colo App 367, 543
P2d 533.
Footnote 94. Commonwealth v New York C. & H. R. R. Co., 202 Mass 394, 88 NE 764.
But see Chesapeak & O. R. Co. v Commonwealth, 119 Ky 519, 84 SW 566, holding that the fact
that precautions could have been taken is not determinative.
Page 24 of 575
Footnote 95. See 6 Am Jur 2d, Assault and Battery §§ 69-80; 40 Am Jur 2d, Homicide §§
139-141.
Footnote 96. See 6 Am Jur 2d, Assault and Battery § 63; 40 Am Jur 2d, Homicide §§ 170-173.
Footnote 97. See 6 Am Jur 2d, Assault and Battery § 82; 40 Am Jur 2d, Homicide §§ 174-179.
Footnote 98. See 6 Am Jur 2d, Assault and Battery §§ 81-89; 40 Am Jur 2d, Homicide §§
180-182.
Footnote 99. State v Moe, 174 Wash 303, 24 P2d 638.
Footnote 1. Commonwealth v O'Harrah (Ky) 262 SW2d 385; Port Huron v Jenkinson, 77 Mich
414, 43 NW 923.
§ 148 Coercion, compulsion, or duress [21 Am Jur 2d CRIMINAL LAW]
Though coercion does not excuse taking the life of an innocent person, 2 it does excuse most, if
not all, other offenses. 3 In order to constitute a defense, the coercion or duress must be
present, imminent, and impending, and of such a nature as to induce a well-grounded
apprehension of death or serious personal bodily injury if the act is not done, 4 particularly
where the defense is asserted by a participant in the offense. 5 Apprehension of loss of property,
or of slight or remote personal injury, is no excuse. 6 Furthermore, the danger must be
continuous throughout the time when the act is being committed and must be one from which the
defendant cannot withdraw in safety. 7 The doctrine of coercion or duress cannot be invoked as
an excuse by one who had a reasonable opportunity to avoid doing the act without undue
exposure to death or serious bodily harm. 8 And threat or fear of future injury is not sufficient.
9
In cases involving prosecutions for robbery, larceny, or related crimes, claims of coercion,
compulsion, or duress have been raised in a variety of factual circumstances. 10 By far the
largest number of cases have involved claims by defendants that they committed robberies,
larcenies, or related crimes as a result of a threat or fear of personal injury or death. Although not
going so far as to hold that a threat or fear of personal injury or death excused the defendants
from being held criminally liable, courts in a number of cases have determined that evidence of
such a threat or fear was sufficient to raise a question as to the defense of coercion, compulsion,
or duress. 11 However, the defense has been held not established under the circumstances of
other cases involving claims by defendants that they committed robberies, larcenies, or related
crimes as a result of a threat or fear of personal injury or death. 12 In a number of cases,
defendants charged with robbery, larceny, or related crimes have sought to escape criminal
liability by claiming that they acted out of fear based on a threat of injury or death to other
persons, generally relatives or close friends. 13 Although it has been determined under the
Page 25 of 575
circumstances presented in a few cases that the defense of coercion, compulsion, or duress was
properly raised by evidence of threats against persons other than the defendant, 14 the defense
has been held not established under the circumstances of other cases involving claims by
defendants that they were forced to commit robberies, larcenies, or related crimes because of
threats against third persons. 15 Finally, the courts have rejected claims by defendants charged
with robbery, larceny, or related crimes that they acted under coercion, compulsion, or duress
resulting from miscellaneous facts or circumstances, 16 including an asserted threat to ruin a
defendant's reputation, 17 a fear of prosecution for an earlier criminal act, 18 and a need to
obtain money to provide for a drug habit 19 or family necessities. 20
The defense of coercion, compulsion, or duress is generally considered to be an affirmative
defense, 21 and, therefore, once the defendant has properly raised it by presenting some
evidence, the state must overcome it by proof beyond a reasonable doubt to sustain a conviction;
the determination of the issue is a matter for the trier of fact alone. 22 But the defendant must
establish the defense by a preponderance of the evidence to win an acquital. 23 The facts or
circumstances that are sufficient to establish the defense of coercion, compulsion, or duress are
for determination by the jury. 24 Since the essence of the jury question generally is whether the
defendant reasonably believed, under all the circumstances present, that he was faced with
imminent danger of death or bodily harm at the time he committed the criminal act, any evidence
relevant to a resolution of that question is admissible. 25
In jurisdictions in which the defense
of coercion, compulsion, or duress requires an objective test to determine whether the defendant
felt that his life was in danger, evidence of the defendant's subjective mental state may not be
admissible. 26
§ 148 – Coercion, compulsion, or duress [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Bakker, The Defense of Obedience to Superior Orders: The Mens Rea
Requirement. 17 Am J Crim L 55, Fall, 1989.
Duress: A philosophical account of the defense in law, 37 Ariz LR 1:251 (1995).
Murder, attempted murder, and the defence of duress: some objections to the present state of the
law, 25 Bracton LJ 15 (1993).
Hauhart, The Involuntary Action Defense to a Criminal Indictment. 11 No Ky LR 321, 1984.
Bayles, Reconceptualizing Necessity and Duress. 33 Wayne LR 1191, Summer, 1987.
Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense.
8 ALR5th 713.
"Choice of evils," necessity, duress, or similar defense to state or local criminal charges based on
Page 26 of 575
acts of public protest. 3 ALR5th 521.
Defense of necessity, duress, or coercion in prosecution for violation of state narcotics laws. 1
ALR5th 938.
Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime. 1
ALR4th 481.
Availability of defense of duress or coercion in prosecution for violation of federal narcotics
laws. 75 ALR Fed 722.
Case authorities:
In prosecution for carrying weapon, court properly refused to instruct jury on defense of coercion
or duress where defendant, working at store, leaped counter to confront three persons who had no
apparent weapons, and then did not withdraw, holding persons captive at gunpoint; facts that
court at defendant's first trial on same charge instructed jury on defense gave defendant no right
to same instruction where, at second trial, there was no factual basis. United States v Agard
(1979, CA2 NY) 605 F 2d 665.
Heroin distribution conspiracy defendant should have been provided with tape recording of his
telephone conversation with informant but new trial was not required since record as whole
belied defendant's claim of duress. United States v Stevens (1993, CA2 NY) 985 F2d 1175.
To extent charges against defendant require government to prove that criminal acts were one with
criminal intent, government should from outset bear burden of disproving duress beyond
reasonable doubt once defendant has introduced sufficient evidence concerning each element of
defense; there is, however, no constitutional bar to placing burden upon defendant to prove
affirmative defense of duress by preponderance of evidence where crime charged contains no
requirement of mens rea. United States v Santos (1991, CA3 Pa) 932 F2d 244, cert den (US) 116
L Ed 2d 617, 112 S Ct 592.
Denial of motion to produce witnesses to support defense of duress was proper, since defense
would not be available to bank-robbery defendants who claimed that they acted under mental
defect resulting from pressure of threat from head of their prison gang that they would be killed if
they did not escape from prison and commit crimes for gang's benefit, where neither defendant
sought protection of law or tried to surrender once outside prison, where once outside prison
threat of death was not imminent, and where defendants' testimony that they would kill one
another if gang rules were disobeyed did not prove immediacy of threat or explain failure to
surrender. United States v Campbell (1982, CA6 Tenn) 675 F2d 815, cert den (US) 74 L Ed 2d
99, 103 S Ct 112.
Once defendant presents evidence on defense of compulsion state must disprove defense beyond
Page 27 of 575
reasonable doubt, thus where defendant testified he took part in two murders upon threat of
death, refusal of trial court to instruct on defense required reversal and retrial of both of
defendant's convictions for murder, notwithstanding statute which provide that compulsion is not
defense if defendant has been convicted of murdering two or more individuals, in view of fact
that case interpreting statute to prohibit defense had not been decided at time of crime at issue.
United States ex rel. Reed v Lane (1985, CA7 Ill) 759 F2d 618, cert den (US) 89 L Ed 2d 577,
106 S Ct 1268 and cert den (US) 89 L Ed 2d 589, 106 S Ct 1282.
Trial judge did not commit error in refusing to give coercion instruction where, although
defendant claimed her sale of cocaine to undercover agent was motivated by threats from her
brother, produced evidence of threats by her brother, and claimed that her brother had violent
temper and was pressuring her to sell cocaine for him, defendant left and returned to rendezvous
point several times before transaction was complete, demonstrating that she had ample
opportunity to discontinue her criminal activity and avoid any feared injury. United States v
Feldhacker (1987, CA8 Iowa) 820 F2d 279.
In prosecution for aiding and abetting armed bank robbery and aiding and abetting use of firearm
in commission of violent felony, reasonable jury could have concluded that live-in girlfriend was
not coerced, where she dropped her boyfriend off at hotel after bank robbery and returned to pick
him up next day, and where she testified at trial to lying under oath concerning coercive nature of
her relationship with her boyfriend at his pretrial detention hearing. United States v Simpson
(1992, CA8 Minn) 979 F2d 1282, cert den (US) 122 L Ed 2d 727, 113 S Ct 1345.
Defendant in prosecution for participation in heroin distribution scheme was not entitled to
duress instruction where record demonstrated he was nervous and depressed due to $4,000
extortion demand following involvement in accident, but defendant failed to use reasonable
avenue of escaping his danger by reporting situation to police. United States v Hernandez (1979,
CA9 Cal) 608 F 2d 741.
Jury could decline to accept defendant's story that he was intimidated into attempting bank
robbery by threats from undercover agents where story was inconsistent, and was flatly
contradicted by agent's testimony. United States v McQuin (1980, CA9 Cal) 612 F 2d 1193, cert
den (US) 63 L Ed 2d 791, 100 S Ct 1607 and cert den (US) 63 L Ed 2d 791, 100 S Ct 1608.
In prosecution for conspiracy to commit armed bank robbery and for armed bank robbery,
evidence that, even though defendant knew his accomplice to be vicious man, he rode around
with him in van for six hours prior to bank robbery, belied defendant's coercion defense;
evidence did not meet requirement that defendant acted under immediate threat of death or
serious bodily injury, that defendant have well-grounded fear that threat would be carried out,
and that defendant had no reasonable opportunity to escape threatened harm except by
committing criminal act. United States v Morlan (1985, CA9 Cal) 756 F2d 1442, 18 Fed Rules
Evid Serv 1209, cert den (US) 88 L Ed 2d 94, 106 S Ct 115.
Page 28 of 575
In prosecution for knowingly and intentionally importing controlled substance, defense had
burden to prove duress defense by preponderance of evidence, where defense did not negate
element of intent, but rather justified defendant's conduct, if accepted by jury. United States v
Meraz-Solomon (1992, SD Cal) 818 F Supp 1320, affd without op (CA9 Cal) 990 F2d 1263,
reported in full (CA9 Cal) 3 F3d 298, 93 CDOS 5886, 93 Daily Journal DAR 10081.
In prosecution for possession of prohibited object, cocaine, while inmate in federal penitentiary,
court did not err in refusing to instruct on coercion or duress, where inmate was aware that he
could obtain protective custody and, after being placed in segegration, he did not indicate any
fear for his safety, but rather threatened to kill another inmate "behind this," and where
government presented evidence that inmate had opportunity to speak to prison guards and request
protective custody when cocaine was delivered into prison. United States v Merchant (1993,
CA10 Kan) 992 F2d 1091.
Trial court properly refused to delete language in pattern jury instruction denying defense of
duress to one who recklessly placed himself in situation in which alleged duress was reasonably
foreseeable where evidence supported inference that robbery defendant's drug dependency placed
him in position to be forced by others to attempt robbery. Meador v State (1984) 10 Ark App
325, 664 SW2d 878.
Where defendant admitted committing robbery, but testified that codefendant had been wild,
acted crazy, and waived gun around, pointing it at both him and victim, and that he had taken
money from victim and thrown it into rear seat of car because he was afraid codefendant might
shoot victim, trial judge erred in omitting any reference to third party from his instruction on
defense of duress, thus preventing jury from giving any consideration to threatened imminent use
of physical force on victim as motivation for defendant's participation in robbery, and in failing
to instruct jury that State had burden to disprove duress beyond reasonable doubt. State v Fuller
(1986) 199 Conn 273, 506 A2d 556.
Trial judge was obligated to submit issue of duress to jury under appropriate instructions in
prosecution of defendant for driving getaway car after robbery by her husband and third
defendant where third defendant testified that robbery was spontaneously suggested to him by
defendant's husband just minutes before robbery and after those two had exited car driven by
defendant to purchase beer in shopping center, that defendant's husband, armed with shotgun,
returned to car driven by defendant and threatened to "whip her ass" unless she drove from scene,
and that he continued to curse and direct her thereafter, while defendant was hysterical and crying
during entire time. Morrison v State (1989, Fla App D4) 546 So 2d 102, 14 FLW 1611.
In prosecution for unarmed robbery, trial court properly denied jury instruction on defense of
duress, although defendant said that he had not seen accomplice's gun before accomplice aimed it
at victim and that he was stunned and intimidated when he saw it, where victim testified that he
saw nothing to indicate that defendant was being forced or coerced into participating, where
defendant called victim after robbery, apologized, and told victim that accomplice was
Page 29 of 575
schoolfriend whom he had grown up with, and where defendant did not tell investigator when he
gave initial statement that he was forced to participate in robbery. Gahley v State (1990, Fla App
D1) 567 So 2d 456, 15 FLW 2169, review den (Fla) 1991 Fla LEXIS 347.
Rule that defense of coercion was not available to person guilty of murder extended to unwilling
accomplice even though accomplice did not actually kill victim. Thomas v State (1980) 246 Ga
484, 272 SE2d 68.
Where robbery defendant did not deny that he was present when robbery occurred, but testified
that he was forced at gun point to lead robbers to victim's car, failure of defendant's attorney to
tender instruction on defense of compulsion and on prosecution's burden of proof constituted
ineffective assistance of counsel, and that critical omission so prejudiced defense as to deny right
of accused to fair trial. People v Pegram (1988) 124 Ill 2d 166, 124 Ill Dec 525, 529 NE2d 506.
Defense of duress to crime against person is allowed only where prohibited conduct is compelled
by threat of imminent bodily injury and where defendant did not have ability to form requisite
mens rea, hence, it was not available to defendant charged with robbery where defendant's
testimony alleged only that his accomplices badgered him, called him names, and told him he
had no guts, and where defendant took part in planning robbery to raise money to purchase
marijuana, called out before shooting victim, then proceeded to seriously injure him, victim's
watch was found in defendant's possession, and defendant gave statement implicating himself.
Early v State (1985, Ind) 482 NE2d 256.
Trial judge correctly ruled that expert testimony on battered woman syndrome and hostage
syndrome was not relevant to facts of felony murder case and correctly denied defendant's
request for funds to obtain expert witness where defendant, who accompanied her boyfriend and
others on crime spree which resulted in charges against her of felony murder, aggravated
kidnapping, aggravated robbery, aggravated battery on law enforcement officer, and aggravated
battery, contended that acts of her boyfriend when she told him that she should return home, in
threatening her with gun, warning her that he would harm her or her family if she left him, and
later repeating warning, placed her under emotional and mental restraint of her boyfriend so that,
although she had no intent to commit crimes, she was compelled by her boyfriend to be present
when crimes were committed, that to show that her acts were compelled by her boyfriend,
services of expert were necessary to investigate battered wife syndrome and hostage or captivity
syndrome, evidence of which would bolster her claim that she acted under compulsion and,
therefore, was not criminally responsible, but evidence showed that only physical threat was
made before crime spree while parties were driving to Florida, that threats thereafter consisted of
intermittent reminders of previous intimidation, that defendant had several opportunities to
escape when boyfriend slept or when police officers were present, and where evidence was
insufficient to make battered woman or hostage syndrome defenses applicable. State v Down
(1988) 243 Kan 414, 758 P2d 718.
In prosecution of gang member for aggravated battery, assault, and kidnapping in connection
Page 30 of 575
with torture and beatings inflicted on new gang member, trial court did not err in refusing to
instruct jury on compulsion defense on theory that defendant was compelled to participate due to
his fear of gang leader upon whom he was financially and emotionally dependent, where
evidence that defendant had ample opportunity to escape did not support contention that coercion
was continuing or that defendant was in reasonable apprehension of death or serious injury, and
where defendant had knowingly associated himself with selling of drugs and with gang noted for
violence. State v Scott (1992) 250 Kan 350, 827 P2d 733.
Partially constructed nuclear power plant did not present kind of threat to life and health
contemplated by compulsion statute so as to justify criminal action to prevent its operation. State
v Greene (1981) 5 Kan App 2d 698, 623 P2d 933.
Evidence was insufficient to establish compulsion defense with respect to charge of driving while
under influence of alcohol or drugs, where there was no evidence that defendant was followed
and defendant drove vehicle for approximately 5 miles without stopping or otherwise seeking
assistance; distance traveled and time involved provided defendant with ample opportunity to
withdraw from criminal activity and seek aid. State v Riedl (1991) 15 Kan App 2d 326, 807 P2d
697.
Testimony that defendant's wife had received threatening phone calls including threats of death
to herself and her children, and had contacted police but that caller, who defendant testified had
been involved in crimes for which defendant had been imprisoned, had not been arrested, did not
constitute sufficient evidence of duress to require court to instruct jury as to defense of duress to
charge of escape from prison. People v Stephens (1981) 103 Mich App 640, 303 NW2d 51.
Under statutory changes effective January 1, 1979, defense of duress or coercion was affirmative
defense placing burden of proof on defendant, rather than a special negative defense placing
burden of proof on state. State v Wilkerson (1981, Mo) 616 SW2d 829.
Murder defendant was not entitled to instruction on statutory mitigating circumstance that he
acted under extreme duress or under substantial domination of another person where there was
no basis in record to support such instruction. State v Foster (1985, Mo) 700 SW2d 440, cert den
(US) 90 L Ed 2d 993, 106 S Ct 2907.
Where defendant testified that he could have gotten away from persons he claimed coerced him
into robbery at any time, defense of coercion would not apply. State v Hicks (1979, Mo App) 591
SW2d 184.
Defense of compulsion or duress to charge of escape from probation based on alleged coerced
sexual relationship with male guardian was not available where probationer failed to report
alleged sexual coercion to probation officer even though she had ample opportunity to do so and
had developed close relationship with probation officer, failed to report to proper authorities once
she had escaped, and was arrested in another state for prostitution. State v Ottwell (1989, Moat)
Page 31 of 575
784 P2d 402.
In prosecution for driving while intoxicated, driver failed to establish that he acted under duress,
where no one ordered defendant to get drunk and no one ordered defendant to drive drunk, where
police did not coerce defendant into driving vehicle through use or threats of violence, and where
police officer merely ordered defendant to get into his truck and leave scene of fight. State v
Fogarty (1992) 128 NJ 59, 607 A2d 624.
In prosecution for assault against another inmate of county jail, instruction that, in determination
of whether or not defendant would have been able to resist duress, time frame to look at was that
at time of assault, did not impose more stringent standard than required by statute, since
emphasis on defendant's situation at time of assault in no way precluded jury from considering all
underlying circumstances leading up to that moment. People v Tenace (1983, 3d Dept) 97 App
Div 2d 592, 468 NY S2d 215.
Jury properly rejected defendant's defense of duress in prosecution for robbery and criminal
possession of stolen property where state's evidence indicated that defendant announced robbery
using particularly vile curse, that he appeared calm throughout robbery, that he was only robber
to display weapon, air pistol capable of causing death or serious physical injury, that he kept
pistol pressed against one victim's side during incident, and that when arrested, defendant was
found to have extra compressed gas cartridge and three spare pellets on his person in addition to
proceeds of crime. People v Armstrong (1989, 2d Dept) 150 App Div 2d 589, 541 NY S2d 457.
The common law doctrine of duress does not recognize any duress, even the threat of imminent
death, as sufficient to excuse the intentional killing of an innocent human being and does not
apply if defendant had a reasonable opportunity to avoid doing the act without undue exposure to
death or serious bodily harm. Therefore, defendant was not entitled to an instruction on duress in
a prosecution for first-degree murder where all the evidence tended to show that defendant was
either the actual killer of the victim or that he assisted another in killing the victim and where the
evidence also showed that defendant had a reasonable opportunity to run away from the building
in which the killing occurred and avoid any further aid to the other person involved in the killing
without undue exposure to death or serious bodily harm when he left the building to talk with the
driver of a vehicle which had driven up outside the building. State v Brock (1982) 305 NC
532,290 SE2d 566.
The trial court properly instructed the jury as to compulsion in accordance with State v Kearns
(1975) 27 NC App 354, 219 SE2d 228, cert den (1976) 289 NC 300, 222 SE2d 700, where the
defense initially requested that the judge instruct the jury as to coercion or duress and counsel for
defendant withdrew the request after the State asked the court to give the instruction in
accordance with Kearns. State v Barnes (1994) 116 NC App 311, 447 SE2d 478.
In prosecution for attempted aggravated murder and conspiracy to commit aggravated murder of
girlfriend's ex-husband who threatened defendant, girlfriend, and girlfriend's daughter, failure of
Page 32 of 575
trial court to charge on duress was not error, where defendant's testimony that coconspirator
stated that if defendant did not go along with plan defendant would be killed by hit man, and that
defendant met with coconspirator and hit man on following day did not indicate immediate and
continuous force compelling criminal conduct against will of defendant during time act was
being committed. State v Dapice (1989, Summit Co) 57 Ohio App 3d 99, 566 NE2d 1261,
motion overr 42 Ohio St 3d 710, 538 NE2d 119, motion den 47 Ohio St 3d 716, 549 NE2d 172
and later app (Ohio App, Summit Co) 1989 Ohio App LEXIS 3943, dismd, motion overr 49
Ohio St 3d 707, 551 NE2d 1301.
Trial court's instruction that to excuse any criminal act, degree of coercion must be present,
imminent, and of such nature as to induce well-grounded apprehension of death or serious bodily
harm if the act is not done, and that fear of injury must be reasonable, was accurate statement of
law of coercion. State v Owens (1992, SC) 424 SE2d 473, cert den (US) 123 L Ed 2d 482, 113
S Ct 1861.
In prosecution for aggravated robbery, trial court did not err in shifting burden of production and
persuasion to defendant who asserted affirmative defense of duress, where statute provided that
affirmative defense shifted both burden of production and persuasion to defendant and where
such shift did not violate substantive due process given that voluntariness was not element of
offense. Alford v State (1991, Tex App Dallas) 806 SW2d 581, petition for discretionary review
gr (Jul 3, 1991).
Defense of coercion, raised by driver who asserted that he was speeding to get away from another
erratically-driven car and thereby protect his passenger sister and avoid confrontation with driver,
would be available as defense to strict liability civil forfeiture defense (i.e., speeding), where
defense did not seek to disprove culpable state of mind but rather raised legal justification of
events, and where defendant's violation may have been caused by state itself, since other car was
unmarked police car that eventually issued speeding citation. State v Brown (1982) 107 Wis 2d
44, 318 NW2d 370.
In prosecution for kidnapping and aggravated assault of 2 prison counselors, trial court did not
abuse its discretion in refusing to permit physician/psychiatrist's testimony about inmate's
subjective belief about danger, where testimony was irrelevant given that apprehension must be
reasonable; trial court did not err in refusing inmate's instructions about duress and coercion,
where inmate presented no evidence that (1) he was faced with specific threat of death, forcible
sexual attack, or substantial bodily injury in immediate future, (2) there was not time for
complaint to authorities, or that such complaint would have been futile, and (3) there was no
opportunity to resort to courts to redress grievances. Amin v State (1991, Wyo) 811 P2d 255
(citing annotation).
Duress is usually taken to require present, immediate, and impending threat of such nature as to
induce well founded fear of death or of serious bodily injury if criminal act is not done; actor
must have been so positioned as to have no reasonable chance of escape; actor must have been
Page 33 of 575
put in condition of mind where neither he nor person of reasonable firmness could have acted
otherwise in circumstances. Thus, in prosecution for murder, armed robbery, and assault by
means of dangerous weapon, where record showed that defendant claimed he was afraid of his
companion and his shotgun or else he would not have engaged in robbery, though there was
controverting testimony, judge was obliged to instruct jury on duress; assuming that duress
defense was available to meet charge of homicide, as well as other charged crimes, and that
burden of disproving duress beyond reasonable doubt was upon Commonwealth as matter of
constitutional law, instructions on duress and burden of proof were adequate, even though no
explicit instruction was made that Commonwealth bore burden of negating duress beyond
reasonable doubt, in that instructions required Commonwealth to prove voluntariness and critical
nexus between elements of crime charged and absence of particular defense. Commonwealth v
Robinson (1981, Mass) 1981 Adv Sheets 4, 415 NE2d 805.
Footnotes
Footnote 2. See 40 Am Jur 2d, Homicide § 119.
Footnote 3. Koontz v State (Fla App D2) 204 So 2d 224; Nall v Commonwealth, 208 Ky 700,
271 SW 1059; State v Capaci, 179 La 462, 154 So 419; State v St. Clair (Mo) 262 SW2d 25, 40
ALR2d 903; State v Bromley, 72 Wash 2d 150, 432 P2d 568, later app 1 Wash App 325, 462
P2d 242 (kidnapping).
Defendant's testimony that he had been informed someone had a contract out on his life and that
someone took a shot at him 3 days before the trial did not establish a defense of duress to excuse
his failure to appear for trial, since defendant was not in danger because of the upcoming trial
date, but rather for a matter not directly related to his appearance in court and there was no
evidence that defendant had contacted the police, the court, or even his attorney about threats
against his life. United States v Atencio (1978, CA9 Cal) 586 F2d 744.
Rape has been suggested as another offense which possibly cannot be excused on the basis of
coercion, even by one in peril of his life. State v Dowell, 106 NC 722, 11 SE 525.
As to crime committed under military orders, see 53 Am Jur 2d, Military, and Civil Defense.
As to coercion as defense in treason cases, see 70 Am Jur 2d, Sedition, Subsersive Activities,
and Treason § 52.
Practice Aids: Criminal Acts Committed Under Duress. 4 Am Jur Proof of Facts 2d 179.
Boyer, Constitutionality of Criminal Affirmative Defenses: Duress and Coercion. 1976, XI U
San Francisco L Rev 123.
Page 34 of 575
Wasik, Duress and criminal responsibility. 1977 Criminal L Rev 453, August 1977.
Footnote 4. R. I. Recreation Center, Inc. v Aetna Casualty & Surety Co. (CA1 RI) 177 F2d 603,
12 ALR2d 230; State v St. Clair (Mo) 262 SW2d 25, 40 ALR2d 903; State v Good, 110 Ohio
App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr; State v Ellis, 232
Or 70, 374 P2d 461.
The defense of duress requires proof of a threat of imminent violence; fear of future bodily harm
does not suffice. People v Killman (4th Dist) 51 Cal App 3d 951, 124 Cal Rptr 673.
Claim by defendant that he committed robbery because he needed money to provide his family
with food and shelter did not constitute claim of duress without any showing that defendant was
under any physical compulsion or threat of physical harm from any source, person, or persons to
commit crime. State v Gann (ND) 244 NW2d 746.
Footnote 5.
Annotation: 40 ALR2d 908, § 2.
In a prosecution of a man and three women for murder and conspiracy to commit murder arising
out of two successive multiple homicides the trial court was not required to instruct the jury sua
sponte on the defense of compulsion, where, though there was evidence that the male defendant
gave the female defendants orders concerning the commission of the crimes, there was no
evidence that such instructions were accompanied by any threat. People v Manson (2d Dist) 61
Cal App 3d 102, 132 Cal Rptr 265, cert den 430 US 986, 52 L Ed 2d 382, 97 S Ct 1686 and
later app (2d Dist) 113 Cal App 3d 280, 170 Cal Rptr 189.
In robbery prosecution, where no evidence showed that any threat was made by accomplice or
defendant, and defendant made no explanation as to why he did not withdraw from crime at time
when he had apparent opportunity to do so, there were no facts to show that defendant
entertained reasonable fears of immediate violence being inflicted upon him, and therefore jury
instruction which placed upon defendant burden of persuasion on issue of coercion was harmless
error. State v Moore, 237 Ga 269, 227 SE2d 241.
Compulsion to commit robbery was not shown where evidence indicated defendant participated
fully and without direction in holdup of two victims, and later failed to claim defense of
compulsion when caught by security guard or subsequently at police station. People v Johnson,
42 Ill App 3d 194, 355 NE2d 577.
Coercion was not available as defense to defendant who was principal in second degree to armed
robbery, where defendant had testified that accomplice had threatened to kill him if he did not
participate in crime, but where defendant was left in control of car and had reasonable
opportunity to leave scene and avoid aiding and abetting perpetrators. State v Kearns, 27 NC
App 354, 219 SE2d 228, cert den 289 NC 300, 222 SE2d 700.
Page 35 of 575
Footnote 6. D'Aquino v United States (CA9 Cal) 192 F2d 338, reh den (CA9 Cal) 203 F2d 390
and cert den 343 US 935, 96 L Ed 1343, 72 S Ct 772, reh den 343 US 958, 96 L Ed 1358, 72
S Ct 1053 and reh den 345 US 931, 97 L Ed 1361, 73 S Ct 786; United States v Vigol (F CC
Pa) 2 US 346, 1 L Ed 409.
Annotation: 40 ALR2d 908, § 2.
Defendant's testimony that codefendant, who had allegedly been harrassing him for six years,
asked him to take photographs, saying if he refused some harm might come to his minor daughter
and son, did not show that defendant was coerced in endeavoring to induce 17-year-old girl to
pose for photographs in nude. Mallicoat v State (Tenn Crim) 539 SW2d 54.
Footnote 7. State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d
28, motion overr.
Duress is defense to crime other than murder if defendant was engaged in conduct because he
was coerced to do so by use of, or threat to use, unlawful force against person or person of
another, which person of reasonable firmness in defendant's situation would have been able to
resist; although preliminary judicial determination that threat posed danger of "present, imminent
and impending" harm to defendant or to another, trial judge in charging jury should advert to
factor of immediacy, as well as gravity of harm threatened, seriousness of crime committed,
identity of person endangered (whose conduct should be judged by standard of person of
reasonable firmness in defendant's situation), possibilities for escape or resistence, and
opportunities for seeking official assistance. State v Toscano, 74 NJ 421, 378 A2d 755.
Footnote 8. R. I. Recreation Center, Inc. v Aetna Casualty & Surety Co. (CA1 RI) 177 F2d 603,
12 ALR2d 230; State v St. Clair (Mo) 262 SW2d 25, 40 ALR2d 903.
Annotation: 40 ALR2d 908, § 2.
In prosecution for carrying knife in federal prison, inmate, who had been threatened by other
inmates, did not establish defense of duress where inmate neither sought administrative detention
nor transfer to another institution to avoid threatened danger. United States v Wood (CA9 Cal)
566 F2d 1108.
Footnote 9. People v Villegas, 29 Cal App 2d 658, 85 P2d 480; People v Merhige, 212 Mich 601,
180 NW 418; State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165
NE2d 28, motion overr.
Annotation: 40 ALR2d 908, § 2.
Footnote 10.
Annotation: 1 ALR4th 481.
Page 36 of 575
Footnote 11. People v Graham (4th Dist) 57 Cal App 3d 238, 129 Cal Rptr 31; Koontz v State
(Fla App D2) 204 So 2d 224; Hill v State, 239 Ga 278, 236 SE2d 626; People v Creach, 69 Ill
App 3d 874, 25 Ill Dec 886, 387 NE2d 762, affd in part and revd in part on other grounds 79 Ill
2d 96, 37 Ill Dec 338, 402 NE2d 228, cert den (US) 66 L Ed 2d 467, 101 S Ct 564; Nall v
Commonwealth, 208 Ky 700, 271 SW 1059; People v Merhige, 212 Mich 601, 180 NW 418;
State v St. Clair (Mo) 262 SW2d 25, 40 ALR2d 903; White v State, 150 Tex Crim 546, 203
SW2d 222.
Annotation: 1 ALR4th 481, § 3[a].
See State v Milam, 108 Ohio App 254, 9 Ohio Ops 2d 252, 80 Ohio L Abs 449, 156 NE2d 840,
motion overr, motion overr, involving a prosecution for murder committed in connection with a
robbery, where the court said that under the circumstances presented at the time of the robbery, it
was reasonable for the defendant to fear that he was in imminent danger of death or great bodily
injury at the hands of his companions if he attempted to leave or to refuse to do anything that
they told him to do, the court adding that the defense of coercion and duress to the commission of
the robbery appeared to have been made. The circumstances included, the court observed, the
fact that the defendant's companions tricked him into accompanying them to the home of two
acquaintances whom they intended to rob; the fact that the defendant, who was described as
naive, did not suspect their intention and so agreed to accompany them; and the fact that when
his companions undertook to rob the victims, the defendant was petrified with fear, placed his
own safety uppermost in his mind, and did no more than what he believed was necessary to ward
off any suspicion on the part of his companions that he was antagonistic to their purpose and
unwilling to co-operate.
Footnote 12. Johnson v United States (CA9 Ariz) 370 F2d 495 (applying Arizona law); United
States v Buchanan (CA7 Ill) 529 F2d 1148, cert den 425 US 950, 48 L Ed 2d 194, 96 S Ct
1725; United States v Campbell (CA8 Iowa) 609 F2d 922, cert den 445 US 918, 63 L Ed 2d
604, 100 S Ct 1282; United States v Saettele (CA8 Mo) 585 F2d 307, cert den 440 US 910, 59
L Ed 2d 458, 99 S Ct 1220; Ballou v State (Ala App) 365 So 2d 352; People v Killman (4th
Dist) 51 Cal App 3d 951, 124 Cal Rptr 673; State v Moore, 237 Ga 269, 227 SE2d 241; People v
Colone, 56 Ill App 3d 1018, 14 Ill Dec 592, 372 NE2d 871, 1 ALR4th 475; Love v State (Ind)
393 NE2d 178; State v Xanders, 215 Iowa 380, 245 NW 361; State v Wing (Me) 294 A2d 418;
Darby v State, 3 Md App 407, 239 A2d 584, cert den 393 US 1105, 21 L Ed 2d 801, 89 S Ct
911; Commonwealth v Kennedy, 4 Mass App 772, 341 NE2d 697; People v Kelly, 51 Mich App
28, 214 NW2d 334; State v Rasmussen, 241 Minn 310, 63 NW2d 1; Brown v State (Miss) 252
So 2d 885; State v Hicks (Mo App) 591 SW2d 184; People v Irby (2d Dept) 61 App Div 2d 386,
402 NYS2d 847, mod on other grounds 47 NY2d 894, 419 NYS2d 477, 393 NE2d 472; State v
Kearns, 27 NC App 354, 219 SE2d 228, cert den 289 NC 300, 222 SE2d 700; State v Sappienza,
84 Ohio St 63, 95 NE 381; State v Gibbs, 267 SC 365, 228 SE2d 104; Munsey v State (Tenn
Crim) 496 SW2d 525; Thomas v State (Tex Crim) 530 SW2d 834; State v McKinney, 19 Wash
App 23, 573 P2d 820.
Page 37 of 575
Annotation: 1 ALR4th 481, § 3[b].
Describing as without merit the defendant's claim that he was acting solely under duress and fear
in the presence of a deadly weapon, and that he therefore was not accountable for his
participation in a robbery, the court in People v Sierra, 115 Cal App 2d 498, 252 P2d 394,
affirmed his robbery conviction. The defendant testified, and his testimony was generally
substantiated by the victim of the crime, that he was driving the car in which his codefendant, the
victim, and another person were passengers; that after placing a knife to the victim's throat, his
codefendant ordered him to keep on driving and to keep quiet; and that his codefendant
subsequently ordered him to stop the car, search the victim, and remove and throw away the
victim's shoes. In rejecting the defendant's claim that he acted under duress, the court said that
the record showed that his codefendant neither attempted to use his knife on him nor threatened
to harm him in any way; that the defendant stayed with his codefendant for some time after the
robbery; and that the defendant was in contact with the police on the day of the robbery and made
no mention of the crime to them. The evidence was clear, the court concluded, that the
defendants jointly planned the robbery and shared in the money taken from the victim.
In People v Aldridge, 65 Ill App 3d 995, 22 Ill Dec 655, 383 NE2d 19, the court upheld the
defendant's conviction for armed robbery even though he claimed that the evidence was
sufficient to support his claim that he participated in the robbery of a liquor store only because he
had been threatened by a man with a gun. The court said that sufficient evidence was presented
for the trial court to disbelieve the defendant and find that the claimed defense of compulsion had
been overcome by the prosecution. The defendant asserted that he took part in the robbery only
because a man to whom he owed money threatened him with a gun and ordered him to hold up
the liquor store in order to get the money that he owed. During the course of the robbery, the
defendant said, the man kept the gun pointed at him. Escape was impossible, the defendant
added, because the door to the liquor store was guarded by an accomplice of the man. In order to
establish that he acted out of fear, the defendant testified that he had been shot in the leg on a
previous occasion by the man. The court noted, however, that an employee of the liquor store
testified that the defendant was an active and apparently willing participant in the robbery.
Although the defendant claimed that he participated in the robbery of a market only because his
two companions, one of whom was armed with a shotgun, threatened to kill him if he refused,
the court held in Arendall v State (Tenn Crim) 509 SW2d 838, that there was evidence
supporting a guilty verdict, and it accordingly affirmed the defendant's conviction for armed
robbery. The court pointed out that the defendant's contention that he acted under compulsion
rested on his testimony alone, and it noted that in opposition to this contention, there was
testimony from two employees of the market, one of whom recognized the defendant, that he
took an active role in the robbery, including instructing his accomplice to shoot one of the
employees.
Footnote 13.
Annotation: 1 ALR4th 481, § 4.
Page 38 of 575
Footnote 14. People v Graham (4th Dist) 57 Cal App 3d 238, 129 Cal Rptr 31; Koontz v State
(Fla App D2) 204 So 2d 224; State v St. Clair (Mo) 262 SW2d 25, 40 ALR2d 903.
Annotation: 1 ALR4th 481, § 4[a].
Footnote 15. United States v Buchanan (CA7 Ill) 529 F2d 1148, cert den 425 US 950, 48 L Ed
2d 194, 96 S Ct 1725; United States v Saettele (CA8 Mo) 585 F2d 307, cert den 440 US 910,
59 L Ed 2d 458, 99 S Ct 1220; People v Bryan (2d Dist) 3 Cal App 3d 327, 83 Cal Rptr 291;
People v Byer, 75 Ill App 3d 658, 31 Ill Dec 430, 394 NE2d 632; Hood v State, 160 Ind App
667, 313 NE2d 546; State v Perry (Mo App) 565 SW2d 841; State v Fowler, 37 Or App 299, 587
P2d 104; Jackson v State (Tex Crim) 504 SW2d 488; State v McKinney, 19 Wash App 23, 573
P2d 820.
Annotation: 1 ALR4th 481, § 4[b].
In affirming a conviction for misapplying federally insured bank funds, despite the defendant's
contention that as a result of her depressed state of mind over the death of a relative in Vietnam
in 1967, she was compelled to misapply such funds in 1970 because of suicide threats made by
her daughter, the court held in United States v Stevison (CA7 Ill) 471 F2d 143, cert den 411 US
950, 36 L Ed 2d 411, 93 S Ct 1933, that the trial court neither erroneously and unduly limited
and curtailed development of the defense of coercion, nor incorrectly instructed the jury as to the
defense. The defendant, who was a bank cashier, permitted her daughter to cash checks against
accounts which contained insufficient funds, and the defendant made payments on the checks
from the bank's cash items, which she deducted from its undivided profits. The court explained
that the death of the defendant's relative in 1967 was not such an "immediate" limitation of her
free choice of conduct in 1970 as to justify invoking the coercion defense. Even if the defendant
thought that her daughter's threat of suicide was serious, the court added, she failed to show that
she did not have a full opportunity to avoid the threat by taking steps to have her daughter
restrained.
Footnote 16.
Annotation: 1 ALR4th 481, § 5.
In People v Bevilacqua (2d Dept) 56 App Div 2d 605, 391 NYS2d 641, revd on other grounds
45 NY2d 508, 410 NYS2d 549, 382 NE2d 1326, a prosecution for, inter alia, robbery and grand
larceny in which the defendant raised the defense of duress, the court affirmed, without
describing the circumstances bearing upon the claim of duress, the defendant's convictions.
Footnote 17. In Hamilton v State, 205 Ind 26, 184 NE 170, a case in which the defendant
contended that he took part in a burglary under duress and compulsion after threats were made to
"ruin his reputation and close the doors of society against him from Maine to California," and
because of force that was exerted against him by three fellow participants in the crime, the court
affirmed his conviction without discussing the evidence assertedly bearing upon the defense of
Page 39 of 575
compulsion and duress.
Footnote 18. Although the defendant contended, in defense to a prosecution for larceny by
embezzlement, that he had taken money from the bank for which he worked because of his fear
that if he did not do so a prior act of embezzlement would be exposed and he would be
prosecuted therefor, the court held in State v Patterson, 117 Or 153, 241 P 977, that the fear of a
threat of prosecution for a former offense is not a sufficient compulsion to exonerate a defendant
from prosecution for a subsequent offense. The court thus determined that there was no error in
the trial court's instruction to the jury that there was no evidence that the defendant was under
such coercion as would constitute the defense of compulsion or duress, and it accordingly
affirmed his conviction. The defendant claimed that he embezzled the funds in question at the
direction of a man from whom he had borrowed money to cover a previous act of embezzlement
and who threatened to expose him if he refused to co-operate. Pointing out that the defense of
compulsion or duress requires evidence of present, imminent, and impending compulsion of such
a nature as to induce a well-grounded apprehension of death or serious bodily harm, and noting
that the compulsion must have arisen without the negligence or fault of the defendant, the court
said that the defense was not available because the defendant himself was responsible for the
prior act of embezzlement.
Footnote 19. Although the defendant claimed that she was not criminally responsible for her
participation in an armed robbery because she needed money to buy heroin in order to prevent
withdrawal, the court held in Love v State (Ind) 393 NE2d 178, that her claim of compulsion was
without merit. Noting that the defendant did not claim that she was under any influence that
prevented her from forming the requisite criminal intent, the court said that "pharmacological
duress" does not constitute a legal defense to the commission of a crime.
Footnote 20. In State v Gann (ND) 244 NW2d 746, it was held that a claim by the defendant that
he committed a robbery because he needed money to provide his family with food and shelter did
not establish the defense of duress, since the defendant did not claim that he committed the crime
under any physical compulsion or threat of physical harm. The court explained that in order for
the defense of duress or compulsion to be applicable, there must be a showing that the
compulsion or duress was of such a nature as to induce a well-founded fear of immediate great
bodily harm or death. In the absence of such evidence, the court determined that the trial court
correctly refused to instruct the jury as to the defense.
Footnote 21. State v Sappienza, 84 Ohio St 63, 95 NE 381.
See the Model Penal Code (U.L.A.) § 2.09.
Footnote 22. People v Nurse, 34 Ill App 3d 42, 339 NE2d 328; People v Johnson, 42 Ill App 3d
194, 355 NE2d 577.
Footnote 23. State v Toscana, 74 NJ 421, 378 A2d 755; People v Irby (2d Dept) 61 App Div 2d
Page 40 of 575
386, 402 NYS2d 847, mod on other grounds 47 NY2d 894, 419 NYS2d 477, 393 NE2d 472;
State v Sappienza, 84 Ohio St 63, 95 NE 381.
Footnote 24. White v State, 150 Tex Crim 546, 203 SW2d 222.
Footnote 25. See United States v Hearst (ND Cal) 412 F Supp 889, a case not within the scope of
this discussion because it does not consider whether particular facts or circumstances were
sufficient to establish the defense of coercion or duress, where it was held that expert psychiatric
testimony was admissible to explain the effects that kidnapping, prolonged incarceration, and
psychological and physical abuse may have had on the defendant's mental state at the time of a
bank robbery, insofar as her mental state was relevant to the asserted defense of coercion or
duress. The court explained, in this notorious case involving the kidnapping of Patty Hearst by
members of the Symbionese Liberation Army, that the question whether the defendant's initial
status as a kidnap victim and her subsequent treatment by her captors could have deprived her of
the requisite general intent to commit the offense charged was relevant to the asserted defense.
See also United States v Hearst (CA9 Cal) 563 F2d 1331, reh den (CA9 Cal) 573 F2d 579 and
cert den 435 US 1000, 56 L Ed 2d 90, 98 S Ct 1656, where it was held that the trial court
committed no error in permitting admission of evidence connecting the defendant with criminal
activity which occurred approximately 1 month following the bank robbery, since such evidence
was relevant to the question whether she was acting under duress at the time of the robbery.
Footnote 26. See, for example, State v Starks, 122 Ariz 531, 596 P2d 366, holding that proffered
psychiatric testimony that the defendant, who was charged with armed robbery, was mentally
retarded, as a result of which he was susceptible to threats against him, was inadmissible to prove
that he acted under duress. Explaining that the statute establishing the defense of duress required
that a defendant's conduct be judged by an objective standard once it was established that he in
fact believed that his life was endangered by "threats or menaces," the court reasoned that the
proffered testimony was relevant only to the defendant's subjective mental state and therefore
was inadmissible.
§ 149 Husband's coercion of wife [21 Am Jur 2d CRIMINAL LAW]
Even under the common law, marriage does not affect the capacity of a woman to commit
crimes. The law deems a married woman to be as capable of committing crimes as if she were a
feme sole. If in committing a crime she acts of her own free will, and not under the coercion or
presumed coercion of her husband, she is held to the same responsibility for criminal acts as any
other person; her coverture is no defense. 27 At common law, however, a married woman was
not criminally responsible for acts done under her husband's coercion, 28 and his coercion was
frequently presumed. 29 Actual coercion may be a good defense, even where the common-law
presumption is not recognized. 30 And under some statutes, a married woman is incapable of
crime when acting under the threats, command, or coercion of her husband, except in the case of
felonies. 31
Page 41 of 575
A married woman is generally responsible for crimes committed by her in the absence of her
husband, 32 although some cases have stated the rule more guardedly to the effect that a married
woman is responsible for crimes committed by her in her husband's absence where there is no
coercion by her husband. 33
§ 149 – Husband's coercion of wife [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Note, A Trend Emerges: A State Survey on the Admissibility of Expert Testimony
Concerning the Battered Woman Syndrome. 25 J Fam L 373, 1986-87.
Battered women who act under duress, 28 New Eng LR 603 (1994).
Battered woman syndrome: does the "reasonable battered woman" exist? 19 New Engl J
Crim&Civ Confin 329 (1993).
Coerced into crime: The application of battered woman syndrome to the defense of duress, 9 Wis
Women's LJ 67-94 (1995).
Footnotes
Footnote 27. State v Renslow, 211 Iowa 642, 230 NW 316 (receiving stolen goods); State v
Cleaves, 59 Me 298; Commonwealth v Hopkins, 133 Mass 381 (keeping house of ill fame);
People v Wright, 38 Mich 744, (robbery); State v Miller, 162 Mo 253, 62 SW 692; State v
Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115; Sentell v State, 61 Okla
Crim 229, 67 P2d 466; State v McDonie, 96 W Va 219, 123 SE 405 (assault and battery); Gill v
State, 39 W Va 479, 20 SE 568.
Practice Aids: –Boyer, Constitutionality of Criminal Affirmative Defenses: Duress and
Coercion. 1976, XI U San Francisco L Rev 123.
Footnote 28. Mulvey v State, 43 Ala 316; Conner v State, 95 Fla 765, 117 So 852; State v
Renslow, 211 Iowa 642, 230 NW 316; Anderson v Commonwealth, 211 Ky 726, 277 SW 1008;
Commonwealth v Neal, 10 Mass 152; Davis v State, 15 Ohio 72 (arson).
Footnote 29. §§ 150, 151, infra.
Footnote 30. People v Statley, 91 Cal App 2d Supp 943, 206 P2d 76 (by statute); Anderson v
Commonwealth, 211 Ky 726, 277 SW 1008.
Footnote 31. Encinas v State, 32 Ariz 200, 256 P 1054; People v Statley, 91 Cal App 2d Supp
943, 206 P2d 76.
Page 42 of 575
Footnote 32. Humble v State, 199 Ind 653, 160 NE 41; State v Halbrook, 311 Mo 664, 279 SW
395.
Footnote 33. Commonwealth v Tryon, 99 Mass 442.
§ 150 Presumption as to wife's coercion by husband [21 Am Jur 2d CRIMINAL LAW]
At common law it was generally presumed, though not with relation to all offenses, that crimes
committed by a married woman in her husband's presence were committed under his coercion. 34
However, the presumption does not arise from the mere fact of marriage; 35 nor does the
presumption apply to acts committed in the husband's absence, and his bare command or
procurement has been held not sufficient to raise the presumption. 36 According to some cases,
the husband must be personally and physically present, 37 but others state that he need not be in
sight and it is sufficient if he is near enough for the wife to be acting under his immediate
influence and control. 38
The presumption has been vigorously criticized as obsolete and inconsistent with present-day
customs and conditions, 39 and some jurisdictions now refuse to apply it, on the ground that the
rule must cease to operate when the reasons which gave rise to it no longer obtain. 40 Some
jurisdictions regard the statutory emancipation of married women from the disabilities of
coverture as sufficient to abolish the common-law presumption, 41 but in others this has been
denied. 42 Despite these considerations, the common-law presumption continues to be applied
from time to time in a number of jurisdictions, 43 and at least one has adopted it by statute,
though with a number of specified offenses excepted from its operation. 44
Footnotes
Footnote 34. Strouse v Leipf, 101 Ala 433, 14 So 667; Wolf v Keagy, 33 Del 362, 136 A 520;
State v Renslow, 211 Iowa 642, 230 NW 316; Cothron v State, 138 Md 101, 113 A 620; State v
Ready (Mo) 251 SW2d 680; State v Asper, 35 NM 203, 292 P 225; Sentell v State, 61 Okla Crim
229, 67 P2d 466; Morton v State, 141 Tenn 357, 209 SW 644; State v Buchanan, 111 W Va 142,
160 SE 920.
As to application of presumption in liquor cases, see 45 Am Jur 2d, Intoxicating Liquors § 303.
Footnote 35. State v Hollis, 163 La 952, 113 So 159; State v Halbrook, 311 Mo 664, 279 SW
395.
Footnote 36. Shannon v United States (CA10 Okla) 76 F2d 490; Haning v United States (CA8
Neb) 59 F2d 942.
Page 43 of 575
The act of a wife in obtaining a revolver and conveying it to her husband in prison, at his request,
has been ruled to be an act committed in his presence, and the presumption applies; the fact that
the husband was in prison does not rebut the presumption of coercion. State v Miller, 162 Mo
253, 62 SW 692.
Footnote 37. Emmons v State (Okla Crim) 291 P2d 838.
Footnote 38. Vukodonovich v State, 197 Ind 169, 150 NE 56; Commonwealth v Burk, 77 Mass
437.
Footnote 39. United States v Dege, 364 US 51, 4 L Ed 2d 1563, 80 S Ct 1589, reh den 364 US
854, 5 L Ed 2d 77, 81 S Ct 29; State v McDonie, 96 W Va 219, 123 SE 405.
Footnote 40. People v Statley, 91 Cal App 2d Supp 943, 206 P2d 76; State v Renslow, 211 Iowa
642, 230 NW 316; King v Owensboro, 187 Ky 21, 218 SW 297; State v Turnbow, 67 NM 241,
354 P2d 533, 89 ALR2d 461.
Footnote 41. Conyer v United States (CA6 Mich) 80 F2d 292; State v Renslow, 211 Iowa 642,
230 NW 316 (receiving stolen property from her husband); King v Owensboro, 187 Ky 21, 218
SW 297; Morton v State, 141 Tenn 357, 209 SW 644.
With respect to the disputable presumption that a married woman's acts in the presence of her
husband were done under his coercion, the court announced that as to crimes hereafter committed
by married women the same rules would be applied as to duress or coercion by a husband as
would be applied to duress or coercion by anyone else. Commonwealth v Barnes, 369 Mass 462,
340 NE2d 863.
Footnote 42. Braxton v State, 17 Ala App 167, 82 So 657.
Footnote 43. State v Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115
(conviction reversed for failure to give instruction embodying presumption).
Footnote 44. O'Donnell v State, 73 Okla Crim 1, 117 P2d 139.
§ 151 – Offenses to which presumption applicable [21 Am Jur 2d CRIMINAL LAW]
The authorities are not altogether uniform as to the offenses to which the common-law
presumption applies. It is usually held not to apply to murder 45 or treason, 46 on the ground
that these crimes show so much malignity as to render it improbable that a wife would be
constrained by her husband, without the separate operation of her will, into their commission. 47
Robbery, and occasionally manslaughter, are sometimes included in this statement, 48 although
there have been robbery cases in which the presumption was applied. 49 Some authorities speak
Page 44 of 575
of the presumption as applicable only to offenses of a minor grade, or to those not particularly
heinous, 50 but others have applied the presumption, or assumed it to be applicable, to such
serious offenses as mayhem 51 and arson. 52
Offenses such as the keeping of a bawdy house, 53 and other offenses of a similar character, 54
have been regarded as constituting a special exception to the rule, on the ground that these are
offenses in which the wife is more likely to have a managing, or at least an independent, role.
But there is some authority for the application of the presumption to such offenses, too. 55
§ 151 – Offenses to which presumption applicable [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Case authorities:
In a prosecution for involuntary manslaughter which arose when defendant was confronted by the
husband of a woman with whom he had had an extramarital affair, the evidence did not establish
as a matter of law that defendant acted in self-defense, where it was not shown that defendant's
resort to deadly force was necessary or appeared to be necessary at the time. Although it was
clear that the victim intended to assault defendant, thus giving defendant the right to defend
himself, the victim was not armed and defendant did not testify that he believed the victim
intended to use a weapon against him. Accordingly, a reasonable jury could have found beyond a
reasonable doubt that defendant's use of deadly force at the time and place was not justified.
People v Clark (1982, 3d Dist) 130 Cal App 3d 371, 181 Cal Rptr 682.
Footnotes
Footnote 45. Cothron v State, 138 Md 101, 113 A 620; Martin v Commonwealth, 143 Va 479,
129 SE 348.
Footnote 46. Bibb v State, 94 Ala 31, 10 So 506; Conner v State, 95 Fla 765, 117 So 852;
McGregor v State, 200 Ind 496, 163 NE 596; State v Renslow, 211 Iowa 642, 230 NW 316
(citing other authority to the effect it does no apply to murder); Morton v State, 141 Tenn 357,
209 SW 644; Martin v Commonwealth, 143 Va 479, 129 SE 348.
Footnote 47. State v McDonie, 96 W Va 219, 123 SE 405.
Footnote 48. State v McDonie, 96 W Va 219, 123 SE 405.
Footnote 49. People v Wright, 38 Mich 744 (presumption rebutted); O'Donnell v State, 73 Okla
Crim 1, 117 P2d 139 (under statute listing express exceptions, which did not include robbery).
Page 45 of 575
Footnote 50. State v Shee, 13 RI 535.
The presumption that a wife who commits certain crimes in the presence of her husband does so
under his coercion was not applicable in prosecution for breaking and entering and larceny where
there was no request for instructions with respect to the presumption, and the feme defendant
testified in her own behalf denying any participation by her or her husband in the planning or
accomplishment of the crime. State v Smith, 33 NC App 511, 235 SE2d 860, cert den 434 US
1076, 55 L Ed 2d 782, 98 S Ct 1267.
Footnote 51. State v Baker, 110 Mo 7, 19 SW 222 (presumption assumed to apply to mayhem in
instruction to jury, and decided on appeal on ground there was evidence to rebut presumption).
Footnote 52. Davis v State, 15 Ohio 72 (application denied because woman found not to be
wife).
Footnote 53. State v Gill, 150 Iowa 210, 129 NW 821; State v Grossman, 95 NJL 497, 112 A
892; Haffner v State, 176 Wis 471, 187 NW 173.
Footnote 54. State v Nowell, 156 NC 648, 72 SE 590 (abducting women by solicitation for
immoral purposes).
Footnote 55. Commonwealth v Hill, 145 Mass 305, 14 NE 124.
§ 152 – Rebuttal of presumption [21 Am Jur 2d CRIMINAL LAW]
The presumption that a wife's crimes committed in her husband's presence are committed under
his coercion is rebuttable. 56 The presumption is often said to be a weak one, rebuttable by
slight circumstances, 57 although, on the other hand, it has also been said that it puts on the
prosecution the burden of proving beyond a reasonable doubt that the wife acted of her own free
will. 58 The evidence which is sufficient to rebut the presumption depends, of course, upon the
facts of the individual case. 59 It is sufficient if it is apparent on all the evidence that the wife
was acting freely 60 or if her own conduct was inconsistent with the coercion hypothesis. 61
However, where evidence to rebut the presumption is lacking, the wife's conviction cannot be
sustained. 62
Footnotes
Footnote 56. State v Ready (Mo) 251 SW2d 680; Sentell v State, 61 Okla Crim 229, 67 P2d 466;
State v Minor, 171 SC 120, 171 SE 737; Morton v State, 141 Tenn 357, 209 SW 644; State v
McDonie, 96 W Va 219, 123 SE 405.
Page 46 of 575
Footnote 57. Sanders v State (Okla Crim) 287 P2d 458; Morton v State, 141 Tenn 357, 209 SW
644; Brown v Commonwealth, 135 Va 480, 115 SE 542; State v McDonie, 96 W Va 219, 123
SE 405.
Footnote 58. State v Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115.
Footnote 59. O'Donnell v State, 73 Okla Crim 1, 117 P2d 139.
Footnote 60. State v Ready (Mo) 251 SW2d 680; Doyle v State (Okla Crim) 317 P2d 289.
It is not necessary to show that the husband disapproved the wife's crime. State v Baker, 110 Mo
7, 19 SW 222.
Footnote 61. People v Wright, 38 Mich 744.
In a prosecution for robbery, evidence that the wife took the victim by the throat and told him to
keep still, while her husband rifled his pockets, is sufficient to authorize a finding that she was
not acting under the coercion of her husband in the commission of the offense charged. People v
Wright, 38 Mich 744.
In reference to a charge against a wife of illegally possessing narcotics, it has been held that
testimony, in effect, that a wife freely and boldly assisted in an attempt to dispose of such goods
at a time when search was being made of the premises, is sufficient evidence of free action on her
part to sustain a conviction against her. Winer v State, 36 Okla Crim 316, 253 P 1025.
Footnote 62. State v Miller, 162 Mo 253, 62 SW 692; State v Cauley, 244 NC 701, 94 SE2d 915,
later app 245 NC 699, 97 SE2d 115; Kelso v State, 96 Okla Crim 367, 255 P2d 284.
§ 153 Child acting under parent's command [21 Am Jur 2d CRIMINAL LAW]
Unless the child has not yet reached the age of criminal responsibility, 63 or is of such immature
years or mind as to be entirely under the parent's domination, direction, and control, 64 a
criminal act will not be excused on the ground that it was committed under parental command.
65 And it seems that even the fact that the child acted in fear of a parent or person standing in
loco parentis will excuse only under extreme circumstances comparable to those in which an
adult would be excused on the ground of coercion or duress. 66 However, there is some
authority to the effect that in the case of a child under 14, obedience to express parental
command may be proved as having some tendency to show that the child did not understand that
the act was wrong. 67
Page 47 of 575
§ 153 – Child acting under parent's command [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Practice Aids: Criminal responsibility of parent for act of child. (See also 59 Am Jur 2d, Parent
and Child § 138 and 68 Am Jur 2d, Schools § 233.) 12 ALR4th 673.
Footnotes
Footnote 63. § 28, supra.
Footnote 64. Kelley v State, 79 Fla 182, 83 So 909.
Footnote 65. People v Richmond, 29 Cal 414; Kelley v State, 79 Fla 182, 83 So 909; State v
Thrailkill, 73 SC 314, 53 SE 482; McDaniel v State, 5 Tex App 475.
Footnote 66. A dynamiting by a 16-year-old boy under the command of a woman who, though
not his mother, had raised him from infancy, was not excused by her threats and his fear of her
where these were not of immediate death, but of death at some remote time and place. People v
Martin, 13 Cal App 96, 108 P 1034, later app 19 Cal App 295, 125 P 919.
Where defendant, aged 20 and of ordinary intelligence, committed homicide on his father's
command, evidence that the father ruled the family with fear and that defendant had been trained
to give him unquestioning obedience was properly excluded. Rainey v Commonwealth, 19 Ky
LR 390, 40 SW 682.
Footnote 67. Commonwealth v Mead, 92 Mass 398.
Page 48 of 575
6. Intoxication or Narcosis [155-157]
§ 155 Intoxication – voluntary [21 Am Jur 2d CRIMINAL LAW]
Despite extensive developments in psychiatric research, widespread changes in social, medical,
and legal attitudes toward alcoholism, and intense debate as to legal tests of mental responsibility
of those charged with crime, the law with respect to the effect of voluntary intoxication upon
criminal responsibility has shown little tendency to change or develop. The legal rules governing
the question were early settled and may be briefly stated: intoxication, if voluntarily incurred, is
ordinarily no defense to a charge of crime based upon acts committed while intoxicated. 75
This is true, no matter how gross and long-continued the drunkenness may have been. 76 And it
applies, at least according to some authorities, even to one so drunk as not to know what he is
doing 77 or afflicted with delusions and hallucinations. 78 The rule is frequently stated very
broadly and without qualification. 79 Thus, the courts in considering the question have taken
little or no notice of modern medical attitudes toward alcoholism as a disease, but have usually
assumed that the intoxication must be treated as voluntary for purposes of determining criminal
guilt, no matter how compulsive the accused's addiction to alcohol may have been. 80 It is
apparently only when the alcoholism produces a permanent and settled insanity distinct from the
alcoholic compulsion itself that the law will accept it as an excuse. 81 The discussion which
has accompanied the attack upon the M'Naghten tests of mental responsibility for crime 82 has
apparently had no repercussions in the area of law here discussed although it would seem that the
underlying considerations of logic and policy would be very closely related. 83
The rule has been explained on the ground that one who has voluntarily cast off the restraints of
reason and conscience is not wronged by being held responsible for any injury he may do while
in that state. 84 It has also been suggested that the defendant must be held to have intended the
consequences springing from his voluntary act of becoming intoxicated, 85 and that the intent to
get drunk is itself a wrongful intent which can take the place of the ordinary criminal intent, if the
latter is missing. 86 The view has also been taken that insofar as the crime charged involves
only a general criminal intent (mens rea), such intent is presumed from the doing of the forbidden
acts, without more. 87 The policy of the rule against considering intoxication as a defense to
criminal charges has sometimes been based upon the fear that such a defense could be so easily
simulated as to make prosecutions too difficult. 88 Some of the opinions indicate that moral
indignation at the drunkenness may have affected the court's attitude. 89 According to what
seems to have been the common-law view, intoxication not only did not excuse or palliate, but
was an aggravation of, the wrong committed. 90 However, as will appear below, the rigor of the
common-law rule has now been modified in many jurisdictions where a particular mental state is
a requisite element of the offense charged. In a number of jurisdictions, the effect of voluntary
intoxication on criminal responsibility is governed by statute. 91
The courts of most jurisdictions 92 are in agreement that although voluntary intoxication may
not be shown for the purpose of negativing general criminal intent, where the offense is one
requiring a specific intent, evidence of voluntary intoxication is admissible and may be
Page 49 of 575
considered in determining whether such specific intent was actually present, 93
As stated
by some authorities, where a certain mental state is a necessary element of the particular offense
charged, or of a particular degree thereof, intoxication, though it is voluntary, can be shown for
its bearing on whether the accused had that state of mind at the time of his act. 94
The
theory is that intoxication is being shown, not to excuse or mitigate a crime, but to prove that a
particular offense was not committed, since one of its necessary elements was lacking. 95 In
some jurisdictions, it is provided by statute that intoxication may be considered in determining
purpose, motive, or intent, where these are requisite elements of any particular species or degree
of crime. 96 There is also authority that intoxication may be considered as bearing on such
issues as malice 97 or deliberation and premeditation 98 where these are required elements of
a particular offense. Similarly, intoxication may bear on the issue of knowledge or scienter
requisite to some offenses. 99 It has also been recognized that voluntary intoxication can be
considered for the purpose of determining whether or not the alleged criminal act was accidental
and excusable. 1 The defendant has the burden of showing that he was so intoxicated that he
was robbed of his mental faculties, 2 and whether he was drunk to such an extent is a question
for the trier of the facts to decide, 3 under proper instructions. 4
An instruction to the effect
that the jury should apply with caution the law as to the defense of intoxication has been
approved. 5 The foregoing principles, permitting voluntary intoxication to be shown as a
defense in prosecutions for crimes involving the element of specific intent, have been applied or
recognized in cases involving a number of different offenses, 6 including first-degree murder, 7
second-degree murder, 8 and manslaughter, 9 assault; 10 assault with intent to commit
murder, 11 manslaughter, 12 or rape; 13 kidnapping or abduction; 14 rape; 15 lewd or
indecent conduct or liberties with a child; 16 robbery; 17 larceny; 18 burglary 19 or
breaking and entering; 20 forgery; 21 and various other crimes. 22
Of course, intoxication itself does not preclude a finding that the requisite mental element was
present, 23 unless it was so extreme as to render the accused entirely incapable of the state of
mind required. 24 Stated another way, intoxication acts as a defense or excuse only where the
degree of intoxication is such as to render the accused incapable of entertaining the specific
intent. 25
Ordinarily, where intoxication is established as a defense to a specific intent crime, the result
may be not acquittal but conviction of a lower degree of the offense as to which no proof of
specific intent is necessary. 26 However, taking the view that the malice necessary to a
conviction of murder could be found from the act of voluntarily becoming intoxicated, some
courts have refused to entertain the argument that voluntary drunkenness precluded a conviction
of murder and limited the state to a charge of manslaughter. 27 If a person becomes intoxicated
to nerve or brace himself to commit a crime, the intoxication, of course, will be of no avail even
to mitigate the degree of the crime. 28 And where the distinctions between the degrees of
murder have been abolished, it has been held that voluntary intoxication is no excuse for murder.
29
§ 155 – Intoxication – voluntary [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Page 50 of 575
Practice Aids: Intoxicants and diminished responsibility, 1994 Crim LR 156 (1994).
Voluntary intoxication and the insanity defense, 20 J Psych&Law 4:439 (1993).
Evidence of a criminal defendant's voluntary intoxication is admissible at trial, 22 Pepp LR 2:835
(1995).
Case authorities:
Voluntary intoxication was not defense to violation of statute providing punishment for assault
within special maritime and territorial jurisdiction of United States, where statute did not
explicitly require showing of specific intent. United States v Lewis (1986, CA4 Md) 780 F2d
1140, 19 Fed Rules Evid Serv 1403.
In prosecution for murder, attempted murder, and related offenses, prosecutor properly asked
defendant whether he became violent when intoxicated, as question was directly relevant to
intent of accused and in countering claim of accident. United States v Shaw (1983, CA5 Miss)
714 F2d 544.
In prosecution for interstate transportation of stolen property and stolen motor vehicle, trial court
did not err in denying defendant's motion for acquittal after jury returned verdict convicting
defendant; although intoxication may preclude formation of specific intent and thus serve to
negate essential element of certain crimes, and although defendant presented considerable
testimony, including opinion of medical expert, that he was intoxicated at time of crimes,
evidence supported jury's verdict where it showed defendant was oriented as to time, place, and
identity, and was able to perform delicate manual and mental tasks such as connecting Peterbilt
tractor to trailer, driving rig over 300 miles, and negotiating with men he hired to unload trailer.
United States v Newman (1989, GA6 Ohio) 889 F2d 88, cert den (US) 109 L Ed 2d 748, 110 S
Ct 2566.
Court properly denied instruction on intoxication defense for general intent crime of possession
of firearm by convicted felon under 18 USCS § 922, since there was no authority for proposition
that degree of intoxication negates general intent crime, and no authority for argument that such
possession is specific intent crime. United States v Bennett (1992, CA6 Ky) 975 F2d 305.
In prosecution for assaulting federal officer, trial court correctly refused to give jury instruction
of defense of intoxication, since crime is one of general intent to which voluntary intoxication as
defense is unavailable. United States v Hanson (1980, CA8 Minn) 618 F 2d 1261.
It is true that voluntary intoxication instruction should not ordinarily be given in rape case,
because rape is crime of general intent. However, in cases involving general-intent crimes in
which considerable evidence has been introduced about intoxicated state of defendant, trial court
instruction, even over defendant's objection, to make clear to jury that voluntary intoxication is
Page 51 of 575
not defense, is not unfairly prejudicial. United States v Norquay (1993, CA8 Minn) 987 F2d 475
(criticized on other grounds by United States v Falesbork (CA4 Va) S F3d 715).
In prosecution for specific intent crime, intoxication that precludes formation of requisite intent
may be established as defense, even if intoxication was voluntary. United States v Echeverry
(1985, CA9 Wash) 759 F2d 1451, 18 Fed Rules Evid Serv 62.
Trial court's instruction that degree of intoxication necessary to negate specific intent must
amount to insanity was proper. Ex parte Bankhead (1991, Ala) 585 So 2d 112, on remand,
remanded (Ala App) 585 So 2d 133.
Voluntary intoxication can never justify or excuse commission of crime, but excessive
intoxication may render individual incapable of forming specific intent. Latimore v State (1988,
Ala App) 534 So 2d 665.
Defendant's voluntary intoxication combined with schizophrenia did not constitute defense to
charge of intentionally causing serious injury by means of dangerous instrument where evidence
indicated defendant was able to appreciate wrongfulness of his actions on night in question. Ware
v State (1991, Ala App) 584 So 2d 939, reh den, without op (Ala App) 1991 Ala Crim App
LEXIS 1116 and cert den, without op (Ala) 1991 Ala LEXIS 825.
Trial court properly refused to give requested instruction on voluntary intoxication in trial for
rape, robbery, and theft, where instruction as requested provided that defendant was required
only to raise reasonable doubt and also that defendant had burden of proving affirmative defense
by preponderance of evidence, thus giving contradictory burden of proof and misleading jury.
Mosier v State (1985) 285 Ark 67, 684 SW2d 810.
Although voluntary intoxication is common law defense to crimes which require formation of
specific intent, in incest prosecution state need only prove that defendant knew that person he
was having sex with was his daughter; trial court, therefore, properly instructed jury as to
voluntary intoxication defense, where there was nothing in record which suggested defendant did
not have such knowledge. Johnson v State (1986) 288 Ark 101,702 SW2d 2.
In prosecution for interfering with law officer in violation of statute providing that no person
shall "knowingly employ ... physical force against a law enforcement officer," trial court properly
refused to instruct jury that self-induced intoxication was affirmative defense, since mental state
of "knowingly" did not require specific intent. Bowen v State (1980, Ark App) 598 SW2d 447.
Court properly refused to instruct jury that voluntary intoxication could negate express malice so
as to reduce murder to voluntary manslaughter. People v Saille (1991) 54 Cal 3d 1103, 2 Cal
Rptr 2d 364, 820 P2d 588, 91 Daily Journal DAR 15308, reh den.
The elimination of diminished capacity as a defense removed a defendant's intoxication from the
Page 52 of 575
realm of defenses to a crime. Intoxication is now relevant only to the extent that it bears on the
question of whether the defendant actually had the requisite specific mental state. People v Lopez
(1992, 5th Dist) 11 Cal App 4th 1115, 14 Cal Rptr 2d 692, 92 CDOS 10368, 92 Daily Journal
DAR 17355.
Voluntary intoxication was no defense to charge of second-degree kidnapping or first-degree
sexual assault where mental culpability required for both offenses was a knowing participation in
the crimes. People v Vigil (1979, Colo App) 602 P2d 884.
Trial court in burglary prosecution erred in denying defendant's request for instruction on defense
of intoxication, where court-appointed psychiatrist testified that defendant was significantly
impaired by long-term and short-term substance abuse at time of offense. Smith v State (1988,
Fla App D3) 532 So 2d 78, 13 FLW 2346.
In prosecution for burglary, grand theft by unauthorized control, and malicious injury to property,
issue was not whether defendant was under influence of alcohol at time of events, but whether he
was so intoxicated that he was unable to form specific intent necessary to commit offenses
charged. This was question of fact for jury to decide. State v Tucker (1993, App) 123 Idaho 374,
848 P2d 432.
In robbery prosecution, trial court correctly excluded opinion testimony by prosecution witness
as to whether defendant was drunk, where clear evidence indicated that defendant's possible
intoxication was not so extreme as to negate requisite criminal mental state; merely being drunk
or intoxicated is insufficient to create defense of intoxication. People v Wing Cheung (1980) 83
Ill App 3d 1048, 39 Ill Dec 174, 404 NE2d 558.
Murder defendant failed to establish sufficient degree of intoxication to support instruction that
intoxication might negate criminal intent, where defendant testified as to many details of robbery
and murder with clarity that was inconsistent with extreme intoxication. People v Riddle (1988,
1st Dist) 175 Ill App 3d 85, 124 Ill Dec 732, 529 NE2d 713.
Defendant's battery conviction would be reversed where prosecutor's non-pattern jury instruction
on defense of voluntary intoxication, stating that level of intoxication must be so extreme as to
suspend all power of reason and render defendant incapable of "any mental action," misstated
law by redefining the defense. Contrary to instruction given, Illinois law states that once
defendant introduces evidence to show that intoxicated condition reasonably might have negated
existence of requisite mental state, prosecution must then overcome affirmative defense of
voluntary intoxication; defendant is not required to make extreme showing that he was devoid of
any mental activity in order to successfully invoke voluntary intoxication defense. People v
Baczkowski (1989, 2d Dist) 180 Ill App 3d 17, 535 NE2d 484.
Failure of trial counsel in prosecution for attempted murder and assault to explore and present
available evidence on sole defense of voluntary intoxication negating specific intent to kill was
Page 53 of 575
ineffective assistance of counsel, where defendant had 0.20 percent blood alcohol level
immediately after crime and had long history of alcoholism including blackouts. People v Popoca
(1993, 2d Dist) 245 Ill App 3d 948, 185 Ill Dec 908, 615 NE2d 778.
There was sufficient evidence to support trial court's finding that defendant who was convicted of
rape and criminal deviate conduct was capable of forming intent necessary for commission of
those crimes as charged where, even though he might have been intoxicated, there was ample
expert medical testimony that he was not suffering from mental disease at time of crimes, and
where there was evidence that at time of incident in question defendant did not slur his words
when talking, did not stumble when he walked, and did not appear to be drunk. Duffy v State
(1981, Ind) 415 NE2d 715.
Rape, which included requirement of "knowing" intercourse, was specific intent crime to which
intoxication could be defense. Ives v State (1981, Ind) 418 NE2d 220.
In prosecution for attempted murder, battery, resisting arrest and possession of controlled
substance, where defendant pleaded temporary insanity at trial, specific intent required for
attempted murder was established despite defendant's drug intoxication; court held specific intent
for attempted murder was question of fact for jury and one on which defendant bore burden of
proof; mere intoxication, absent incapacity to think deliberately and meditate rationally in
forming guilty design or intent, cannot be regarded as sufficient. Norris v State (1981, Ind) 419
NE2d 129.
Evidence, in trial for robbery and burglary, that although defendant had consumed large amount
of alcoholic beverages just prior to crime, witness who observed him shortly after crime
indicated he showed no signs of intoxication, was able to communicate rationally, and appeared
and acted normal, was sufficient to support jury finding that defendant was not intoxicated to
such degree as to deprive him of power to deliberate or to form necessary design or guilty intent.
Wagner v State (1985, Ind) 474 NE2d 476.
Evidence, in prosecution for robbery, did not support assertion that defendant was too intoxicated
to form necessary intent, where rock had been used to break into building, outside light bulb had
been unscrewed to avoid being seen, and defendant had been seen earlier rummaging through
cash register of bakery which was broken into. Coble v State (1985, lnd) 476 NE2d 102.
Voluntary intoxication can be offered as defense to any crime. Johnson v State (1992, Ind) 584
NE2d 1092.
In criminal prosecution resulting in defendant's conviction of aggravated robbery and involuntary
manslaughter, instruction that specifically set forth intent required of one who aids or abets and
that specifically advised jurors that "when a particular intent ... is a necessary element ...
intoxication may be taken into consideration ... "were not effective and did not have result of
removing from jurors' consideration defense of involuntary intoxication. State v Knoxsah (1981)
Page 54 of 575
229 Kan 36, 622 P2d 140.
In prosecution for rape and sodomy, trial court properly refused to instruct jury that voluntary
intoxication was defense to crimes, since defense applied only to intentional and knowing
offenses to negate existence of intent element of offense, and statutes defining forceable rape and
sodomy contained no requirement of culpable mental state, but only that prohibited act be done
by forcible compulsion. Malone v Commonwealth (1982, Ky) 636 SW2d 647.
In prosecution for attempt to obstruct justice, trial court correctly refused to instruct jury as to
defense of self-intoxication, notwithstanding that any attempt to commit crime requires specific
intent as to which intoxication is relevant, where evidence was insufficient to show that
defendant was so drunk that he was unable to formulate requisite mens tea. Mayne v State (1980)
45 Md App 483, 414 A2d 1.
Assault with intent to maim and assault with intent to disable are specific intent crimes and
defendant was entitled to instruction as to possible defense based upon his voluntary intoxication.
Bryant v State (1990) 83 Md App 237, 574 A2d 29.
In attempted murder trial, evidence from defendant that his mental condition, combined with his
prescription drug consumption and use of alcohol on day of crime, affected his capacity to form
specific intent to murder did not warrant instruction telling jury to consider defendant's mental
condition in determining whether state had proved requisite specific intent; judge properly gave
instruction that in deciding whether defendant had specific intent jury could consider evidence
that defendant was under influence of alcohol, prescription drugs, or both. Commonwealth v
Beattie (1991) 409 Mass 458, 567 NE2d 206.
In a trial for first-degree murder, the court correctly charged the jury that it should consider the
voluntary intoxication of the defendant when deciding whether he had the capacity to premeditate
and deliberate, whether he committed murder with extreme atrocity or cruelty and whether he
possessed malice aforethought as evidenced by a specific intent to kill or a specific intent to
cause grievous bodily harm; however, the court erred in refusing to permit the jury to consider
the voluntary intoxication of the defendant when deriding whether he "knew" for purposes of
finding malice aforethought under the third prong of malice. Commonwealth v Sama (1991) 411
Mass 293, 582 NE2d 498.
In a prosecution for manslaughter arising from the beating death of a 3 year old child, on the
evidence most favorable to the defendant, he was entitled to a jury instruction concerning lack of
criminal responsibility where (1) the child was beaten to death with an electrical cord while the
defendant was under the influence of cocaine, (2) a medical expert testified that he believed the
defendant to be suffering from cocaine paranoid psychosis based in part on defendant's recitation
of his history of cocaine use and his reaction to it, which included delusions of seeing
nonexistent worms, bugs and snakes and hearing voices, and (3) the defendant's mother and wife
and the mother of the deceased child all testified to observing similar symptoms. Commonwealth
Page 55 of 575
v Herd (1992) 413 Mass 834, 604 NE2d 1294.
In a prosecution for manslaughter arising from the beating death of a 3 year old child while the
defendant was under the influence of cocaine, the court properly instructed the jury that it was
required to find the defendant criminally responsible for his actions if the Commonwealth proved
that the defendant knew or had reason to know that his consumption of cocaine would activate a
mental disease or defect since, even though there was evidence that the defendant suffered from
cocaine paranoid delusion, he had told a firefighter at the scene of the crime and a defense expert
that he knew that he engaged in beatings while he was high on cocaine. Commonwealth v Herd
(1992) 413 Mass 834, 604 NE2d 1294.
Court properly declined to give intoxication instruction, even though defendant had been
drinking beer and cherry brandy, and smoking either marihuana or "angel dust," or both, prior to
robbery of grocery store and assault on owner, where there was no evidence that he was
intoxicated at time of crimes or that his mental capacity was diminished, and defendant himself
testified that he knew what he was doing and claimed to be "immuned" to large quantities of
alcohol. People v Rios (1989, 2d Dept) 150 AD2d 620, 541 NYS2d 489, app den 74 NY2d 899,
548 NYS2d 432, 547 NE2d 959 and (disapproved by People v Rodriguez, 76 NY2d 918, 563
NYS2d 48, 564 NE2d 658).
Intoxication is defense only to crime of specific intent, and general intent cannot be negated by
evidence actor was intoxicated at time crime was committed; thus voluntary intoxication was no
defense to charges that defendant had committed crimes of sexual misconduct in first and
second-degree that did not require specific intent for their commission. People v Bell (1980) 101
Mich App 779, 300 NW2d 691.
Where person, when sober, was capable of distinguishing between right and wrong and
voluntarily intoxicated or drugged himself to extent that he did not know or understand his
actions, he would be responsible and could be convicted and sentenced for crime. Smith v State
(1984, Miss) 445 So 2d 227.
Even though all evidence shows that defendant was voluntarily intoxicated when crime was
committed, defendant shall not be entitled to directed verdict due to failure to prove necessary
mental state. Neither shall defendant be entitled to instruction that jury may consider evidence of
voluntary intoxication in determining if defendant had requisite mental state. This does not
relieve prosecution of its burden of proof of requisite mental state. Further, jury may not consider
intoxication on issue of defendant's mental state. Exclusion from consideration of evidence of
voluntary intoxication in no way relieves state of its burden of proof. State is still obliged to
prove all elements of offense, including mental state, beyond reasonable doubt. Rule merely
treats sober persons and voluntarily intoxicated persons as equally responsible for conduct, and
does not violate due process. State v Erwin (1993, Mo) 848 SW2d 476, cert den (US) 126 L Ed
2d 56, 114 S Ct 88.
Page 56 of 575
In prosecution for leaving scene of accident involving personal injuries where defendant's only
defense was to element of knowledge, and was based on inability to form that mental state
because of combination of intoxication and head injury, failure to fully instruct jury on effect that
intoxication may have on mental state was prejudicial. State v Stafford (1984, Mont) 678 P2d
644.
Defendant charged with attempted burglary was entitled to have jury instructed as to defense of
voluntary intoxication as applied to specific intent of crime charged, and failure of court to give
instruction was reversible error. Vincent v State (1981, Nev) 625 P2d 1172.
While defendant may offer evidence of his intoxication whenever it is relevant to negative
element of crime charged, even inebriated individual may be capable of forming intent. People v
Lang (1988, 2d Dept) 143 App Div 2d 685, 532 NY S2d 927.
Alleged lack of intent by reason of lack of motive and voluntary intoxication is irrelevant to
determination of recklessness as defined in CLS Penal § 15.05(3). People v Acton (1989, 3d
Dept) 149 AD2d 839, 540 NYS2d 544.
Court did not err in failing to charge jury on intoxication where no reasonable jury could have
inferred that defendant's capacity to form intent had been affected by ingestion of alcohol or
drugs. People v Kruger (1992, 4th Dept) 184 AD2d 1031, 586 NYS2d 916, app den 80 NY2d
931, 589 NYS2d 858, 603 NE2d 963.
In trial for second-degree vehicular manslaughter, negligent homicide, and driving while
intoxicated, court erred in denying defendant's request for 1-hour continuance to allow testimony
of expert concerning whether intoxication played role in causing accident and death. People v
Osburn (1989, 4th Dept) 155 AD2d 926, 547 NYS2d 749, app den 75 NY2d 816, 552 NYS2d
566, 551 NE2d 1244.
In prosecution for first-degree manslaughter, attempted first-degree manslaughter, and
second-degree assault, evidence was sufficient to establish that defendant acted with intent to kill
his girlfriend and to seriously injure her mother, despite his intoxication, where he took large
butcher knife from kitchen and began stabbing his girlfriend, first in leg and then in various other
parts of her body, inflicting 8 stab wounds in all, and then stabbed mother 3 times. People v
Angel (1992, 2d Dept) 185 AD2d 356, 586 NYS2d 622, app den 80 NY2d 1025, 592 NYS2d
674, 607 NE2d 821.
In a prosecution for second-degree murder, defendant's evidence that on the evening of the
shooting he drank a cup of rum and two cups of wine, that he usually did not drink because his
doctor had told him, after an operation on his head, not to drink any liquor because it affects his
mind, that one witness testified his mind was "coming and going," and that he heard "all kinds of
things, noise" and "flipped out" was insufficient evidence of intoxication to require the trial judge
to instruct the jury on the defense of voluntary intoxication. State v Gerald (1981) 304 NC
Page 57 of 575
511,284 SE2d 312.
Instructions in murder prosecution constituted reversible error, where instructions imposed on
defendant burden of proving that he was totally incapable of forming intent, whereas proper
burden is that of raising reasonable doubt as to capacity. State v Mash (1988) 323 NC 359, 372
SE2d 532.
The offense of discharging a firearm into an occupied vehicle is a general intent crime that does
not require the State to prove any specific intent but only that the defendant performed the act
which is forbidden by statute. Therefore, the trial court properly charged the jury that the law
does not require any specific intent for the defendant to be guilty of the crime of discharging a
firearm into occupied property and, since intoxication does not negate a general intent, also
properly charged that the defendant's intoxication can have no bearing upon the determination of
his guilt or innocence of this crime. State v Jones (1994) 339 NC 114, 451 SE2d 826,
reconsideration den (NC) 453 SE2d 188.
The trial court in an armed robbery prosecution erred in failing to instruct the jury on the defense
of automatism or unconsciousness where defendant's evidence tended to show that she had no
independent recollection of the robbery or of that day's events because of the large amount of
drugs and alcohol she had taken for several days. State v Smith (1982) 59 NC App 227, 296
SE2d 315.
Though evidence of a defendant's intoxication at the time of a burglary may require an instruction
on the lesser-included offense of misdemeanor breaking and entering, which requires no specific
intent, evidence in this case, consisting of the testimony of defendant and his family and friends
that he was an alcoholic and that he had been drinking on the dates in question and the fact that
police on a later date found beer in his car, was insufficient to require an instruction on
misdemeanor breaking and entering, particularly where the evidence tended to show that
defendant, in order to commit the crimes in question, had to plan his actions by watching the
victims use their ATM cards, attempting to memorize their access numbers, following the
victims home, and, at an opportune moment, stealing their purses. State v Howie (1994) 116 NC
App 609, 448 SE2d 867.
In prosecution for gross sexual imposition, where evidence had been overwhelming and
uncontradicted that defendant had overpowered victim in her home and had sexual intercourse
with her by force and against her will, where general rule stated that voluntary intoxication would
not be defense to crime of general intent but that evidence of intoxication would be admissible
whenever it would be relevant to negate or establish element of offense charged, where trial court
had appropriately admitted evidence relating to defendant's intoxicated condition, which he had
offered in his defense, and where court had instructed jury more favorably to defendant than he
had been entitled to under state law, court did not err in refusing to instruct jury as to definition
of "knowingly" or "intentionally." State v Cummins (1984, ND) 347 NW2d 571.
Page 58 of 575
Court did not err in failing to charge jury on intoxication where no reasonable jury could have
inferred that defendant's capacity to form intent had been affected by ingestion of alcohol or
drugs. People v Kruger (1992, 4th Dept) 184 AD2d 1031, 586 NYS2d 916, app den 80 NY2d
931, 589 NYS2d 858, 603 NE2d 963.
Where a criminal defendant's testimony indicated that he was fully aware of the facts and
circumstances occurring around him and further indicated that he was properly oriented
regarding his location and the passage of time, a trial court's decision not to instruct the jury on
the possibility of voluntary intoxication negating the defendant's specific intent was not
unreasonable, arbitrary, or unconscionable. State v Davis (1992, Wash) 81 Ohio App 3d 706, 612
NE2d 343, motion overr 65 Ohio St 3d 1466, 602 NE2d 1174.
In murder prosecution in which State claimed that defendant was intoxicated at the time of the
offense but defendant claimed he was sober, trial court erred by instructing jury at guilt stage on
law of voluntary intoxication. PC § 8.04. The instruction constituted a comment on the evidence
because the jury could only have concluded that judge agreed with State on this contested issue.
Gonzales v State (1992, Tex App Houston (1st Dist)) 838 SW2d 848.
In prosecution for manslaughter, evidence of blackout produced by alcohol, was immaterial and
properly excluded, since blackout was nothing more than effect of severe intoxication, and
voluntary intoxication is not defense to crime with mens rea of recklessness. State v Bryan (1985,
Utah) 709 P2d 257.
In prosecution of defendant for third-degree assault, voluntary intoxication was not affirmative
defense requiring state to disprove defendant's voluntary intoxication beyond a reasonable doubt,
though evidence of intoxication would be admissible on the issue of whether defendant had
requisite mental state in committing offense. State v Coates (1987) 107 Wash 2d 882, 735 P2d
64.
Voluntary intoxication was not defense to charge of unauthorized use of automobile, where state
of mind described as element of offense was "willfully, wantonly, or maliciously." Matlack v
State (1985, Wyo) 695 P2d 635, cert den (US) 87 L Ed 2d 638, 105 S Ct 3508.
In prosecution for child molestation, trial court did not err in charging jury on voluntary
intoxication as defense even though defendant did not raise voluntary intoxication as defense,
where evidence indicated defendant was voluntarily intoxicated at time he molested victim.
Adams v State (1989) 193 Gst App 628, 388 SE2d 747.
Footnotes
Footnote 75. Hopt v People, 104 US 631, 26 L Ed 873; Brimhall v State, 31 Ariz 522, 255 P
165 (ovrld on other grounds State v Balderrama 97 Ariz 134, 397 P2d 632); People v Strader, 23
Ill 2d 13, 177 NE2d 126; State v Rumble, 81 Kan 16, 105 P 1; Martin v State, 228 Md 311, 179
Page 59 of 575
A2d 865; Commonwealth v Taylor, 263 Mass 356, 161 NE 245, later app 265 Mass 133, 163 NE
865; Kendall v State, 244 Miss 618, 145 So 2d 924; State v Pinski (Mo) 163 SW2d 785; State v
Trott, 190 NC 674, 130 SE 627; Commonwealth v McGowan, 189 Pa 641, 42 A 365; Bradford v
State, 208 Tenn 500, 347 SW2d 33.
Annotation: 8 ALR3d 1236.
In State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den 366 US 973,
6 L Ed 2d 1263, 81 S Ct 1941, the court stated that it is so generally accepted as to be a truism
that voluntary intoxication is neither an excuse for the commission of a crime nor a defense to a
prosecution for it.
Voluntary drunkenness, as distinguished from settled insanity produced by drink, affords no
excuse for crime except that where premeditation is a material question, the intoxication of the
accused may be considered by the jury. Johnson v Commonwealth, 135 Va 524, 115 SE 673.
Practice Aids: –Wald, Alcohol, Drugs, and Criminal Responsibility. 1974, 63 Georgetown L J
69.
Murphy, The Defense of Voluntary Intoxication. 1972, Law Notes 7.
Footnote 76. Latimer v State, 55 Neb 609, 76 NW 207; State v Peterson, 129 NC 556, 40 SE 9;
Pigman v State, 14 Ohio 555; Commonwealth v Eyler, 217 Pa 512, 66 A 746; State v Kidwell,
62 W Va 466, 59 SE 494.
Holding that chronic alcoholism is not defense to charge of intoxication in public place does not
violate Eighth and Fourteenth Amendments to United States Constitution. Powell v Texas, 392
US 514, 20 L Ed 2d 1254. 88 S Ct 2145.
Chronic Alcoholism as a Defense to Crime. 1977, 61 Minn L Rev 901.
Footnote 77. State v Kraemer, 49 La Ann 766, 22 So 254; State v Kidwell, 62 W Va 466, 59 SE
494.
Offenses in which specific intent to do the forbidden act is not an essential element are never
excused, at common law, by mere drunkenness of the perpetrator of the act, even though it was
so extreme as wholly to deprive him of his reason. State v Phillips, 80 W Va 748, 93 SE 828.
In applying the basic rules that voluntary intoxication is no defense to a criminal charge (except
to the extent that it prevents the formulation of the specific intent necessary to some offenses),
the courts have not generally given any special consideration to possible degrees of intoxication.
In most of the cases where the question has been raised, the defense contention has been that the
accused was so drunk as not to know or realize what he was doing, that is, was unconscious as to
Page 60 of 575
the particular acts. In some cases the courts have explicitly indicated that drunkenness to the
point of unconsciousness was immaterial, if accused did in fact carry out the physical acts
constituting the crime. See, for example, People v McNichol, 100 Cal App 2d 554, 224 P2d 21;
People v Mead, 126 Cal App 2d 164, 271 P2d 619; People v Morrow (5th Dist) 268 Cal App 2d
939, 74 Cal Rptr 551; Lewis v State, 196 Ga 755, 27 SE2d 659.
In a few instances, however, the courts have indicated that a state of unconsciousness would
operate to reduce the degree of the offense. See, for example, Adams v Stone (ND Cal) 378 F
Supp 315; People v Graham, 71 Cal 2d 303, 78 Cal Rptr 217, 455 P2d 153.
Annotation: 8 ALR3d 1236, § 5.
Footnote 78. State v Kidwell, 62 W Va 466, 59 SE 494.
Footnote 79. See, for example, Martin v State, 228 Md 311, 179 A2d 865 (murder); Clark v
State, 236 Md 648, 207 A2d 94 (breaking and entering with intent to steal goods).
Footnote 80.
Annotation: 8 ALR3d 1236, § 6[a].
For a comprehensive discussion of the nature and incidence of alcoholism, see 16 Am Jur Proof
of Facts 569, Alcoholism.
Footnote 81.
Annotation: 8 ALR3d 1236, § 6[a].
As to insanity caused by intoxication, generally, see § 54, supra.
Footnote 82. See §§ 57 et seq., supra.
Footnote 83.
Annotation: 8 ALR3d 1236, § 2.
Footnote 84. Couch v State (Okla Crim) 375 P2d 978.
Footnote 85. Evers v State, 31 Tex Crim 318, 20 SW 744.
In People v Rogers, 18 NY 9, speaking of the duty each man owes to preserve in himself the
inestimable gift of reason, the court said that if by a voluntary act he casts off the restraints of
reason and conscience, no wrong is done him by holding him answerable for any injury he may
do while in that state.
Footnote 86. State v Kraemer, 49 La Ann 766, 22 So 254.
Page 61 of 575
Footnote 87. United States ex rel. Rucker v Myers (CA3 Pa) 311 F2d 311, cert den 374 US 844,
10 L Ed 2d 1064, 83 S Ct 1901; Clayton v State, 36 Ala App 175, 54 So 2d 719, cert den 256
Ala 378, 54 So 2d 723 (manslaughter); Comer v State, 212 Ark 66, 204 SW2d 875 (involuntary
manslaughter); People v Corson (3d Dist) 221 Cal App 2d 579, 34 Cal Rptr 584 (assault with
deadly weapon; intent inferred); State v Dennis, 150 Conn 245, 188 A2d 65 (impairment of
morals of child); Proctor v United States, 85 App DC 341, 177 F2d 656 (automobile used
without owner's consent; general intent presumed); Askew v State (Fla) 118 So 2d 219 (rape,
intent inferred from act); People v Bray, 52 Ill App 2d 384, 202 NE2d 152 (armed robbery);
Minton v State, 244 Ind 636, 195 NE2d 355 (involuntary manslaughter); State v Wharff, 257
Iowa 871, 134 NW2d 922 (escape); Murphy v Commonwealth (Ky) 279 SW2d 767 (operating
motor vehicle without consent of owner); State v Johnston, 207 La 161, 20 So 2d 741 (assault
with dangerous weapon); State v Anderson, 270 Minn 411, 134 NW2d 12 (sodomy); State v
Hairston, 222 NC 455, 23 SE2d 885 (rape; intent inferred from commission of act);
Commonwealth v Simmons, 361 Pa 391, 65 A2d 353, cert den 338 US 862, 94 L Ed 528, 70 S
Ct 96, reh den 338 US 888, 94 L Ed 546, 70 S Ct 181 (murder in perpetration of robbery or
burglary); Bostock v State, 210 Tenn 620, 360 SW2d 472 (involuntary manslaughter); State v
Turner, 3 Utah 2d 285, 282 P2d 1045 (sodomy); State v Huey, 14 Wash 2d 387, 128 P2d 314
(taking indecent liberties with female under age of 15).
Annotation: 8 ALR3d 1236, § 3[b].
Voluntary intoxication was not defense to crime of robbery where specific intent was not element
of offense. People v White, 40 Ill App 3d 455, 352 NE2d 243, affd 67 Ill 2d 107, 8 Ill Dec 99,
365 NE2d 337 (ovrld on other grounds People v Banks 75 Ill 2d 383, 27 Ill Dec 195, 388 NE2d
1244).
Footnote 88.
Annotation: 8 ALR3d 1236, § 3[b].
The rule regarding the defense of insanity should never be extended to apply to voluntary
intoxication in a murder case, since this would not only open wide the door to defenses built on
frauds and perjuries, but would build a broad, easy turnpike for escape–all that the crafty criminal
would require for a well-planned murder would be a revolver in one hand to commit the deed,
and a quart of intoxicating liquor in the other with which to build his excusable defense, said the
court in State v Arsenault, 152 Me 121, 124 A2d 741. The defendant took exception to the
instructions to the jury and to the court's failure to give requested instructions to the effect that if
the jury found that the defendant was intoxicated to the extent that he had so far lost his
intelligence and his reason and faculties that there was doubt as to whether he was able to form
and have a purpose to kill or to know what he was doing, then he should be found not guilty of
the charge of murder. Overruling the exceptions, the court also pointed out that there was no
evidence of an insane state.
In Kendall v State, 244 Miss 618, 145 So 2d 924, the court stated that voluntary drunkenness of
Page 62 of 575
an accused at the time a crime was committed is said to be no defense, especially where no
particular motive or intent is a necessary element of the crime charged, as when the crime
consists only of the doing of acts which are prohibited. The court stated that the rule was based
on moral and ethical reasons since it is one's duty to abstain from getting himself into an
intoxicated condition. Otherwise, said the court, one planning to commit a crime could always
plan for his intoxication at the time of the commission in order to avoid his responsibility.
Footnote 89.
Annotation: 8 ALR3d 1236, § 3[b].
So, speaking of drunkenness as a "gross vice," and itself a crime under some laws, the court in
United States v Cornell (1820, CC RI) 2 Mason 91, F Cas No. 14868, speaks of the incongruity
of considering one crime to be a defense to another.
Footnote 90. Shannahan v Commonwealth, 71 Ky 463; Director of Public Prosecutions v Beard
(Eng) [1920] AC 479 (HL).
Footnote 91.
Annotation: 8 ALR3d 1236, §§ 3, 4.
For example, see People v Corson (3d Dist) 221 Cal App 2d 579, 34 Cal Rptr 584, noting a Penal
Code provision to the effect that no act committed by a person while in the state of intoxication is
less criminal by reason of his having been in such condition.
Footnote 92. Some jurisdictions do not permit intoxication to be considered, even on the issue of
specific intent. Hardy v State 242 Ga 702, 251 SE2d 289; Young v State, 239 Ga 53, 236 SE2d
1, cert den 434 US 1002, 54 L Ed 2d 499, 98 S Ct 648, reh den 434 US 1051, 54 L Ed 2d 805,
98 S Ct 904; State v Cornwall, 95 Idaho 680, 518 P2d 863 (by statute); People v Hawkins, 14 Ill
App 3d 549, 302 NE2d 128; People v Isenberg, 60 Ill App 3d 325, 17 Ill Dec 632, 376 NE2d
778; State v Shipman, 354 Mo 265, 189 SW2d 273; State v Garrett (Mo) 391 SW2d 235 (ovrld
on other grounds State v Anderson (Mo) 515 SW2d 534); State v Maggitt (Mo) 517 SW2d 105;
State v Kinlaw, 150 NJ Super 70, 374 A2d 1233; Commonwealth v England, 474 Pa 1, 375 A2d
1292; State v Vaughn, 268 SC 119, 232 SE2d 328; Pyburn v State (Tenn Crim) 539 SW2d 835;
Kincaid v State, 150 Tex Crim 45, 198 SW2d 899; Dubois v State, 164 Tex Crim 557, 301
SW2d 97, cert den 356 US 921, 2 L Ed 2d 717, 78 S Ct 705; Tijerina v State (Tex Crim) 578
SW2d 415; State v Frotten, 114 Vt 410, 46 A2d 921; Brenan v Commonwealth, 183 Va 846, 33
SE2d 639; State v Bailey (W Va) 220 SE2d 432.
Annotation: 8 ALR3d 1236, § 3[a].
Under a statute providing that intoxication shall not excuse crime or mitigate the degree or
penalty, but that temporary insanity resulting therefrom may be shown in mitigation of the
penalty, evidence of intoxication cannot be considered on the question of intent. Stoudenmire v
Page 63 of 575
State, 58 Tex Crim 258, 125 SW 399.
Voluntary intoxication would not mitigate and could not be invoked as defense to crime of
assault and battery with intent to commit rape. Cherry v State (Tenn Crim) 539 SW2d 51.
Footnote 93. Clark v State (Ala App) 333 So 2d 885, cert den (Ala) 333 So 2d 890; McIntyre v
State (Alaska) 379 P2d 615, 8 ALR3d 1231 (recognizing rule); Kimoktoak v State (Alaska) 584
P2d 25; State v Skaggs, 120 Ariz 467, 586 P2d 1279; Olles v State, 260 Ark 571, 542 SW2d
755; People v Stevenson (2d Dist) 79 Cal App 3d 976, 145 Cal Rptr 301; People v Montez, 197
Colo 126, 589 P2d 1368; State v Crawford, 172 Conn 65, 372 A2d 154; People v Jacobs, 44 Ill
App 3d 290, 2 Ill Dec 601, 357 NE2d 821; People v Miner, 46 Ill App 3d 273, 4 Ill Dec 766, 360
NE2d 1141; Yarber v State, 242 Ind 616, 179 NE2d 882; Hooker v State (Ind App) 387 NE2d
1354; State v Watts (Iowa) 244 NW2d 586; Commonwealth v Podlaski (Mass) 1979 Adv Sheets
427, 385 NE2d 1379; People v Garcia, 398 Mich 250, 247 NW2d 547; People v Maynard, 84
Mich App 437, 269 NW2d 631; McDaniel v State (Miss) 356 So 2d 1151; State v Lukus, 149
Mont 45, 423 P2d 49; State v Coleman, 196 Neb 721, 246 NW2d 61; Tucker v State, 92 Nev
486, 553 P2d 951; State v Sinclair, 49 NJ 525, 231 A2d 565, later app 57 NJ 39, 269 A2d 153;
State v Atkins, 151 NJ Super 555, 377 A2d 718, revd on other grounds 78 NJ 454, 396 A2d
1122; State v Rayos, 77 NM 204, 420 P2d 314; People v Jackson, 14 NY 2d 5, 247 NYS2d 481,
196 NE2d 887; State v Simmons, 286 NC 681, 213 SE2d 280, vacated, in part on other grounds
428 US 903, 49 L Ed 2d 1208, 96 S Ct 3207; State v Salmon, 10 Ohio App 2d 175, 39 Ohio
Ops 2d 336, 226 NE2d 784; Weimar v State (Okla Crim) 555 P2d 1304; Commonwealth v
Colbert, 476 Pa 531, 383 A2d 490; Danahey v State (RI) 373 A2d 489; State v Lambert, 266 SC
574, 225 SE2d 340; State v White (SD) 269 NW2d 781; Frazier v State (Tenn Crim) 566 SW2d
545; State v Standrod (Utah) 547 P2d 215; Waye v Commonwealth, 219 Va 683, 251 SE2d 202,
cert den 442 US 924, 61 L Ed 2d 292, 99 S Ct 2850; State v Mriglot, 88 Wash 2d 573, 564 P2d
784; State v Johnnies, 76 Wis 2d 578, 251 NW2d 807.
Annotation: 8 ALR3d 1236, § 4[a].
On a plea of not guilty to an offense involving specific intent, evidence of drunkenness can be
considered, not for the purpose of acquitting defendant altogether, but for the purpose of
ascertaining whether his condition rendered him capable of harboring that intent. Brown v State,
39 Ala App 149, 96 So 2d 197.
Whether the defendant was so intoxicated as to preclude the existence of the specific intent to
commit rape was properly a question for the jury. People v Cheary, 48 Cal 2d 301, 309 P2d 431.
One must have an intent to pass a bogus check or to commit forgery and one might be so
intoxicated as to not know what he was doing and a jury might conclude he either could or could
not have or form the requisite intention to constitute the offenses. Woodard v People, 154 Colo
162, 389 P2d 411 (affirming conviction).
Page 64 of 575
In a prosecution for murder committed during the perpetration or attempted perpetration of a
robbery, defendant was not entitled to instruction sua sponte on the defense of diminished
capacity by reason of voluntary intoxication, where there was no evidence that defendant's
drinking had any substantial effect on him or that he was so intoxicated that he could not harbour
the intent to rob, where defendant's defense was that death was accidental, and where defendant's
own testimony negated any possibility that the capacity to intend to commit robbery was
diminished in any way. People v Obie (1st Dist) 41 Cal App 3d 744, 116 Cal Rptr 283
(disapproved on other grounds People v Rollo 20 Cal 3d 109, 141 Cal Rptr 177, 569 P2d 771).
Where a necessary element of the offense charged was that the accused knew or reasonably
should have known of the victim's identity as a peace officer, the court erred in failing to give an
instruction on intoxication. People v Garcia (3d Dist) 250 Cal App 2d 15, 58 Cal Rptr 186.
Drunkenness, if so extreme as to make the existence of a definite purpose impossible, may be a
defense to any crime of which a specific design is an essential element. State v Rumble, 81 Kan
16, 105 P 1.
Practice Aids: –Lack of Capacity to Form Specific Intent–Voluntary Intoxication. 5 Am Jur
Proof of Facts 2d 189.
Footnote 94. Kane v United States (CA9 Ariz) 399 F2d 730, cert den 393 US 1057, 21 L Ed 2d
699, 89 S Ct 698; People v Sanchez, 35 Cal 2d 522, 219 P2d 9; Blackburn v Commonwealth,
200 Ky 638, 255 SW 99; State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613,
cert den 366 US 973, 6 L Ed 2d 1263, 81 S Ct 1941; Bradford v State, 208 Tenn 500, 347
SW2d 33.
In a prosecution for aggravated robbery, simple robbery, and assault, defendant who testified to
being intoxicated at the time of the robbery had the right to use mental condition as a defense on
the merits of whether or not defendant had requisite intent. People v Scheidt, 186 Colo 142, 526
P2d 300.
Where the essence of a crime depends upon the intent with which an act was done or where an
essential ingredient of the crime consists in the doing of an unlawful act with a deliberate and
premeditated purpose, the mental condition of the accused, whether that condition is occasioned
by voluntary intoxication or otherwise, is an important factor to be considered. Booher v State,
156 Ind 435, 60 NE 156.
Evidence is admissible as to the possible effect of a defendant's consumption of alcohol and
ingestion of drugs upon his capacity to form the requisite intent required in the charges of
robbery and burglary. Commonwealth v Graves, 461 Pa 118, 334 A2d 661 (superseded by statute
as stated in Commonwealth v Pickett 244 Pa Super 433, 368 A2d 799) and later app 484 Pa 29,
398 A2d 644.
Page 65 of 575
Footnote 95. People v Arriola (1st Dist) 164 Cal App 2d 430, 330 P2d 683; State v Wheeler, 195
Kan 84, 403 P2d 1015; People v Guillet, 342 Mich 1, 69 NW2d 140.
While it is true that drunkenness cannot excuse crime, it is also true that where a certain intent is
a necessary element of a crime, defendant did not commit that crime if, because of intoxication,
or for any reason whatsoever, he did not have that intent. People v Guillett, 342 Mich 1, 69
NW2d 140.
Intoxication is to be considered by the jury in a prosecution for murder in which a premeditated
design to effect death is essential, with reference to its effect upon the ability of the defendant at
the time to form and entertain such a design, not because, per se, it either excuses or mitigates the
crime, but because, in connection with other facts, an absence of malice or premeditation may
appear. Collier v State, 17 Okla Crim 139, 186 P 963.
Footnote 96. People v Sameniego, 118 Cal App 165, 4 P2d 809, reh den 118 Cal App 174, 5 P2d
653; State v Koerner, 8 ND 292, 78 NW 981; State v Stenback, 78 Utah 350, 2 P2d 1050.
Under a statute permitting the showing of intoxication to negate intent, it is error to instruct that
no act is less criminal by reason of voluntary intoxication, without adding that intoxication can
be considered in determining whether defendant had any specific motive, purpose, or intent
which constitutes an element of the crime charged or of a particular species or degree thereof.
People v Baker, 42 Cal 2d 550, 268 P2d 705.
Footnote 97. People v Strader, 23 Ill 2d 13, 177 NE2d 126; Dawson v State, 16 Ind 428;
Cummins v Commonwealth (Ky) 344 SW2d 611; Cheadle v State, 11 Okla Crim 566, 149 P
919.
Voluntary drunkenness is no excuse for the perpetration of a criminal act, and it may be used to
negative the essential elements of intent and malice only where the intoxication is so extreme as
to entirely suspend the power of reason. Merely being drunk or intoxicated is no defense, even
though the condition may have lasted for several days. People v Lion, 10 Ill 2d 208, 139 NE2d
757.
Footnote 98. State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den 366
US 973, 6 L Ed 2d 1263, 81 S Ct 1941; Johnson v Commonwealth, 135 Va 524, 115 SE 673.
See also Chisley v State, 202 Md 87, 95 A2d 577, which recognizes that voluntary intoxication
may be considered by the jury as it bears on the question of wilfulness, deliberation, and
premeditation, in order to reduce first-degree murder to second-degree murder.
Footnote 99.
Annotation: 8 ALR3d 1236, § 4[c].
Page 66 of 575
Although knowledge is not identical with intent, it is nevertheless mental state, and since
intoxication has obvious relevance to question of awareness, familiarity, understanding, and
ability to recognize and comprehend, it follows that where knowledge is requisite element of
crime, court must instruct, on its own motion, that in determining evidence of such knowledge,
jury may take into consideration fact that accused was intoxicated at time he committed act
charged. People v Foster (1st Dist) 19 Cal App 3d 649, 97 Cal Rptr 94.
In prosecution for receiving stolen vehicle, instruction on intoxication should have been given,
whether or not it was raised as defense, if evidence warranted issue being presented for jury
determination, where statute provided that state prove that defendant received vehicle "knowing
it had been stolen". State v Ghaul, 132 NJ Super 438, 334 A2d 65.
Footnote 1. In Long v Commonwealth (Ky) 262 SW2d 809, the court recognized that while
drunkenness is not an excuse for crime, the condition of drunkenness may be considered in
determining whether or not the alleged criminal act was accidental and excusable. In regard to
the defendant's contention that the court should have confined its instructions to murder in
self-defense and that an instruction on voluntary manslaughter, in a murder prosecution, was
unauthorized and tended to confuse the jury to his prejudice, the court stated that where the
circumstances indicated possible lack of malice aforethought, coupled with the grossly careless
or reckless use of a firearm, an instruction on voluntary manslaughter is proper. The court also
stated that the jury doubtless considered the testimony as to the drunken condition of the
defendant, and unquestionably a voluntary manslaughter instruction was not only proper under
the evidence but the defendant could not possibly have been prejudiced by it. The court affirmed
a conviction of voluntary manslaughter.
Footnote 2. State v Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54
NW2d 927; State v Linzmeyer, 248 Iowa 31, 79 NW2d 206; Beall v State, 203 Md 380, 101 A2d
233.
In State v Arnold, 264 NC 348, 141 SE2d 473, the court stated that drunkenness is an affirmative
defense and when interposed by the accused the burden is on him to satisfy the jury that at the
time of the commission of a crime, he was so intoxicated that he did not know what he was doing
or attempting to do and was incapable of forming a criminal intent.
Footnote 3. People v Houghton (3d Dist) 212 Cal App 2d 864, 28 Cal Rptr 351; State v Christie,
243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54 NW2d 927; State v Linzmeyer,
248 Iowa 31, 79 NW2d 206.
Footnote 4. State v Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54
NW2d 927.
Instruction was inadequate and required reversal of defendant's two convictions of specific intent
crime of assault with intent to commit great bodily harm less than murder, where although the
Page 67 of 575
court instructed the jury that voluntary intoxication was a defense to specific intent crime, it
failed to tell the jury which of the charged offenses of kidnapping, second degree murder, and
assault with intent to do great bodily harm less than murder were specific intent crimes. People v
Widgren, 53 Mich App 375, 220 NW2d 130.
The trial court's refusal to give a requested instruction to the effect that although intoxication is
no defense to first-degree murder, the defendant may have been so intoxicated as to be unable to
form the specific intent to commit the crime charged, was prejudicial error. People v Jackson,
14 NY2d 5, 247 NYS2d 481, 196 NE2d 887.
An instruction that "[i]f you should determine that the defendant was intoxicated and that such
intoxication prevented the presence of an intent to kill, then you must acquit defendant of the
crime of murder in the second degree. On the other hand, if you are satisfied beyond a
reasonable doubt that the defendant was not intoxicated or that, if intoxicated, his state of
intoxication did not prevent the presence of an intent to kill, then you may consider whether or
not you are satisfied beyond a reasonable doubt that the defendant had an intent to kill the
deceased in connection with your consideration of the crime of murder in the second degree,"
was held proper in People v Davis (1st Dept) 18 App Div 2d 644, 235 NYS2d 282, affd 13
NY2d 1151, 247 NYS2d 140, 196 NE2d 569. Affirming a conviction of second-degree murder,
the court stated that the instruction did not present the jury with the dilemma of either acquitting
the defendant or finding him guilty of murder in the second degree. The court stated that the
plain meaning of the charge was that intoxication, if found, could support a finding of absence of
an intent to kill, enabling the jury to acquit defendant of second-degree murder. The court also
stated that the trial court expressly charged the elements of manslaughter, first degree, and
emphasized that it differed from murder in the second degree in that the intent to kill may not be
present, and throughout the instruction reference was made repeatedly to the alternative verdict
of manslaughter first degree.
An instruction that the burden of proof was on the defendant to prove by a preponderance of
evidence incapacity resulting from intoxication was held to be proper in State v French, 171 Ohio
St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den 366 US 973, 6 L Ed 2d 1263, 81 S Ct
1941. Affirming a conviction of breaking and entering with intent to commit a felony and rape,
the court stated that the raising of the question of intoxication as a defense to a charge of a crime
involving a physical act, such as rape, goes to the question of the physical capacity of the
defendant to have committed the crime charged. In regard to the defendant's contention that
evidence of intoxication was introduced merely to support the defense that the defendant did not
commit the acts with which he was charged, and that he did not raise the separate defense of
intoxication as to which he would have the burden of proof, the court stated that since there is no
recognized plea of not guilty by reason of intoxication, it can appear defensively only under a
general plea of not guilty, and any evidence on that subject introduced by the defendant must
necessarily be a defense, whether it is called simply a defense or an affirmative defense, and if
the defendant would escape the consequences of a prima facie case made by the state through
proof of the essential elements of the crime, he must assume the burden of so doing.
Page 68 of 575
Footnote 5.
Annotation: 8 ALR3d 1236, § 4[a].
Where the trial court gave a cautionary instruction stating that the jury was to apply the law as to
intoxication with caution because the court cannot countenance assault with intent to murder by
mere intoxication unless the intoxication carries a man to the extent that he is helpless in mind
and incapable of forming the intent to take a life, the court in Leach v State, 245 Ala 539, 18 So
2d 289, held that the court's charge was not reversible error. The court stated that the trial court
did not in any sense reflect upon the offense of intoxication or cast suspicion upon it and it was
not improper to caution the jury or admonish them or state to them that they should observe
carefully the exact nature of the defense, and not apply it improperly. The court, however,
upheld a reversal of the conviction on other grounds.
Where an instruction was given to the effect that the jury should use caution not to give
immunity to persons who commit crime when they are inflamed by intoxicating drink, and that
they must discriminate between the conditions of mind of being merely excited by intoxicating
drink, and yet capable of forming a specific intent to commit a crime, and of such a prostration of
the faculties as renders a man incapable of forming the intent, and that if an intoxicated person
has the capacity to form an intent to commit the crime charged and conceives and executes such
intent, it is no defense that he was induced to conceive it, or to conceive it more suddenly by
reason of his intoxication, the court in State v Runnells, 64 Wash 2d 995, 390 P2d 1003, stated
that such instruction did not take from the jury its right to consider the defense of intoxication as
claimed by the defendant. The court affirmed a conviction for first-degree forgery.
However, an instruction that the defense of drunkenness is one which is dangerous in its
application and that the evidence as to intoxication should be carefully scrutinized and weighed
with great caution, but if the jury finds from the evidence that by reason of intoxication the
defendant was incapable of forming a deliberate and premeditated intent to kill, it would be the
jury's duty to acquit the defendant of the charge of murder in the first degree, was held erroneous
in State v Oakes, 249 NC 282, 106 SE2d 206. Reversing a conviction of murder in the first
degree in remanding, the court stated that the error was in the expression that the defense of
drunkenness is one which is dangerous in its application. The court stated that such expression is
clearly an expression of opinion by a judge and as such is prohibited by statute.
Footnote 6. In the majority of cases cited, the evidence was held insufficient to show that the
accused did not possess the requisite intent or motive at the time of the commission of the crime,
and a conviction of the crime charged was upheld.
Annotation: 8 ALR3d 1236, § 4[a].
It should be noted that whether a particular offense is one requiring specific, rather than only
general, intent depends usually upon the language of the statute in a particular jurisdiction, and
consequently what may be a general intent crime in one state is a specific intent crime in another.
Page 69 of 575
Footnote 7. Lawrence v State (Ala App) 341 So 2d 188; State v Melendez, 121 Ariz 1, 588 P2d
294; Kagebein v State, 254 Ark 904, 496 SW2d 435; People v Ford, 60 Cal 2d 772, 36 Cal Rptr
620, 388 P2d 892, cert den 377 US 940, 12 L Ed 2d 303, 84 S Ct 1342 and (ovrld on other
grounds People v Satchell 6 Cal 3d 28, 98 Cal Rptr 33, 489 P2d 1361, 50 ALR3d 383) and later
app 65 Cal 2d 41, 52 Cal Rptr 228, 416 P2d 132, cert den 385 US 1018, 17 L Ed 2d 554, 87 S
Ct 737 and on remand (2d Dist) 253 Cal App 2d 390, 61 Cal Rptr 329; People v Conley, 64 Cal
2d 310, 49 Cal Rptr 815, 411 P2d 911; Dolan v People, 168 Colo 19, 449 P2d 828; State v
Dortch, 139 Conn 317, 93 A2d 490; Cirack v State (Fla) 201 So 2d 706; Carey v State, 91 Idaho
706, 429 P2d 836; People v Walsh, 28 Ill 2d 405, 192 NE2d 843 (murder while robbing); State v
Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54 NW2d 927; Long v
Commonwealth (Ky) 262 SW2d 809; State v Youngblood, 235 La 1087, 106 So 2d 689; Dubs v
State, 2 Md App 524, 235 A2d 764; Commonwealth v Whipple (Mass) 1979 Adv Sheets 907,
387 NE2d 575; State v Palen, 119 Mont 600, 178 P2d 862; King v State, 80 Nev 269, 392 P2d
310; State v King, 37 NJ 285, 181 A2d 158, 2 ALR3d 1278; People v Lynch, 23 NY2d 262,
296 NYS2d 327, 244 NE2d 29; State v Propst, 274 NC 62, 161 SE2d 560; State v Braley, 224 Or
1, 355 P2d 467; Commonwealth v Johnson, 410 Pa 605, 190 A2d 146; Commonwealth v Fostar,
455 Pa 216, 317 A2d 188; State v Thompson, 110 Utah 113, 170 P2d 153; State v Hartley, 25
Wash 2d 211, 170 P2d 333; State v Rio, 38 Wash 2d 446, 230 P2d 308, cert den 342 US 867,
96 L Ed 652, 72 S Ct 106 (recognizing rule); State v Bragg, 140 W Va 585, 87 SE2d 689; State
v Johnnies, 76 Wis 2d 578, 251 NW2d 807.
Although recognizing that if the defendant was so intoxicated that he did not have the specific
intent to rape, he was not guilty of murder in the first degree, the court in People v Cheary, 48
Cal 2d 301, 309 P2d 431, affirmed the conviction of murder in the first degree. The court stated
that whether the defendant was so intoxicated as to preclude the existence of the specific intent
was a question for the jury, and, since the jury was properly instructed on the effect of
intoxication, its verdict necessarily implied that they found that the defendant was not so
intoxicated that he did not have the specific intent to rape. Such determination was amply
supported by the evidence even though the testimony regarding the extent of the defendant's
intoxication was conflicting, said the court.
Affirming a conviction of murder, the court in People v Lion, 10 Ill 2d 208, 139 NE2d 757,
stated that it is the rule that voluntary drunkenness is no excuse for the perpetration of a criminal
act, and it may be used to negative the essential elements of intent and malice only where the
intoxication is so extreme as to entirely suspend the power of reason. Merely being drunk or
intoxicated is no defense, said the court, even though the condition may have lasted for several
days. The court stated that the facts of the case and the conduct of the defendant showed that his
intoxication was not so extreme as to render him incapable of having the malice and intent
necessary to commit the crime of murder.
Generally, as to intoxication as a defense in homicide cases, see 40 Am Jur 2d, Homicide §§
130-132.
Page 70 of 575
Footnote 8. State v Saunders, 102 Ariz 565, 435 P2d 39; People v Curry (4th Dist) 192 Cal App
2d 664, 13 Cal Rptr 596; Nicholson v United States (Dist Col App) 368 A2d 561; State v Linn,
93 Idaho 430, 462 P2d 729; De Boor v State, 243 Ind 87, 182 NE2d 250, cert den 371 US 848,
9 L Ed 2d 83, 83 S Ct 83; Taylor v State, 260 Ind 264, 295 NE2d 600, cert den 414 US 1012,
38 L Ed 2d 250, 94 S Ct 377; State v Mart (La) 352 So 2d 678; People v De Mino, 277 App Div
1121, 100 NYS2d 982; People v Davis (1st Dept) 18 App Div 2d 644, 235 NYS2d 282, affd 13
NY2d 1151, 247 NYS2d 140, 196 NE2d 569; State v Turley, 113 RI 104, 318 A2d 455.
On the basis that the evidence was sufficient to support a finding that the defendant was in full
command of all his faculties and fully capable of maliciously intending the consequences of his
act in shooting his stepson, the court in De Boor v State, 243 Ind 87, 182 NE2d 250, cert den
371 US 848, 9 L ed 2d 83, 83 S Ct 83, affirmed a conviction of second-degree murder. While
evidence of intoxication is admissible and may be considered in behalf of a person on trial for a
crime involving specific intent, said the court, it acts as a complete and effective defense only
when its degree is such as to render the accused incapable of entertaining the specific intent. The
court stated that there was evidence in the record that the defendant did not stagger, that he
walked normally and spoke understandingly, and that his actions were the same shortly before
and after the shooting. The court also stated that the degree of intoxication and the effect of
alcohol upon the defendant were questions of fact to be determined by the jury.
Footnote 9. People v Hammock, 68 Ill App 3d 34, 24 Ill Dec 655, 385 NE2d (voluntary
manslaughter); Brown v Commonwealth (Ky) 575 SW2d 451 (first-degree manslaughter);
Cowling v State (Okla Crim) 327 P2d 500 (manslaughter in first degree); Dodge v State (Wyo)
562 P2d 303.
Footnote 10. Nicholson v United States (Dist Col App) 368 A2d 561; People v Counts, 318 Mich
45, 27 NW2d 338; People v Crane, 27 Mich App 201, 183 NW2d 307 (disagreed with on other
grounds People v Rohr 45 Mich App 535, 206 NW2d 788) as stated in People v Starghill 99
Mich App 790, 298 NW2d 641 (felonious assault); State v Crespin (App) 86 NM 689, 526 P2d
1282 (aggravated battery); People v Lane (3rd Dept) 9 App Div 2d 979, 194 NYS2d 846
(second-degree assault arising from alleged acts of incest); State v Bunn, 283 NC 444, 196 SE2d
777 (felonious assault); Dodge v State (Wyo) 562 P2d 303 (assault and battery with dangerous
weapon).
Footnote 11. Leach v State, 245 Ala 539, 18 So 2d 289; Myrick v State, 244 Ark 1156, 428
SW2d 241; People v Mathews (3d Dist) 163 Cal App 2d 795, 329 P2d 983; Eastin v State, 233
Ind 101, 117 NE2d 124; Avey v State, 249 Md 385, 240 A2d 107, later app 9 Md App 227, 263
A2d 609.
Footnote 12. Britts v State, 158 Fla 839, 30 So 2d 363.
Footnote 13. Moran v State, 34 Ala App 238, 39 So 2d 419, cert den 252 Ala 60, 39 So 2d 421;
People v Peckham (2d Dist) 249 Cal App 2d 941, 57 Cal Rptr 922; Claxton v People, 164 Colo
Page 71 of 575
283, 434 P2d 407; People v Cozzie, 397 Ill 620, 74 NE2d 685; Shipman v State, 243 Ind 245,
183 NE2d 823, cert den 371 US 958, 9 L Ed 2d 504, 83 S Ct 515 (assault and battery with
intent to gratify sexual desires); Charles v State, 164 Ind App 260, 328 NE2d 455; State v Holl,
238 Iowa 130, 25 NW2d 853; Michael v State, 1 Md App 243, 229 A2d 145 (assault with intent
to have carnal knowledge of female child under 14 years of age); State v Johnson, 243 Minn 296,
67 NW2d 639; Commonwealth v Heatter, 177 Pa Super 374, 111 A2d 371.
The crime of assault with intent to rape involves a specific intent and while it is true that
drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary
element in a crime, the crime cannot have been committed when the intent did not exist, said the
court in People v Guillett, 342 Mich 1, 69 NW2d 140, reversing a conviction of assault with
intent to rape and remanding for a new trial. It was held that an instruction by the trial judge that
voluntary drunkenness is not a defense to the crime and that a man who puts himself in a position
to have no control over his actions must be held to intend the consequences was erroneous,
despite the fact that the defendant failed to request the appropriate instructions.
Footnote 14. Wheatley v United States (CA4 W Va) 159 F2d 599; People v Wilson (2d Dist) 261
Cal App 2d 12, 67 Cal Rptr 678; Claxton v People, 164 Colo 283, 434 P2d 407; People v
Savage, 5 Ill 2d 296, 125 NE2d 449 (abduction of infant); Shipman v State, 243 Ind 245, 183
NE2d 823, cert den 371 US 958, 9 L Ed 2d 504, 83 S Ct 515.
Footnote 15. People v Cheary, 48 Cal 2d 301, 309 P2d 431; State v Gailey, 69 Idaho 146, 204
P2d 254; State v Evenson, 237 Iowa 1214, 24 NW2d 762; Kahafer v Commonwealth (Ky) 284
SW2d 678 (apparently recognizing rule).
Footnote 16. People v Oliver, 55 Cal 2d 761, 12 Cal Rptr 865, 361 P2d 593 (lewd conduct with
child); State v Johnson, 74 Idaho 269, 261 P2d 638 (lewd and lascivious conduct with
9-year-old); People v Freedman, 4 Ill 2d 414, 123 NE2d 317 (immoral, improper, and indecent
liberties with a female child); People v Evrard, 55 Ill App 2d 270, 204 NE2d 777 (taking
indecent liberties with child under 16); State v Haines (Iowa) 259 NW2d 806 (committing
lascivious acts upon person of female child under age of 16 years); Kendall v State, 244 Miss
618, 145 So 2d 924 (indecent assault upon female child).
Footnote 17. Caples v United States (CA5 Miss) 391 F2d 1018 (armed robbery of federally
insured bank); United States v Lemon (CA9 Cal) 550 F2d 467 (bank robbery); United States v
Williams (DC Md) 332 F Supp 1 (bank robbery); Brown v State, 39 Ala App 149, 96 So 2d 197;
People v Spencer, 60 Cal 2d 64, 31 Cal Rptr 782, 383 P2d 134, cert den 377 US 1007, 12 L Ed
2d 1055, 84 S Ct 1924 (robbing murdered taxicab driver); People v Garcia (1st Dist) 169 Cal
App 2d 368, 337 P2d 100 (armed robbery); Womack v United States, 119 App DC 40, 336 F2d
959; People v White, 67 Ill 2d 107, 8 Ill Dec 99, 365 NE2d 337 (ovrld on other grounds People v
Banks 75 Ill 2d 383, 27 Ill Dec 195, 388 NE2d 1244; armed robbery); Payton v State, 246 Ind
401, 206 NE2d 143; Johnson v Commonwealth (Ky) 302 SW2d 585 (armed robbery);
McPherson v State, 208 Miss 784, 45 So 2d 589; State v Brown, 174 Neb 393, 118 NW2d 332;
Page 72 of 575
State v Reposa, 99 RI 147, 206 A2d 213; State v Haynes, 58 Wash 2d 716, 364 P2d 935, vacated
on other grounds 373 US 503, 10 L Ed 2d 513, 83 S Ct 1336.
Footnote 18. Schwab v United States (CA8 Minn) 327 F2d 11 (Motor Vehicle Theft Act); Alden
v Montana (DC Mont) 234 F Supp 661, affd (CA9) 345 F2d 530 (grand larceny, depriving owner
of automobile); Green v State (Ala App) 342 So 2d 419 (grand larceny); State v Parsons, 70 Ariz
399, 222 P2d 637; People v Wilson (1st Dist) 160 Cal App 2d 606, 325 P2d 106 (petit theft);
People v Arriola (1st Dist) 164 Cal App 2d 430, 330 P2d 683 (grand theft); Edwards v United
States, 85 App DC 310, 172 F2d 884; People v Reynolds, 27 Ill 2d 523, 190 NE2d 301; People v
Jones, 99 Ill App 2d 364, 240 NE2d 776; State v Estrella, 257 Iowa 462, 133 NW2d 97
(shoplifting); McVey v Commonwealth (Ky) 272 SW2d 33 (grand larceny of money); Hazel v
Commonwealth (Ky) 371 SW2d 635 (grand larceny); Brown v State, 6 Md App 631, 252 A2d
887; Best v State, 235 Miss 318, 108 So 2d 840; King v State (Miss) 210 So 2d 887 (grand
larceny); Daugherty v State, 154 Neb 376, 48 NW2d 76 (grand larceny); State v Roybal, 66 NM
416, 349 P2d 332; State v Lucero, 70 NM 268, 372 P2d 837; People v Burley, 282 App Div 408,
122 NYS2d 760; State v Koerner, 8 ND 292, 78 NW 981; Phillips v State, (Okla Crim) 321 P2d
724 (larceny of automobile); Thomas v State, 201 Tenn 645, 301 SW2d 358.
As to intoxication as negating specific intent in larceny cases, generally, see 50 Am Jur 2d,
Larceny § 42.
Footnote 19. Goings v United States (CA8 SD) 377 F2d 753, later app (CA8 SD) 393 F2d 884,
cert den 393 US 883, 21 L Ed 2d 158, 89 S Ct 191 (applying South Dakota law); Green v State
(Ala App) 342 So 2d 419; State v Parsons, 70 Ariz 399, 222 P2d 637; State v Roqueni, 94 Ariz
72, 381 P2d 757, cert den 375 US 948, 11 L Ed 2d 278, 84 S Ct 359 (recognizing rule); People
v Wilson (1st Dist) 160 Cal App 2d 606, 325 P2d 106; People v Romero, 182 Colo 50, 511 P2d
466; State v Rutten, 73 Idaho 25, 245 P2d 778 (burglary in first degree); People v Iannaco, 11 Ill
2d 55, 142 NE2d 8; People v Reynolds, 27 Ill 2d 523, 190 NE2d 301; People v Garrett, 46 Ill
App 3d 592, 360 NE2d 1231; Hunter v State 246 Ind 494, 207 NE2d 207 (second-degree
burglary); Watson v State (Ind App) 386 NE2d 1015 (first-degree burglary); State v Lentz (La)
306 So 2d 683; McFarland v State, 212 Miss 802, 55 So 2d 457; State v Ostwald (Mont) 591 P2d
646; Commonwealth v Bable, 248 Pa Super 496, 375 A2d 350; Bradford v State, 208 Tenn 500,
347 SW2d 33; State v Hartley, 16 Utah 2d 123, 396 P2d 749 (second-degree burglary).
Footnote 20. Young v State (Fla App D3) 162 So 2d 297 (breaking and entering with intent to
commit a misdemeanor); State v Linzmeyer, 248 Iowa 31, 79 NW2d 206; Hall v
Commonwealth, 310 Ky 718, 221 SW2d 652 (storehouse breaking); Ray v Commonwealth (Ky)
284 SW2d 76; State v Del Vecchio, 142 NJ Super 359, 361 A2d 579 (breaking and entering with
intent to steal); State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den
366 US 973, 6 L Ed 2d 1263, 81 S Ct 1941 (breaking and entering with intent to commit
felony); State v Murphy, 107 RI 737, 271 A2d 310 (breaking and entering with intent to commit
larceny).
Page 73 of 575
Footnote 21. United States v MacLeod (DC Pa) 83 F Supp 372; Woodard v People, 154 Colo
162, 389 P2d 411; State v Baldwin, 69 Idaho 459, 208 P2d 161; State v O'Donnell, 280 Minn
213, 158 NW2d 699 (aggravated forgery); Andrade v State, 87 Nev 144, 483 P2d 208; State v
Conklin, 79 Wash 2d 805, 489 P2d 1130 (first-degree forgery).
Footnote 22. United States v Nix (CA7 Ill) 501 F2d 516 (escape from prison); Gallegos v People,
159 Colo 379, 411 P2d 956 (felonious escape); People v Haines, 37 Colo App 302, 549 P2d 786;
People v Lundborg, 39 Colo App 498, 570 P2d 1303 (felony menacing); Jenkins v United States
(Dist Col App) 242 A2d 214 (possession of prohibited weapon); State v Crocker (Me) 387 A2d
26 (unlawful sexual contact); Brown v State, 6 Md App 631, 252 A2d 887 (obtaining money by
false pretenses); People v Cesare (2d Dept) 68 App Div 2d 938, 414 NYS2d 585 (criminal
possession of stolen property, and possession of burglar's tools); State v Arnold, 264 NC 348,
141 SE2d 473 (attempting to burn a dwelling house); State v Smith (App) 32 Ohio Ops 2d 130,
198 NE2d 89 (coconspirator or aider and abettor to firing of pistol fatal to victim);
Commonwealth ex rel. Dunbar v Keenan, 196 Pa Super 592, 176 A2d 135, cert den 371 US 839,
9 L Ed 2d 74, 83 S Ct 65 (apparently recognizing rule; fraudulent pretenses); Commonwealth v
Pickett, 244 Pa Super 433, 368 A2d 799 (conspiracy); Commonwealth v Hart (Pa) 101 Pittsb Leg
J 449 (carrying concealed weapons).
Footnote 23. Booher v State, 156 Ind 435, 60 NE 156; State v Heinz, 223 Iowa 1241, 275 NW
10; State v Butner, 66 Nev 127, 206 P2d 253, reh den 67 Nev 436, 220 P2d 631 and cert den
338 US 950, 94 L Ed 586, 70 S Ct 479 and cert den 340 US 913, 95 L Ed 660, 71 S Ct 285
and (ovrld on other grounds Poirier v Board of Dental Examiners 81 Nev 384, 404 P2d 1); State
v Phillips, 80 W Va 748, 93 SE 828.
Footnote 24. Stenzel v United States (CA8 Iowa) 261 F 161; Chrisman v State, 54 Ark 283, 15
SW 889; Garner v State, 28 Fla 113, 9 So 835; People v Strader, 23 Ill 2d 13, 177 NE2d 126;
Booher v State, 156 Ind 435, 60 NE 156; Latimer v State, 55 Neb 609, 76 NW 207; Warner v
State, 56 NJL 686, 29 A 505; State v Koerner, 8 ND 292, 78 NW 981; Pigman v State, 14 Ohio
555; State v Stenback, 78 Utah 350, 2 P2d 1050; State v Phillips, 80 W Va 748, 93 SE 828;
Director of Public Prosecutions v Beard (Eng) [1920] AC 479 (HL).
In Johnson v State, 32 Ala App 217, 24 So 2d 228, a conviction was reversed where the evidence
affirmatively showed that the defendant's mind was so impaired by drugs taken medicinally, plus
liquor, as to render him incapable of forming the required specific intent.
In Murphy v Commonwealth (Ky) 279 SW2d 767, the court, reversing a conviction of operating
an automobile without the consent of the owner, ordered the trial court to enter a directed verdict
for the defendant. The court stated that the evidence clearly established that at the time the
automobile was taken, the defendant was drunk to the point of being physically incapable of
committing or participating in the crime charged.
Footnote 25. Yarber v State, 242 Ind 616, 179 NE2d 882.
Page 74 of 575
Where the offense can be completed only by doing a particular thing with a specific intent, it may
be shown that the accused was so drunk that he was incapable of entertaining the intent necessary
to constitute the crime. Hankins v State, 206 Ark 881, 178 SW2d 56 (murder).
Evidence of intoxication is admissible and may be considered in behalf of a person on trial for a
crime involving specific intent. However, intoxication acts as a complete and effective defense
only when its degree is such as to render the accused incapable of entertaining the specific intent.
De Boor v State, 243 Ind 87, 182 NE2d 250, cert den 371 US 848, 9 L Ed 2d 83, 83 S Ct 83
(affirming conviction of second-degree murder).
Intoxication to the extent of deprivation of reason and willpower precludes a finding of guilt of
the breaking and entering of a building with intent to steal, where the proof shows only a
breaking and entering, but not an actual taking or any attempt to take. State v Phillips, 80 W Va
748, 93 SE 828.
Footnote 26. Kane v United States (CA9 Ariz) 399 F2d 730, cert den 393 US 1057, 21 L Ed 2d
699, 89 S Ct 698 (first degree murder reduced to voluntary manslaughter); Wheatley v United
States (CA4 W Va) 159 F2d 599 (kidnapping); United States ex rel. Thompson v Dye (CA3 Pa)
221 F2d 763, cert den 350 US 875, 100 L Ed 773, 76 S Ct 120 (murder in the first degree to
murder in the second degree); Government of Virgin Islands v Downey (DC VI) 396 F Supp 349,
affd without op (CA3 VI) 529 F2d 511; Gosa v State, 273 Ala 346, 139 So 2d 321 (murder in
first degree to manslaughter or murder in second degree); Lewis v State, 42 Ala App 166, 157 So
2d 38 (drunkenness may reduce degree of homicide from murder to manslaughter but is no
defense as to either degree of manslaughter); State v Magby, 113 Ariz 345, 554 P2d 1272
(first-degree murder to second-degree murder or manslaughter); People v Horn, 12 Cal 3d 290,
115 Cal Rptr 516, 524 P2d 1300 (conspiracy to commit first degree murder to conspiracy to
commit manslaughter); People v Reyes, 12 Cal 3d 486, 116 Cal Rptr 217, 526 P2d 225 (murder
in first degree to involuntary manslaughter); People v Matta (5th Dist) 57 Cal App 3d 472, 129
Cal Rptr 205 (murder to involuntary manslaughter); State v Dortch, 139 Conn 317, 93 A2d 490
(first-degree murder to second-degree murder); Bantum v State (Sup) 46 Del 487, 85 A2d 741
(first-degree murder); Dashiell v State (Sup) 52 Del 189, 154 A2d 688 (recognizing rule; murder
in first degree to murder in second degree); Harris v United States (Dist Col App) 375 A2d 505;
State ex rel. Goepel v Kelly (Fla) 68 So 2d 351 (first-degree murder); Griffin v State (Fla App)
96 So 2d 424 (recognizing rule; murder in first degree); People v Johnson, 32 Ill App 3d 36, 335
NE2d 144; People v Proper, 68 Ill App 3d 250, 24 Ill Dec 741, 385 NE2d 882 (murder to
voluntary manslaughter); Hooker v State (Ind App) 387 NE2d 1354; State v Gramenz, 256 Iowa
134, 126 NW2d 285 (dictum recognizing rule; homicide to manslaughter); State v Anderson, 172
Kan 402, 241 P2d 742 (murder to manslaughter); State v Gee, 194 Kan 443, 399 P2d 880
(recognizing rule); Rose v Commonwealth (Ky) 408 SW 2d 621 (maliciously cutting and
wounding to cutting and wounding in sudden affray or in sudden heat and passion, without
previous malice); Geary v Commonwealth (Ky) 503 SW2d 505; Chisley v State, 202 Md 87, 95
A2d 577 (first-degree murder to second-degree murder); Commonwealth v Dellechiaie, 323
Mass 615, 84 NE2d 7 (murder in first degree to murder in second degree); People v Engle, 61
Page 75 of 575
Mich App 628, 233 NW2d 116; Thurmond v State, 212 Miss 36, 53 So 2d 44 (murder to
manslaughter); State v Palen, 119 Mont 600, 178 P2d 862 (first-degree murder reduced to
second-degree murder); Tvrz v State, 154 Neb 641, 48 NW2d 761 (first-degree murder);
Thompson v State, 159 Neb 685, 68 NW2d 267 (recognizing rule; malicious shooting with intent
to kill); State v Butner, 66 Nev 127, 206 P2d 253, reh den 67 Nev 436, 220 P2d 631 and cert den
338 US 950, 94 L Ed 586, 70 S Ct 479 and cert den 340 US 913, 95 L Ed 660, 71 S Ct 285
and (ovrld on other grounds Poirier v Board of Dental Examiners 81 Nev 384, 404 P2d 1;
first-degree murder to second-degree murder); Kuk v State, 80 Nev 291, 392 P2d 630 (apparently
recognizing rule; first-degree murder); State v Hudson, 38 NJ 364, 185 A2d 1 (first-degree
murder may be reduced to second-degree murder); State v Trantino, 44 NJ 358, 209 A2d 117,
cert den 382 US 993, 15 L Ed 2d 479, 86 S Ct 573, reh den 383 US 922, 15 L Ed 2d 679, 86
S Ct 901 (first-degree murder may be reduced to second-degree murder); State v Padilla, 66 NM
289, 347 P2d 312, 78 ALR2d 908 (first-degree murder to second-degree murder); People v
Caverio, 286 App Div 369, 143 NYS2d 309, settled 286 App Div 972, 144 NYS2d 1, app den
309 NY 913, 131 NE2d 910 and affd 1 NY2d 657, 150 NYS2d 24, 133 NE2d 512 (recognizing
rule; first-degree murder); People v Cook (3d Dept) 51 App Div 2d 1072, 380 NYS2d 792;
People v Isrile (1st Dept) 64 App Div 2d 536, 406 NYS2d 491; State v Fowler, 285 NC 90, 203
SE2d 803, vacated, in part on other grounds 428 US 904, 49 L Ed 2d 1212, 96 S Ct 3212
(first-degree murder to second-degree murder); State v Bock, 288 NC 145, 217 SE2d 513,
vacated, in part on other grounds 428 US 903, 49 L Ed 2d 1209, 96 S Ct 3208; Oxendine v
State (Okla Crim) 335 P2d 940 (murder to manslaughter in the first degree); Williams v State
(Okla Crim) 513 P2d 335 (murder); State v Braley, 224 Or 1, 355 P2d 467 (first-degree murder
may be reduced to second-degree murder); Commonwealth v Reid, 432 Pa 319, 247 A2d 783;
Commonwealth v Haywood, 464 Pa 226, 346 A2d 298; Commonwealth v England, 474 Pa 1,
375 A2d 1292; Commonwealth v Wilson, 224 Pa Super 515, 307 A2d 351; Long v State, 187
Tenn 139, 213 SW2d 37 (first-degree murder to second-degree murder); State v Bullington
(Tenn) 532 SW2d 556; Cody v Commonwealth, 180 Va 449, 23 SE2d 122 (as between murder in
the first degree and murder in the second degree, voluntary drunkenness may be a legitimate
subject of inquiry, but as between murder in the second degree and manslaughter, it is never
material and cannot be considered); State v Painter, 135 W Va 106, 63 SE2d 86 (murder in first
degree to murder in second degree); State v Burdette, 135 W Va 312, 63 SE2d 69 (murder in first
degree); Smith v State, 248 Wis 399, 21 NW2d 662 (murder in first degree).
Annotation: 8 ALR3d 1236, § 4[b].
As to intoxication as affecting degree of homicide, generally, see 40 Am Jur 2d, Homicide §§
128, 129.
Footnote 27. Newsome v State, 214 Ark 48, 214 SW2d 778; Robertson v State, 212 Ark 301,
206 SW2d 748; Dashiell v State (Sup) 52 Del 189, 154 A2d 688; State v Painter, 135 W Va 106,
63 SE2d 86.
Annotation: 8 ALR3d 1236, § 4[b].
Page 76 of 575
Footnote 28. Marshall v Commonwealth, 141 Ky 222, 132 SW 139; State v Butner, 66 Nev 127,
206 P2d 253, reh den 67 Nev 436, 220 P2d 631 and cert den 338 US 950, 94 L Ed 586, 70 S Ct
479 and cert den 340 US 913, 95 L Ed 660, 71 S Ct 285 and (ovrld on other grounds Poirier v
Board of Dental Examiners 81 Nev 384, 404 P2d 1).
For application of rule to homicide, see 40 Am Jur 2d, Homicide § 138.
Footnote 29.
Annotation: 8 ALR3d 1236, § 4[b].
In State v Arsenault, 152 Me 121, 124 A2d 741, overruling exceptions to instructions of the
defendant, who had been convicted of murder, the court stated that voluntary intoxication is no
excuse for murder and is not an excuse or justification for, or an extenuation of, a crime. Maine
had abolished the distinction between the degrees of murder and the defendant had requested
instructions which would render him not guilty of the crime if the jury found that he was so
intoxicated as to have lost his intelligence and his reason and faculties. The court recognized that
where there are statutory degrees of murder, as formerly in Maine, intoxication may sometimes
reduce first-degree murder to second-degree murder.
And see Stokes v State, 240 Miss 453, 128 So 2d 341, in which the court, affirming a conviction
of murder, stated that voluntary intoxication is no defense in a murder case and that murder
cannot be reduced to manslaughter.
§ 156 – Involuntary [21 Am Jur 2d CRIMINAL LAW]
Though occasions for its application have not been frequent, the rule appears to be settled that
involuntary intoxication relieves the criminality of an act committed under its influence. 30
Involuntary intoxication is said to result from or be induced by the force, duress, fraud, or
contrivance of another, 31 but this rule has been given a rather narrow reading in at least one
jurisdiction 32 and it has been said that the rule is recognized only under strict limitations. 33 It
is not involuntary intoxication where an accused voluntarily consumed liquor given or furnished
him by another or by his ultimate victim. 34
The test of involuntary drunkenness is whether there was an absence of an exercise of
independent judgment and volition on the part of the accused in taking the intoxicant. 35
And
this has been held true despite considerable insistence on the part of the latter, unless there was
coercion and abuse to the extent of duress. 36 Although intoxication resulting from drugs taken
or administered for medicinal purposes has been regarded as involuntary, 37 intoxication
resulting from taking whiskey, without the advice of a physican, to relieve a toothache, has been
held not involuntary. 38 On the other hand, "pathological intoxication," described as an acute
condition of short duration resulting from the ingestion of alcohol, has been accepted as
involuntary intoxication. 39
Page 77 of 575
§ 156 – Involuntary [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Failure to give notice of insanity defense precluded defendant's raising defense of involuntary
intoxication. People v Wilkins (1990) 184 Mich App 443, 459 NW2d 57, app den 439 Mich 863;
478 NW2d 90, reconsideration den 482 NW2d 715.
Where defendant voluntarily ingested large amounts of illegal intoxicants and intentionally
overdosed on legal drugs, he could not claim involuntary intoxication based upon alleged
unexpectedly violent reaction to those drugs due to unknown underlying pathological condition
caused by exposure to pesticides. State v Sette (1992) 259 NJ Super 156, 611 A2d 1129, certif
den (NJ) 617 A2d 1219.
Since alcoholism may not be the basis for a defense of involuntary intoxication, the trial court did
not err in excluding evidence bearing on defendant's intoxication at the guilt-innocence level of
defendant's trial on a theft charge; however, the tendered evidence raised the issue of temporary
insanity by reason of intoxication and should have been admitted by way of mitigation of
punishment. Shurbet v State (1982, Tex App 3d Dist) 652 SW2d 425.
Footnotes
Footnote 30. Bartholomew v People, 104 Ill 601 (ovrld on other grounds People v Montgomery
47 Ill 2d 510, 268 NE2d 695, 67 ALR3d 816 (superseded by statute as stated in People v Ray 54
Ill 2d 377, 297 NE2d 168)) as stated in Charlton v Baker 36 Ill App 3d 427, 344 NE2d 25;
Saldiveri v State, 217 Md 412, 143 A2d 70; Carter v State, 12 Tex 500; Johnson v
Commonwealth, 135 Va 524, 115 SE 673.
Annotation: 73 ALR3d 195.
Footnote 31. United States v Jewett (CA8 SD) 438 F2d 495, cert den 402 US 947, 29 L Ed 2d
117, 91 S Ct 1640; People v Carlo (1st Dept) 46 App Div 2d 764, 361 NYS2d 168; State v
Bunn, 283 NC 444, 196 SE2d 777.
Intoxication occasioned by the fraud, artifice, contrivance, or force of another for the purpose of
causing the perpetration of a crime, is involuntary intoxication. Grimes v Burch, 223 Ga 856,
159 SE2d 69; State v Bevins, 187 Neb 785, 194 NW2d 181.
It is only when alcohol has been introduced into a person's system without his knowledge or by
"force majeure" that his intoxication will be regarded as involuntary. State v Bunn, 283 NC 444,
196 SE2d 777.
Page 78 of 575
Intoxication caused by drinking beer which had been "drugged" without the accused's knowledge
is involuntary intoxication. People v White, 131 Ill App 2d 652, 264 NE2d 228.
Footnote 32. To establish a defense of involuntary intoxication, the intoxication must be induced
by acts amounting in effect to duress or fraud and it must go to such an extent that the mind of
the defendant was incapable of understanding the criminal nature of his act. Burrows v State, 38
Ariz 99, 297 P 1029 (disapproved on other grounds State v Hernandez 83 Ariz 279, 320 P2d
467).
Footnote 33. Johnson v Commonwealth, 135 Va 524, 115 SE 673.
Footnote 34. Commonwealth v Dudash, 204 Pa 124, 53 A 756.
Footnote 35. Johnson v Commonwealth, 135 Va 524, 115 SE 673.
Annotation: 73 ALR3d 195.
Involuntary intoxication is a defense to criminal culpability when it is shown that the accused has
exercised no independent judgment or volition in taking the intoxicant and, as a result of his
intoxication, the accused did not know that his conduct was wrong or was incapable of
conforming his conduct to the requirements of the law he allegedly violated. Torres v State (Tex
Crim) 585 SW2d 746.
Where a defendant had received head injuries that lowered his tolerance to alcohol so that
intoxication occurred from a relatively small amount of alcohol, and that caused him to become
legally insane while so intoxicated, and where there was evidence that the defendant was aware
of this weakness, the defendant's intoxication was voluntary intoxication. Kane v United States
(CA9 Ariz) 399 F2d 730, cert den 393 US 1057, 21 L Ed 2d 699, 89 S Ct 698.
Footnote 36. Burrows v State, 38 Ariz 99, 297 P 1029 (disapproved on other grounds State v
Hernandez 83 Ariz 279, 320 P2d 467).
Footnote 37. § 157, infra.
Footnote 38. Flanigan v People, 86 NY 554; Johnson v Commonwealth, 135 Va 524, 115 SE
673.
Annotation: 40 ALR3d 321.
Chronic alcoholism is not per se sufficient to raise the issue of criminal responsibility, except in a
charge of drunkenness. Salzman v United States, 131 App DC 393, 405 F2d 358.
When on a given occasion, a person takes his first drink by choice and afterwards drinks
Page 79 of 575
successively and finally gets drunk, that is voluntary intoxication, even though he may be an
alcoholic. People v Morrow (5th Dist) 268 Cal App 2d 939, 74 Cal Rptr 551.
Footnote 39. Hurley v Commonwealth (Ky) 451 SW2d 838.
In State v Matthews, 20 Or App 466, 532 P2d 250, the testimony of a psychiatrist that a
defendant suffered from an "organic brain disease" which made his excessive drinking of
alcoholic beverages an "automatic" an "involuntary process," was sufficient to support a finding
that the defendant, convicted of manslaughter, was involuntarily intoxicated.
As to the effect that a drug addict is not acting voluntarily in the continued use of the drug, see §
157, infra.
§ 157 Narcosis [21 Am Jur 2d CRIMINAL LAW]
What little authority has been found indicates that the rules as to criminal responsibility where an
act is committed under the influence of drugs are the same as when it is committed under the
influence of intoxicating liquor. 40 Thus, the voluntary nonmedicinal use of narcotics is no
defense to a crime committed under their influence, 41 although it may lead to acquittal where it
excludes the required specific intent. 42
Involuntary narcosis, however, like involuntary alcoholic intoxication, may negative criminal
responsibility. 43 Intoxication resulting from drugs medicinally administered is considered as
involuntary. 44 Apparently it may be so considered even where the drug was self-administered.
45 And although the rule seems to be the other way in the case of chronic alcoholism, 46 it has
been held that a person who has become addicted to a narcotic and is unable to resist the craving
for it cannot be said to act voluntarily in its continued use. 47
§ 157 – Narcosis [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Benton et al., Drugs and Criminal Responsibility. 33 Vand L R 1145, October,
1980.
Case authorities:
Fact that defendant had injected three bags of heroin about hour before robbery did not entitle
him to have court instruct jury as to defense of involuntary intoxication; fact that defendant was
addicted to heroin did not render use of drug involuntary. Tacorante v People (1981, Colo) 624
P2d 1324.
Page 80 of 575
Court properly excluded evidence, at trial on charges of attempted first-degree assault,
first-degree reckless endangerment and third-degree possession of weapon, that defendant
(diabetic) had been hospitalized for lack of insulin shortly after incident in which he accosted
woman in parking lot and fired 2 shotgun blasts at her vehicle as she drove away, despite
defendant's claim that he was unable to form requisite intent as result of undermedication of
insulin, where no expert testimony was offered to explain what effect lack of insulin would have
on individual or how long it would take for defendant's condition to develop. People v Philipson
(1989, 2d Dept) 150 AD2d 615, 541 NYS2d 483, app den 74 NY2d 817, 546 NYS2d 575, 545
NE2d 889.
The trial court in a prosecution for attempted first-degree rape and first-degree sexual offense
correctly refused to instruct the jury on the defense of unconsciousness or automatism where all
the evidence tended to show that defendant's mental state was caused by his voluntary smoking
of the drug characterized as "angel dust." State v Boone (1982) 307 NC 198, 297 SE2d 585.
Footnotes
Footnote 40. People v Sameniego, 118 Cal App 165, 4 P2d 809, reh den 118 Cal App 174, 5 P2d
653 (statute dealing with effect of voluntary intoxication includes all forms of voluntary
intoxication, not just those caused by alcohol); De Berry v Commonwealth (Ky) 289 SW2d 495,
cert den 352 US 881, 1 L Ed 2d 81, 77 S Ct 105; State v White, 27 NJ 158, 142 A2d 65; Couch
v State (Okla Crim) 375 P2d 978; State v Roisland, 1 Or App 68, 459 P2d 555.
Annotation: 73 ALR3d 16.
Intoxication which resulted from the taking of a pill in order to feel "groovy" or to get "a little
sunshine" was held to constitute voluntary intoxication. State v Hall (Iowa) 214 NW2d 205, 73
ALR3d 85.
Compare Saldiveri v State, 217 Md 412, 143 A2d 70, discussing testimony that sodium amytal
has no intoxicating effect.
See 40 Am Jur 2d, Homicide § 133.
Practice Aids: –Wald, Alcohol, Drugs, and Criminal Responsibility. 1974, 63 Georgetown LJ
69.
Fingarette, Addiction and Criminal Responsibility. 1975, 84 Yale L J 413.
Footnote 41. State v White, 27 NJ 158, 142 A2d 65; Couch v State (Okla Crim) 375 P2d 978;
State v Blassingame, 221 SC 169, 69 SE2d 601.
Page 81 of 575
Uncontroverted evidence that a defendant, accused of murder, had been voluntarily taking
librium tranquilizers for several months prior to the offense, and that during that period, he had
consumed large quantities of alcohol as well, was held to be sufficient to permit the trial court to
determine that the defendant was aware of the effects of such a combination and willingly
assumed the risk. People v Mahle (1st Dist) 273 Cal App 2d 309, 78 Cal Rptr 360.
In a prosecution of a man and three women for murder and conspiracy to commit murder arising
out of two successive multiple homicides, the trial court properly refused defendants' requested
jury instructions on diminished capacity, where, though there was evidence that hallucinogenic
drugs were available and were used by the communal "family" to which defendants belonged, no
evidence suggested that anyone ingested any drugs at any time proximate to the murders, and
where there was no evidence concerning the effect of prior usage of drugs on any defendant, or
that any of them suffered from undisputed mental illness or from incapacity to materially and
meaningfully reflect on the gravity of contemplated acts. People v Manson (2d Dist) 61 Cal App
3d 102, 132 Cal Rptr 265, cert den 430 US 986, 52 L Ed 2d 382, 97 S Ct 1686 and later app
(2d Dist) 113 Cal App 3d 280, 170 Cal Rptr 189.
Footnote 42. State v White, 27 NJ 158, 142 A2d 65.
Footnote 43. State v Rippy, 104 NC 752, 10 SE 259, holding it to be a complete defense that a
crime was committed in a frenzy produced by an overdose of morphine administered as
medicine.
A defense of involuntary intoxication due to ingestion of a prescribed drug is available if the
defendant did not know or have reason to know that the prescribed drug was likely to have an
intoxicating effect, if the prescribed drug and not some other intoxicant was in fact the cause of
defendant's intoxication, and if the defendant, due to involuntary intoxication, was temporarily
insane at the time of his alleged criminal conduct. Minneapolis v Altimus (Minn) 238 NW2d
851.
Intoxication induced by coffee which had been drugged (presumably by LSD) without the
accused's knowledge is involuntary intoxication. Commonwealth v McAlister 365 Mass 454 313
NE2d 113, cert den 419 US 1115, 42 L Ed 2d 814, 95 S Ct 794.
Footnote 44. Saldiveri v State, 217 Md 412, 143 A2d 70; State v Rippy, 104 NC 752, 10 SE 259.
Intoxication resulting from medicine which has been prescribed (and taken as prescribed) or
administered by a physician, is involuntary intoxication. Dubs v State, 2 Md App 524, 235 A2d
764; State v Bunn, 283 NC 444, 196 SE2d 777.
As to insanity brought on by use of drugs, see § 55, supra.
Footnote 45. Where a defendant took intoxicating pills to ward off an attack of epilepsy, it was a
Page 82 of 575
question for the jury whether this was sufficient to render his intoxication involuntary. People v
Baker, 42 Cal 2d 550, 268 P2d 705.
Footnote 46. § 156, supra.
Footnote 47. Prather v Commonwealth, 215 Ky 714, 287 SW 559.
Under a statute governing the defense of involuntary intoxication and associating it with
intoxication through force, fraud or mistake, drug addiction would not be considered as a basis
for "involuntariness": an addict could not have consumed drugs the first time without an exercise
of will and still retains some ability to extricate himself from his addiction; it would be difficult
for a jury to decide whether an accused was one of those so addicted that he had lost self-control
in taking drugs; and to deny the addict the involuntariness defense still leaves him able to pursue
a voluntary intoxication defense. Loveday v State, 74 Wis 2d 503, 247 NW2d 116.
IV. ATTEMPTS AND SOLICITATION [158-162]
§ 158 Attempts [21 Am Jur 2d CRIMINAL LAW]
An attempt to commit a crime was itself an indictable offense at common law. 48 The question
as to what constitutes an attempt is often intricate and difficult to determine, and no general rule
can be laid down which will serve as a test in all cases. Each case must be determined on its own
facts, but there are certain well-established principles which may be applied. 49 An attempt
has been defined as any overt act done with the intent to commit the crime, and which, except for
the interference of some cause preventing the carrying out of the intent, would have resulted in
the commission of the crime. 50 However, as will appear below, an attempt is sometimes held
to be complete though some further voluntary act on the part of the attempter is necessary to
accomplish the intended result.
An attempt has two elements: a specific intent to commit a particular crime, and a direct
ineffectual act toward its commission. 51 In other words, there must be unity of intent and
overt act. 52
According to some authorities, failure to consummate the ultimate crime intended is as much an
element of the crime of attempt as the intent and the overt act; hence there can be no conviction
for attempt where the substantive offense is complete. 53 It seems, however, that partial
accomplishment of the purpose intended does not always prevent a prosecution. 54 Some
jurisdictions, moreover, do not accept the view that there can be no conviction for an attempt
where the evidence shows that the crime attempted was consummated. 55 And in others,
attempt convictions under such circumstances are specifically authorized by statute. 56
According to a number of authorities, where the substantive offense is in the nature of an
Page 83 of 575
attempt, there can be no conviction for an attempt to commit it, since this would be merely an
attempt to attempt. 57 This doctrine, however, is not universally accepted. 58
Once the elements of a criminal attempt are complete, abandonment of the criminal purpose will
not constitute a defense to a charge of attempt. 59
§ 158 – Attempts [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Hoeber, The Abandonment Defense to Criminal Attempt and Other Problems of
Temporal Individuation. 74 Cal LR 377, March, 1986.
Davis, Why Attempts Deserve Less Punishment Than Complete Crimes. 5 Law & Philosophy 1,
April, 1986.
Ashworth, Criminal Attempts and the Role of Resulting Harm Under the Code and in the
Common Law. 19 Rut LJ 725, Spring, 1988.
Case authorities:
Trial court properly instructed jury that malice and specific intent to kill are elements of
attempted murder. People v Visciotti (1992) 2 Cal 4th 1, 5 Cal Rptr 2d 495, 825 P2d 388, 92
CDOS 2199, 92 Daily Journal DAR 3468, reh den (Cal) 1992 Cal LEXIS 2132, stay gr (Cal)
1992 Cal LEXIS 3498 and petition for certiorari filed (Jul 24, 1992).
Evidence that defendant said he was going to kill victim, then loaded firearm and went to
victim's home, where he crouched outside door, was sufficient to support conviction for
attempted murder. People v Morales (1992, 1st Dist) 5 Cal App 4th 917, 7 Cal Rptr 2d 358, 92
CDOS 3524, 92 Daily Journal DAR 5433, reh den (Cal App 5th Dist) 92 CDOS 3775, 92 Daily
Journal DAR 5935, review den (Cal) 1992 Cal LEXIS 3673.
A defendant is guilty of an attempt when he or she harbors a specific intent to commit the crime
and does a direct but ineffectual act toward its commission. The act need not be an element of the
substantive offense, but need only indicate a certain intent to commit the crime and constitute an
immediate step in the present execution of the criminal design. No bright line distinguishes when
an act crosses into commencement of the criminal scheme. The more clearly the intent to commit
the offense is shown, the less proximate the acts need be to final consummation of the crime.
People v Burus (1992, 4th Dist) 8 Cal App 4th 715, 10 Cal Rptr 2d 483, 92 CDOS 6756, 92
Daily Journal DAR 10713, review den, op withdrawn by order of ct (Cal) 92 CDOS 8704, 92
Daily Journal DAR 14438 and review den (Oct 22, 1992).
An attempt to commit a crime consists of two essential elements: a specific intent to commit the
crime and an overt act, beyond mere preparation, done towards its commission; the intent and the
act must be such that they would have resulted, except for the interference of some cause
Page 84 of 575
preventing the carrying out of the intent, in the completed comission of the crime. Adams v
Murphy (1981, Fla) 394 So 2d 411.
When the definition of a criminal offense includes an attempt to commit such offense, there can
be no separate crime of attempt. Thus the offense of attempted resisting arrest with violence does
not exist since the applicable state statute, defining the offense of resisting arrest with violence,
extends to both doing violence to the person of an arresting officer and to offering to do such
violence, and since the legislature's use of the word "offering" in such statute is equivalent to the
use of the word "attempting." McAbee v State (1980, Fla App D2) 391 So 2d 373.
For renunciation to be "voluntary" under CLS Penal § 40.10, abandonment must reflect change
in actor's purpose or change of heart that is not influenced by outside circumstances, and
abandonment cannot be motivated in whole or in part by belief that circumstances exist that
increase possibility of detection or apprehension or make more difficult the completion of crime;
to be "complete," abandonment must be permanent, not temporary or contingent, and not simply
decision to postpone criminal conduct until another time or to transfer criminal effort to another
victim. People v Taylor (1992) 80 NY2d 1, 586 NYS2d 545, 598 NE2d 693.
An order dismissing the indictment of a defendant for criminal sale of a controlled substance in
the third-degree and petit larceny was reversed and permission to resubmit was granted where the
evidence before the Grand Jury was sufficient, if uncontradicted, to establish an attempt to sell a
controlled substance, notwithstanding the fact that the substance actually transferred was aspirin,
since the defendant may have believed the substance was cocaine and therefore have been guilty
of any attempt to sell a controlled substance; furthermore, the indictment charging petit larceny
was sufficient even without allegations of the manner by which the larceny was committed or
various elements of that method of committing the crime. People v Culligan (1980, 4th Dept) 79
App Div 2d 875, 484 NY S2d 546.
In a prosecution for first-degree robbery and attempted robbery, the conviction for attempted
robbery was proper despite the fact that defendant did not take any money from the victim after
demanding money at gunpoint, since renunciation does not negate the commission of the
inchoate crime of attempt. People v Johnston (1982, 3d Dept) 87 App Div 2d 703, 448 NY S2d
902.
In a prosecution for criminal solicitation and criminal attempt based on a reverse sting operation
in which undercover officers arranged to sell 100 pounds of marijuana to the defendant, the court
would reject the defendant's contention that police involvement in the reverse sting operation was
so outrageous that the prosecution would be barred on due process grounds. The defendant's due
process rights were not violated by the fact that the police used an untrained informant who was
permitted to make the initial contact without police supervision, by the fact that the police
provided the defendant with a marijuana sample and offered him an opportunity to make a
substantial profit or by the fact that the police used an informant who was paid a contingency fee.
Commonwealth v Mance (1995, Pa) 652 A2d 299.
Page 85 of 575
Footnotes
Footnote 48. State v Batson, 220 NC 411, 17 SE2d 511.
Attempts which, if successful, would have resulted in an indictable offense, are indictable.
Commonwealth v Tolman, 149 Mass 229, 21 NE 377.
Practice Aids: Enker, Mens Rea and Criminal Attempt. 1977, ABF Res J 845.
Footnote 49. McDowell v State, 19 Ala App 532, 98 So 701; People v Miller, 2 Cal 2d 527, 42
P2d 308; State v Thompson, 118 Kan 256, 234 P 980; Nider v Commonwealth, 140 Ky 684, 131
SW 1024; Stokes v State, 92 Miss 415, 46 So 627; People v Rizzo, 246 NY 334, 158 NE 888,
55 ALR 711; State v Taylor, 47 Or 455, 84 P 82; Hicks v Commonwealth, 86 Va 223, 9 SE
1024.
Whether an attempt has been made to commit a crime depends on the condition of the actor's
mind and his conduct in the circumstances. People v Moran, 123 NY 254, 25 NE 412.
For application to particular crimes, see particular titles, for example, 40 Am Jur 2d, Homicide
§§ 565-567.
Footnote 50. People v Mayen, 188 Cal 237, 205 P 435, 24 ALR 1383 (ovrld on other grounds
People v Cahan 44 Cal 2d 434, 282 P2d 905, 50 ALR2d 513) and (ovrld on other grounds
People v Matteson 61 Cal 2d 466, 39 Cal Rptr 1, 393 P2d 161); Gustine v State, 86 Fla 24, 97 So
207; People v Lardner, 300 Ill 264, 133 NE 375; State v Roby, 194 Iowa 1032, 188 NW 709;
State v Mitchell, 170 Mo 633, 71 SW 175; People v Rizzo, 246 NY 334, 158 NE 888; State v
Taylor, 47 Or 455, 84 P 82; State v Hurley, 79 Vt 28, 64 A 78; State v Butler, 8 Wash 194, 35 P
1093.
A "criminal attempt" is when one purposely does or omits to do anything which is an act or
omission constituting a substantial step in a course of conduct planned to culminate in his
commission of the crime. To constitute a substantial step, the conduct must be strongly
corroborative of the actor's criminal purpose. State v Woods, 48 Ohio St 2d 127, 2 Ohio Ops 3d
289, 357 NE2d 1059 (ovrld on other grounds State v Downs 51 Ohio St 2d 47, 5 Ohio Ops 3d
30, 364 NE2d 1140, vacated, in part 438 US 909, 57 L Ed 2d 1153, 98 S Ct 3133) and vacated,
in part on other grounds 438 US 910, 57 L Ed 2d 1153, 98 S Ct 3133.
Whenever a person's acts have gone to the extent of placing it in his power to commit the offense
unless interrupted, and nothing except such interruption prevents his commission of it, he is
guilty of an attempt to commit the offense. People v Sullivan, 173 NY 122, 65 NE 989.
The common-law rule as to what constitutes an attempt to commit an offense is not changed by a
Page 86 of 575
statute providing for punishment of every person who shall attempt to commit a crime and do any
act toward its commission, but shall fail in the perpetration or shall be intercepted or prevented in
the execution of the same. People v Youngs, 122 Mich 292, 81 NW 114.
Footnote 51. Hill v State, 27 Ala App 160, 167 So 606; State v Westbrook, 79 Ariz 116, 285 P2d
161, 53 ALR2d 619; People v Buffum, 40 Cal 2d 709, 256 P2d 317; King v State, 85 Fla 257,
95 So 567; People v Lardner, 300 Ill 264, 133 NE 375, 19 ALR 721; State v Western, 210 Iowa
745, 231 NW 657; State v McCarthy, 115 Kan 583, 224 P 44; Nider v Commonwealth, 140 Ky
684, 131 SW 1024; Nemecek v State, 72 Okla Crim 195, 114 P2d 492; State v Harvey, 119 Or
512, 249 P 172; Commonwealth v Johnson, 312 Pa 140, 167 A 344; Hicks v Commonwealth, 86
Va 223, 9 SE 1024.
Footnote 52. People v Anderson, 1 Cal 2d 687, 37 P2d 67; State v Wright, 74 Wash 2d 355, 444
P2d 676, cert den 394 US 961, 22 L Ed 2d 562, 89 S Ct 1305.
Where acts are not sufficient in themselves to produce a result which the law seeks to prevent,
but require further acts in addition to the mere forces of nature to bring that result to pass, an
intent to bring it to pass is necessary in order to produce a dangerous probability that it will
happen; but when that intent and the consequent dangerous probability exist, the law directs itself
against that dangerous probability as well as against the completed result. Swift & Co. v United
States, 196 US 375, 49 L Ed 518, 25 S Ct 276.
Footnote 53. United States v Quincy, 31 US 445, 8 L Ed 458; Hill v State, 27 Ala App 160, 167
So 606; People v Lardner, 300 Ill 264, 133 NE 375; State v Harvey, 119 Or 512, 249 P 172;
Commonwealth v Johnson, 312 Pa 140, 167 A 344.
A statute punishing persons who attempt to commit an offense but fail or are prevented from
doing so has been held to make failure or prevention of the ultimate crime as much an element of
the offense of attempt as the intent and overt act. State v Franklin, 139 W Va 43, 79 SE2d 692.
Footnote 54. One may be convicted of attempting to obtain money by false pretenses even though
he received part of the money which he sought to obtain. Commonwealth v Johnson, 312 Pa
140, 167 A 344.
Footnote 55. State v Fox, ---- (Iowa) ----, 159 NW2d 492; People v Baxter, 245 Mich 229, 222
NW 149; Nielson v State (Tex Crim) 437 SW2d 862.
As to conviction of attempt under indictment charging specific crime, see 41 Am Jur 2d,
Indictments and Informations § 306.
Footnote 56. State v Braathen, 77 ND 309, 43 NW2d 202.
Ownership of premises described in the allegation of an attempt to discharge a destructive device
Page 87 of 575
with intent to damage a structure, is not an element of the alleged crime. In a prosecution of a
defendant accused of an attempt to place or throw a destructive device, it is not error to charge
under the destructive device statute and also under the general attempt statute notwithstanding
that the destructive device statute refers to "attempt to discharge," since the destructive device
statute refers also to the throwing or placing of a destructive device without referring to an
attempt to do so. A state statute proscribes as a single crime the possession of dynamite but
authorizes two levels of punishment depending on whether intent to harm is present; thus, there
can be only one sentence even though a defendant is convicted of both the the charge of
possession and the charge of possession with intent to harm. De La Cova v State (Fla App D3)
355 So 2d 1227, cert den (Fla) 361 So 2d 831.
Footnote 57. Wiseman v Commonwealth, 143 Va 631, 130 SE 249.
Annotation: 79 ALR2d 597, §§ 1, 2.
See authorities collected in State v Wilson, 218 Or 575, 346 P2d 115, 79 ALR2d 587.
Footnote 58. State v Wilson, 218 Or 575, 346 P2d 116, 78 ALR2d 587.
Annotation: 79 ALR2d 597, § 3.
Footnote 59. People v Robinson (2d Dist) 180 Cal App 2d 745, 4 Cal Rptr 679.
Where a criminal intent had been formed, and where such intent had been coupled with an overt
act toward the commission of the contemplated offense, abandonment of the criminal purpose
could not be raised as a defense to a charge of attempting to commit the crime and an instruction
on abandonment was not required. State v Cooper, 52 Ohio St 2d 163, 6 Ohio Ops 3d 377, 370
NE2d 725, vacated, in part on other grounds 438 US 911, 57 L Ed 2d 1157, 98 S Ct 3137.
§ 159 – Requirement and sufficiency of overt act; preparation [21 Am Jur 2d CRIMINAL
LAW]
Mere intention to commit a specified crime does not amount to an attempt. 60 It is also essential
that the defendant, with the intent of committing the particular crime, do some overt act adapted
to, approximating, and which in the ordinary and likely course of things will result in, the
commission thereof. 61 However, not every act that may be done with intent to produce an
unlawful result is unlawful or constitutes an attempt; it is a question of proximity and degree. 62
According to many authorities, mere acts of preparation, not proximately leading to the
consummation of the intended crime, will not suffice to establish an attempt to commit it, 63
especially when made at a distance from the place where the substantive offense is to be
Page 88 of 575
committed, 64 for there must be some act moving directly toward the commission of the offense
after the preparations are made. 65 However, while there is sometimes a wide difference
between preparation for an attempt and the attempt itself, 66 it has been found difficult, if not
impossible, to formulate legal rules which will distinguish between them in close cases. 67 And
it has been said that no definite line can be drawn and that the question is one of degree. 68 In
a general way it may be said that preparation consists in devising or arranging the means or
measures necessary for the commission of the offense and that the attempt is the direct
movement toward the commission after the preparations are made. 69 It has been held that even
though a person actually intends to commit a crime, his procurement of the instrumentalities
adapted to that end will not constitute an attempt to commit the crime in the absence of some
further overt act. 70 But it has been suggested that if preparation comes very near the
accomplishment of the act, the intent to complete it renders the crime so probable that the act will
be a misdemeanor, though there is still a locus penitentiae in the need of a further exertion of the
will to complete the crime. 71
It is difficult to formulate any precise rule about how close the overt act must come to the
accomplishment of the ultimate criminal result. 72 If the accused expected his acts to
accomplish that result without further effort on his part, this will usually be enough, unless his
expectation was very absurd. 73 And some formulations of the rule appear to require this before
the attempt will be considered complete. 74 However, it has been said that this requirement is no
longer generally the law in this country, since the accused is frequently held to have passed
beyond preparation, though interrupted before the last of his intended steps. 75
Other cases
state that while the act need not be the last proximate act to the consummation of the offense, it
must approach sufficiently near to it to stand either as the first or some subsequent step in a direct
movement toward the commission of the offense after the preparations are made. 76 It has been
said that some appreciable fragment of the crime must have been committed. 77 Some cases
emphasize the immediate and direct tendency to bring about the principal crime, and the power
of defendant to carry his intention into execution. 78
Some formulations of the rule would apparently be satisfied by any effort to bring about the
forbidden result. 79
It has been suggested that the degree of danger that the result will be accomplished is
determinative 80
and that when the evil threatened is especially grave, liability for criminal
attempt may begin at a point more remote from its accomplishment than in the case of lighter
offenses. 81 However, it has also been held that the reason for requiring an overt act is that
without it there is too much uncertainty as to what the intent actually was. 82 From this point of
view, what is needed is an act which makes the intent unequivocal. 83 Some confirmation of
the latter view may be found in holdings that whenever the design of a person to commit a crime
is clearly shown, slight acts in furtherance of the design will constitute an attempt. 84
§ 159 --Requirement and sufficiency of overt act; preparation [SUPPLEMENT] [21 Am Jur
2d CRIMINAL LAW]
Page 89 of 575
Case authorities:
Attempt instruction without "substantial step" language did not constitute plain error since
evidence that defendant had taken substantial step strongly corroborative of his criminal intent
was so strong that any error from omission of "substantial step" language was not plain error
since it could not have meant difference between acquittal and conviction. United States v
Contreras (1991, CA5 Tex) 950 F2d 232, cert den (US) 119 L Ed 2d 202, 1125 S Ct 2276.
In a prosecution of defendant for violating FS § 893.13(3)(a)1, making it unlawful for any person
to attempt to acquire or obtain possession of a controlled substance by fraud, the trial court
improperly dismissed the information on the asserted grounds that the undisputed facts failed to
establish a prima facie case of guilt where defendant had gone to the doctor's office, requesting a
new prescription on the basis that his mother had washed and destroyed the original prescription,
which was untruthful, and the doctor had refused to issue a new prescription; the allegations of
defendant's motion to dismiss and the state's traverse established the necessary intent, and the
defendant's untruthfulness with reference to the destruction of the prescription, made for the
express purpose of obtaining another prescription, constituted an overt act done toward the
commission of the crime. State v Coker (1984, Fla App D2) 452 So 2d 1135.
Charge of completed crime which alleges no overt act except completed crime does not charge
attempt to commit completed crime. Commonwealth v Foley (1987) 24 Mass App 114, 506
NE2d 1160.
One of the purposes of the criminal law is to protect society from those who intend to injure it.
When it is established that the defendant intended to commit a specific crime and that in carrying
out this intention he committed an act that caused harm or sufficient danger of harm, it is
immaterial that for some collateral reason he could not complete the intended crime.
Accordingly, the requisite overt act need not be the last proximate or ultimate step towards
commission of the substantive crime. People v Dillon (1983) 84 Cal 3d 441.
Footnotes
Footnote 60. People v Miller, 2 Cal 2d 527, 42 P2d 308; People v Mills, 178 NY 274, 70 NE
786.
Footnote 61. Jackson v State, 91 Ala 55, 8 So 773; State v Doran, 99 Me 329, 59 A 440; People
v Youngs, 122 Mich 292, 81 NW 114; Stokes v State, 92 Miss 415, 46 So 627; State v Howell,
318 Mo 772, 300 SW 807; State v Rains, 53 Mont 424, 164 P 540; State v Lung, 21 Nev 209, 28
P 235 (ovrld on other grounds Darnell v State 92 Nev 680, 558 P2d 624); People v Mills, 178
NY 274, 70 NE 786; State v Addor, 183 NC 687, 110 SE 650; State v Hurley, 79 Vt 28, 64 A 78;
78; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.
Page 90 of 575
Footnote 62. Swift & Co. v United States, 196 US 375, 49 L Ed 518, 25 S Ct 276.
Footnote 63. People v Camodeca, 52 Cal 2d, 142, 338 P2d 903; Groves v State, 116 Ga 516, 42
SE 755; People v Woods, 24 Ill 2d 154, 180 NE2d 475, cert den 371 US 819, 9 L Ed 2d 59, 83
S Ct 34; State v Roby, 194 Iowa 1032, 188 NW 709; State v Thompson, 118 Kan 256, 234 P
980; People v Rizzo, 246 NY 334, 158 NE 888; State v Addor, 183 NC 687, 110 SE 650; State v
Taylor, 47 Or 455, 84 P 82; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.
Persons who procure firearms and an automobile and go upon the streets with intent to rob a
messenger carrying a payroll are not guilty of violating a statute making an attempt to commit
robbery an act done with intent to commit the crime, and tending, but failing, to effect its
commission, where they have not found the one whom they intend to rob and the money has not
yet been drawn from the bank to meet the payroll. People v Rizzo, 246 NY 334, 158 NE 888.
Where defendant drove to a still with 12 empty half-gallon jars in his car, intending to buy,
transport, and resell whisky, but the still was raided while he was waiting for his order to be
filled, the court was unanimously of the opinion that the evidence did not show an attempt to sell
ardent spirits, and the majority opinion was that it was insufficient to convict of an attempt to
transport. Andrews v Commonwealth, 135 Va 451, 115 SE 558.
Footnote 64. Groves v State, 116 Ga 516, 42 SE 755; State v Roby, 194 Iowa 1032, 188 NW
709; People v Rizzo, 246 NY 334, 158 NE 888; State v Hurley, 79 Vt 28, 64 A 78.
Footnote 65. State v Roby, 194 Iowa 1032, 188 NW 709; State v Doran, 99 Me 329, 59 A 440;
State v Lung, 21 Nev 209, 28 P 235 (ovrld on other grounds Darnell v State 92 Nev 680, 558 P2d
624); McEwing v State, 134 Tenn 649, 185 SW 688.
An attempt to break and enter a dwelling house is not made by the fact that a person left his
home with revolver and slippers and traveled nine miles toward the place where he intended to
commit the crime, where he met a person with whom he had planned to commit the crime, and
then provided himself with chloroform and loaded his revolver, but was prevented from
committing the crime by being arrested. People v Youngs, 122 Mich 292, 81 NW 114.
Footnote 66. Vogel v State, 124 Fla 409, 168 So 539.
Footnote 67. Cornwell v Fraternal Acc. Ass'n. 6 ND 201, 69 NW 191; McEwing v State, 134
Tenn 649, 185 SW 688.
Footnote 68. United States v Coplon (CA2 NY) 185 F2d 629, 28 ALR2d 1041, cert den 342 US
920, 96 L Ed 688, 72 S Ct 362.
Footnote 69. People v Anderson, 1 Cal 2d 687, 37 P2d 67; People v Youngs, 122 Mich 292, 81
NW 114; State v Hurley, 79 Vt 28, 64 A 78.
Page 91 of 575
Footnote 70. The procurement by a prisoner of tools adapted to jail breaking does not render him
guilty of an attempt to break jail. State v Hurley, 79 Vt 28, 64 A 78.
Footnote 71. United States v Coplon (CA2 NY) 185 F2d 629, 28 ALR2d 1041, cert den 342 US
920, 96 L Ed 688, 72 S Ct 362; Commonwealth v Peaslee, 177 Mass 267, 59 NE 55.
Footnote 72. Jenkins v State, 53 Ga 33; State v Roby, 194 Iowa 1032, 188 NW 709; Stokes v
State, 92 Miss 415, 46 So 627; State v Mitchell, 170 Mo 633, 71 SW 175; People v Sullivan, 173
NY 122, 65 NE 989; State v Taylor, 47 Or 455, 84 P 82; State v Hurley, 79 Vt 28, 64 A 78.
Footnote 73. Commonwealth v Kennedy, 170 Mass 18, 48 NE 770.
Footnote 74. The crime must be in such progress that it will be consummated unless interrupted
by circumstances independent of the will of the attempter. People v Camodeca, 52 Cal 2d 142,
338 P2d 903.
An overt act essential to an attempt to commit a crime is one done to carry out the intention, and
it must be such as would naturally effect that result, unless prevented by some extraneous cause.
People v Mills, 178 NY 274, 70 NE 786.
The act must be one which will apparently result in commission of the crime itself in the usual
and normal course of events, if not hindered by extraneous causes. Nemecek v State, 72 Okla
Crim 195, 114 P2d 492.
Footnote 75. United States v Coplon (CA2 NY) 185 F2d 629, 28 ALR2d 1041, cert den 342 US
920, 96 L Ed 688, 72 S Ct 362.
Footnote 76. McDowell v State, 19 Ala App 532, 98 So 701; People v Fulton (2d Dist) 188 Cal
App 2d 105, 10 Cal Rptr 319; People v Staples (2d Dist) 6 Cal App 3d 61, 85 Cal Rptr 589; State
v Roby, 194 Iowa 1032, 188 NW 709; State v Rains, 53 Mont 424, 164 P 540; People v Sullivan,
173 NY 122, 65 NE 989; State v Addor, 183 NC 687, 110 SE 650; Nemecek v State, 72 Okla
Crim 195, 114 P2d 492; State v Taylor, 47 Or 455, 84 P 82; Hicks v Commonwealth, 86 Va 223,
9 SE 1024.
To constitute an attempt, the act need not be the ultimate step toward, or the last proximate, or
the last possible, act to the consummation of the crime attempted to be perpetrated. State v
Thomas (Mo) 438 SW2d 441.
Footnote 77. People v Camodeca, 52 Cal 2d 142, 338 P2d 903.
Footnote 78. People v Youngs, 122 Mich 292, 81 NW 114.
Footnote 79. Howard v Commonwealth, 207 Va 222, 148 SE2d 800.
Page 92 of 575
To attempt to do an act does not, either in law or in common parlance, imply a completion of the
act or any definite progress toward it. An effort or endeavor to effect it will satisfy the term of
the law. United States v Quincy, 31 US 445, 8 L Ed 458.
Footnote 80. United States v Coplon (CA2 NY) 185 F2d 629, 28 ALR2d 1041, cert den 342 US
920, 96 L Ed 688, 72 S Ct 362.
Since the aim of the law is not to punish sins but to prevent certain external results, the act done
must come pretty near accomplishing that result before the law will notice it. Commonwealth v
Kennedy, 170 Mass 18, 48 NE 770.
Footnote 81. Commonwealth v Kennedy, 170 Mass 18, 48 NE 770.
An attempt to commit a crime is an act done with intent to commit that crime, and forming a part
of a series of acts which would constitute its actual commission if it were not interrupted. All
acts done in preparation are, in a sense, acts done toward the accomplishment of the thing
contemplated. State v Davis, 199 Kan 33, 427 P2d 606.
Footnote 82. State v Mandel, 78 Ariz 226, 278 P2d 413; People v Bowlby (2d Dist) 135 Cal App
2d 519, 287 P2d 547, 53 ALR2d 1147.
Footnote 83. People v Buffum, 40 Cal 2d 709, 256 P2d 317; State v Damms, 9 Wis 2d 183, 100
NW2d 592, 79 ALR2d 1402 (by statute).
Footnote 84. People v Anderson, 1 Cal 2d 687, 37 P2d 67; State v Roby, 194 Iowa 1032, 188
NW 709; Stokes v State, 92 Miss 415, 46 So 627.
§ 160 – Effect of prevention or impossibility [21 Am Jur 2d CRIMINAL LAW]
Whenever the law makes it a crime to take one step toward the accomplishment of an unlawful
object with the intent or purpose of accomplishing it, a person taking that step, with that intent or
purpose, and himself capable of doing every act on his part to accomplish that object, cannot
protect himself from responsibility by showing that by reason of some fact unknown to him at the
time of his criminal attempt, it could not be fully carried into effect in the particular instance. 85
Thus, one who thrusts his hand into another's pocket, intending to steal what he finds there, may
be guilty of attempted larceny, though the pocket was empty. 86 And one who, believing a gun
to be loaded, points it at another and pulls the trigger, may be convicted of attempted murder,
though the gun was not loaded. 87 The theory is that one whose intent and conduct are
consistent with criminal attempt should not escape responsibility merely because, due to some
fortuitous circumstance not apparent to him when he acted, he could not effectuate the intended
result. 88 It is frequently said that the thing attempted must not be an impossibility, but it
seems that this rule refers only to inherent impossibility, 89 not to impossibility due to outside
interference, or miscalculation as to a supposed opportunity which failed to materialize; in short,
Page 93 of 575
it has no application where the impossibility grows out of extraneous facts not within the party's
control. 90 It is sufficient if, looking at the facts as they were understood by the accused at the
time he acted, the crime appeared to be possible. 91 But the crime must be at least apparently
possible to the reasonable apprehension of the accused. 92 And it seems to make a difference
whether the impossibility of committing the offense is legal or merely factual. 93 Where the
impossibility is legal, it is usually held that there can be no attempt. Thus, where the accused is
legally incapable of committing the substantive offense, he cannot be convicted of attempting it.
94 And the act attempted must be a crime. 95 Where, as a matter of law, the act if
accomplished would not constitute a crime, the attempt is not criminal. 96 This has been held to
be the case even where the act was done with the belief that it was a crime and with intent to
commit that crime. 97 However, there is a split of authority as to whether one who believes
property is stolen, when in fact it has lost that status through being recovered by police or the
owner, can be guilty of a criminal attempt to receive it. 98 And it may be noted that some
jurisdictions punish attempted suicide without regarding suicide itself as a crime. 99
§ 160 – Effect of prevention or impossibility [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Practice Aids: Friedman, Impossibility, Subjective Probability, And Punishment For Attempts,
20 J Legal St 179, 1991.
Fact that gun was unloaded as affecting criminal responsibility. 68 ALR4th 507.
Construction and application of state statute governing impossibility of consummation as defense
to prosecution for attempt to commit crime. 41 ALR4th 588.
Case authorities:
As to the difference between legal and factual impossibility as it applies to commission of the
crime with which defendant in a criminal prosecution is charged, the hypothesis of the rule
established in this state is that the defendant must have the specific intent to commit the
substantive offense, and that under the circumstances as he reasonably sees them, he does the
acts necessary to consummate the substantive offense; but because of circumstances unknown to
him, essential elements of the substantive crime are lacking. It is only when the results intended
by the actor, if they happened as envisaged by him, would still not be a crime, then and only then,
can he not be guilty of an attempt. People v Meyer (1985, 5th Dist) 169 Cal App 3d 496, 215 Cal
Rptr 352.
Sufficient evidence supported defendant's conviction for attempted violations of Pen. Code, 288
(child molestation), and Pen. Code, 311.4 (use of minor in photograph of sexual conduct), even
though the intended victims were fictitious children invented for a police "sting" operation. A
defendant is guilty of "attempt" if he or she harbors the requisite intent and commits the acts,
even though unknown circumstances render completion of the target crime factually impossible.
Page 94 of 575
People v Burns (1992, 4th Dist) 8 Cal App 4th 715, 10 Cal Rptr 2d 483, 92 CDOS 6756, 92
Daily Journal DAR 10713, review den, op withdrawn by order of ct (Cal) 92 CDOS 8704, 92
Daily Journal DAR 14438 and review den (Oct 22, 1992).
In prosecution for attempted murder, evidence tending to prove that explosion of pipe bomb on
ground floor of house in which intended victim was asleep in upstairs room could not have
resulted in intended victim's death, was of no weight since Indiana's criminal attempt statute
provided it was no defense that, because of misapprehension of circumstances, it would have
been impossible for accused person to commit crime attempted. Armstrong v State (1982, Ind)
429 NE2d 647.
A defendant's voluntary abandonment may negate a crime of attempt. Abandonment occurs
where, through the verbal urging of the victim, but with no physical resistance or external
intervention, the perpetrator changes his or her mind. A perpetrator cannot claim that he or she
abandoned his or her attempt when, in fact, the perpetrator ceased his or her efforts because the
victim or a third party intervened or prevented the perpetrator from furthering the attempt. Ross v
State (1992, Miss) 601 So 2d 872.
Defense of legal impossibility was not available to defendant charged with attempted theft where
defendant accepted goods purported to be stolen that were offered to defendant by police
informant, even though alleged stolen goods were in police custody prior to time of alleged
offense and therefore were not actually "stolen." Commonwealth v Henley (1984) 504 Pa 408,
474 A2d 1115, 41 ALR4th 579.
Footnotes
Footnote 85. Hamilton v State, 36 Ind 280; State v Fitzgerald, 49 Iowa 260; State v Broadnax,
216 La 1003, 45 So 2d 604 (by statute); State v Doran, 99 Me 329, 59 A 440; Commonwealth v
Kennedy, 170 Mass 18, 48 NE 770; State v Mitchell, 170 Mo 633, 71 SW 175; State v Davis,
108 NH 158, 229 A2d 842 (active prevention by intended rape victim); State v Bowers, 35 SC
262, 14 SE 488; Collins v Radford, 134 Va 518, 113 SE 735 (disapproved on other grounds Sisk
v Shenandoah 200 Va 277, 105 SE2d 169); State v Damms, 9 Wis 2d 183, 100 NW2d 592, 79
ALR2d 1402.
Annotation: 37 ALR3d 375 (impossibility as defense in criminal prosecution for attempt to
commit crime).
The fact that a crime for some reason unknown to an intending perpetrator is impossible of
accomplishment will not prevent his being guilty of an attempt to commit it. People v Moran,
123 NY 254, 25 NE 412.
If there is an intent to commit the crime, and an overt act is accomplished, the result may be
Page 95 of 575
ineffectual because of a physical or mental obstruction on the part of the intended victim, but the
crime of attempt is complete if the bar to fulfilment of the object is unknown to the perpetrator at
the time the overt act is performed. People v Fulton (2d Dist) 188 Cal 2d 105, 10 Cal Rptr 319.
Practice Aids: Inker, Impossibility in Criminal Attempts–Legality and the Legal Process. 1969,
53 Minn L Rev 665.
Footnote 86. State v Mitchell, 170 Mo 633, 71 SW 175; State v Meisch, 86 NJ Super 279, 206
A2d 763 (defendant opening empty drawer and thrusting hand into drawer to remove contents
was guilty of attempted larceny); People v Gardner, 144 NY 119, 38 NE 1003.
Footnote 87. See 40 Am Jur 2d, Homicide § 566.
As to present ability to injure as element of assault with intent to kill, see 40 Am Jur 2d,
Homicide § 574.
Footnote 88. People v Moran, 123 NY 254, 25 NE 412; State v Olsen, 138 Or 666, 7 P2d 792.
Emphasis upon the dangerous propensities of the actor as shown by his conduct, rather than upon
how close he came to succeeding, is more appropriate to the purposes of the criminal law to
protect society and reform offenders or render them temporarily harmless. State v Damms, 9
Wis 2d 183, 100 NW2d 592, 79 ALR2d 1402.
Footnote 89. State v Olsen, 138 Or 666, 7 P2d 792; Andrews v Commonwealth, 135 Va 451, 115
SE 558.
Footnote 90. Stokes v State, 92 Miss 415, 46 So 627.
Husband was guilty of rape when he pushed wife on bed, hit her, and held her legs while another
man had intercourse with her even though that man was acquitted of crime. Rozell v State (Tex
Crim) 502 SW2d 16.
Footnote 91. State v Mandel, 78 Ariz 226, 278 P2d 413; Collins v Radford, 134 Va 518, 113 SE
735 (disapproved on other grounds Sisk v Shenandoah, 200 Va 277, 105 SE2d 169).
By reason of a statute providing that it was no defense to prosecution for attempts that the
attempted crime was factually or legally impossible to commit, a defendant was guilty of
attempted murder where, with the belief that the victim was alive although he had been shot
several times in the chest five minutes earlier by another person and may in fact have already
been dead, the defendant shot the victim in the head. People v Dlugash, 41 NY2d 725, 395
NYS2d 419, 363 NE2d 1155, on remand (2d Dept) 59 App Div 2d 745, 398 NYS2d 560.
Footnote 92. State v Addor, 183 NC 687, 110 SE 650.
Page 96 of 575
Footnote 93. People v Camodeca, 52 Cal 2d 142, 338 P2d 903.
Annotation: 37 ALR3d 375, §§ 3, 4.
Footnote 94. Foster v Commonwealth, 96 Va 306, 31 SE 503 (boy under 14, conclusively
presumed incapable of rape, cannot be convicted of attempted rape).
Footnote 95. State v Willis, 255 NC 473, 121 SE2d 854.
Footnote 96. Nemecek v State, 72 Okla Crim 195, 114 P2d 492 (inclusion of false items in report
of fire loss is not attempt to obtain money by false pretenses where insured sustained actual loss
entitling him to full amount of policy).
Footnote 97. Commonwealth v Tolman, 149 Mass 229, 21 NE 377.
If all that an accused person intends to do would not constitute a crime if done, it cannot be a
crime to attempt to do with the same purpose a part of the thing intended. People v Jaffe, 185
NY 497, 78 NE 169, reh den 186 NY 560, 79 NE 1113 and (superseded by statute as stated in
People v Leichtweis (2d Dept) 59 App Div 2d 383, 399 NYS2d 439).
Footnote 98. See 66 Am Jur 2d, Receiving and Transporting Stolen Property § 2.
Footnote 99. See 40 Am Jur 2d, Homicide § 584.
§ 161 Solicitation as attempt [21 Am Jur 2d CRIMINAL LAW]
Though solicitation may constitute an element in some attempts, 1 the usual view seems to be
that soliciting another to commit a crime is not, by itself, sufficient to constitute an attempt to
commit that crime. 2 This has been explained on the ground that the offenses of solicitation and
attempt are analytically distinct in their elements and that there is no overt act, since solicitation
is in the nature of preparation, rather than perpetration. 3 Some cases, however, take the view
that even though a solicitation to commit a misdemeanor does not constitute an attempt to
commit the misdemeanor, a solicitation to commit a felony may be punished as an attempt. 4
§ 161 – Solicitation as attempt [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Page 97 of 575
Legislative revision of penal code was intended to make solicitation punishable as attempt, based
on revision commission's expressed desire to change common-law notion that solicitation
constituted substantive crime in itself and was not abortive attempt to perpetrate crime solicited;
thus, criminal attempt to commit arson occurred where owner solicited undercover detective to
burn his building and then engaged in certain conduct in furtherance of scheme. State v
Jovanovic (1980) 174 NJ Super 435, 416 A2d 961.
Solicitation to commit a crime against nature cannot be construed as an attempt to commit a
crime against nature; solicitation to commit a crime against nature is therefore not an "infamous
misdemeanor" under G.S. 14-3; and the superior court therefore did not have original jurisdiction
of such a charge. State v Tyner, 50 NC App 206, 272 SE2d 626, cert den (NC) 302 NC 633, 280
SE2d 451.
Evidence that defendant solicited murder of her boyfriend's wife and child, hired killer, gave him
money for weapon and advance on murder contract, drew map of residence of planned victims,
and instructed killer as to how to shoot victims, supported conviction for attempted murder. State
v Burd (1991, W Va) 419 SE2d 676.
Footnotes
Footnote 1. State v Mandel, 78 Ariz 226, 278 P2d 413; Gervin v State, 212 Tenn 653, 371 SW2d
449.
Where solicitation proceeds to the point of some overt act in the commission of the crime, it
becomes an attempt. Wiseman v Commonwealth, 143 Va 631, 130 SE 249.
Footnote 2. Graham v People, 181 Ill 477, 55 NE 179; State v Bowles, 70 Kan 821, 79 P 726;
State v Lampe, 131 Minn 65, 154 NW 737; State v Davis, 319 Mo 1222, 6 SW2d 609; State v
Blechman, 135 NJL 99, 50 A2d 152; Stabler v Commonwealth, 95 Pa 318; Gervin v State, 212
Tenn 653, 371 SW2d 449; State v Butler, 8 Wash 194, 35 P 1093.
See also titles dealing with particular crimes, for example, 2 Am Jur 2d, Adultery and
Fornication § 7; 5 Am Jur 2d, Arson and Related Offenses § 15; 40 Am Jur 2d, Homicide §
567; 50 Am Jur 2d, Larceny § 41.
Footnote 3. Gervin v State, 212 Tenn 653, 371 SW2d 449.
Footnote 4. State v Avery, 7 Conn 266; State v Taylor, 47 Or 455, 84 P 82 (stating the rule, but
holding otherwise); Stabler v Commonwealth, 95 Pa 318 (stating the rule, but holding
otherwise).
Page 98 of 575
§ 162 Solicitation as substantive offense [21 Am Jur 2d CRIMINAL LAW]
At common law, one who incites or solicits another to commit a crime which, either by common
law or by statute, is a felony, himself commits the substantive crime of solicitation. 5
Although a minority view tends to support the proposition that solicitation to commit a
misdemeanor is not indictable, 6 the majority view is to the contrary, at least where the crime
solicited is one tending to the disturbance of the peace or harmful to the public welfare. 7
Where the crime is one which tends to defeat public justice, solicitation to commit it is indictable
at common law. 8 It has been suggested that solicitation to commit an offense should itself be a
crime wherever attempt to commit that offense would be. 9 Solicitation is also a substantive
offense by statute in some states, though such statutes are sometimes regarded as declaratory of
the common law. 10
Solicitation is a substantive crime in itself, not an abortive effort to commit the crime solicited.
11 The solicitor is guilty even though his solicitation was of no effect and the crime counseled
was not committed. 12 Indeed, the crime is complete when the solicitation is made; it is not
necessary that any further steps be taken toward the consummation of the offense solicited. 13
If the solicitor believes the act can be committed, it is immaterial that the crime urged is not
possible of fulfilment at the time the words are spoken, or becomes impossible later. 14
There is some authority to the effect that the crime of solicitation does not require a personal
communication to a particular individual, but may be committed by a public utterance. 15
Solicitation has been characterized as a lesser offense than attempt, since there is not such
dangerous proximity to success. 16
§ 162 – Solicitation as substantive offense [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Case authorities:
To convict for solicitation under federal law, prosecution must prove that defendant intended for
another person to engage in conduct which violated Title 18, and that defendant induced or tried
to persuade that other person to commit crime; evidence supported convictions for solicitation,
conspiracy, and aiding and abetting in murder-for-hire conspiracy, where defendant telephoned
another and asked him to travel from Chicago to Houston to kill victim, where defendant paid or
offered to pay hit man for murder, where defendant provided weapon and automobile for hit man
to use in murder, and where defendant helped hit man locate victim's home. United States v
Razo-Leora (1992, CA5 Tex) 961 F2d 1140, reh den (CA5) 1992 US App LEXIS 13936.
Pen. Code, § 653f, making it a crime to ask another to commit a specified crime, has a twofold
Page 99 of 575
purpose: to protect individuals from being exposed to inducement to commit or join in the
commission of crimes, and to prevent solicitations from resulting in the commission of the
crimes solicited. People v Cook (1984, 1st Dist) 151 Cal App 3d 1142, 199 Cal Rptr 269.
In a prosecution for solicitation of murder (Pen. Code, § 653f, subd. (b)), the evidence was
sufficient to justify a finding of two crimes of solicitation. Defendant asked an undercover police
officer to kill, individually, two different specified victims, possibly at different times and places
and by different means. The death of each victim was important to defendant's purpose. And,
defendant agreed to pay a separate consideration for each murder. People v Davis (1989, 1st Dist)
211 Cal App 3d 317, 259 Cal Rptr 348.
Intent to solicit act of arson was proved by facts and circumstances surrounding defendant's
conduct, including tape recordings of conversation with persons solicited, and proof of requisite
criminal intent removed defendant's conduct from protection of First Amendment. People v
Lewis (1980) 84 Ill App 3d 556, 40 Ill Dec 310, 406 NE2d 11.
Defendant, who provided third party with camera and gun to photograph and shoot intended
victim, was properly convicted of solicitation to commit murder where uncorroborated testimony
of accomplice was sufficient to support criminal conviction and where crime of solicitation was
completed when request was made with requisite intent to commit offense; defendant, therefore,
could not have withdrawn from offense that had already been completed. People v Harvey (1981)
95 Ill App 3d 992, 51 Ill Dec 231, 420 NE2d 645.
To "procure" act of gross indecency encompassed only acquisition of something on behalf of
another and not for oneself, as contrasted to solicitation statute in which one party, through words
or conduct, invites another to perform immoral act between themselves. People v Mabry (1980)
102 Mich App 336, 301 NW2d 528.
The superior court did not err in dismissing an indictment against defendant for lack of subject
matter jurisdiction where the indictment alleged that defendant solicited three others to possess
and deliver more than one ounce of marijuana, which was not in itself an infamous offense, and
the indictment did not charge elements of secrecy, deceit and intent to defraud. State v Jarvis, 50
NC App 679, 274 SE2d 852.
Conviction of defendant under city ordinance which prohibited the solicitation of a child under
the age of 14 to enter an automobile or to coax or entice a child to do so was affirmed where the
evidence was such that the jury could reasonably find that defendant solicited 2 girls to get in his
automobile and "have fun" with him, in return for which he would give them food, because it
was the act of solicitation, coaxing or enticing the children to enter the automobile that
constituted the crime; the purpose of the person doing the solicitation was not relevant.
Reynoldsburg v Johnson (1992, Franklin Co) 78 Ohio App 3d 641, 605 NE2d 996.
The trial court, sitting as the trier of fact did not "clearly lose its way" and create such a manifest
Page 100 of 575
miscarriage of justice that a conviction under RC § 2907.07(B) should be reversed where the
court held that the solicitation in the context it was made and by virtue of the words used most
certainly was grossly offensive and emotionally disturbing and further it was likely the average
person would be provoked to a breach of the peace by such words in a similar context. State v
Presley (1992, Warren Co) 81 Ohio App 3d 721, 612 NE2d 353.
In a prosecution for criminal solicitation and criminal attempt based on a reverse sting operation
in which undercover officers arranged to sell 100 pounds of marijuana to the defendant, the court
would reject the defendant's contention that police involvement in the reverse sting operation was
so outrageous that the prosecution would be barred on due process grounds. The defendant's due
process rights were not violated by the fact that the police used an untrained informant who was
permitted to make the initial contact without police supervision, by the fact that the police
provided the defendant with a marijuana sample and offered him an opportunity to make a
substantial profit or by the fact that the police used an informant who was paid a contingency fee.
Commonwealth v Mance (1995, Pa) 652 A2d 299.
The defendant was properly found to be guilty of criminal solicitation for involuntary deviate
sexual intercourse even though the person solicited was under 14 years of age and, therefore,
would have been protected from criminal culpability in such an act; the fact that the person
solicited was protected from criminal culpability had no applicability to the defendant's
culpability. Commonwealth v Morales (1992) 411 Pa Super 471,601 A2d 1263.
Footnotes
Footnote 5. State v Schleifer, 99 Conn 432, 121 A 805, 35 ALR 952; Walsh v People, 65 Ill 58
(opinion of Le Blanc, J.); State v Bowles, 70 Kan 821, 79 P 726; State v Beckwith, 135 Me 423,
198 A 739; Commonwealth v Randolph, 146 Pa 83, 23 A 388; State v Bowers, 35 SC 262, 14 SE
488; Gervin v State, 212 Tenn 653, 371 SW2d 449; State v Baller, 26 W Va 90 (obiter); Rudolph
v State, 128 Wis 222, 107 NW 466.
Where an intention is expressed in the form of a solicitation, or incitement, or command to
another to commit a felony or a high crime and misdemeanor akin to felony, it is a crime under
the common law. State v Schleifer, 99 Conn 432, 121 A 805.
But see 45 Am Jur 2d, Intoxicating Liquors § 299 (rule held inapplicable to soliciting illegal
liquor sales).
For application to particular offenses see the particular title, for example, 2 Am Jur 2d, Adultery
and Fornication § 7; 12 Am Jur 2d, Bribery § 11; 40 Am Jur 2d, Homicide § 564; 50 Am Jur
2d, Larceny § 91.
Footnote 6. Reed v Maley, 115 Ky 816, 74 SW 1079; Smith v Commonwealth, 54 Pa 209.
Page 101 of 575
Footnote 7. Lott v United States (CA9 Alaska) 205 F 28; State v Blechman, 135 NJL 99, 50 A2d
152; State v Baller, 26 W Va 90 (obiter).
Solicitation to commit a felony or to commit a serious misdemeanor harmful to the public peace
or the public welfare or economy is a common-law offense. Only such misdemeanors as by their
nature make it illogical to treat them as separate crimes are excluded as objects of solicitation.
Commonwealth v Wiswesser, 134 Pa Super 488, 3 A2d 983.
Footnote 8. Wiseman v Commonwealth, 143 Va 631, 130 SE 249 (embracery); State v Baller, 26
W Va 90 (procuring witness to absent himself from court to avoid testifying when summoned to
do so).
Footnote 9. State v Schleifer, 99 Conn 432, 121 A 805. Compare Wiseman v Commonwealth,
143 Va 631, 130 SE 249 (soliciting another to commit embracery held an offense, though attempt
to commit it would not be, since embracery is itself an attempt).
Footnote 10. State v Schleifer, 99 Conn 432, 121 A 805; State v Blechman, 135 NJL 99, 50 A2d
152.
Annotation: 51 ALR2d 953, § 2[a].
Footnote 11. State v Bowles, 70 Kan 821, 79 P 726; State v Blechman, 135 NJL 99, 50 A2d 152.
See also People v Burt, 45 Cal 2d 311, 288 P2d 503, 51 ALR2d 948 (solicitation conviction
upheld, though crime solicited was to have been committed in foreign country).
Footnote 12. State v Bowles, 70 Kan 821, 79 P 726; State v Beckwith, 135 Me 423, 198 A 739;
State v Blechman, 135 NJL 99, 50 A2d 152; State v Hampton, 210 NC 283, 186 SE 251;
Commonwealth v Randolph, 146 Pa 83, 23 A 388; State v Bowers, 35 SC 262, 14 SE 488.
Annotation: 51 ALR2d 953, § 3.
The fortuity that the person solicited does not agree to commit the crime should not relieve the
solicitor of liability. Benson v Superior Court of Los Angeles County, 57 Cal 2d 240, 18 Cal
Rptr 516, 368 P2d 116.
Footnote 13. People v Burt, 45 Cal 2d 311, 288 P2d 503, 51 ALR2d 948 (construing statute
making solicitation to commit certain specified felonies a substantive offense); State v
Blechman, 135 NJL 99, 50 A2d 152.
Footnote 14. Benson v Superior Court of Los Angeles County, 57 Cal 2d 240, 18 Cal Rptr 516,
368 P2d 116.
Footnote 15. State v Schleifer, 99 Conn 432, 121 A 805.
Page 102 of 575
Footnote 16. Gervin v State, 212 Tenn 653, 371 SW2d 449. Compare State v Schleifer, 99 Conn
432, 121 A 805 (regarding solicitation as more dangerous than attempt).
V. PARTICIPATION IN CRIME [163-182]
A. In General [163-167]
§ 163 Generally [21 Am Jur 2d CRIMINAL LAW]
At common law participants in crime were either principals or accessories. Principals were
usually divided into principals in the first degree and principals in the second degree. Persons
concerned in the offense either before or after its commission were accessories before or after the
fact. 17
§ 163 – Generally [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Where defendant, in Montana, hired woman ostensibly as film courier, but in reality to transport
drugs from Peru to Los Angeles, and woman was unaware that she was being hired for drug
transportation, all evidence was properly admitted although many of acts took place outside of
Montana; statute providing that one is guilty of solicitation when one "facilitates the commission
of" an event was not unconstitutionally vague, although it did expand crime of solicitation
beyond common law, and knowledge of person solicited that she was being solicited for crime
was not necessary under "facilitate" language. State v Bush (1981, Mont) 636 P2d 849.
Evidence was sufficient to establish that the defendant had joint constructive possession of
cocaine found in a bedroom of her apartment where (1) the defendant was the lessee of the
apartment, (2) although she subleased the bedroom in question to her sister and brother-in-law,
the bedroom was not locked and she had access to it, (3) on the day before the search, an
informant witnessed a brick of cocaine being cut up in the kitchen of the apartment, and (4) a
surveillance of the apartment disclosed several occasions in which people walked into the
apartment with small packages and exited within a few seconds without the packages.
Commonwealth v Aviles (1992, Super Ct) 615 A2d 398.
Footnotes
Footnote 17. Pierce v State, 130 Tenn 24, 168 SW 851.
Page 103 of 575
§ 164 Participation in offense one is incapable of committing personally [21 Am Jur 2d
CRIMINAL LAW]
There are some offenses which are so defined by statute or by the common law that they may be
committed only by certain persons or classes of persons. 18 But a person not within the class of
those by whom the crime may be personally perpetrated may, by aiding and abetting the
commission of the offense, also render himself criminally liable. 19 Thus, a woman may be
punished for aiding or abetting the commission of rape, 20 a husband may be an accessory to the
crime of rape upon his own wife, 21 and a person who aids and assists the owner of property in
burning it may be convicted under a statute making it an offense for the owner of property to
burn it with the intent to defraud an insurer. 22 Similar rules prevail as to the commission of
embezzlement 23 and other crimes. 24
Under the federal aiding and abetting statute, 25 individuals aiding and abetting a federal
offense may be punished as principals. 26 And under the Comprehensive Drug Abuse
Prevention and Control Act of 1970, 27 the operators of a drug distribution network may be
prosecuted either as principals or as aiders and abettors for substantive manufacturing,
distribution, and possession offenses. 28
§ 164 – Participation in offense one is incapable of committing personally [SUPPLEMENT]
[21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Prosecution of female as principal for rape. (See also 65 Am Jur 2d, Rape § 27.)
67 ALR4th 1127.
Criminal responsibility under 18 USCS § 2(b) of one who lacks capacity to commit an offense
but who causes another to do so. 52 ALR Fed 769.
Case authorities:
Person incapable of personally committing specified crime because he was not officer, director,
agent, or employee of agency receiving federal financial assistance was properly punished as
principal under 18 USCS § 2(b) where he caused innocent agent meeting capacity requirements
to engage in prescribed conduct. United States v Ruffin (1979, CA2 NY) 613 F2d 408, 52 ALR
Fed 737.
Footnotes
Footnote 18. Garner v State, 26 Ala App 246, 158 So 543, cert den 229 Ala 600, 158 So 546;
People v Young, 132 Cal App 770, 23 P2d 524; Dodd v State, 52 Okla Crim 385, 5 P2d 181.
Page 104 of 575
Footnote 19. Gibbs v State, 37 Ariz 273, 293 P 976; State v Burns, 82 Conn 213, 72 A 1083;
State v Nahoum, 172 La 83, 133 So 370; People v Chapman, 62 Mich 280, 28 NW 896; Quillin
v State, 79 Tex Crim 497, 187 SW 199.
The aiding and abetting statute can even be applied where by statutory definition the defendant
would be incapable of committing the substantive offense by himself. Hutchins v Municipal
Court for Santa Monica Judicial Dist. (2d Dist) 61 Cal App 3d 77, 132 Cal Rptr 158.
A person incapable of committing a specific crime may nevertheless be guilty of aiding and
abetting its commission. State v Norman, 193 Neb 719, 229 NW2d 55.
Footnote 20. State v Pickel, 116 Wash 600, 200 P 316, different results reached on reh on other
grounds 116 Wash 607, 204 P 184.
Footnote 21. People v Meli (Sup) 193 NYS 365.
Annotation: 84 ALR2d 1023, § 3.
Footnote 22. Haas v State, 103 Ohio St 1, 132 NE 158.
Footnote 23. Gibbs v State, 37 Ariz 273, 293 P 976.
Footnote 24. People v West, 3 Cal App 2d 568, 40 P2d 278 (fraud); Boggus v State, 34 Ga 275
(bigamy); Capshaw v State, 69 Okla Crim 440, 104 P2d 282 (bribery); Commonwealth ex rel.
Giuffrida v Ashe, 137 Pa Super 528, 10 A2d 112 (arson).
Essential element of prosecution under 18 USCS § 2 is that a substantive offense was
committed; however, defendant need not be legally capable of committing the specified offense
himself; therefore, although the statute aimed at prohibition of receipt of illegal gratuities to a
federal tax agent was aimed at a government agent, a private citizen could be liable as principal
under 18 USCS § 2. United States v Standefer (CA3 Pa) 610 F2d 1076, affd 447 US 10, 64 L
Ed 2d 689, 100 S Ct 1999.
Footnote 25. 18 USCS § 2.
Footnote 26. Under 18 USCS § 2, aiders and abettors may be held vicariously liable regardless
of the fact that they may be incapable of committing the specific violation which they are charged
to have aided and abetted; once an aider and abettor has been treated as a principal, some of his
lesser acts in furtherance of the central violation may merge into it, so that a decision to treat an
aider and abettor as a principal may be inconsistent with prosecuting and punishing him for some
individual acts of aiding and abetting. Busic v United States, 446 US 398, 64 L Ed 2d 381, 100
S Ct 1747.
Page 105 of 575
In the case of a criminal offense whose prohibition is directed at members of a specific class,
such as federal employees, a person who is not himself a member of that class may nonetheless
be punished as a principal under the federal aiding and abetting statute (18 USCS § 2) if he
induces a person in that class to violate the prohibition. Standefer v United States, 447 US 10,
64 L Ed 2d 689, 100 S Ct 1999.
In order to convict someone of the aiding and abetting violation of a certain federal statute, the
government must first demonstrate that violation of the specific statute has occurred. United
States v Franklin (CA6 Ohio) 608 F2d 241.
Evidence was sufficient to convict defendant of aiding and abetting violation of 18 USCS § 113
despite defendant's contention that he did not share the criminal intent of his companions; the
facts show that defendant and his companions had a community of intent to damage a car and do
bodily damage to its occupants, one of whom was killed and the other injured, and defendant's
participation was shown by his three visits to the parked car and his admitted actions of striking
the car on the second visit; the fact that he was not shown to have physically injured any of the
car's occupants does not detract from his voluntary involvement in the chain of events and by his
own admissions he was more than a spectator. United States v Palmer (CA10 NM) 604 F2d 64.
It was not necessary that one charged as aider and abettor commit an overt act that served to
accomplish the offense or that he had knowledge of the particular means his principals employed
to carry out the criminal activity; criminal liability under 18 USCS § 2 resulted from the
existence of the community of unlawful intent between the aider and abettor and the principal.
United States v Austin (CA5 Miss) 585 F2d 1271.
One is no less aider and abettor because one's efforts, while diligent, are not successful in every
way; success which is controlling is the actual consummation of the transaction. United States v
Pino (CA4 NC) 608 F2d 1001.
Former paramour of defendant could not have been convicted for aiding and abetting robbery
when although she initially afforded hospitality to defendant and companions, she did not
participate in the planning or execution of the robbery and when she later readmitted defendant
and companions to use the basement, she was not told that the robbery had occurred. United
States v Jones (CA4 Md) 608 F2d 1004, cert den 444 US 1086, 62 L Ed 2d 773, 100 S Ct
1046.
Although conspiracy requires proof of agreement, the offense of aiding and abetting does not.
United States v Beck (CA7 Ill) 615 F2d 441.
In a prosecution for violation of 18 USCS §§ 2 and 1001 by filing a false customs export
declaration, aiding and abetting is proved if defendant voluntarily gave the false information or
participated in the plan such that it was foreseeable that the false information would be used in
statements made to government agencies in furtherance of the plan. United States v Beck (CA7
Page 106 of 575
Ill) 615 F2d 441.
Aider and abettor of illegal export of firearms need not know that the principal needs or lacks an
export license, but only that there be legal duty not to export the articles. United States v Beck
(CA7 Ill) 615 F2d 441.
Purchaser of stolen goods is not liable as an aider and abettor of a theft because he enters the plan
too late. United States v Beck (CA7 Ill) 615 F2d 441.
Defendant charged with violation of 18 USCS § 2(a) need not have knowledge of the particular
means the principal in crime uses to carry out the criminal activity. United States v Beck (CA7
Ill) 615 F2d 441.
No violation of 18 USCS § 2 occurs unless there has been completion of a substantive offense.
United States v Alvarez (CA5 Fla) 610 F2d 1250, on reh (CA5 Fla) 625 F2d 1196.
Evidence showing that defendant negotiated and participated in several narcotics sales with
undercover officers and that defendant knew she was part of a larger narcotics operation was
sufficient to establish defendant as an active participant and not a mere associate of the drug ring.
United States v Williams (CA8 Mo) 604 F2d 1102.
Individual can be convicted as principal even though the evidence establishes that he is only
aided and abetted. United States v Cook (CA5 Tex) 586 F2d 572, reh den (CA5 Tex) 589 F2d
1114 and cert den 442 US 909, 61 L Ed 2d 274, 99 S Ct 2821.
In order to be liable as principal under 18 USCS § 2, defendant must willfully associate himself
in some way with the criminal venture and willfully participate in it as something he wishes to
bring about. United States v Indelicato (CA1 Mass) 611 F2d 376.
Person who lacks capacity to perform acts prohibited by federal law but "causes" another to
perform acts is liable as principal under USCS § 2(b). United States v Ruffin (CA2 NY) 613 F2d
408, 52 ALR Fed 737.
Footnote 27. 21 USCS § 841.
Footnote 28. Bifulco v United States, 447 US 381, 65 L Ed 2d 205, 100 S Ct 2247.
§ 165 Furnishing instrumentality used by another [21 Am Jur 2d CRIMINAL LAW]
Different views have been expressed on the question of whether a person who furnishes an
instrumentality ordinarily used for lawful purposes with knowledge that it is to be used for
criminal purposes is criminally responsible. It has been said, for example, that persons who
Page 107 of 575
furnish telephone service to an establishment knowing that the telephone facilities will be used
for gambling purposes are not chargeable with aiding in maintaining a gambling house. 29 On
the other hand, persons who furnished material, ordinarily used for legal purposes, with
knowledge that the material was to be used for the unlawful manufacture of liquor, have been
held guilty of aiding and abetting or conspiring to violate prohibition laws. 30
Footnotes
Footnote 29. State ex rel. Dooley v Coleman, 126 Fla 203, 170 So 722.
Footnote 30. United States v Wilson (DC Wash) 59 F2d 97; Brown v Commonwealth, 156 Va
947, 157 SE 567.
§ 166 Accomplices [21 Am Jur 2d CRIMINAL LAW]
An accomplice is said to be one who knowingly, voluntarily, and with a common interest with
others participates in the commission of a crime either as a principal or as an accessory before the
fact. 31 Thus, it has been stated that persons connected with the commission of an offense are
referred to as principals, accessories, or aiders or abettors, but if, in the course of the trial, any of
these persons is put on the witness stand and a question arises as to the necessity of corroborating
his testimony, he is spoken of as an accomplice, 32 whose testimony is viewed with caution in
both misdemeanors and felonies. 33 And under a statutory definition of an accomplice as a
person liable to prosecution for the identical offense charged against the defendant on trial in the
cause in which the testimony of the accomplice is given, the witness must have guilty knowledge
and intent with regard to commission of the crime. Where the facts are in dispute as to the
asserted accomplice's knowledge and intent, his liability for prosecution, as contemplated by that
statute, is a question for the trier of fact. 34 However, it has also been suggested that what is
meant by the "accomplice rule" is that one who testifies while he is faced with criminal charges
may be influenced to testify falsely by the hope of leniency, and ordinarily the defendant, on
request, is entitled to have the jury so advised by an appropriate charge, and it makes no
difference that the witness was not an accomplice of the defendant, or, indeed, that defendant had
no connection with the transaction which led to the charges against the witness. 35
The federal statute 36 does not require a showing that an accomplice was innocent, but merely
removes any requirement that an accomplice or an intermediary be guilty. 37
§ 166 – Accomplices [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Limitations on Accomplice Liability. 6 Crim LJ 506, December 1982.
Page 108 of 575
Dressier, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to
an Old Problem. 37 Hast LJ 91, September, 1985.
Westerfield, The Mens REA Requirement of Accomplice Liability in American Criminal
Law–Knowledge or Intent. 51 Miss LJ 155, June-September, 1980.
Case authorities:
See Skillern v Estelle (1983, CA5 Tex) 720 F2d 839, § 628.
Indictment language charging defendant with "causing" something to be done need not be
removed as surplusage, where indictment charges defendant as manager of medical corporation
charged with Medicare fraud, because 18 USCS § 2, accomplice liability statute, applies
generally to all federal criminal statutes and prohibits one from causing another to do any act that
would be illegal if one did it personally. United States v Calhoon (1994, MD Ga) 859 F Supp
1496.
The trial court in a robbery prosecution erred in failing to give Standard Jury Instruction 2.04(b)
pertaining to accomplices, where the defense requested the instruction in connection with the
chief prosecution witness, who the defense claimed was an accomplice but who himself denied
any involvement, where the witness had been seen fleeing the getaway car shortly following the
robbery, and where the evidence revealed that the witness had been arrested and charged with
attempted murder, robbery, theft, and possession of a firearm, and had agreed to testify in
exchange for a reduced sentence; however, the error was harmless in light of the abundant
evidence both of defendant's guilt and the witness' status as an accomplice. Taylor v State (1983,
Fla App D1) 429 So 2d 1258.
The evidence was sufficient to prove that the defendant had the requisite knowledge and intent to
be a joint venturer in a murder where (1) the defendant and the coperpetrator were seen together
several times in the hours before the murder driving in the defendant's car near the victim's
residence, (2) earlier in the morning, the coperpetrator shot and killed a cat from the passenger
side window of the defendant's car while the defendant drove, (3) immediately after the murder,
the coperpetrator ran directly to and entered the defendant's car which had been parked discreetly
on a one-way street near the victim's residence, (4) the car instantly pulled away at high speed
without any apparent conversation between the defendant and the coperpetrator, and (5) the
defendant lied to a police officer at the scene of an accident that occurred as he and the
coperpetrator attempted to flee by telling the officer that no one else had been in the car with
him. Commonwealth v Stewart (1991) 411 Mass 345, 582 NE2d 514.
The evidence was insufficient to support a conviction for trafficking in cocaine on the basis of a
joint venture where (1) the defendant and a bartender were arrested at a bar after the execution of
a search warrant, (2) the bartender was found to be carrying over 39 grams of cocaine, and (3) the
defendant was carrying no cocaine, but was in possession of $317 in cash, a piece of paper with a
Page 109 of 575
list of names and dollar amounts; although the evidence might have established that the
defendant was involved in drug dealing, the Commonwealth failed to prove a nexus between the
defendant and the bartender as the only evidence of a nexus was that a police officer had seen the
defendant and bartender have 3 private conversations during a one hour period. Commonwealth
v Meehan (1992) 33 Mass App 262, 597 NE2d 1384.
Lookout who stood outside beauty parlor with second lookout as defendant killed rival drug
dealer inside should not be deemed defendant's accomplice as matter of law with regard to
defendant's attempted murder of lookout and murder of second lookout as defendant left scene
and sought to kill all witnesses, since defendant's attempted murder of lookout severed lookout's
initial accomplice relationship to him, and was legally discrete for accomplice corroboration
purposes from killings inside parlor. People v Breland (1994) 83 NY2d 286, 609 NYS2d 571,
631 NE2d 577.
Accomplice's presence directly behind robbery victim during attack by codefendant, which was
sufficient to discourage her escape or resistance, constituted sufficient evidence of accessorial
conduct to render accomplice culpable for robbery in second-degree. People v Crutchfield (1989,
3d Dept) 149 AD2d 857, 540 NYS2d 366, app den 74 NY2d 738, 545 NYS2d 112, 543 NE2d
755.
Court's use of phrase "defendant or an accomplice" in connection with elements of crimes
charged was not error where court's charge repeatedly stressed that People had absolute burden of
proving beyond reasonable doubt "that each person intended the unlawful act," and that burden
applied to all submitted counts, thus conveying appropriate legal standard. People v Johnson
(1992, 1st Dept) 181 AD2d 509, 580 NYS2d 357, app den 80 NY2d 833, 587 NYS2d 917, 600
NE2d 644 and app den 81 NY2d 763, 594 NYS2d 725, 610 NE2d 398.
Court did not err by failing to charge jury that 2 of People's witnesses were accomplices as matter
of law, even though they were admittedly part of group that planned robbery, since they either
voluntarily left group or were excluded when plans escalated to include kidnapping and murder.
People v Rivera (1989, 2d Dept) 154 AD2d 630, 546 NYS2d 641, app den 76 NY2d 741, 558
NYS2d 903, 557 NE2d 1199 and app den 76 NY2d 742, 558 NYS2d 904, 557 NE2d 1200.
Trial court should have submitted to jury issue of whether accomplice's mother was also
accomplice, despite her contention that she went with others only because her son was involved
and she was concerned for him, where mother accompanied defendant, codefendant, her son, and
another accomplice to victim's home knowing that they intended to harm him, she left son and
accomplice in lobby and followed defendant and codefendant to apartment where others cornered
victim and shoved him down stairs, and she watched as all 4 men beat him, she told her son to
"whip" him, and she told victim that beating was consequence of stealing from her. People v
Smith (1992, 2d Dept) 181 AD2d 803, 581 NYS2d 238.
Defendant's contention that trial court should have given accomplice charge sua sponte was
Page 110 of 575
without merit since, in order for witness to be deemed accomplice, it must be shown that jury
could reach no other conclusion than that witness participated in offense charged or offense
based on same or some of same facts constituting offense charged, and evidence adduced at
defendant's trial did not establish such requirements. People v Albury (1989, 2d Dept) 156
AD2d 370, 548 NYS2d 325, app den 75 NY2d 866, 553 NYS2d 298, 552 NE2d 877 and app
den 75 NY2d 963, 556 NYS2d 248, 555 NE2d 620.
Footnotes
Footnote 31.
Annotation: 74 ALR3d 560.
Government of Virgin Islands v Rivera Solis (CA3 Virgin Islands) 359 F2d 518 (misprision of a
felony is a separate offense distinct from complicity in crime of murder).
In the absence of a statute granting immunity, a person of competent age who voluntarily
participates in an act which without his participation could not be accomplished, which can be
committed only by two persons, which is denounced as a crime by a law that declares both
participants to be equally guilty without requiring specific intent, is as to that particular act an
accomplice. People v Brocklehurst (4th Dist) 14 Cal App 3d 473, 92 Cal Rptr 340 (officer who
participated with defendant in act of oral copulation was an accomplice).
Where defendant's first connection with an offense is after its commission, he may be an
accessory after the fact, but he cannot be an accomplice. Lucchesi v State, 232 Md 465, 194 A2d
266, cert den 376 US 932, 11 L Ed 2d 651, 84 S Ct 700.
The mere fact that the defendant was present at the scene in the company of those who
committed the crime is insufficient to establish that he was an accomplice. State v Martin (Mo)
428 SW2d 489.
The defendant who was merely present at the scene of the crime and did not report the incident
until he was arrested some months later was not an accomplice. State v Caldwell (Mo) 428
SW2d 727.
As to what constitutes principals and accessories, generally, see §§ 168 et seq., infra.
Footnote 32. Levering v Commonwealth, 132 Ky 666, 117 SW 253; State v Helmenstein (ND)
163 NW2d 85.
Footnote 33. Guthrie v Commonwealth, 171 Va 461, 198 SE 481.
Footnote 34. People v Gordon, 10 Cal 3d 460, 110 Cal Rptr 906, 516 P2d 298.
Page 111 of 575
Footnote 35. State v Mangrella, 86 NJ Super 404, 207 A2d 175. Compare State v Jennings
(Iowa), 195 NW2d 351, holding that an accomplice is a person who wilfully unites in, or is in
some way concerned in the commission of a crime. The general rule for determining whether a
witness is an accomplice is if he could be charged with and convicted of the specific offense for
which an accused is on trial.
Footnote 36. 18 USCS § 2(b).
Footnote 37. United States v Rapoport (CA2 NY) 545 F2d 802, cert den 430 US 931, 51 L Ed
2d 775, 97 S Ct 1551.
§ 167 Aiders and abettors [21 Am Jur 2d CRIMINAL LAW]
An aider or abettor is one who advises, counsels, procures, or encourages another to commit a
crime. 38 A person is an aider and abettor if he or she actively assists in planning and preparing
for the perpetration of a crime and assumes a station with the knowledge of the perpetrators
where he or she may be able to assist either in the commission of the crime or in the escape
immediately following in the perpetration of the crime. 39 And an aider and abettor need not
know that the activity constitutes a crime. It is enough that they know facts that are essential to
constitute the activity as a crime. Thus, a seller cannot be criminally liable as an aider and
abettor for a buyer's use of pesticide which is inconsistent with this label simply because of the
sale itself. 40
The mere presence and consent of the defendant are not sufficient to constitute him an aider and
abetter in the commission of a crime. 41 On the other hand, an aider and abettor need not know
every last detail of the substantive offense, but he must at least share in the principal's essential
criminal intent. 42
The involvement of an aider and abettor may be shown
circumstantially, and an act of slight importance may warrant a jury's finding of participation in
the crime. 43
A person cannot aid and abet the commission of a crime unless another
commits the offense; one cannot aid and abet himself in the commission of an offense. 44
Furthermore, one cannot be held criminally responsible for aiding and abetting, within the forum
state, an act done in another state and not criminal by the laws of that state, though the act would
have been criminal if done in the state where the aiding and abetting took place. 45
In at least one jurisdiction, a statute providing that whoever aids, abets or procures another to
commit any offense may be prosecuted and punished as if he were the principal offender, is no
longer limited in its application to felonies but covers all offenses, including misdemeanors. 46
§ 167 – Aiders and abettors [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: A Seville standard for aiders and abettors: The logic and implications of the
Supreme Court's decision, 45 Case W Res LR 2:661 (1995).
Page 112 of 575
Comment: Aider and Abettor Liability, The Continuing Criminal Enterprise, and Street Gangs: A
New Twist in an Old War on Drugs. 81 J Crim L 348, Summer, 1990.
Case authorities:
Criminal aiding and abetting liability under 18 USCS § 2 requires proof that the defendants in
some way associated themselves with the venture, that they participated in the venture as
something that they wished to bring about, and that they sought by their actions to make the
venture succeed. Central Bank, N. A. v First Interstate Bank, N. A. (US) 128 L Ed 2d 119, 114
S Ct 1439.
Jury was entitled to find that defendant aided and abetted drug transaction, where it could
properly conclude that his role was to monitor safe return of individual with money in order to
assure that drug transaction was fully consummated, and that he assumed role knowingly,
willfully, and intentionally, given accumulation of individual pieces of evidence insufficient in
themselves. United States v O'Campo (1992, CA1) 973 F2d 1015.
Judge commits no error in failing to instruct jury on meaning of aiding and abetting where
government contends only that defendant has caused bribe to be made. United States v Shulman
(1980, CA2 NY) 624 F2d 384.
Conviction must be set aside, where it is not clear whether jury found defendant guilty as
principal on erroneously charged theory of principal liability under 18 USCS § 894 or on
correctly charged but more difficult to prove theory of aiding and abetting, where defendant's
purpose was closely contested issue, whether he sought to aid in another's commission of crime
or only to secure his broker's fee and provide individual with needed financing. United States v
Scotti (1995, CA2 NY) 47 F3d 1237.
Conviction for aiding and abetting armed robbery of post office will not be disturbed, even
though indictment failed to either track language of 18 USCS § 2 or charge aiding and abetting
as separate count, because defendant may properly be convicted of aiding and abetting
commission of crime even if indictment makes no reference whatsoever to his role as aider and
abettor. Virella v United States (1990, SD NY) 750 F Supp 111.
Person is guilty of aiding and abetting where quite clearly, without such help, sales would have
never taken place and such person participated in sales with manifest purposive attitude in
making them succeed. United States v Reicherter (1981, CA3 Pa) 647 F2d 397.
Sentence of death imposed on recommendation of jury which has been erroneously instructed
that death sentence may be recommended for defendant as aider and abettor whether or not he
killed, attempted to kill or intended to kill, cannot be carried out, and defendant must be
resentenced. Hyman v Aiken (1985, CA4 SC) 777 F2d 938.
Page 113 of 575
Although 18 USCS § 2 does not establish separate crime of "aiding and abetting," it does allow
jury to find person guilty of substantive crime even though that person did not commit all acts
constituting elements of crime. United States v Pearson (1982, CA5 Ala) 667 F2d 12.
To aid and abet, defendant must share intent to commit offense as well as participate in some
manner to assist its commission; defendant need not, however, commit all elements of
substantive underlying offense as long as he aided and abetted each element. United States v
Fischel (1982, CA5 Tex) 686 F2d 1082.
Person who is not only party to agreement to make false statements in acquisition of firearms, but
who provides money to purchase firearms and ammunition, who asks other persons to
accompany him to firearms dealer in order to sign government forms, who orders that guns be
picked up, and who carries them to border may be convicted for aiding and abetting in
falsification of forms required for sale of firearms; however, person assisting principal in
acquiring weapon that is to be exported without license may not be convicted for aiding and
abetting unless person shares principal's criminal intent. United States v Ortiz-Loya (1985, CA5
Tex) 777 F2d 973.
Defendant was liable as aider and abettor under 18 USCS § 2 for his role in murder of law
enforcement officer under 21 USCS § 848, since statute does not apply only to "bosses" or "king
pins." United States v Villarreal (1992, CA5 Tex) 963 F2d 725.
Real estate developers who agree to participate in loan transaction which would hide $5 million
debt from federal bank regulators were guilty of bank fraud with requisite intent to defraud
banks, even though they conspired with bank officials, since they aided and abetted officials'
crime under 18 USCS § 2. United States v Saks (1992, CA5 Tex) 964 F2d 1514.
Although existence of stake or interest in outcome of transaction is factor to be considered in
aiding and abetting prosecution, it is not controlling factor and moreover it is not necessary that
defendant actually touched or possessed contraband drug; defendant has reckless intent to satisfy
aiding and abetting in sale of drugs where he clearly knew what was going on, and he intended
by his actions to make illegal venture succeed. United States v Winston (1982, CA6 Tenn) 687
F2d 832.
Evidence was sufficient that defendant aided and abetted individual's offense of carrying firearm
during and in relation to drug offense in violation of 18 USCS § 924(c), where his act of wearing
ski mask to protect himself, when combined with certainty that he must have observed weapon,
led to reasonable inference that he likewise intended that weapon be used for protection, not from
snakes, but from other individuals who might interfere with trafficking venture. United States v
Morrow (1992, CA6 Tenn) 977 F2d 222.
Crime of aiding of abetting prosecribed by 18 USCS § 2 requires proof that defendant associates
himself with criminal venture, participates in it as in something he wishes to bring about and
Page 114 of 575
seeks by his actions to make it succeed. United States v Garcia-Geronimo (1981, CA7 I11) 663
F2d 738.
Sports agent, acquitted of mail fraud, could not be found guilty under theory of aiding and
abetting his own plot to circumvent NCAA rules by secretly signing up football players still in
college, where indictment alleged scheme by agent, aiding and abetting was never argued to
judge or jury, although "boilerplate 18 USCS § 2 instruction was given, and independent
problems of proof would arise should indictment be so recast. United States v Penass (1993, CA7
Wis) 997 F2d 1227, cert den (US) 62 USLW 3335.
Evidence is sufficient to warrant finding of guilty on count of aiding and abetting delivery and
sale of stolen securities where defendant met with other participants, he physically acted as
lookout, both on street and in bank, and took substantial action to help venture succeed. United
States v Miller (1982, ND Ill) 552 F Supp 827.
Intent to aid requirement of aiding and abetting is relaxed where defendant's physical
participation in crime is substantial; absent such involvement, aiding and abetting requires either
specific intent to aid or specific knowledge for crime charged. United States v Miller (1982, ND
Ill) 552 F Supp 827.
In prosecution for aiding and abetting cocaine distribution, trial court's request that defendant
rise, asking him, "Do you know of any reason why the court should not pronounce sentence?
That is, are you ready to receive the Court's sentence?," to which defendant replied, "Yes, sir,"
satisfied right of allocution afforded under FRCP § 32(a)(1)(c). United States v Flores (1992,
CA8 SD) 959 F2d 83, reh, en banc, den (CA8) 1992 US App LEXIS 7760 and petition for
certiorari filed (Jul 23, 1992).
Evidence was sufficient that defendant aided and abetted drug conspiracy by going to train
station to meet coconspirator who was bringing large quantity of cocaine with him, where he
asked that coconspirator be paged under false name which he used, and defendant had $10,000 in
his hotel room. United States v Thomas (1992, CA8 Mo) 971 F2d 147, reh den (CA8) 1992 US
App LEXIS 20560.
Evidence was sufficient that defendant aided and abetted "use" during drug trafficking crime of
gun which his brother, who was presumably guarding house, threw into pile of laundry in
bedroom, which was defendant's by process of elimination, when arrest was imminent, where
bullets in gun matched ammunition found under defendant's mattress. United States v Travis
(1993, CA8) 993 F2d 1316, petition for certiorari filed (Jul 16, 1993) and petition for certiorari
filed (Jul 26, 1993).
Participant in parachutist's jump from arch in federal park is guilty of violating 18 USCS §§ 2
and 371, where federal regulations rather obviously prohibited unilateral climbing and jumping
off monument from which previous jumper had died in 1980, because evidence that participant
Page 115 of 575
had operated radio transceiver, had videotaped jump, had transported equipment to site, and had
run from park ranger afterwards proved that participant conspired in effort and aided and abetted
unlawful jump. United States v Carroll (1993, ED Mo) 813 F Supp 698.
Judgment may validly incorporate 18 USCS § 2 by explicit reference to indictment in which
aiding and abetting violation is specifically charged. United States v Allen (1980, CA9 Cal) 633
F2d 1282, rereported (CA9 Cal) 675 F2d 1373, cert den 454 US 833, 70 L Ed 2d 112, 102 S Ct
133.
Fact that alder and abettor's counsel and encouragement is not acted upon for long periods of
time does not break actual connection between commission of crime and advice to commit it;
encouraging and counseling another by providing specific information as to how to commit
complex crime does not alone constitute aiding and abetting. United States v Barnett (1982, CA9
Cal) 667 F2d 835.
Kickbacks made by painting contractor to bank employee in return for low bid information in
sealed bidding process did not aid and abet mail fraud scheme under 18 USCS § 1341, where
contractor had been accused of violating 26 USCS § 7206(1) by deducting kickbacks on tax
returns as costs of goods sold or as expense, because bank employee could not have been
convicted of mail fraud under present law since the deceived party, the bank, did not have an
interest in the proceeds from bribes. United States v Digirolamo (1992, ND Cal) 808 F Supp
1445.
Evidence showing more than presence at scene of crime is necessary in order to sustain
conviction under 18 USCS § 2. United States v Sacks (1980, CAI0 Colo) 620 F 2d 239.
Defendant was properly convicted of aiding and abetting possession of methamphetamine, even
though she may not have possessed or controlled drugs herself, since she willfully associated
herself with offense in positive way. United States v Coyote (1992, CAI0 Okla) 963 F2d 1328.
Defendant who conceded that his trip to Houston to pick up cocaine which was eventually
possessed by principal might support distribution of cocaine charge was guilty of aiding and
abetting possession of cocaine with intent to distribute under 18 USCS § 2, since he gave
purposeful support to another's endeavor. United States v Slater (1992, CA10 Kan) 971 F2d 626.
Although neither mere presence nor mere flight is sufficient to uphold conviction for aiding and
abetting, presence or flight coupled with other evidence of guilt can be adequate to sustain
conviction. United States v Bryant (1982, CA11 Fla) 671 F2d 450.
Evidence was insufficient to prove that defendant aided and abetted another defendant in using
and carrying firearm during drug transaction in violation of 18 USCS § 924(c), where there was
no evidence that he knew that codefendant carried gun, or that he was linked to gun in any way.
United States v Thomas (1993, CA11 Ga) 987 F2d 697.
Page 116 of 575
Evidence was insufficient that defendant aided and abetted codefendant's actual or constructive
possession with intent to distribute cocaine, where, using false name, he traveled with
codefendant, but said he didn't, the two split up after getting off bus, and there was expert
testimony that drug couriers often travel with second person, since there was no proof that
defendant knew that codefendant carried drugs, or that he actually participated in ensuring that
codefendant's possession went undetected. United States v Teffera (1993, App DC) 985 F2d
1082.
An aider and abettor must share the specific intent of the perpetrator. "Share" does not mean that
the aider and abettor is prepared to commit the offense by his or her own act should the
perpetrator fail to do so, nor that the aider and abettor seeks to share the fruits of the crime.
Rather, an aider and abettor will share the perpetrator's specific intent when he or she knows the
full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or
purpose of facilitating the perpetrator's commission of the crime. The aider and abettor need not
have intended to encourage or facilitate the particular offense ultimately committed by the
perpetrator. His knowledge that an act that is criminal was intended, and his action taken with the
intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any
reasonably foreseeable offense committed as a consequence by the perpetrator. People v
Beardslee (1991) 53 Cal 3d 68, 279 Cal Rptr 276, 806 P2d 1311, 91 CDOS 2101, 91 Daily
Journal DAR 3490, mod, reh den, 53 Cal 3d 1179a, 91 Daily Journal DAR 6607 and stay gr
(Cal) and cert den (US) 1991 US LEXIS 6718, 60 USLW 3374.
The liability of an aider and abettor is not limited to the target crime which he or she knowingly
and intentionally aids and encourages, but can include crimes committed by the perpetrator that
are natural and reasonable consequences of the criminal course of conduct the aider and abettor
knowingly aids and encourages. It is a question of fact whether the charged offense was a natural
and reasonable consequence of the target offense knowingly encouraged, and the jury should be
instructed of its responsibility to determine this factual issue. People v Godinez (1992, 4th Dist)
2 Cal App 4th 492, 3 Cal Rptr 2d 325, 92 CDOS 257, 92 Daily Journal DAR 241.
In homicide prosecution arising from gang attack, there was sufficient evidence from which jury
could find that homicide was natural and reasonable consequence of gang attack in order to
support defendant's conviction of involuntary manslaughter as aider and abettor, even though
defendant did not actually participate in stabbing; however, trial court erred prejudicially in
instructing jury that it must find homicide to be such a natural consequence, where jury could
have believed defendant's testimony that he did not know his associates were carrying knives.
People v Godinez (1992, 4th Dist) 2 Cal App 4th 492, 3 Cal Rptr 2d 325.
For a defendant to be convicted as an aider and abettor, there must be proof the defendant acted
with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of
committing or of encouraging or facilitating commission of the offense. People v Glenos (1992,
5th Dist) 7 Cal App 4th 1201, 10 Cal Rptr 2d 363, 92 CDOS 5828, 92 Daily Journal DAR 9145.
Page 117 of 575
The continuing viability of the common law rule of aider and abettor liability for reasonably
foreseeable consequences of the criminal act originally contemplated compels the conclusion
that, in enacting Pen. Code, § 31 (governing aider and abettor liability), the Legislature intended
that an aider and abettor may be found guilty of a lesser crime or lesser degree of crime than the
ultimate offense the perpetrator is found to have committed, depending on which of the
perpetrator's criminal acts were reasonably foreseeable under the circumstances and which were
not. The fact that the perpetrator cannot be found guilty of both a greater and a necessarily
included offense does not preclude an aider and abettor from being found guilty of an uncharged,
necessarily included offense when the lesser, but not the greater, offense is a reasonably
foreseeable consequence of the crime originally aided and abetted. People v Woods (1992, 3rd
Dist) 8 Cal App 4th 1570, 11 Cal Rptr 2d 231, 92 CDOS 7287, 92 Daily Journal DAR 11740,
review den (Cal) 1992 Cal LEXIS 5931.
When an alder and abettor is charged with the crime originally contemplated by the perpetrator as
well as other crimes alleged to be reasonably foreseeable consequences of the original crime, the
jury must employ a four-part analysis to determine aider and abettor liability. While the
perpetrator and the aider and abettor need not be tried jointly, the jury first must determine the
crimes and degrees of crimes originally contemplated and committed by the perpetrator. Next, it
must decide whether the aider and abettor knew of the perpetrator's intent to commit those
criminal acts and intended to encourage or facilitate their commission so as to render him or her
vicariously liable for them. Then the jury must determine whether other crimes and degrees of
crimes charged against the alder and abettor were committed by the perpetrator. If so, it must
determine whether those crimes, though not necessarily contemplated at the outset, were
reasonably foreseeable consequences of the original criminal acts, so as to make the alder and
abettor vicariously liable for them. People v Woods (1992, 3rd Dist) 8 Cal App 4th 1570, 11 Cal
Rptr 2d 231, 92 CDOS 7287, 92 Daily Journal DAR 11740, review den (Cal) 1992 Cal LEXIS
59J 1.
In enacting Pen. Code, § 31, governing aider and abettor liability, the Legislature abolished the
common law distinctions between principals of the first and second-degree and between
principals and accessories before the fact. However, a common law rule of aider and abettor
liability that has survived in California is the doctrine that one who incites the commission of a
crime can be liable not only for the crime incited, but also for any incidental consequences that
reasonably might be expected to result from the intended wrong. Therefore, an aider and abettor
is guilty of any reasonably foreseeable offense committed by the person he or she aids and abets.
An aider and abettor need not have intended to encourage or facilitate the particular offense
ultimately committed by the perpetrator; knowledge that a criminal act was intended, and action
intended to encourage or facilitate that act, are sufficient to make him or her liable for any
reasonably foreseeable offense committed as a consequence by the perpetrator. People v Woods
(1992, 3rd Dist) 8 Cal App 4th 1570, 11 Cal Rptr 2d 231, 92 CDOS 7287, 92 Daily Journal DAR
11740, review den (Cal) 1992 Cal LEXIS 5931.
Victim injury points were properly assessed, regardless of whether victim's injuries were inflicted
Page 118 of 575
by accused or a codefendant, where victim was struck in the face when she tried to escape and
sustained other injuries during the sexual battery, and victim injury points were assessed against
accused upon his conviction for false imprisonment, sexual battery, and aiding and abetting
sexual battery despite his contention that the injuries were inflicted by codefendant, because one
who aids and abets is a principal in the first-degree. Taylor v State (1993, Fla App D5) 619 So 2d
1017, 18 FLW D 1327.
An aider or abettor is a person who is actually or constructively present at the scene of the crime
and who aids, advises, counsels, instigates or encourages another to commit the offense. Even
though not actually present during the commission of the crime, a person may be an aider and
abettor if he shares the criminal intent of the perpetrator and if, during the commission of the
crime, he is in a position to render any necessary aid to the perpetrator. State v Barnette (1981)
304 NC 447, 284 SE2d 298.
Defendant could properly be convicted of assault with a deadly weapon with intent to kill
inflicting serious injury under the theory that he acted in concert with the codefendant even
though the codefendant was acquitted of that crime since inconsistent verdicts in the same trial
are permissible. State v Reid (1994) 335 NC 647, 440 SE2d 776.
A defendant who enters into a common design for a criminal purpose is equally deemed in law a
party to every act done by others in furtherance of such design; therefore, where defendant knew
that his companion was going to rob a store, it did not matter that he did not know his companion
was going to use a firearm. State v Ferree (1981) 54 NC App 183, 282 SE2d 587.
Defendant Poe was properly found guilty of aiding and abetting the commission of the offense of
assault with a deadly weapon inflicting serious injury and damage to personal property not only
because he was present when the crimes were committed but because his actions in driving the
car from which several items were thrown by his passengers at other cars and in throwing items
at other cars himself showed his consent to the criminal purpose and contribution to its
execution. State v Poe (1995) 119 NC App 266, 458 SE2d 242, stay gr 340 NC 571, 459 SE2d
515, petition den (NC) 1995 NC LEXIS 522.
In a prosecution for kidnapping, extortion, and aggravated murder, evidence showing the
defendant's complicity, the defendant's awareness that handguns were to be employed to
accomplish the kidnapping, and also that the kidnapping was reasonably likely to produce the
victim's death was sufficient to sustain a finding that the defendant purposely aided and abetted
the kidnapping victim's murder. State v Scott (1980) 61 Ohio St 2d 155, 15 Ohio Ops 3d 182,
400 NE2d 375.
Defendant was improperly convicted of being party to crimes of intentional and reckless physical
abuse of his daughter by intentionally aiding and abetting physical abuse inflicted by defendant's
wife as, where defendant was charged under aiding and abetting statute, state was required to
prove that defendant undertook some affirmative action against child and jury acting reasonably
Page 119 of 575
could not have inferred that any of alleged conduct aided and abetted abuse of child since earlier
acts of apparently reasonable discipline did not support inference that, over 18 months later, such
acts aided or abetted wife to commit abusive acts that resulted in child's permanent injuries and
evidence did not support inference that defendant engaged in overt conduct which aided abuse or
that defendant dressed child inappropriately to conceal her bruises from discovery thus, while
evidence showed that defendant might be guilty of offense of failure to act to prevent bodily
harm to child, evidence was insufficient to establish guilt as aider and abettor to crimes as
charged (Stats §§ 939.05, 948.03(2), (3), (4)). State v Rundle (1993) 176 Wis 2d 985, 500
NW2d 916.
Footnotes
Footnote 38. State v Derosia, 94 NH 228, 50 A2d 231.
A person aids and abets the commission of a crime if he knowingly and with criminal intent aids,
promotes, encourages or instigates by act or advice the commission of such crime. State v
Nelson 88 SD 348, 220 NW2d 2, cert den 419 US 1110, 42 L Ed 2d 807, 95 S Ct 784.
Footnote 39. United States v Peichev (CA9 Cal) 500 F2d 917, cert den 419 US 966, 42 L Ed 2d
182, 95 S Ct 229.
Aiding and abetting requires proof by government that defendant had "purposeful attitude" and in
some manner participated in unlawful deed; this requires essentially existence of some
affirmative participation which at least encourages perpetrator. United States v Crow Dog (CA8
Iowa) 532 F2d 1182, cert den 430 US 929, 51 L Ed 2d 772, 97 S Ct 1547.
Footnote 40. United States v Corbin Farm Service (ED Cal) 444 F Supp 510, affd (CA9 Cal) 578
F2d 259.
Footnote 41. Jones v Commonwealth, 208 Va 370, 157 SE2d 907.
In the absence of a conspiracy or some preceding connection with the transaction, one does not
aid and abet if he merely sees a crime being committed; mere approval or acquiescence without
expressed concurrence or the doing of something to contribute is not aiding or abetting.
Columbus v Russell, 39 Ohio App 2d 139, 68 Ohio Ops 2d 327, 316 NE2d 897.
To aid and abet means to assist perpetrator of crime while sharing in requisite criminal intent;
crime consists of illegal assistance in criminal act and person may be convicted on basis of his
overall participation in criminal venture; in order to sustain conviction for aiding and abetting,
evidence must show that defendant was associated with criminal venture, participated in it as
something he wished to bring about, and sought by his action to make it succeed. United States v
Martinez (CA5 Tex) 555 F2d 1269.
Page 120 of 575
Proof that defendant was merely associated with criminal, or that defendant was present at scene
of crime is not, without more, sufficient to sustain conviction for aiding and abetting criminal
venture. United States v Longoria (CA5 Tex) 569 F2d 422.
Footnote 42. United States v Sanborn (CA1 Mass) 563 F2d 488.
In prosecution for violation of 18 USCS § 656 and § 2 in that defendant aided and abetted in
misapplication of bank funds by bank officer, evidence amply supported jury verdict where bank
officer delivered $15,000 of bank's funds to defendant knowing that money was actually being
channeled to third person, and that bank officer was able to so misapply funds through fiction of
defendant's false application and statement of purpose, and which sham arrangement violated 18
USCS § 656. United States v Kennedy (CA9 Cal) 564 F2d 1329, cert den 435 US 944, 55 L
Ed 2d 541, 98 S Ct 1526.
In prosecution for aiding and abetting transporation of falsely made or counterfeit checks in
interstate commerce, conviction did not require showing that defendant knew of interstate
transportation of the checks, rather, all that had to be proven was the fact of interstate
tranportation together with knowledge of the forgery or counterfeiting. United States v Cowden
(CA1 Mass) 545 F2d 257, cert den 430 US 909, 51 L Ed 2d 585, 97 S Ct 1181.
18 USCS § 2 rendered defendant criminally liable for violation of 15 USCS § 77x in connection
with filing of SEC registration statements designed to conceal his status as true owner of certain
stock although he did not sign statement, did not file it, and did not directly participate in its
preparation since evidence sufficiently connected him with false filing of statement, by showing
his knowledge of its existence and assistance in preparation, to support finding of his having
aided and abetted filing. United States v Erb (CA2 NY) 543 F2d 438, cert den (US) 50 L Ed 2d
590, 97 S Ct 493.
In order to be convicted of aiding and abetting transporation of firearms in foreign commerce by
convicted felon defendant must have assisted convicted felon in transportation of firearms
knowing that convicted felon was in fact transporting firearms, thus, where jury asked judge
during deliberations whether an individual could aid and abet crime without knowledge that
crime was being committed it was improper for trial court to answer that question affirmatively
on the assumption that jury was merely asking whether person could aid and abet without
knowing that activity in question was criminal, since question could be interpreted as asking
whether defendant could be guilty of aiding and abetting without knowing that principal was
committing various forbidden elements of principal crime. United States v McDaniel (CA9
Wash) 545 F2d 642.
Footnote 43. Shelton v United States (CA7 Ill) 292 F2d 346, cert den 369 US 877, 8 L Ed 2d
280, 82 S Ct 1149; Gans v Warden of Maryland Penitentiary, 233 Md 626, 196 A2d 632;
Thomas v Warden, Maryland Penitentiary, 235 Md 636, 201 A2d 495; State v Clifford, 267
Minn 554, 126 NW2d 258.
Page 121 of 575
In prosecution for conspiracy to intercept wire and oral communications and aiding and abetting
such interception, in which defendant claimed that his lack of knowledge of illegality of his
actions constituted circumstantial evidence tending to negate his active participation in
conspiracy and as aider and abettor, jury should have been instructed as to relevance of
defendant's ignorance and charged that although it was not excuse, they could consider it as
bearing on credibility of claim that he was not knowing participant. United States v Schilleci
(CA5 La) 545 F2d 519.
Defendants, neither of whom were present at commission of substantive offense, were properly
convicted of aiding and abetting as there was sufficient evidence to show they had associated
themselves with, and participated in criminal undertaking with intent to make it successful; while
mere association or knowledge of illegal activity is not sufficient for conviction, involvement
may be shown circumstantially, and act of slight importance may warrant jury's finding of
participation in crime. United States v Rosa (WD Pa) 404 F Supp 602, affd without op (CA3 Pa)
535 F2d 1247 and affd without op (CA3 Pa) 535 F2d 1248, cert den 429 US 822, 50 L Ed 2d
83, 97 S Ct 71 and affd (CA3 Pa) 560 F2d 149, cert den 434 US 862, 54 L Ed 2d 135, 98 S Ct
191.
In prosecution for conspiracy to possess heroin with intent to distribute and with aiding and
abetting distribution of heroin, in violation of 18 USCS § 2 and 21 USCS §§ 841 and 846,
accused need not have been present at actual sale to be convicted of aiding and abetting;
conviction would be affirmed where evidence showed that sale was made by third person to
police officer, and that negotiations leading to that sale were conducted over telephone registered
in defendant's name, and defendant's role was that prior to sale he had conversation with officer
focusing upon possible sale of "tires," which was private code name for "ounces of heroin," and
defendant stated that while he would have to speak with other guy about cost, everything would
be ready when officer called back, and evidence further showed that everything was indeed ready
when officer called and third person informed officer that he was handling transaction for
defendant and agreed to meet officer at very location officer and defendant had discussed, and
completed sale shortly thereafter. United States v Juarez (CA5 Tex) 566 F2d 511.
Conviction for violation of a statute making it a crime to place an obstruction upon the rails or
track of any railroad, based on defendant's inciting or abetting of the placing of the obstructions
by his antecedent speech and conduct, did not violate his First Amendment rights of freedom of
speech; furthermore, the fact that he was not present and did not physically assist in the
placement of the obstruction was irrelevant. People v Bohmer (4th Dist) 46 Cal App 3d 185, 120
Cal Rptr 136, cert den 423 US 990, 46 L Ed 2d 308, 96 S Ct 402.
As to offense of aiding and abetting illegal possession of drugs or narcotics, see 25 Am Jur 2d,
Drugs, Narcotics, and Poisons § 21 supp.
Footnote 44. Morgan v United States (CA10 Okla) 159 F2d 85.
Page 122 of 575
Footnote 45. State v Gruber, 116 Minn 221, 133 NW 571.
Footnote 46. State v Norman, 193 Neb 719, 229 NW2d 55.
B. Principals and Accessories [168-174]
§ 168 Who are principals [21 Am Jur 2d CRIMINAL LAW]
A principal in a crime must be actually or constructively present, aiding and abetting the
commission of the offense. 47 It is not necessary that one do some act at the time in order to
constitute him a principal, but he must encourage its commission by acts or gestures, either
before or at the time of the commission of the offense, with full knowledge of the intent of the
persons who commit the offense. 48 He must do some act at the time of the commission of the
crime that is in furtherance of the offense. 49
A person who encourages the commission of an unlawful act cannot escape responsibility by
quietly withdrawing from the scene. The influence and effect of his encouragement continue
until he renounces the common purpose and makes it plain to the others that he has done so and
that he does not intend to participate further. 50
The fact that person acts as the agent of another in the commission of an offense does not
exonerate him from liability as a principal in the crime. 51
Under certain federal statutes, participants in an offense may be prosecuted either as principals or
as aiders and abettors. 52
§ 168 – Who are principals [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Defendant cannot have benefit of claim that he and corporation are same entity without accepting
burden of that claim and where in transactions, if defendant as person is in essence corporation,
then defendant as person is licensee and would be capable of violating statute as principle.
United States v Spiezio (1981, ED Pa) 523 F Supp 264.
Defendant "caused" government agent to travel in interstate commerce to exchange cash for
checks, where travel was at defendant's request, even though agent acted under government
instruction, since "causes to act" in 18 USCS § 2 does not mean that defendant must be sole and
proximate cause of performance of act. United States v Levy (1992, CA5 La) 969 F2d 136.
Participant in bank robbery in which dangerous weapon is used may be convicted as principal
Page 123 of 575
regardless of fact that it is another participant in robbery who actually possesses weapon. United
States v Schultz (1985, CA7 Wis) 769 F2d 431.
Although an accomplice had actually robbed the store at gunpoint, defendant's guilt as a principal
in the commission of the crime was clearly established by evidence that he had planned the
crime, had cased the store prior to the robbery, had furnished the gun, had furnished camouflaged
hat and coat worn by the accomplice while robbing the store, had supplied and driven the
get-away car, and had taken the money bag when the accomplice got back into the car after the
robbery. Walker v State (1986, Miss) 493 So 2d 1323.
In a prosecution of multiple defendants on various charges of possession, manufacturing, and
sale and delivery of heroin, the trial court committed prejudicial error in giving the jury
instructions which permitted the jurors to find a defendant guilty as a principal to a crime at
which he was not actually or constructively present because he participated in a conspiracy to
commit the crime. State v Overton (1982) 60 NC App 1, 298 SE2d 695, app dismd, petition den
(NC) 299 SE2d 652 and app dismd, petition den (NC) 299 SE2d 652 and app dismd, petition den
(NC) 299 SE2d 653.
Sufficient evidence was adduced to support reasonable trier of fact in conclusion beyond
reasonable doubt that every reasonable hypothesis of innocence on part of defendant was
excluded and that he was principal in crime, where circumstantial evidence placed defendant
with victim and other alleged malefactors, and direct evidence corroborated jailhouse informant's
testimony concerning two weapons mentioned by defendant and included testimony of witness
who placed defendant and other malefactors and victim together in early evening on night of
offense. State v Pierre (1993, La App 3d Cir) 614 So 2d 1309.
Footnotes
Footnote 47. State v Burbank, 156 Me 269, 163 A2d 639, 95 ALR2d 166.
As to what constitutes aiding and abetting, see § 167, supra.
Footnote 48. People v Marx, 291 Ill 40, 125 NE 719.
Footnote 49. People v Marx, 291 Ill 40, 125 NE 719; State v Spears, 268 NC 303, 150 SE2d 499;
State v O'Shields, 163 SC 408, 161 SE 692; McAlister v State, 45 Tex Crim 258, 76 SW 760.
Without regard to any previous confederation or design, when two or more persons aid and abet
each other in the commission of a crime, all being present, all are principals and equally guilty.
State v Keller, 268 NC 522, 151 SE2d 56.
Footnote 50. Karnes v State, 159 Ark 240, 252 SW 1; People v Wilson, 76 Cal App 688, 245 P
Page 124 of 575
781; Powers v Commonwealth, 110 Ky 386, 61 SW 735, supp op 110 Ky 462, 63 SW 976.
Footnote 51. Alt v State, 88 Neb 259, 129 NW 432; Buchanan v State, 4 Okla Crim 645, 112 P
32; Thompson v State, 105 Tenn 177, 58 SW 213.
Defendant's quotation of the price and his bringing together of the buyers and the seller constitute
sufficient involvement to implicate him as a principal in the commission of the offense of sale of
marijuana. State v Hubbard (Fla App D2) 328 So 2d 465.
The driver of a getaway car is present at the scene of the crime, and he is a principal rather than
an accessory before the fact. State v Lyles, 19 NC App 632, 199 SE2d 699, cert den 284 NC
426, 200 SE2d 662.
Footnote 52. § 167, supra.
§ 169 Principals in first and second degrees [21 Am Jur 2d CRIMINAL LAW]
At common law a principal in the first degree was one who did the act either in person or through
an innocent agent. 53 A principal in the second degree was present at the time a crime was
committed, lending countenance, aid, or encouragement, or keeping watch at some convenient
distance while another person did the actual criminal act. 54 The immediate presence of a party
was not necessary to qualify him for the role of a principal in the second degree. 55 It was
sufficient if, pursuant to an agreement, he was in a position to give any necessary aid to the
perpetration of the offense. 56 While a bystander, without more, was not deemed a principal, 57
his unexplained presence at the place of the commission of a crime might be considered as a
circumstance tending to show complicity in the transaction. 58
Under many statutes, the distinction between principals of the first and second degree is not of
much practical importance, and in some instances is entirely abolished. The statutes in varying
terms make all persons who are present and concerned in the commission of a crime guilty as
principals. 59
§ 169 – Principals in first and second-degrees [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Case authorities:
A person who actually commits an offense or who is present when another commits the offense
and does some act in furtherance of the crime is a principal in the first-degree, while a person
who is actually or constructively present when the crime is committed and who aids or abets
another in its commission is a principal in the second-degree, and both are equally guilty. State v
Page 125 of 575
Davis, 301 NC 394, 271 SE2d 263.
A letter by defendant's counsel offering to waive the preliminary hearing and the grand jury
indictment, and offering to have defendant plead guilty to third-degree burglary, did not prevent a
subsequent prosecution for second-degree burglary, where the letter was sent to the district
attorney at the time a complaint was issued, where although defendant could plead guilty to an
information there was no authority for pleading guilty to a complaint, where the letter was
insufficient to constitute either an effective waiver of the hearing or the proceeding or an
effective plea of guilty, and where the purpose of allowing a guilty plea was to save defendant the
expense and ordeal of trial, not to allow him to plead guilty to a charge less serious than was
warranted by the facts. People v Montanye (1983, 3d Dept) 95 App Div 2d 959, 464 NY S2d
292.
Footnotes
Footnote 53. United States v Gooding, 25 US 460, 6 L ed 693; Johnson v State, 142 Ala 70, 38
So 182; State v Wilson, 235 Iowa 538, 17 NW2d 138; State v Minton, 234 NC 716, 68 SE2d
844; 31 ALR2d 682; Pierce v State, 130 Tenn 24, 168 SW 851; Red v State, 39 Tex Crim 667,
47 SW 1003.
Footnote 54. State ex rel. Dooley v Coleman, 126 Fla 203, 170 So 722; State v Wilson, 235 Iowa
538, 17 NW2d 138; State v Turner (Mo) 272 SW2d 266, 48 ALR2d 1008; State v Minton, 234
NC 716, 68 SE2d 844, 31 ALR2d 682; Pierce v State, 130 Tenn 24, 168 SW 851; Brown v
Commonwealth, 130 Va 733, 107 SE 809.
To sustain a conviction of defendant as a principal in the second degree, the state's evidence was
present, actually or constructively, with the intent to aid the perpetrator in the commission of the
offense should his assistance become necessary and that such intent was communicated to the
actual perpetrator. State v Rankin, 284 NC 219, 200 SE2d 182.
Footnote 55. Johnson v United States, 157 US 320, 39 L Ed 717, 15 S Ct 614; Pennington v
State, 91 Fla 446, 107 So 331; State v Shon, 47 Hawaii 158, 385 P2d 830; Anarchists' Case, 122
Ill 1, 12 NE 865, error dismd 123 US 131, 31 L Ed 80, 8 S Ct 22; Commonwealth v Hollister,
157 Pa 13, 27 A 386.
An accused who waits at the scene of a crime to assist the actual perpetrators in getting away may
properly be charged as a principal; presence of accused at the scene of the crime is to be
determined not by mere spatial continguity but rather by the purpose to be served by waiting.
State v Raniello 113 RI 71 317 A2d 440.
Footnote 56. Pennington v State, 91 Fla 446, 107 So 331; State v Shon, 47 Hawaii 158, 385 P2d
830; Cavert v State, 158 Tenn 531, 14 SW2d 735.
Page 126 of 575
Footnote 57. People v Woodward, 45 Cal 293; People v Cione, 293 Ill 321, 127 NE 646; People
v Chapman, 62 Mich 280, 28 NW 896; State v Larkin, 250 Mo 218, 157 SW 600.
Mere presence of a nonparticipant when a criminal offense is committed does not constitute him
a principal in the crime in the absence of evidence that he gave active encouragement to the
actual perpetrator of the crime or made it known to the perpetrator that assistance was available if
needed. State v Ham, 238 NC 94, 76 SE2d 346.
Footnote 58. People v Woodward, 45 Cal 293.
A person's presence at the scene of an offense may be considered in connection with other
circumstances in determining whether he is a principal therein. State v Cummings, 49 Hawaii
522, 423 P2d 438.
Proof that a person is present at the commission of a crime without disapproving or opposing it is
evidence from which, in connection with other circumstances, it is competent for the jury to infer
that he assented, lent his countenance and approval to the act, and was thereby aiding and
abetting. State v De Falco, 8 NJ Super 295, 74 A2d 338, certif den 5 NJ 483, 76 A2d 22.
Footnote 59. Ruthenberg v United States, 245 US 480, 62 L Ed 414, 38 S Ct 168; Kelly v
United States (CA8 Neb) 61 F2d 843; 338; Pinson v Young, 100 Kan 452, 164 P 1102; State v
Yohe, 203 Kan 855, 457 P2d 12; People v Galbo, 218 NY 283, 112 NE 1041, 2 ALR 1220;
Haas v State, 103 Ohio St 1, 132 NE 158; Campbell v State, 63 Tex Crim 595, 141 SW 232.
A person not a fiduciary may be convicted of embezzlement if he has aided or abetted a fiduciary
in the commission of the crime, where a statute provides that all persons concerned in the
commission of a crime, whether they directly commit the act constituting the offense or aid and
abet or advise and encourage its commission, are principals. Gibbs v State, 37 Ariz 273, 293 P
976.
A federal statute provides that whoever directly commits any act of constituting an offense
defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures
its commission, is a principal. Kaufman v United States (CA2 NY) 212 F 613.
The distinction between principals in the first and second degree, in felony cases, has been
abrogated in Idaho. State v Oldham, 92 Idaho 124, 438 P2d 275.
One present when a forcible trespass is committed by another with a show of force, aiding and
abetting the trespasser in what he does, is himself guilty of forcible trespass. State v Tyndall, 192
NC 559, 135 SE 451.
§ 170 – Manner of aiding [21 Am Jur 2d CRIMINAL LAW]
Page 127 of 575
Advice or encouragement given by words, acts, or signs may make one a principal in a felony. 60
So, a person may be a principal who watches at a proper distance to prevent surprise while others
commit the unlawful act. 61
§ 170 – Manner of aiding [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Direct personal involvement constitutes violation of 18 USCS § 2 and 21 USCS § 841 where
defendant came into room with gun, knowing that marijuana and cocaine would be present and
deliberately gave gun to another defendant agreeing that it should be hidden along with
measurable quantities of marijuana and along with cocaine that was intended for distribution.
United States v Irizarry (1982, CA1 Puerto Rico) 673 F2d 554.
All persons participating in a crime are principals of the first or second-degree; the actual
perpetrator is a principal of the first-degree, while a person who does not commit the crime with
his own hands but is present, aiding or abetting the actual perpetrator, is a principal of the
second-degree. State v Lowery (1982, Fla) 419 So 2d 621.
Footnotes
Footnote 60. Brennan v People, 15 Ill 511.
To aid and abet another in the commission of a crime means to assent to an act or to lend
countenance or approval either by active participation in it or by in some other manner
encouraging it. State v Myers, ---- (Iowa) ----, 158 NW2d 717.
Footnote 61. State v Turner (Mo) 272 SW2d 266, 48 ALR2d 1008; State v Weekley, 40 Wyo
162, 275 P 122.
§ 170.5 --Criminal Facilitation [NEW] [21 Am Jur 2d CRIMINAL LAW]
View Entire Section
Go to Parallel Reference Table
Case authorities:
Conviction for criminal facilitation in fourth-degree pursuant to CLS Penal § 115.00(1) would
be reversed and indictment would be dismissed where defendant shouted "Police! Police!"
outside door of apartment as police officers were about to execute search warrant to look for
drugs and related paraphernalia, since statute clearly contemplated that facilitated crime must
Page 128 of 575
occur in future, after intervention of facilitator, and at time of defendant's warning, felony of drug
and paraphernalia possession by occupants of apartment was complete. People v Llanos (1989,
1st Dept) 151 App Div 2d 128, 546 NY S2d 584, app gr 75 NY2d 870, 553 NYS2d 301, 552
NE2d 880 and app gr 75 NY2d 870, 553 NYS2d 301,552 NE2d 880 and motion to dismiss app
den 76 NY2d 746, 558 NYS2d 485, 557 NE2d 778 and affd 77 NY2d 866, 568 NYS2d 723,
570 NE2d 1072.
§ 171 – Intent [21 Am Jur 2d CRIMINAL LAW]
Where a crime requires the existence of a particular intent, an alleged aider or abettor cannot be
held as a principal unless it is established that the aider knew that the perpetrator of the act had
the required intent, 62 or that the aider himself possessed the required felonious intent. 63 If
the intent of the aider is different from that of the perpetrator, the aider's guilt is measured by the
intent that actuated him, though this may result in making him liable for a graver offense. 64
To prove a violation of the federal aiding and abetting statute, 65 the government must show
that the defendant associated himself with the venture, participated in it as in something he
wished to bring about, and sought by his action to make it succeed; and to prove association with
the venture, there must be evidence that the defendant shared the state of mind required for the
statutory offense, although defendant need not have the exact intent as the principal; but such
criminal intent, often difficult to demonstrate by direct proof, may be inferred from the
surrounding circumstances. 66
If one with felonious intent aids another in an act that the aider believes to be a crime, but the
person aided had no criminal intent and was merely giving others an opportunity to catch the
aider in the commission of an offense, the aider is not guilty of a crime unless in rendering his
aid he has committed every overt act necessary to the commission of a crime. 67
§ 171 – Intent [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Individual with requisite criminal intent may be liable as principal if he is cause in fact in
commission of crime, notwithstanding that proscribed conduct is achieved through actions of
innocent intermediaries. United States v Margiotta (1982, CA2 NY) 688 F2d 108.
In prosecution for aiding and abetting sale of narcotics defendant satisfies intent requirement
where he was catalyst who put transaction together, he clearly knew what was going on, and he
intended by his actions to make illegal venture succeed. United States v Winston (1982, CA6
Tenn) 687 F2d 832.
Page 129 of 575
In a robbery prosecution against the man who drove the perpetrators from the scene of the crime,
the trial court's instructional error in not requiring the jury to find that defendant intended to aid
the perpetrators was harmless error beyond a reasonable doubt, where the jury found, pursuant to
the instruction given, that defendant had knowledge of the perpetrators' intent to commit a
robbery and where all of defendant's behavior after the robbery took place was consistent only
with that conclusion. From such knowledge, an inference that defendant intended to aid the
perpetrators followed of necessity. Further, automatic reversal was not required, even though the
error was of federal constitutional proportions, since, in the setting of the instant case, the error
was both unimportant and insignificant. People v Benson (1982, 1st Dist) 130 Cal App 3d 1000,
180 Cal Rptr 921.
In a prosecution for attempted murder and other crimes arising out of the robbery of a jewelry
store, in which defendant's only participation was as an aider and abettor by his driving the
getaway car, it was not essential that it be proved that defendant harbored the specific intent to
kill or that he intended to facilitate the offense of attempted murder, since all that was necessary
for defendant to share in the perpetrator's intent was that defendant knowingly intended to assist
the perpetrator in committing the planned crime which was shown by his agreement to drive the
getaway car. Once that intent is formed, the liability of an aider and abettor then extends also to
the natural and reasonable consequences of the acts he knowingly and intentionally aided and
encouraged and the perpetrator's commission of an attempted murder in the robbery was
foreseeable from his possession of a gun and a pillow to use as a silencer. People v Hammond
(1986, 1st Dist) 181 Cal App 3d 463, 226 Cal Rptr 475.
In a prosecution for burglary (Pen. Code, § 459), robbery (Pen. Code, § 211), and mayhem (Pen.
Code, § 203), the trial court's error in failing to instruct that an aider and abettor must act with the
intent to further the perpetrator's criminal purpose was harmless, where the necessary intent was
established as a matter of law and no contrary evidence worthy of consideration existed.
Defendant's fingerprint was found on the weapon used to beat the victim, the defense consisted
primarily of attempts to impeach a witness who testified that defendant beat the victim and to
establish that defendant's confession was involuntary, and the jury specifically found that
defendant had personally inflicted great bodily harm in the commission of the crimes. People v
Barker (1986, 5th Dist) 182 Cal App 3d 921, 227 Cal Rptr 578.
Pattern jury instructions on aiding and abetting are flawed if they fail to advise the jury not only
that the defendant must have had knowledge of the criminal purpose of the perpetrator of the
offense but also that he must have shared that purpose or intended to commit, encourage, or
facilitate the commission of the crime. People v Johnson (1986, 2d Dist) 190 Cal App 3d 187,
237 Cal Rptr 479.
In order to be convicted of a crime on a theory of aiding and abetting, there must be proof that the
defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or
purpose either of committing, or of encouraging or facilitating commission of, the offense. When
the definition of the offense includes the intent to do some act or achieve some consequence
Page 130 of 575
beyond the actus reus of the crime, the aider and abettor must share the specific intent of the
perpetrator. That is, an aider and abettor must know the full extent of the perpetrator's criminal
purpose and give aid or encouragement with the intent or purpose of facilitating the perpetrator's
commission of the crime. The liability of an aider and abettor also extends to the natural and
reasonable consequences of the acts he knowingly and intentionally aids and encourages. People
v Beeman (1984) 35 Cal 3d 547; 199 Cal Rptr 60, 674 P2d 1318.
Footnotes
Footnote 62. Chapman v State, 43 Tex Crim 328, 65 SW 1098.
The evidence was sufficient to convict the defendant as an aider and abettor in the delivery of
marijuana and cocaine, where the defendant told the prospective purchaser where to go and
whom to contact, where the defendant himself tried to locate the seller, and where there was
adequate proof of a sale, notwithstanding that the purchaser did not buy from the individual the
defendant had instructed her to contact; criminal intent could not be found lacking on the basis
that the defendant's accomplice was a law enforcement agent, where the evidence established that
the defendant's accomplice was a confidential informant with a law enforcement agency, but had
no authority to deal in drugs. Beasley v State (Fla App D4) 360 So 2d 1275.
Although the word "aid" does not imply guilty knowledge or felonious intent, the word "abet"
includes knowledge of the wrongful purpose of the perpetrator as well as counsel and
encouragement in the crime. State v Hinkley, 52 Wash 2d 415, 325 P2d 889.
Footnote 63. Coffin v United States, 162 US 664, 40 L Ed 1109, 16 S Ct 943; Woolweaver v
State, 50 Ohio St 277, 34 NE 352.
Intent is seldom capable of direct proof. It is usually inferred from the proved surrounding
circumstances. State v Kneedy, 232 Iowa 21, 3 NW2d 611.
Participation in criminal intent may be inferred from one's presence in and near the scene of the
crime, and his conduct before or after the offense is committed. State v Myers, ---- (Iowa) ----,
158 NW2d 717.
Footnote 64. Red v State, 39 Tex Crim 667, 47 SW 1003.
Footnote 65. 18 USCS § 2.
Footnote 66. United States v Beck (CA7 Ill) 615 F2d 441.
Footnote 67. State v Hayes, 105 Mo 76, 16 SW 514 (ovrld on other grounds State v Barton 142
Mo 450, 44 SW 239); State v Currie, 13 ND 655, 102 NW 875.
Page 131 of 575
§ 172 Accessories before the fact [21 Am Jur 2d CRIMINAL LAW]
An accessory before the fact is a person whose will contributes to a felony committed by another
as principal, and yet who is too far away to aid in the felonious act. 68 A statute may abolish the
common-law distinction between an accessory before the fact and a principal, 69 and provide
that an accessory may be indicted, tried, and convicted as a principal. 70
Either advising or encouraging the commission of a criminal offense is sufficient to constitute
one an accessory before the fact. 71 Mere concealment of knowledge that a felony is to be
committed does not, however, make the party concealing it an accessory before the fact. 72
Practically all felonies except treason admit of accessories before the fact. 73
In cases of misdemeanors, all who aid and abet, as well as those who perpetrate the acts, are
principals. 74 In other words, there are no accessories at common law in the commission of
misdemeanors. 75 It is said that the reason for this rule is that the law does not distinguish the
different shades of petty offenses. 76
§ 172 – Accessories before the fact [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Reindictment after defendant's successful exercise of procedural right which reformulates
charges to increase chance of conviction does not penalize defendant for exercise of his
procedural rights since only "penalty" is normal risk of conviction faced by all litigants if
prosecution decides to retry case after procedural motions. United States v Motley (1981, CA9
Cal) 655 F2d 186.
The defendant, who was convicted as an accessory before the fact to first-degree murder, was a
capital defendant as that term is used in ALM GL ch 278 § 33E, which vests exclusive appellate
jurisdiction in capital cases in the Supreme Judicial Court. Commonwealth v Angiulo (1993) 415
Mass 502, 615 NE2d 155, summary op at (Mass) 21 M.L.W. 2881.
Jury verdict finding defendant guilty of armed robbery as an accessory before the fact was amply
supported by testimony of state's principal witness, the person who actually assaulted and
wrestled jewels from the victim, that defendant masterminded the crime, which testimony was
corroborated by another witness, and by testimony of the defendant placing himself with the
co-defendants before the fact and with the stolen jewels on the evening of the crime. Malone v
State (1986, Miss) 486 So 2d 360, later proceeding (Miss) 486 So 2d 367.
A jury instruction on accessory before the fact was inadequate where it did not instruct the jury to
Page 132 of 575
find beyond a reasonable doubt that the crime was actually committed, but only instructed the
jury to determine whether the defendant was an accessory before the fact, leaving them to assume
that the occurrence of the crime was an established fact. Wilson v State (1991, Miss) 592 So 2d
993.
In a prosecution for accessory after the fact to voluntary manslaughter where the trial court stated
that if defendant "knowing Horne and Lagree or Horne or Lagree could have committed the
crime of voluntary manslaughter, assisted Horne or Lagree in escaping or attempting to escape
detection, arrest or punishment by concocting a story which was not true ... ," then he should be
found guilty, the trial court committed prejudicial error. One item of proof of the crime of
accessory after the fact is that the accused knew that the felony had been committed by the
person assisted, and "considering all of the circumstances of the case" the error was prejudicial.
G.S. 15A-1232. State v Earnhardt (1982) 307 NC 62, 296 SE2d 649.
There was substantial evidence of each of the three elements of accessory before the fact of
murder where (1) there was testimony that defendant agreed to pay the principal $30,000.00 out
of the insurance proceeds on her husband's life if the principal would kill defendant's husband,
(2) the jury could reasonably infer that defendant was not present when the principal shot her
husband, and (3) the principal admitted that he was the one who shot defendant's husband after
lying in wait for him. Defendant's life sentence was proper in that the Legislature abolished the
difference in guilt and sentencing treatment between the principal to the felony and an accessory
by repealing G.S. 14-5, G.S. 14-5.1 and G.S. 14-6 and replacing them with G.S. 14-5.2. State v
Woods (1982) 307 NC 213, 297 SE2d 574.
The trial court did not err by denying defendant's motions to dismiss charges of accessory before
the fact to first-degree murder, first-degree burglary, armed robbery, and first-degree arson where
an accomplice testified that the only purpose in going to the property was to steal items and there
was no murder, arson, or robbery planned. Once an accessory before the fact has counseled,
procured or planned a criminal event, he or she must answer for all crimes flowing from the
accomplished event. State v Marr (1994) 113 NC App 774, 440 SE2d 275.
Footnotes
Footnote 68. Kaufman v United States (CA2 NY) 212 F 613; Moore v Lowe, 116 W Va 165, 180
SE 1, cert den 296 US 574, 80 L Ed 406, 56 S Ct 130 and (disapproved on other grounds State
ex rel. Muldrew v Boles 151 W Va 1033, 159 SE2d 36).
At common law an "accessory before the fact" is one who, though not the chief actor in the
offense or present at its performance, is in some way concerned therewith before the fact; one
who, though absent at the time of the offense, yet procures, counsels, or commands another to
commit it. Pierce v State, 130 Tenn 24, 168 SW 851.
Page 133 of 575
At common law an accessory before the fact was one who was not actually or constructively
present at the commission of the crime, but who procured, counseled, or commanded another to
commit it. State v Wilson, 235 Iowa 538, 17 NW2d 138.
An accessory before the fact is distinguishable from an aider and abettor by the fact that the latter
must be present at the commission of the offense. Sams v Commonwealth, 294 Ky 393, 171
SW2d 989.
Defendant was properly convicted of selling more than one kilogram of marijuana to an
undercover agent, even though he did not personally deliver the marijuana to the agent, where the
proof showed his participation as an accessory before the fact, thus rendering him subject to
indictment and punishment as a principal. McGowan v State (Miss) 375 So 2d 987.
Footnote 69. Von Patzoll v United States (CA10 Okla) 163 F2d 216, cert den 332 US 809, 92 L
Ed 386, 387, 68 S Ct 110, 111.
The distinction between an accessory before the fact and a principal in felony cases, has been
abrogated in Idaho. State v Oldham, 92 Idaho 124, 438 P2d 275.
Footnote 70. Burnett v People, 204 Ill 208, 68 NE 505; Commonwealth v Hicks, 118 Ky 637, 82
SW 265; State v Whitman, 103 Minn 92, 114 NW 363; People v Galbo, 218 NY 283, 112 NE
1041; State v Hopkins, 147 Wash 198, 265 P 481; cert den 278 US 617, 73 L Ed 540, 49 S Ct
21; State v Weekley, 40 Wyo 162, 275 P 122.
See State ex rel. Muldrew v Boles, 151 W Va 1033, 159 SE2d 36, holding that the West Virginia
statute providing that every accessory before the fact shall be punishable as if a principal in the
first degree, does not dispense with the need to indict, prosecute, and punish an accessory before
the fact as such, and does not allow him to be indicted or convicted as a principal.
Footnote 71. Powell v State, 177 Ark 938, 9 SW2d 583.
Footnote 72. Smith v State, 23 Tex App 357, 5 SW 219.
Footnote 73. Kaufman v United States (CA2 NY) 212 F 613; State v Burns, 82 Conn 213, 72 A
1083; People v Bliven, 112 NY 79, 19 NE 638.
That all persons participating in or contributing to treasonable acts are principals, see 70 Am Jur
2d, Sedition, Subversive Activities, and Treason § 13.
Footnote 74. United States v Mills 32 US 138 8 L Ed 636; Kaufman v United States (CA2 NY)
212 F 613; Slaughter v State, 113 Ga 284, 38 SE 854; State v Stark, 63 Kan 529, 66 P 243;
Commonwealth v Brown, 154 Mass 55, 27 NE 776; Kansas City v Lane (Mo App) 391 SW2d
955; People v Bliven, 112 NY 79, 19 NE 638; State v Jones, 83 NC 605.
Page 134 of 575
Footnote 75. Smith v State, 221 Miss 184, 72 So 2d 215; State v De Falco, 8 NJ Super 295, 74 A
2d 338, certif dismd 5 NJ 483, 76 A2d 22.
Footnote 76. State v Buzzell, 58 NH 257.
§ 173 – Effect of withdrawal of aid and advice [21 Am Jur 2d CRIMINAL LAW]
If the accessory withdraws his aid and advice before the crime is committed and communicates
that fact to the person he previously inspired to commit the offense, he will not be liable if the
crime is committed as the result of some new and intervening cause. But a mere change of mind
will not of itself exonerate the accessory. 77
Footnotes
Footnote 77. Karnes v State, 159 Ark 240, 252 SW 1.
Practice Aids: Withdrawal from or Abandonment of Criminal Enterprise. 8 Am Jur Proof of
Facts 2d 231.
§ 174 Accessories after the fact [21 Am Jur 2d CRIMINAL LAW]
At common law, an accessory after the fact is one who, knowing that a felony has been
committed by another, receives, relieves, comforts, or assists the felon, or in any manner aids him
to escape arrest or punishment. 78 This is similar to statutory definitions. 79 Under one statute
an accessory after the fact is a person who, after full knowledge that a crime has been committed,
conceals it from the magistrate, or harbors and protects the person charged with or found guilty
of the crime. 80
To be guilty as an accessory after the fact one must have known that a completed 81 felony was
committed 82 and that the person aided was the guilty party, 83 and the person charged must
have had an intention to shield the felon from the law. 84
It is deemed that an accessory after the fact commits an offense separate and distinct from the
crime of the principal. 85 Thus, the accessory must be charged and prosecuted for an offense not
included in the criminal act of the principal. 86
§ 174 – Accessories after the fact [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Page 135 of 575
Defendant's perjured testimony that was intended to persuade district court to grant drug
distribution conspirators new trial was in respect to criminal offense of drug conspiracy within
meaning of § 2J1.3(c)(1) and thus cross-reference to accessory after the fact § 2X3.1 applied,
even though defendant, an unindicted coconspirator, was never convicted of underlying offense.
United States v Colbert (1992, CA6 Mich) 977 F2d 203.
Post-offense aid that is not accompanied by an intent that the principal may avoid or escape from
arrest, trial, conviction, or punishment is either not criminal or is culpable only under a statute
pertaining to particular conduct, such as receiving stolen property. People v Brady (1987, 3d
Dist) 190 Cal App 3d 124, 235 Cal Rptr 248.
In interest of justice, fact that accessory may not be principal in commission of substantive felony
is no longer element in crime of accessory after fact, and thus conviction of murder was not
inconsistent with verdict of guilty of accessory after fact. State v Hawkins (1992) 326 Md 270,
604 A2d 489.
FS 777.03, which permits certain family members to aid a related fugitive without fear of
criminal prosecution, is neither unintelligibly vague in violation of the due process clause, nor
irrationally conceived in violation of the equal protection clause; the terms "consanguinity" and
"affinity" as used in such statute are synonymous with "blood" and "marriage," and the list of
protected relatives in the statute is thus sufficiently definite so that people of common
understanding and intelligence need not guess at its meaning. State v H. (1982, Fla App D4) 421
So 2d 62.
Footnotes
Footnote 78. Skelly v United States (CA10 Okla) 76 F2d 483, cert den 295 US 757, 79 L Ed
1699, 55 S Ct 914; Higgins v State, 136 Ark 284, 206 SW 440; Levering v Commonwealth, 132
Ky 666, 117 SW 253.
Footnote 79. State v Jones, 91 Ark 5, 120 SW 154; Reynolds v People, 83 Ill 479; State v Young,
7 Ohio App 2d 194, 36 Ohio Ops 2d 335, 220 NE2d 146; Blakely v State, 24 Tex App 616, 7
SW 233.
Footnote 80. Lowe v People, 135 Colo 209, 309 P2d 601.
Defendant was properly convicted of being accessory after the fact to homicide in violation of 18
USCS § 3, as sufficient evidence existed that felony had been committed, that defendant had
actual knowledge of participants in crime, and that with such knowledge defendant in some way
assisted participants in order to hinder or prevent their apprehension, trial, or punishment; it was
not error for trial court to deny defendant's motion to require government to proceed either on
count charging homicide in violation of 18 USCS § 1111(a) or count charging accessory after
the fact since there was acquittal on homicide count and no prejudice was shown. United States v
Page 136 of 575
Day (CA10 Okla) 533 F2d 524.
Footnote 81. Reynolds v People, 83 Ill 479; Harrel v State, 39 Miss 702.
Footnote 82. Harris v State (Miss) 290 So 2d 924; State v Williams, 229 NC 348, 49 SE2d 617.
Footnote 83. Roberts v People, 103 Colo 250, 87 P2d 251; Harris v State (Miss) 290 So 2d 924.
Footnote 84. Harris v State (Miss) 290 So 2d 924; State v Potter, 221 NC 153, 19 SE2d 257.
Statement made by the sister of a bank robber to FBI agents in the course of admitting complicity
in a robbery to the effect that the brother had told her he had not been photographed by a bank
surveillance camera would be admissible against her for acting as accessory after the fact in a
bank robbery in violation of 18 USCS § 3; although the sister had originally told the FBI agents
in search of the brother that she did not know how to contact the brother, after the agents left her
she met the brother at a certain place, and the brother's statements were made at that occasion;
her statement shows that she concealed from the FBI that she knew how to contact the brother
whom she knew had committed the offense. United States v Garris (CA2 NY) 616 F2d 626, cert
den 447 US 926, 65 L Ed 2d 1119, 100 S Ct 3021.
Footnote 85. Chambers v State, 194 Ga 773, 22 SE2d 487, ans conformed to 68 Ga App 338, 23
SE2d 545; People v Zierlion, 16 Ill 2d 217, 157 NE2d 72; State v Sullivan, 77 NJ Super 81, 185
A2d 410.
The statutory accessory "during the fact" cannot be charged as a principal. Martinez v People,
166 Colo 524, 444 P2d 641.
Footnote 86. State v Key (Mo) 411 SW2d 100.
C. Trial and Punishment of Joint Offenders [175-178]
§ 175 Trial of aider and abettor – necessity that principal be first convicted [21 Am Jur 2d
CRIMINAL LAW]
An aider and abettor before the fact is fully responsible for the acts of the actual perpetrator of an
offense, 87 and he may be indicted or tried separately or jointly with the principal. 88 At
common law, however, the aider and abettor could not, unless he consented, be tried before the
principal, 89 and conviction of the principal was necessary before the conviction of an aider or
abettor could be sustained. 90 Under this rule a mere conviction by the verdict of a jury was not
sufficient. 91
Page 137 of 575
A statute may provide that an aider or abettor may be prosecuted and punished as if he were the
principal offender, 92 or that he may be tried separately, notwithstanding the fact that the
principal has not been tried. 93 Under such provisions an aider or abettor may be tried before the
principal offender, 94 and a conviction may be sustained without showing the conviction of the
principal. 95
§ 175 – Trial of aider and abettor–necessity that principal be first convicted
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Criminal procedure–the availability of severance based on the claim of
antagonistic defenses– Commonwealth v Chester, 587 A2d 1367 (Pa. 1991), 65 Temp LR 1025
(1992).
Propriety of use of multiple juries at joint trial of multiple defendants in state criminal
prosecution. (See also 75 Am Jur 2d, Trial § 24.5.) 41 ALR4th 1189.
Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of
accessory, or aider and abettor; 9 ALR4th 972. superseding 24 ALR 603.
Case authorities:
Rule 14 of the Federal Rules of Criminal Procedure, which permits a Federal District Court to
grant a severance of defendants if it appears that a defendant or the prosecution is prejudiced by a
joinder, does not require severance as a matter of law where codefendants present mutually
antagonistic defenses, given that (1) such defenses are not prejudicial per se, and (2) Rule 14
does not require severance even if prejudice is shown, but Rule 14 leaves the determination of
risk of prejudice and the tailoring of the relief to be granted, if any, to the District Court's sound
discretion. Zafiro v United States (1993, US) 122 L Ed 2d 317, 113 S Ct 933, 93 CDOS 535, 93
Daily Journal DAR 1049, 6 FLW Fed S 861.
Aider can be convicted even where principal is acquitted in light of 18 USCS § 2 which treats
aiders and abettors as principals for purposes of federal law. United States v Brunson (1981, CA7
Ind) 657 F2d 110.
In prosecution for aiding and abetting employee of federally-insured savings and loan institution
to fraudulently misapply funds, conviction of aider and abettor was proper, even after employee
was acquitted on grounds of insufficient evidence, since apparent inconsistency in verdicts alone
did not upset jury conviction of aider and abettor, in view of fact that there was reasonable
possibility of legitimate explanation for apparent inconsistency, and fact that there was sufficient
evidence otherwise to support conviction. United States v Upshaw (1982, CA9 Cal) 685 F2d
1202.
Page 138 of 575
Accessory after fact may be tried and convicted, notwithstanding fact that principal felon may not
have been arrested, tried, convicted, or amenable to justice, but accessory after fact cannot be
convicted or punished where principal felon has been acquitted. State v Chism (1983, La) 436 So
2d 464.
Under statute allowing prosecution of accomplice even if principal has been acquitted, conviction
of wife who pleaded guilty to accomplice role in murder of husband would not be reversed even
though principal, alleged contract killer, was acquitted. State v Kaplan (1983) 124 NH 382, 469
A2d 1354.
Where evidence was insufficient to sustain conviction of municipal agency chairman for having
unlawful interest in public contract, convictions of his wife and a property grantor as aiders and
abettors were also reversed. State v Jacobozzi (1983) 6 Ohio St 3d 59, 6 Ohio BR 103, 451 NE2d
744.
Footnotes
Footnote 87. State v Shon, 47 Hawaii 158, 385 P2d 830.
Footnote 88. Christie v Commonwealth, 193 Ky 799, 237 SW 660.
Footnote 89. State v Wilson, 235 Iowa 538, 17 NW2d 138.
Footnote 90. Daughtrey v State, 46 Fla 109, 35 So 397; McCarty v State, 44 Ind 214;
Commonwealth v Minnich, 250 Pa 363, 95 A 565; State v Hess, 233 Wis 4, 288 NW 275.
State v Jackson, 270 NC 773, 155 SE2d 236 (in separate trial of defendant as aider and abettor,
state must prove guilt of principals independent of prior plea of guilty).
Footnote 91. Daughtrey v State, 46 Fla 109, 35 So 397; Commonwealth v Minnich, 250 Pa 363,
95 A 565.
Footnote 92. United States v Mimee (DC Mich) 89 F Supp 148; Hanoff v State, 37 Ohio St 178;
Pierce v State, 130 Tenn 24, 168 SW 851.
Footnote 93. Commonwealth v Hicks, 118 Ky 637, 82 SW 265.
Footnote 94. State v Fley, 4 SCL 338.
Although an accessory may be tried before the principal is tried, the accessory may defend on the
Page 139 of 575
ground that the commonwealth has failed to prove the commission by the principal of the felony
charged. Commonwealth v Di Stasio, 298 Mass 562, 11 NE2d 799.
Footnote 95. Von Patzoll v United States (CA10 Okla) 163 F2d 216, cert den 332 US 809, 92 L
Ed 386, 68 S Ct 110; State v Jones, 91 Ark 5, 120 SW 154; Lowe v People, 135 Colo 209, 309
P2d 601; Stone v State, 118 Ga 705, 45 SE 630; Levering v Commonwealth, 132 Ky 666, 117
SW 253; State v Gleim, 17 Mont 17, 41 P 998; Cody v State (Okla Crim) 361 P2d 307, 84
ALR2d 997.
An aider and abettor constitutes a principal in the first degree, and a conviction of the original
offender is not a predicate to conviction of the aider and abettor. Blackburn v State (Fla App D4)
314 So 2d 634, cert den (Fla) 334 So 2d 603 and cert den 429 US 864, 50 L Ed 2d 142, 97 S Ct
170, reh den 429 US 933, 50 L Ed 2d 303, 97 S Ct 342.
Aiding and abetting the commission of a crime is a substantive and independent offense for
which aiders and abettors may be prosecuted and convicted as principals without the trial or
conviction of the principal offender. Prosecution of an aider or abettor does not require proof
beyond a reasonable doubt that the principal violated the law. State v Graven, 52 Ohio St 2d
112, 6 Ohio Ops 3d 334, 369 NE2d 1205.
§ 176 – Effect of principal's acquittal or conviction of lesser offense [21 Am Jur 2d
CRIMINAL LAW]
The acquittal of the principal is no impediment to the trial and conviction of a person charged
with aiding and abetting the commission of the crime, 96 unless a statute forbids conviction of
an accessory after the principal has been tried and acquitted. 97 Neither the double jeopardy
clause nor the due process clause of the Fifth Amendment forecloses putting a federal criminal
defendant on trial as an aider and abettor simply because another jury has determined that his
principal was not guilty of the offenses charged. 98 Likewise, an aider or abettor may be
convicted of a felony although the principal has been convicted of a mere misdemeanor. 99 But
if, in fact, no crime has been committed, no one can be convicted as an aider and abettor. 1
Thus, if the act alleged to be an offense is found on trial of the principal to have been
justified–for instance, by the fact that the principal was acting in self-defense–no one can be
convicted of being an aider and abettor of the act. 2
§ 176 – Effect of principal's acquittal or conviction of lesser offense [SUPPLEMENT] [21
Am Jur 2d CRIMINAL LAW]
Practice Aids: Acquittal of principal, or his conviction of lesser degree of offense, as affecting
prosecution of accessory, or aider and abettor; 9 ALR4th 972. superseding 24 ALR 603.
Page 140 of 575
Case authorities:
Under FS § 777.011, which provides that whoever aids or abets in the commission or attempted
commission of a criminal offense is a principle in the first-degree, defendant was properly
convicted as an aidor and abettor of aggravated burglary notwithstanding the fact that the actual
perpetrator of the crime had been convicted only of simple burglary, in that the statute does not
require evidence that the principal perpetrator has been convicted of any crime, much less the
same crime for which the aidor-abettor is ultimately convicted. Moreover, to require consistency
in the judgments meted out to defendant and his partner in crime would invade the province of
the jury, and accordingly the judgments and sentences, although inconsistent, would be deemed
independent and would stand or fall on their own merits. Potts v State (1982, Fla) 430 So 2d 900.
Where defendant, who was charged as accessory before fact, and principal were placed on trial in
separate proceedings in connection with beating death of robbery victim, defendant's conviction
of first-degree murder was improper since principal, who was also charged with murder, was
convicted only of assault and battery. Davis v State (1977) 267 Ind 152, 368 NE2d 1149.
Subsequent acquittal of principal in first-degree does not affect trial or conviction of principal in
second-degree. Jeter v State (1971) 261 Md 221,274 A2d 337.
Fact that triggerman was convicted of first-degree manslaughter did not preclude first-degree
murder conviction of 15-year-old defendant tried as co-principal in ambush killing by gunshots.
Daugherty v State (1982, Okla Crim) 640 P2d 558.
A defendant could bc convicted as an aider and abettor of violating FS § 847.012(1), (2), which
prohibits selling harmful material depicting sexual conduct to a juvenile, if the evidence
established that he had authorized, instructed, induced or otherwise caused an employee to sell
the material to a juvenile notwithstanding the fact that the employee charged with personally
making the sale had been acquitted in her criminal trial on the same charge. State v Glassman
(1982, Fla App D4) 414 So 2d 204.
On remand in prosecution of two defendants for murder, trial court properly denied motion of
defendant who was accessory to reduce charge against him to second-degree murder since the
jury was only allowed to find, on double jeopardy grounds, and did find, that defendant who was
principal was guilty of second-degree murder, and since alder and abettor can be tried and
convicted of higher degree of crime than principal if facts support conviction. State v Wilder
(1980) 25 Wash App 568, 608 P2d 270, 9 ALR4th 965.
Footnotes
Footnote 96. Roberts v People, 103 Colo 250, 87 P2d 251; Christie v Commonwealth, 193 Ky
799, 237 SW 660; State v Thompkins, 220 SC 523, 68 SE2d 465.
Page 141 of 575
A criminal defendant accused of aiding and abetting in the commission of a federal offense in
violation of 18 USCS § 2 may properly be convicted after the named principal has been
acquitted of that offense, the enactment of § 2 rendering all participants in conduct violating a
federal criminal statute "principals" and, as such, punishable for their criminal conduct regardless
of the fate of the other participants; accordingly, a federal criminal defendant may properly be
convicted on all counts of an indictment charging him with aiding and abetting an agent of the
Internal Revenue Service in accepting unlawful compensation in violation of 26 USCS §
7214(a)(2) and 18 USCS § 2, despite the fact that the agent, the only named principal, was
previously acquitted on certain of the § 7214(a)(2) violations which the defendant was accused of
aiding and abetting, the defendant being entitled to no more than a fair trial at which the
government bears the burden of proving beyond a reasonable doubt that the agent violated §
7214(a)(2) and that the defendant aided and abetted him in that venture. Standefer v United
States, 447 US 10, 64 L Ed 2d 689, 100 S Ct 1999.
Under a statute abolishing the distinction between an accessory before the fact and a principal, a
judgment in a separate trial acquitting the actual perpetrator of the crime is neither res judicata
nor a bar to the prosecution of accused of the charge against him. State v Young (Iowa) 211
NW2d 352.
Practice Aids: Conviction of Accessory Before Fact After Acquittal of Principal. 24 Marq L Rev
164.
Footnote 97. McCarty v State, 44 Ind 214; Pierce v State, 130 Tenn 24, 168 SW 851.
Footnote 98. Standefer v United States, 447 US 10, 64 L Ed 2d 689, 100 S Ct 1999.
Footnote 99. Christie v Commonwealth, 193 Ky 799, 237 SW 660.
Footnote 1. Bowen v State, 25 Fla 645, 6 So 459; Mulligan v Commonwealth, 84 Ky 229, 1 SW
417; Goucher v State, 113 Neb 352, 204 NW 967.
In prosecution for aiding and abetting exportation of firearms without license, burden is on
government to prove that someone committed crime of exporting without license, thus where
evidence was that: (1) weapons were purchased by defendants or coconspirators, (2) weapons
came into hands of authorities in Northern Ireland, (3) there were overt and clandestine meetings
and discussions concerning lawful and unlawful purchase of weapons; but Government failed to
produce one scintilla of evidence concerning the illegal exportation of weapons described in
indictment, evidence was insufficient for jury to find beyond reasonable doubt that offense had
been committed by anyone and thus conviction for aiding and abetting would be reversed.
United States v Byrne (ED Pa) 422 F Supp 147, affd in part and vacated in part on other grounds
(CA3 Pa) 560 F2d 601, cert den 434 US 1045, 54 L Ed 2d 796, 98 S Ct 890.
To aid and abet commission of crime, there must be actual crime committed. United States v
Page 142 of 575
Hyatt (CA2 NY) 565 F2d 229.
Trial court properly instructed the jury that in order to convict someone on the basis of aiding and
abetting, the criminal actions must have been committed by someone, even though defendant did
not personally commit the criminal act. United States v Gleason (CA2 NY) 616 F2d 2, cert den
444 US 1082, 62 L Ed 2d 767, 100 S Ct 1037 and cert den 445 US 931, 63 L Ed 2d 764, 100
S Ct 1320.
Other individual must have violated substantive federal law in order for defendant to be
convicted under 18 USCS § 2(b). United States v Ruffin (CA2 NY) 613 F2d 408, 52 ALR Fed
737.
Aider and abettor may be convicted under 18 USCS § 2(b) even though principal has not been
prosecuted. United States v Ruffin (CA2 NY) 613 F2d 408, 52 ALR Fed 737.
Instructions in prosecution for violation of 18 USCS § 2 while appropriate in instructing the jury
primarily on the theory that defendant was charged under subsection (a) was incorrect in addition
of phrase "otherwise you must acquit" since evidence permitted conviction of defendant as
"causer" under subsection (b) which was also charged; however, the error did not preclude a
finding that defendant was guilty under subsection (b), since the government had sought
conviction under either subsection. United States v Ruffin (CA2 NY) 613 F2d 408, 52 ALR Fed
737.
The proof must establish that the offense was committed by someone and that the person charged
as an aider and abettor did aid and abet its commission. However, it is not necessary to identify
the actual perpetrator of the crime. He may be unknown. The fact that one mistakenly supposed
to have committed a crime was tried therefor and acquitted does not affect the guilt of one proven
to have been present aiding and abetting, so long as it is established that the crime was
committed by someone. Von Patzoll v United States (CA10 Okla) 163 F2d 216, cert den 332
US 809, 92 L Ed 386, 68 S Ct 110.
One cannot be criminally liable as an aider and abettor in the commission of an act which is not
in fact criminal. United States v Zerbst (DC SC) 111 F Supp 807.
Footnote 2. Kelley v State, 79 Fla 182, 83 So 909.
§ 177 Jurisdiction and venue where offense in one jurisdiction is aided and abetted in
another [21 Am Jur 2d CRIMINAL LAW]
Unless a statute otherwise provides, an accessory before the fact operating solely from a foreign
jurisdiction to abet a felonious act in another state is not triable in the state of the crime 3 if he
does no act sufficient to establish actual or constructive presence in the jurisdiction where the
Page 143 of 575
crime is committed. 4 If, however, the jurisdiction in which the crime is committed has a statute
providing that an aider or abettor shall be deemed a principal, an aider in one state who procures
the commission of a crime in another state may be prosecuted and punished in the state of the
crime as a principal. 5
There is a holding that the jurisdiction where the incitement to a crime originates may not punish
for a crime committed in another state; 6 but a statute may provide for punishment of one who
abets the commission in another state of an act that is a felony under the laws of the other state. 7
A state may provide by statute for the prosecution of an accessory before the fact in the county
where the accessory acted or in the county where the principal offense was committed. 8
In misdemeanors there are no accessories and all who in any manner participate in the
commission of the crime are regarded as principals. 9 Hence, if a person in one state procures
the commission of a misdemeanor in another state, he is regarded as a principal in the offense
and as being present at the place where it is committed and as answerable there for the crime. 10
§ 177 – Jurisdiction and venue where offense in one jurisdiction is aided and abetted in
another [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
In prosecution for violation of 18 USCS § 2, government is not required to offer direct evidence
of venue where circumstantial evidence as whole supports inference that crime was committed in
trial district; since prior actions of coconspirators in furtherance of conspiracy are attributable to
one who later joins conspiracy, conversations between defendant and codefendant and
defendant's drive through particular district on way to obtain contraband are attributable to third
party who later joins conspiracy outside of such district and therefore venue is properly
established with respect to third party in district in which conspiracy began. United States v
Davis (1982, CA5 Ga) 666 F2d 195.
Footnotes
Footnote 3. State v Sigh, 38 Del 362, 192 A 682; Johns v State, 19 Ind 421.
Footnote 4. State v Sigh, 38 Del 362, 192 A 682.
Footnote 5. Newton v People, 96 Colo 246, 41 P2d 300; State v Grady, 34 Conn 118; People v
Werblow, 241 NY 55, 148 NE 786.
Footnote 6. People v Werblow, 241 NY 55, 148 NE 786.
Page 144 of 575
Footnote 7. Cruthers v State, 161 Ind 139, 67 NE 930.
Footnote 8. State v Sigh, 38 Del 362, 192 A 682; State v Moore, 26 NH 448.
An aider and abettor may be tried in the district in which the principal committed the substantive
crime. United States v Buckhanon (CA8 Minn) 505 F2d 1079.
Footnote 9. § 172, supra.
Footnote 10. State v Chapin, 17 Ark 561.
§ 178 Punishment of joint offenders [21 Am Jur 2d CRIMINAL LAW]
Although joint actors in the commission of a crime are jointly tried and convicted, each must be
separately punished as if he had committed the offense alone and each must respond in full to his
own separate sentence. 11
At common law and under statutes an accessory before the fact is considered as guilty as the
principal and is punished accordingly. 12
Footnotes
Footnote 11. State v White, 125 Tenn 143, 140 SW 1059; Thompson v State, 105 Tenn 177, 58
SW 213.
Footnote 12. Warford v State, 214 Ark 423, 216 SW2d 781, 8 ALR2d 996; Chambers v State,
194 Ga 773, 22 SE2d 487, ans conformed to 68 Ga App 338, 23 SE2d 545; Spies v People, 122
Ill 1, 12 NE 865, error dismd 123 US 131, 31 L Ed 80, 8 S Ct 22; State v Wilson, 235 Iowa
538, 17 NW2d 138; Sams v Commonwealth, 294 Ky 393, 171 SW2d 989; Pierce v State, 130
Tenn 24, 168 SW 851.
D. Criminal Responsibility for Acts of Another [179-182]
§ 179 Generally [21 Am Jur 2d CRIMINAL LAW]
The criminal acts of one person cannot be charged to another without a showing that the other
participated directly or constructively in the acts, 13 or a showing that the acts were done in
furtherance of a common design or in prosecution of a common purpose for which the parties
Page 145 of 575
were combined. 14 But an instigator is responsible for acts done by an innocent or irresponsible
person. 15
Ordinarily one person is not answerable for the misconduct of another who is not subject to
contract of the first, 16 but a contractor has been held criminally liable for the act of an
independent contractor. 17
§ 179 – Generally [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Circumstancial evidence was sufficient to support giving of ostrich instruction, where defendant
claimed he lacked guilty knowledge of fact that check which he cashed for "Doris" for exorbitant
fee was stolen, where, contrary to "Doris's" testimony, he claimed to have met her that day, but
did nothing to confirm her identify; effort to avoid guilty knowledge need not be physical, but
may be psychological, a cutting off of one's normal curiousity by effort of will. United States v
Stone (1993, CA7 Ind) 987 F2d 469.
Person in position of "passive" defendant may be held criminally liable for failing to seek
emergency medical aid for child seriously injured by "active" defendant where defendants, as
adults other than parents, have undertaken by contract to provide 24-hour custodial care for child
and they have physical capacity to take necessary steps to secure any required medical care.
People v Wong (1993) 81 NY2d 600, 601 NYS2d 440, 619 NE2d 377.
In prosecution for aggravated kidnapping, jury was not required to accept defendant's version of
facts relating to defense of duress, and could reasonably have decided that defendant voluntarily
participated in kidnapping and sexual abuse of complainant where complainant testified that
defendant never argued with accomplice concerning her abduction or molestation, that she never
heard accomplice threaten defendant or saw him point gun at defendant, that defendant never
acted afraid, mad, or upset during episode, and that defendant voluntarily engaged in and seemed
to enjoy sexual activity. Thornburg v State (1985, Tex App Houston (1st Dist)) 699 SW2d 918ec.
Footnotes
Footnote 13. Partridge v State, 88 Ark 267, 114 SW 215; Louisville R. Co. v Commonwealth,
130 Ky 738, 114 SW 343; People v Joseph, 11 Misc 2d 219, 172 NYS2d 463.
Footnote 14. Butler v People, 125 Ill 641, 18 NE 338; Commonwealth v Moore, 121 Ky 97, 88
SW 1085.
Footnote 15. People v Adams (NY) 3 Denio 190, affd 1 NY 173; Red v State, 39 Tex Crim 667,
Page 146 of 575
47 SW 1003.
Footnote 16. Blocker v Commonwealth, 153 Ky 304, 155 SW 723.
Footnote 17. Commonwealth v Hong, 261 Mass 226, 158 NE 759.
§ 180 Acts of confederates, coconspirators, and the like [21 Am Jur 2d CRIMINAL LAW]
If one combines with others to accomplish an illegal purpose, he is liable criminally for
everything that is done by his confederates incidental to the execution of the common design, as
one of its probable and natural consequences, even though what was done was not intended as a
part of the original design or common plan. 18
This is true though the defendant was not
present when the act was committed. 19 This rule of criminal responsibility for the acts of others
is subject to the reasonable limitation that the particular act must be shown to have been done in
furtherance or in prosecution of the common object and design for which the parties were
combined. 20 But if one of a number of conspirators commits a fresh and independent act,
wholly outside and foreign to the common design, the others are not held equally guilty of that
act. 21
Footnotes
Footnote 18. Boyd v United States, 142 US 450, 35 L Ed 1077, 12 S Ct 292; Crow v State, 52
Ga App 192, 182 SE 685; State v Shon 47 Hawaii 158, 385 P2d 830; Spies v People, 122 Ill 1,
12 NE 865, error dismd 123 US 131, 31 L Ed 80, 8 S Ct 22; Jenkins v Commonwealth, 167 Ky
544, 180 SW 961 (ovrld on other grounds Commonwealth v Barnett 196 Ky 731, 245 SW 874);
People v Friedman, 205 NY 161, 98 NE 471; Conrad v State, 75 Ohio St 52, 78 NE 957.
It is not necessary for a defendant to do any particular act constituting at least part of a crime in
order to be convicted of that crime under the concerted action principle so long as he is present at
the scene of the crime and the evidence is sufficient to show he is acting together with another
who does the acts necessary to constitute the crime pursuant to a common plan or purpose to
commit the crime. State v Joyner, 297 NC 349, 255 SE2d 390.
Footnote 19. Romero v State, 101 Neb 650, 164 SW 554; Parish v Commonwealth, 206 Va 627,
145 SE2d 192, cert den 384 US 942, 16 L Ed 2d 540, 86 S Ct 1463.
Hibernation of participant for few months did not necessarily constitute discontinuance of single
criminal conspiracy, and conspiracy was not terminated simply by turnover in some of personnel
absent indication that major participants viewed mutual dealings as terminated, where significant
relationships in conspiracy remained intact. United States v Panebianco (CA2 NY) 543 F2d 447,
cert den 429 US 1103, 51 L Ed 2d 553, 97 S Ct 1128, 97 S Ct 1129.
Page 147 of 575
Footnote 20. Butler v People, 125 Ill 641, 18 NE 338; State v Furney, 41 Kan 115, 21 P 213;
Powers v Commonwealth, 110 Ky 386, 61 SW 735, supp op 110 Ky 462, 63 SW 976; State v
Hickam, 95 Mo 322, 8 SW 252.
Robbery of guard during armed escape attempt was probable consequence of execution of escape
plans, and all principals in attempted escape were liable for robbery. Thompson v State (Tex
Crim) 514 SW2d 275.
Footnote 21. Butler v People, 125 Ill 641, 18 NE 338; Powers v Commonwealth, 110 Ky 386, 61
SW 735, supp op 110 Ky 462, 63 SW 976; State v Darling, 216 Mo 450, 115 SW 1002.
§ 181 Acts of agents, servants, or employees [21 Am Jur 2d CRIMINAL LAW]
Unless he in some way participates in, counsels, or approves of what the servant does, or, as it is
sometimes put, unless he counsels, commands, aids, or abets, or procures the commission of, an
act, 22 an employer or principal is not, in the absence of a statute, criminally liable for the acts
of his employee or agent. 23 An employer is, of course, responsible if he participates with his
agent or employee in the commission of a crime, 24 or if he causes the illegal act to be done, or
requests, commands, or in any way authorizes it. 25 It has been said that if a servant with the
consent or connivance of the master commits a felony, the servant is the principal and the
employer an accessory, except that if the offense is a misdemeanor, both are principals. 26
A statute may in certain instances fix criminal responsibility on an employer or principal for an
act committed by his employee or agent. 27
Footnotes
Footnote 22. Hipp v State (Ind) 5 Blackf 149; Commonwealth v Stevens, 153 Mass 421, 26 NE
992.
Footnote 23. People v Doble, 203 Cal 510, 265 P 184; Commonwealth v Stevens, 153 Mass 421,
26 NE 992; Commonwealth v Jackson, 345 Pa 456, 28 A2d 894; Spokane v Patterson, 46 Wash
93, 89 P 402.
It is a settled rule of law that a principal is not criminally liable for the criminal act of his agent
unless he authorized, consented to, advised, aided or encouraged the specific act. An exception
to this rule is the doctrine of criminal liability without fault which has been applied to criminal
statutes enacted for the public morals, health, peace and safety. In general, such statutes deal with
offenses of a regulatory nature and are enforceable irrespective of criminal intent or criminal
negligence. People v Travers (1st Dist) 52 Cal App 3d 111, 124 Cal Rptr 728.
Page 148 of 575
Footnote 24. Commonwealth v Nichols, 51 Mass 259; Commonwealth v Gillespie (Pa) 7 Serg &
P 469.
Footnote 25. Commonwealth v Nichols, 51 Mass 259; State v Armstrong, 106 Mo 395, 16 SW
604; State v Baker, 199 NC 578, 155 SE 249.
Footnote 26. People v Adams, 3 Denio (NY) 190, affd 1 NY 173; State v Kittelle, 110 NC 560,
15 SE 103.
Footnote 27. Weeks v United States, 245 US 618, 62 L Ed 513, 38 S Ct 219; Knight v
Commonwealth, 194 Ky 563, 240 SW 40; Commonwealth v Sacks, 214 Mass 72, 100 NE 1019;
John Barth Co. v Brandy, 165 Wis 196, 161 NW 766.
§ 182 – Relation of act to employment [21 Am Jur 2d CRIMINAL LAW]
An employer is not required to answer criminally for acts done outside the scope of the servant's
authority. 28 He is not responsible unless the criminal act was the result of opportunity afforded
the servant by employment in the employer's business. 29 But where the act is shown to have
been one that the employee or agent was engaged to perform, the employer or principal may be
held responsible. 30
§ 182 – Relation of act to employment [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
In trial for sale of controlled substance in third-degree, court erred in refusing to charge jury on
agency defense where (1) undercover officer was sent to specified location to make buy of
controlled substance after search warrant had been secured for specific apartment at location, (2)
upon arriving at location, officer approached defendant and asked him "what's happening?" and
defendant responded by asking if officer was "looking for some coke," and (3) after brief
conversation, officer gave defendant $30, defendant went into building and returned with packet
which he gave to officer, and officer gave defendant $1 tip; reasonable view of evidence would
support inference that defendant was acting as agent of officer and receipt of tip did not, in and of
itself, negate agency defense. People v Kirk (1988, 2d Dept) 143 App Div 2d 683, 532 NY S2d
925, app den 73 NY2d 856, 537 NYS2d 503, 534 NE2d 341.
Footnotes
Footnote 28. Locke v Stearns, 42 Mass 560.
Footnote 29. Hipp v State (Ind) 5 Blackf 149; Dezarn v Commonwealth, 195 Ky 686, 243 SW
Page 149 of 575
921; Commonwealth v Riley, 196 Mass 60, 81 NE 881; Hall v Norfolk & W. R. Co., 44 W Va
36, 28 SE 754.
Footnote 30. Commonwealth v Gillespie (Pa) 7 Serg & R 469; Spokane v Patterson, 46 Wash 93,
89 P 402.
VI. DEFENSES [183-335]
A. In General [183-191]
§ 183 Generally; affirmative defenses [21 Am Jur 2d CRIMINAL LAW]
The law sanctions many defenses in order that persons charged with crime may not be unjustly
convicted or be prosecuted a second time for the same act. 31 It is the right of an accused to
utilize any and all defenses in his behalf, 32 and to present as many defenses as he has or thinks
he has. 33
An affirmative defense is one that admits the doing of the act charged, but seeks to justify,
excuse, or mitigate it, 34 or, as in former jeopardy, to invoke a bar arising out of facts dehors the
record. 35 Every reason offered as justification or excuse for the commission of an act,
however, is not accepted. 36 Although the law throws safeguards around an accused, it does not
seek technical excuses to enable criminals to escape the consequences of their crimes. 37 For
example, it is no defense to an indictment under one statute that the accused may also be
punished under another. 38 Likewise, the death of a prosecuting witness has no effect upon the
crime charged and cannot be set up as a bar to a criminal prosecution, even though it may impair
the ability of the state to prove its case. 39 And, since a crime is viewed as a wrong against the
state rather than an individual, it is immaterial whether a particular victim suffered physical
harm, or whether there even was an individual victim of the defendant's criminal conduct. 40
Although the prosecution must prove beyond a reasonable doubt every element of the crime
charged, 41 it need not disprove beyond a reasonable doubt every fact constituting an
affirmative defense. Consistently with due process, a state may require a defendant to prove his
affirmative defense by a preponderance of the evidence, so long as the prosecution is not thereby
relieved of its burden of proving the facts constituting the crime. 42
Page 150 of 575
§ 183 – Generally; affirmative defenses [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Thorpe and Baumeister, The Death of Diminished Capacity and the Birth of
Diminished Actuality: A Recent California Review. 8 Am J Foren Psych 21, 1990.
Fletcher, Self Defense As A Justification For Punishment, 12 Car LR 859, 1991.
Cultural conflicts in court: Should the American criminal justice system formally recognize a
"cultural defense"? 99 Dick LR 1:141 (1994).
Note, The Availability of the Cultural Defense" as an Excuse for Criminal Behavior. 16 Ga J Int
& Comp L 535, 1986.
Richards, The Jurisprudence of Prevention: The Right of Societal Self-Defense Against
Dangerous Individuals. 16 Hast LJ 329, Spring, 1989.
Morawetz, Reconstructing the Criminal Defenses: The Significance of Justification. 77 J Crim L
277, Summer, 1986.
The Use of Necessity Defense by Abortion Clinic Protesters. 81 J Crim L 677, Fall, 1990. Moral
reasoning and the criminal law: the example of self-defense, 30 Am Crim LR 97 (1992).
Battered woman syndrome evidence in the courtroom: A review of the literature. Special Issue:
Expert evidence, 16 Law & Hum Behav 3:273 (1992).
Battered woman syndrome testimony: Justice is done by the expansion of the battered woman
syndrome, 25 U Toledo LR 4:1039 (1995).
Trespass: state prosecution for unauthorized entry, or occupation, for public demonstration
purposes, of business, industrial, or utility premises. 41 ALR4th 773.
As to religious beliefs as defense to crime; Constitutional Law § 475. 16A Am Jur Legal Forms
2d § 475.
Case authorities:
Defense contingent upon assumption of fact may not be determined upon pretrial motion. United
States v Wecker (1985, DC Del) 620 F Supp 1002.
Court affirmed conviction for firearms offense, notwithstanding defendant's argument that
government's conduct of undercover operation was "so outrageous as to shock the conscience of
the court" and consequently violated his Fifth Amendment right to due process, where evidence
revealed that defendant had not hesitated to violate law by providing automatic shotguns, but
Page 151 of 575
merely held out for advantageous financial arrangements, and that he had not been directly
intimidated by government agents; further, confidential informant's contacts with one
coconspirator and with defendant had been authorized by Internal Revenue Service as by-product
of ongoing investigation of other coconspirator for money laundering. United States v Jones
(1992, CA4) 976 F2d 176, cert den (US) 124 L Ed 2d 260, 113 S Ct 2351.
Court affirmed convictions for narcotics offenses, in spite of defendants' contention that reverse
sting tactics used by police were unconstitutional, where police conduct had not been so
outrageous as to deprive defendants of due process of law; government involvement in
undercover operation may violate principles of due process only if so outrageous and shocking
that it exceeds bounds of fundamental fairness. United States v Huff (1992, CA8 Minn) 959 F2d
731, 35 Fed Rules Evid Serv 414, cert den (US) 121 L Ed 2d 110, 11 S Ct 162 and cert den
(US) 113 S Ct 162.
First Amendment does not provide defense to criminal charge simply because actor uses words to
carry out his illegal purpose; crimes frequently involve use of speech as part of criminal
transaction and use of speech in perpetrating crime does not immunize perpetrator from search or
prosecution. United States v Barnett (1982, CA9 Cal) 667 F2d 835.
In prosecution under 18 USCS § 111, giving of jury instruction which would preclude acquittal
based on excessive force theory of defense was not plain error, where defendants requested only
general self-defense instruction and did not rely on this theory at trial, although defense asserted
that instruction they offered was broad enough to encompass this theory, and they asserted it
during conference in chambers; jury instruction on right of defendant to resist unlawful arrest not
supported by probable cause was properly refused; instruction that told jury that officers were
engaged in official duties was not reversible error, and did not foreclose acquittal based on
excessive force theory of defense, although preferred course would have been to submit to jury
question whether marshals were engaged in official duties. United States v Span (1992, CA9
Ariz) 970 F2d 573, 92 CDOS 6028, 92 Daily Journal DAR 9500.
Defendant's being charged with possession of marijuana and psilocybin did not violate his right
to freedom of religion, although he claimed that he worshipped marijuana plants as gods and
used marijuana and psilocybin in his religious practices, since religious creed is no defense to
criminal charge. Rheuark v State (1992, Ala App) 601 So 2d 135, reh den, without op (Ala App)
1992 Ala Crim App LEXIS 309, cert den, without op (Ala) 1992 Ala LEXIS 945.
It is constitutional to place on a criminal defendant the burden of proving an affirmative defense.
Constitutional requirements are satisfied if the prosecution is required to prove all of the essential
elements of the offense. People v Tenner (1992, 2nd Dist) 10 Ca/App 4th 1251, 13 Cal Rptr 2d
200, 92 CDOS 9094, 92 Daily Journal DAR 15020.
An instruction estopping one from asserting self-defense is not proper except in the few rare
cases where all the elements of estoppel are clearly present; the reason for permitting a
Page 152 of 575
self-defense theory to be decided by a jury far outweighs the reasons for estopping one from
asserting this most basic right. Thompson v State (1992, Miss) 602 So 2d 1185.
Although defendant testified that he feared fight with decedent, he repeatedly stated that shooting
was accidental; accordingly, he was not entitled to charge on self-defense. Koritta v State (1992)
206 Ga App 228, 424 SE2d 799, 92 Fulton County D R 2495, cert gr (Ga) 1993 Ga LEXIS 615.
The prevention of possible future harm does not excuse a current systematic violation of the law
in anticipation of the eventual overall benefit to the public. Commonwealth v Leno (1993) 415
Mass 835, 616 NE2d 453, summary op at (Mass) 21 M.L.W. 3126.
The defendant participants in a needle exchange program to combat the spread of acquired
immune deficiency syndrome could not defend in a prosecution for the distribution of
hypodermic syringes without a prescription on the basis of justification by necessity since the
prevention of possible future harm does not excuse a current systematic violation of the law in
anticipation of the eventual overall benefit to the public. Commonwealth v Leno (1993) 415
Mass 835, 616 NE2d 453, summary op at (Mass) 21 M.L.W. 3126.
Aside from claim of mental disease or defect, defendant is under no obligation to inform state of
his defense prior to trial; thus, in prosecution for robbery and kidnapping, prosecutor improperly
told jury that state first learned of particular defense while case was being tried, implying defense
counsel had suborned perjury or fabricated defense. State v Harris (1983, Mo App) 662 SW2d
276.
Although trial court did sufficiently instruct jury with respect to reasonable belief element of
justification defense and failed to properly instruct jurors that they should consider both
subjective and objective factors in determining whether defendant's conduct was reasonable,
reversal of defendant's conviction in interest of justice was not warranted where there was strong
evidence of guilt to rebut justification defense. People v Kopera (1992, 4th Dept) 184 AD2d
1007, 584 NYS2d 245.
Defense of justification is based on real emergency to avoid immediate public or private injury as
determined by ordinary standards of morality and intelligence, and it cannot be used to legitimize
unlawful action intended to limit advancement of ideas contrary to one's own. People v Scutari
(1990) 148 Misc 2d 440, 560 NYS2d 943.
Where each defendant contended not only that other defendant had stabbed victim but that he
himself was blameless eye-witness, defenses were irreconcilable. Woodruff v State (1992, Okla
Crim) 825 P2d 273.
In a prosecution for criminal solicitation and criminal attempt based on a reverse sting operation
in which undercover officers arranged to sell 100 pounds of marijuana to the defendant, the court
would reject the defendant's contention that police involvement in the reverse sting operation was
Page 153 of 575
so outrageous that the prosecution would be barred on due process grounds. The defendant's due
process rights were not violated by the fact that the police used an untrained informant who was
permitted to make the initial contact without police supervision, by the fact that the police
provided the defendant with a marijuana sample and offered him an opportunity to make a
substantial profit or by the fact that the police used an informant who was paid a contingency fee.
Commonwealth v Mance (1995, Pa) 652 A2d 299.
In a prosecution for, inter alia, recklessly endangering another person arising from the starvation
death of the defendants' 14-year-old son and the malnutrition of their 12-year-old daughter, the
court properly refused to instruct the jury that, if the jury found the children to be of sufficient
intellect and maturity and to have voluntarily refrained from eating based on their religious
beliefs, then they must conclude that the defendants did not have a legal duty to provide food to
their children since the fact that the children might have been mature enough to assert a religious
identity (1) had no bearing on whether they were mature enough to decide to refrain from eating
for 42 consecutive days, and (2) did not dispel the defendants' duty to provide parental care,
direction and sustenance. Commonwealth v Cottam (1992, Super Ct) 616 A2d 988.
In a prosecution for, inter alia, recklessly endangering another person arising from the starvation
death of the defendants' 14-year-old son and the malnutrition of their 12-year-old daughter,
although the defendants alleged a defense of mistake of fact in that they believed in divine
intervention, they had no choice but to seek help, despite their religious beliefs, when they were
faced with a condition which threatened the lives of their children. Commonwealth v Cottam
(1992, Super Ct) 616 A2d 988.
In a prosecution for, inter alia, recklessly endangering another person arising from the starvation
death of the defendants' 14-year-old son and the malnutrition of their 12 year-old-daughter while
the defendants had about $3,000 at their disposal, the sincerity and validity of the defendants'
religious beliefs were not unconstitutionally called into question by testimony that tithe money is
given to a church to distribute, which contradicted the defendants' stated belief that tithe money
must remain with the individual. Commonwealth v Cottam (1992, Super Ct) 616 A2d 988.
A defendant on trial for pointing and presenting a firearm was not entitled to a directed verdict
based on self-defense where it was undisputed that he approached a Wildlife Officer's unmarked
truck on a public road with his rifle in his hand, and the officer testified that the defendant then
shouldered the gun and ordered him to stop under threat of death. State v Davis (1992, SC App)
419 SE2d 820.
Statute governing the renunciation defense, would be interpreted to mean that a person
establishes the defense of renunciation if the person avoids committing the object offense and
circumstances show voluntary and complete renunciation of the attempt to commit the object
offense; thus, the fact that defendant's conduct constituted a completed attempt did not prevent
invocation of the renunciation defense, though a rational trier of fact could have found that the
evidence did not prove voluntary and complete renunciation by a preponderance. Thomas v State
Page 154 of 575
(1986, Tex Crim) 708 SW2d 861.
Footnotes
Footnote 31. Commonwealth v Hargreaves, 50 Pa D & C 641.
As to injunctions against criminal prosecutions and arrests, see 42 Am Jur 2d, Injunctions §§
188, 238-246.
Footnote 32. Tschuor v Meck, 72 Ariz 200, 232 P2d 848.
Footnote 33. People v De Rosa, 378 Ill 557, 39 NE2d 1.
Practice Aids: Clinton, The Right to Present a Defense: An Emergent Constitutional Guarantee
in Criminal Trials. 1976, 9 Ind L Rev 711.
13 Am Jur Trials 465, Defending Minor Felony Cases.
Footnote 34. United States v Parr (CA5 Tex) 516 F2d 458; Halko v State (Sup) 54 Del 180, 175
A2d 42.
Footnote 35. As to defense of former jeopardy generally, see §§ 243 et seq., infra.
Footnote 36. State v Swan, 55 Wash 97, 104 P 145.
Footnote 37. Ford v Commonwealth, 177 Va 889, 15 SE2d 50.
Footnote 38. State v Donahue, 75 Or 409, 144 P 755, 5 ALR 1121, adhered to 75 Or 420, 147 P
548.
Footnote 39. Commonwealth v Cunningham, 15 Ky 292
Practice Aids: Death of Prosecuting Witness. 1 Wharton's Criminal Law (14th ed) § 50.
Footnote 40. State v Forcier, 65 NH 42, 17 A 577
Practice Aids: Harm. 1 Wharton's Criminal Law (14th ed) § 75.
Footnote 41. 29 Am Jur 2d, Evidence §§ 148, et seq.
Footnote 42. 29 Am Jur 2d, Evidence § 156.
Page 155 of 575
As to existence of affirmative defense as question for jury, see 75 Am Jur 2d, Trial § 425.
Generally, as to weight and sufficiency of evidence and degree of proof required for defenses in
criminal prosecutions, see 30 Am Jur 2d, Evidence §§ 1160, 1176.
As to jury instructions on defenses in criminal prosecutions, see 75 Am Jur 2d, Trial § 727.
Practice Aids: Defenses, in general. 1 Wharton's Criminal Law (14th ed) § 39.
§ 184 Good character or reputation of accused [21 Am Jur 2d CRIMINAL LAW]
Good character or reputation of the accused is not a defense as a matter of law, but is a fact for
the jury's consideration in connection with other facts. 43 The object of laying the good
character of the accused before the jury is to induce them to believe, from the improbability that a
person of good character would have conducted himself as alleged, that there is some mistake or
misrepresentation in the evidence by the prosecution. 44 It is not a distinct, substantive defense.
45 If the evidence as a whole, including that relating to his good character, establishes his guilt
beyond a reasonable doubt, the defendant should be convicted. 46
Footnotes
Footnote 43. Hermansky v United States (CA8 Neb) 7 F2d 458; Springfield v State, 96 Ala 81,
11 So 250; State v McGuire, 84 Conn 470, 80 A 761; Greer v State, 159 Ga 85, 125 SE 52;
People v Munday, 280 Ill 32, 117 NE 286; Dorsey v State, 179 Ind 531, 100 NE 369; State v
Hillman, 203 Iowa 1008, 213 NW 603; Hallengren v State, 14 Md App 43, 286 A2d 213; State v
Demaree (Mo) 362 SW2d 500, 17 ALR2d 312; People v Miller, 35 NY2d 65, 358 NYS2d 733,
315 NE2d 785; Heartsill v State (Okla Crim) 341 P2d 625; State v Totten, 72 Vt Cupps v State,
120 Wis 504, 97 NW 210, reh den, adhered to 120 Wis 532, 98 NW 546.
As to jury instructions on character of accused, see 75 Am Jur 2d, Trial §§ 793-808.
As to good faith or beneficent intent of intervenor who comes to aid victim of struggle as
excluding criminal liability for assault or assault and battery, see 6 Am Jur 2d, Assault and
Battery § 21.
Practice Aids: Weight and effect of character evidence. 1 Wharton's Criminal Evidence (13th ed)
§ 239.
Footnote 44. State v Baldwin (Mo) 349 SW2d 212; State v Barth, 25 SC 175.
As to admissibility of evidence of good character, see 29 Am Jur 2d, Evidence §§ 339, et seq.
Page 156 of 575
Footnote 45. David v State, 143 Ga App 500, 238 SE2d 557
But see Taylor v State, 13 Ga App 715, 79 SE 924, later app 17 Ga App 787, 88 SE 696,
recognizing that proof of the accused's good character as a substantive fact may, in some cases,
not merely raise a reasonable doubt of his guilt, but provide an absolute defense by discrediting
the witness upon whose testimony the criminal charge rests.
Footnote 46. 29 Am Jur 2d, Evidence § 1127.
§ 185 Custom or usage [21 Am Jur 2d CRIMINAL LAW]
A custom or usage prevailing in a community or neighborhood cannot be set up as a defense to a
prosecution for crime, even though such custom or usage may have been for a long time
acquiesced in by the community in which it prevails. 47 It is said that custom and practice do
not nullify or repeal criminal laws 48 and that the prohibited conduct is no less a crime merely
because other persons in the locale customarily engage in it. 49 In other words, custom involving
criminality cannot justify a criminal act, 50 and it is no defense that the accused believed that a
custom permitted him to commit the crime with which he is charged. 51 Nevertheless, where
public officers act in conformity with a long established local custom, there is authority for the
view that an individual may assume that he will not be covertly prosecuted by such officials for
accepting the validity of such custom. Thus, the conviction of a defendant as an absconding
witness has been reversed where his failure to appear before a petit jury had resulted from his
being served only once with a grand jury subpoena, a procedure that was contrary to the
established local custom of the public officers to issue two separate subpoenas for the attendance
of witnesses before grand and petit juries. 52
Although it is generally not an excuse for the crime charged, proof of custom may be relevant to
show that the accused lacked a requisite criminal intent to commit the offense. 53
§ 185 – Custom or usage [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Note, The Availability of the "Cultural Defense" as an Excuse for Criminal
Behavior. 16 Ga J Int & Comp L 335, 1986.
Morawetz, Reconstructing the Criminal Defenses: The Significance of Justification. 77 J Crim L
277, Summer, 1986.
As to religious beliefs as defense to crime, Constitutional Law § 475. 16A Am Jur Legal Forms
2d § 475.
Page 157 of 575
Case authorities:
Record established that defendant's counsel adequately warned him of penal consequences of
guilty plea to charge of willful injury, and that defendant's plea had been entered voluntarily,
knowingly, and intelligently, where record indicated that attorney had explained to defendant
essentials of offense with which he had been charged, maximum penalty, and that previous
conviction of forcible felony would render defendant ineligible for parole until he had served
one-half maximum sentence, and where record indicated that defendant had attended one year of
college in Panama and had served seven years in United States Army, negating his claim to
difficulty with English language. Victor v State (1983, Iowa App) 339 NW2d 617.
Footnotes
Footnote 47. State v Evans (Fla App D3) 225 So 2d 548, cert den (Fla) 229 So 2d 261, cert den
397 US 1053, 25 L Ed 2d 668, 90 S Ct 1393; Bolln v State, 51 Neb 581, 71 NW 444, affd 176
US 83, 44 L Ed 382, 20 S Ct 287.
A custom by undertakers to conduct at their homes funerals of persons whose bodies they have
prepared for burial at their business establishments does not justify an undertaker in doing so
where he thereby violates a zoning ordinance excluding undertaking establishments from
residential districts. Ullrich v State, 186 Md 353, 46 A2d 637.
Practice Aids: Custom. 1 Wharton's Criminal Law (14th ed) § 49.
Footnote 48. United States v Slapo (SD NY) 285 F Supp 513; State v Dabbs, 228 La 960, 84 So
2d 601.
Footnote 49. Reynolds v United States, 98 US 145, 25 L Ed 244; Barnes v District of Columbia,
27 App DC 101; Garrett v State, 28 Ala App 78, 178 So 825; Everhart v People, 54 Colo 272,
130 P 1076; Hendry v State, 39 Fla 235, 22 So 647; People v Klein, 305 Ill 141, 137 NE 145;
Bankus v State, 4 Ind 114; Clark v Commonwealth, 111 Ky 443, 63 SW 740; Commonwealth v
Perry, 139 Mass 198, 29 NE 656; State v Sugarman, 126 Minn 477, 148 NW 466; State v Welch,
73 Mo 284; Crockford v State, 73 Neb 1, 102 NW 70; Hopper v Sage, 112 NY 530, 20 NE 350;
Columbus & H. Coal & Iron Co. v Tucker, 48 Ohio State 41, 26 NE 630; Jackson v National
Bank of McMinnville, 92 Tenn 154, 20 SW 802; Vick v State (Tex Crim) 69 SW 156.
Footnote 50. Burnett v United States (CA6 Ky) 222 F2d 426; Smith v United States (CA9 Ariz)
188 F2d 969; State v Atkins, 205 SC 450, 32 SE2d 372 (custom of automobile dealers with
reference to use of dealers' tags of license plates in violation of statute).
Footnote 51. Cain v State, 18 Ala App 624, 93 So 263 (custom for tenants of company to move
improvements from any part of premises to any other part of company property without
Page 158 of 575
permission).
Footnote 52. Commonwealth v Wilson, 158 Pa Super 198, 44 A2d 520
Footnote 53. As to custom as proof of accused's lack of requisite fraudulent intent, see 29 Am Jur
2d, Evidence § 304.
§ 186 Guilt of or agency for another [21 Am Jur 2d CRIMINAL LAW]
A defendant may, by proper evidence, prove that another person committed the crime with which
he is charged where the guilt of such other person is consistent with the defendant's innocence;
54 but the fact that persons other than the accused have also violated or are violating the law is
no defense, 55 although the particular violation may be of long standing, 56 and although the
other offenders have not been prosecuted. 57
An offender may be prosecuted under an
unrepealed criminal statute that has been dormant for many years. 58 It has been said that the
criminality of one person's act cannot rationally depend on whether the state decides to prosecute
another, 59 and that uniform operation of criminal justice does not require the release of the
guilty for failure to prosecute others equally guilty. 60
In other words, a defendant's conduct
cannot be excused by showing that someone else equally guilty has not been prosecuted, but
proof that another committed the crime charged is a proper defense where the other's guilt tends
to prove the defendant's innocence. 61
The law of agency as applied to civil cases has no application in criminal prosecutions, 62 at
least where it is specifically provided by statute that all persons concerned in the commission of a
crime are principals. 63 Individuals are personally responsible for their violation of law even
when committed in the course of representative action. 64 The criminal law does not recognize
the doctrine of agency as a defense to a criminal charge; it deals with the person committing the
overt act. 65 Accordingly, it is no defense or justification that the accused committed the alleged
crime simply as an agent, 66 employee, 67 or servant 68 of another.
§ 186 – Guilt of or agency for another [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Bakker, The Defense of Obedience to Superior Orders: The Mens Rea
Requirement. 17 Am J Crim L 55, Fall, 1989.
Admissibility of evidence of commission of similar crime by one other than accused 22 ALR5th
1.
Case authorities:
Where a trial court, at the defendant's request, had admitted testimony that another individual,
during the course of plea negotiations for other similar offenses, had confessed to the murder and
Page 159 of 575
sex offense with which the defendant was charged and had stated that he acted alone, the court
abused its discretion in refusing to admit corroboration of this defense claim in the form of
evidence of those other offenses and the circumstances of his confession to them. People v Cruz
(1994) 162 Ill 2d 314, 205 Ill Dec 345, 643 NE2d 636.
In a prosecution for sale of a controlled substance, Penal Law §§ 220.41, subd. 1 and 220.30,
defendant, who had sold cocaine to an undercover agent in a transaction arranged by an
informant and who, a few days later, communicated through the informant that she had a larger
quantity for sale, sold the officer a larger quantity, and refused to bargain as to price on the
ground that she would otherwise not make any money on the transaction, was not entitled to a
charge on an agency defense where there was no evidence that defendant participated in the sale
of narcotics out of a desire to accommodate a friend rather than for commercial purposes, and
where, even assuming that because the first sale was based on an introduction by the informant,
the jury could find that the defendant was merely acting as the informant's agent, this would not
demonstrate that defendant was the buyer's agent or was acting as an extension of the buyer.
People v Simpson (1982, 1st Dept) 85 App Div 2d 306, 448 N S2d 170.
Before agency charge is warranted, evidence must be indicative of relationship with buyer, not
merely raise ambiguities about defendant's connection to seller. People v Herring (1994) 83
NY2d 780, 610 NYS2d 949, 632 NE2d 1272, on remand (App Div, 1st Dept) 611 NYS2d 517.
Footnotes
Footnote 54. The defense that the act was in fact done by another without the assistance or
participation of the defendant is recognized. State v Smith (Mo) 377 SW2d 241.
As to admissibility of evidence incriminating persons other than accused, see 29 Am Jur 2d,
Evidence § 441.
Footnote 55. Grell v United States (CA8 Mo) 112 F2d 861; Patterson v State, 18 Ala App 55, 88
So 360; Brown v State, 57 Ga App 838, 197 SE 77; Callan v State, 156 Md 459, 144 A 350;
Caroli v Saxl, 192 Misc 887, 81 NYS2d 213; State v Stern, 64 ND 593, 254 NW 765; State v
Tyler, 82 Okla Crim 112, 166 P2d 1015; McWhorter v Commonwealth, 191 Va 857, 63 SE2d
20.
Footnote 56. Caroli v Saxl, 192 Misc 887, 81 NYS2d 213
Footnote 57. United States v Rickenbacker (CA2 NY) 309 F2d 462, cert den 371 US 962, 9 L
Ed 2d 509, 83 S Ct 542; United States v Manno (DC Ill) 118 F Supp 511; State v Haase, 97
Ohio App 377, 56 Ohio Ops 144, 68 Ohio L Abs 193, 116 NE2d 224: State v Mellenberger, 163
Or 233, 95 P2d 709; State v Carologos, 101 Vt 300, 143 A 284.
Page 160 of 575
Practice Aids: Conviction or acquittal of another; failure to prosecute another. 1 Wharton's
Criminal Law (14th ed) § 48.
Footnote 58. Everhart v People, 54 Colo 272, 130 P 1076
Footnote 59. Roy v State, 87 Nev 517, 489 P2d 1158.
Footnote 60. State v Smith (Mo) 422 SW2d 50, cert den 393 US 895, 21 L Ed 2d 176, 89 S Ct
150
Footnote 61. State v Krueger (ND) 124 NW2d 468.
Footnote 62. Medlock v State, 66 Okla Crim 27, 89 P2d 377.
Footnote 63. Beacham v State (Okla Crim) 289 P2d 397.
There can be no such thing as agency in the perpetration of a crime; all persons actively
participating are principals. Mo Yaen v State, 18 Ariz 491, 163 P 135.
Footnote 64. New York v Flynn, 140 Misc 497, 250 NYS 488.
Footnote 65. State v Chauvin, 231 Mo 31, 132 SW 243.
Footnote 66. Fisher v State, 161 Ark 586, 256 SW 858; Alt v State, 88 Neb 259, 129 NW 432;
Commonwealth v Hansell, 185 Pa Super 443, 137 A2d 816; Thompson v State, 105 Tenn 177,
58 SW 213; State v Ferry Line Auto Bus Co., 99 Wash 64, 168 P 893.
The actual perpetration of a crime through a guilty agent ordinarily constitutes the agent a
principal. Commonwealth v Mannos, 311 Mass 94, 40 NE2d 291.
Whether a person who acts as an agent for another in making sales of goods is to be held penally
or criminally responsible on the ground that the article sold was such as to be within the
prohibition of a statute defining the character, quality, etc., of such merchandise will ordinarily
depend on whether knowledge is a necessary element of the liability and, if so, on whether the
agent had knowledge that the statute was not being complied with. State v Faulkner, 175 NC
787, 95 SE 171.
Footnote 67. Giugni v United States (CA1 Puerto Rico) 127 F2d 786; Leonard v State, 38 Ala
App 138, 79 So 2d 803, cert den 262 Ala 702, 79 So 2d 808; La Vielle v People, 113 Colo 277,
157 P2d 621; State v Chauvin, 231 Mo 31, 132 SW 243; State v Western Union Tel. Co., 12 NJ
468, 97 A2d 480, app dismd 346 US 869, 98 L Ed 379, 74 S Ct 124; Commonwealth v
Hansell, 185 Pa Super 443, 137 A2d 816.
Page 161 of 575
The behest of an employer furnishes no excuse for the commission of an offense. Cassi v State,
86 Tex Crim 369, 216 SW 1099.
Footnote 68. Lochnar v State, 111 Md 660, 75 A 586.
In criminal cases, a master-and-servant relationship may constitute both as principals. Grantham
v State, 190 Miss 887, 2 So 2d 150.
§ 187 Contributory negligence or wrongful act of person injured [21 Am Jur 2d
CRIMINAL LAW]
Contributory negligence is not available as a defense in a criminal prosecution; 69
it cannot
purge an act otherwise constituting a public offense of its criminal character. 70 Specifically,
one who is guilty of criminal neglgience is not relieved from criminal responsibility by the
contributory negligence of the person injured or killed. 71 However, in some cases in which
defendant's guilt is based on his negligence, evidence of negligence on the part of a victim of the
defendant's act is admissible on behalf of the defendant as bearing on the question of his
negligence. 72 Thus, although the victim's contributory negligence is not a defense, it may be
considered as tending to show that the defendant was not culpably negligent or that his acts were
not a proximate cause of the wrong. 73 Furthermore, it has been recognized that a felony
victim's contributory negligence, though not barring conviction, may afford argument for
mitigation. 74
The doctrine of particeps criminis has no place in the administration of criminal law; 75 it is no
defense that the victim of a crime may also be guilty of wrongdoing. 76
§ 187 – Contributory negligence or wrongful act of person injured [SUPPLEMENT] [21
Am Jur 2d CRIMINAL LAW]
Case authorities:
Contributory negligence of the victim is not a defense in criminal prosecutions. In order to
exonerate a defendant, the victim's conduct must not only be a cause of his or her injury, it must
be a superseding cause. A defendant may be criminally liable for a result directly caused by his or
her act even if there is another contributing cause. If an intervening cause is a normal and
reasonably foreseeable result of the defendant's original act, the intervening act is "dependent"
and not a superseding cause, and will not relieve the defendant of liability. Thus, it is only an
unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the
Page 162 of 575
level of an exonerating, superseding cause. People v Morse (1992, 2nd Dist) 2 Cal App 4th 620,
3 Cal Rptr 2d 343, 92 CDOS 357, 92 Daily Journal DAR 485, review den.
Footnotes
Footnote 69. United States v Kreimer (CA5 Ga) 609 F2d 126; Broxton v State, 27 Ala App 298,
171 So 390; People v Tracy (1st Dist) 199 Cal App 2d 163, 18 Cal Rptr 487; State v McKinstry,
2 Conn Cir 42, 193 A2d 905; State v Taylor, 67 Idaho 313, 177 P2d 468; State v Plasphol, 239
Ind 324, 157 NE2d 579; State v Custer, 129 Kan 381, 282 P 1071; Thiede v State, 106 Neb 48,
182 NW 570; State v Phelps, 242 NC 560, 89 SE2d 132; State v Hanahan, 111 SC 58, 96 SE
667; Keller v State, 155 Tenn 633, 299 SW 803; Fox v State, 145 Tex Crim 71, 165 SW2d 733;
State v Lunz, 86 Wis 2d 695, 273 NW2d 767; Maxon v State, 177 Wis 379, 187 NW 753.
As to contributory negligence of deceased as defense in homicide cases, see 40 Am Jur 2d,
Homicide §§ 93, 113.
Footnote 70. State v Thomlinson, 209 Iowa 555, 228 NW 80.
Footnote 71. Cain v State, 55 Ga App 376, 190 SE 371; Hart v State, 75 Wis 2d 371, 249 NW2d
810.
Footnote 72. State v Phelps, 242 NC 540, 89 SE2d 132.
Footnote 73. See, for example, 7A Am Jur 2d, Automobiles and Highway Traffic § 336; 40 Am
Jur 2d, Homicide § 113.
Practice Aids: –Contributory negligence of victim. 1 Wharton's Criminal Law (14th ed) § 47.
Footnote 74. Welch v State, 45 Ala App 657, 235 So 2d 906.
Footnote 75. State v Mellenberger, 163 Or 233, 95 P2d 709.
Footnote 76. State v Posey, 88 SC 313, 70 SE 612.
Practice Aids: –Guilt of victim. 1 Wharton's Criminal Law (14th ed) § 74.
§ 188 Accused in prison for another crime [21 Am Jur 2d CRIMINAL LAW]
The idea that a prisoner already convicted of an offense and serving an imprisonment therefor
cannot be held for another offense while in confinement seems to have had its source in the
English doctrine that a person convicted of felony could not be prosecuted for another offense. 77
Page 163 of 575
This was known as the plea of "autrefois attaint." 78 In the United States this doctrine is
practically obsolete. Hence, a conviction and sentence for one felony do not constitute a bar to
an indictment or trial for another, and a convict, while imprisoned in the penitentiary, is not
exempt from trial and sentence for another crime, whether charged to have been committed
before or during such imprisonment. 79 Nor may one in prison on conviction of one crime
complain if one sovereignty waives its strict right to exclusive custody of him to allow another to
subject him to a prosecution for another crime. 80
If a convict escapes while serving a sentence, and is afterward sentenced for another offense
under another name assumed by him, and while serving the second sentence is recognized as an
escaped convict, his imprisonment will not prevent his being compelled to serve out the
unexpired former sentence. 81
Footnotes
Footnote 77. Singleton v State, 71 Miss 782, 16 So 295; Ex parte Tramner, 35 Nev 56, 126 P
337; Crenshaw v State, 8 Tenn 122; People v Flynn, 7 Utah 378, 26 P 1114; State v Keefe, 17
Wyo 227, 98 P 122.
Footnote 78. Formerly in England, because of the attainder consequent on conviction of felony,
the doctrine was that a plea of autrefois attaint was a bar to prosecution for another felony of the
same grade, for the reason that a second trial would be wholly superfluous. Where, therefore,
any advantage, either to public justice or to private individuals, would arise from a second
prosecution, the plea would not prevent it, as where the punishment was more severe. Blitch v
Buchanan, 100 Fla 1202, 131 So 151, adhered to 100 Fla 1242, 132 So 474; Singleton v State, 71
Miss 782, 16 So 295.
Footnote 79. Kelley v Oregon, 273 US 589, 71 L Ed 790, 47 S Ct 504; Ex parte Lamar (CA2
NY) 274 F 160; affd 260 US 711, 67 L Ed 476, 43 S Ct 251; Blitch v Buchanan, 100 Fla 1202,
131 So 151, adhered to 100 Fla 1242, 132 So 474; Huffaker v Commonwealth, 124 Ky 115, 98
SW 331; Rigor v State, 101 Md 465, 61 A 631; Singleton v State, 71 Miss 782, 16 So 295; Ex
parte Tramner, 35 Nev 56, 126 P 337; Commonwealth v Ramunno, 219 Pa 204, 68 A 184;
Arrowsmith v State, 131 Tenn 480, 175 SW 545; State v Keefe, 17 Wyo 227, 98 P 122.
Practice Aids: –Former conviction, autrefois attaint. 1 Wharton's Criminal Law (14th ed) § 53.
Footnote 80. Ponzi v Fessenden, 258 US 254, 66 L Ed 607, 42 S Ct 309.
Footnote 81. Henderson v James, 52 Ohio St 242, 39 NE 805.
§ 189 Consent of victim or person affected [21 Am Jur 2d CRIMINAL LAW]
Page 164 of 575
The general principle is that private persons cannot license crime, and it is no excuse that the
evildoer has anyone's consent thereto. 82 Invitation and consent to the perpetration of a crime do
not constitute defenses, adequate excuses, or provocations. 83 But there are exceptions to this
general principle, and it would be more accurate to state that whether consent of the party injured
by a crime constitutes a defense depends on the character of the particular crime. 84
If the
doing of a particular act is a crime regardless of the consent of anyone, consent is, of course, no
excuse. Instances of crimes of this character are homicide 85 and statutory rape. 86 On the
other hand, if want of consent is an element of a crime, it is equally clear that an act done with
the consent of the person affected cannot be made the basis of a criminal charge. 87 Thus, one
accused of rape other than statutory rape may defend on the ground that the alleged victim
consented to having sexual intercourse, at least if the consent was given at any time before
penetration. 88 Likewise, consent is a defense to a criminal assault or battery provided that the
consent was not obtained by duress or by fraud, and provided that the act otherwise amounting to
an assault or battery is not one that is prohibited by law. 89
Where a person arranges for a crime to be committed against himself or his property and aids,
encourages, or solicits the commission thereof, such facts are a good defense to the accused. 90
A charge of larceny cannot be based on a taking of property with the consent of the owner, 91
and for the same reason a taking of money or goods from the owner's person is not robbery if it is
done with his consent. 92 And, since entry into a dwelling without the consent of its occupant
is an indispensible element of burglary, unless otherwise provided by statute, the occupant's
consent to the breaking and entering by the alleged burglar is a possible defense to that crime. 93
However, if a person does not induce, encourage, aid, or advise the commission of a crime
against himself or his property, he may wait passively for a would-be criminal to perpetrate an
offense 94 or create the condition under which an offense against the public may be committed,
95 and his doing so is no defense for the criminal. One who knows of a crime contemplated
against him may remain silent and permit matters to go on, for the purpose of apprehending the
criminal, without being held to have assented to the act. 96
Even in those cases where the victim's consent negates a necessary element of the crime, the
victim must have acted voluntarily and intelligently in the absence of fraud, threats, force, or
duress. 97 Significantly, however, a distinction has been made between fraud in the fact, which
vitiates consent, and fraud in the inducement, which does not. Thus, for a crime having lack of
consent as a necessary element, consent obtained through misrepresentation alone does not
constitute the required element of nonconsent, unless a statute provides otherwise. 98
§ 189 – Consent of victim or person affected [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Practice Aids: Necessity or permissibility of mental examination to determine competencyor
credibility of complainant in sexual offense prosecution. 45 ALR4th 310.
Admissibility, at criminal prosecution, of expert testimony on rape trauma syndrome. (See also
Page 165 of 575
65 AmJur 2d, Rape § 68.5.) 42 ALR4th 879.
Criminal responsibility for physical measures undertaken in connection with treatment of
mentally disordered patient. 99 ALR3rd 854.
Case authorities:
Convicted rapist's federal habeas petition is denied, despite argument that state did not prove
beyond reasonable doubt that victim was incapable of giving consent due to mental deficiency or
disease, because evidence showed that victim suffered from epilepsy, dysthymia, and borderline
personality disorder, and that she told rapist she was epileptic, and that he knew that she was
slow and had mental problem. Griggs v State (1993, DC Kan) 814 F Supp 60.
Footnotes
Footnote 82. State v West, 157 Mo 309, 57 SW 1071; Davis v State, 70 Tex Crim 524, 158 SW
288.
Practice Aids: –Consent. 1 Wharton's Criminal Law (14th ed) § 46.
Footnote 83. Martin v Commonwealth, 184 Va 1009, 37 SE2d 43.
Footnote 84. State v West, 157 Mo 309, 57 SW 1071.
As to effect of victim's consent or lack thereof on crimes of abduction and kidnapping, see 1 Am
Jur 2d, Abduction and Kidnapping §§ 15-16.
As to consent as defense to charge of mayhem, see 53 Am Jur 2d, Mayhem and Related
Offenses § 12.
As to victim's consent as defense in prosecution for sodomy, see 70 Am Jur 2d, Sodomy § 18.
Footnote 85. See 40 Am Jur 2d, Homicide § 111.
Footnote 86. See 65 Am Jur 2d, Rape §§ 16, 38.
Footnote 87. Allen v State, 40 Ala 334; People v Hanselman, 76 Cal 460, 18 P 425; Connor v
People, 18 Colo 373, 33 P 159; Tones v State, 48 Tex Crim 363, 88 SW 217; State v Hochman,
2 Wis 2d 410, 86 NW2d 446, 77 ALR2d 784.
Footnote 88. See 65 Am Jur 2d, Rape § 38.
Page 166 of 575
Footnote 89. See 6 Am Jur 2d, Assault and Battery § 66.
Practice Aids: –The Consent Defense: Sports, Violence, and the Criminal Law. 1975, 13 Am
Crim L Rev 235.
Footnote 90. People v Hartford Life Ins. Co., 252 Ill 398, 96 NE 1049; State v Snider, 111 Mont
310, 111 P2d 1047; State v Burnette, 242 NC 164, 87 SE2d 191, 52 ALR2d 1181.
Footnote 91. See 50 Am Jur 2d, Larceny §§ 23, 139.
Footnote 92. See 67 Am Jur 2d, Robbery § 29.
Footnote 93. See 13 Am Jur 2d, Burglary §§ 10, 64.
Footnote 94. Love v People, 160 Ill 501, 43 NE 710; State v Neely, 90 Mont 199, 300 P 561;
State v Burnette, 242 NC 164, 87 SE2d 191, 52 ALR2d 1181; State v Currie, 13 ND 655, 102
NW 875.
Footnote 95. People v Hartford Life Ins. Co., 252 Ill 398, 96 NE 1049; State v Burnette, 242 NC
164, 87 SE2d 191, 52 ALR2d 1181.
Footnote 96. People v Hanselman, 76 Cal 460, 18 P 425 (larceny); Lowe v State, 44 Fla 449, 32
So 956 (larceny); Thompson v State, 18 Ind 386 (burglary); Commonwealth v Nott, 135 Mass
269 (larceny from building); State v Decker, 326 Mo 946, 33 SW2d 958 (bank robbery); State v
Neely, 90 Mont 199, 300 P 561 (larceny); State v Sneff, 22 Neb 481, 35 NW 219 (burglary);
State v Burnette, 242 NC 164, 87 SE2d 191, 52 ALR2d 1181; State v Currie, 13 ND 655, 102
NW 875 (burglary); Commonwealth v Hollister, 157 Pa 13, 27 A 386 (larceny); Tones v State,
48 Tex Crim 363, 88 SW 217 (robbery).
The criminal liability for breaking and entering a store building and taking goods therefrom at
night is not defeated by the fact that a clerk of the proprietor knew that the offense was to be
committed and, at the request of an officer acting as a detective, had loaned his key in order to
permit a duplicate to be made for the burglar's use, of the burglar, where it does not appear that
the clerk had charge of the building or had any right to admit persons therein after it was closed
for the night, and his conduct was not known to the proprietor, since the clerk's assent to the
entry will not be imputed to the master. State v Abley, 109 Iowa 61, 80 NW 225.
Footnote 97. United States v Ancarola (CC NY) 1 F 676; People v Hanselman, 76 Cal 460, 18 P
425; People v Dong Pok Yip, 164 Cal 143, 127 P 1031; Love v People, 160 Ill 501, 43 NE 710;
State v Abley, 109 Iowa 61, 80 NW 225; State v Sneff, 22 Neb 481, 35 NW 219; State v Currie,
13 ND 655, 102 NW 875; Commonwealth v Hollister, 157 Pa 13, 27 A 386; People v Morton, 4
Utah 407, 11 P 512; Curran v State, 12 Wyo 553, 76 P 577.
Page 167 of 575
Footnote 98. People v Harris (1st Dist) 93 Cal App 3d 103, 155 Cal Rptr 472.
Practice Aids: –Consent. 1 Wharton's Criminal Law (14th ed) § 46.
§ 190 Condonation or compromise; pendency of civil action [21 Am Jur 2d CRIMINAL
LAW]
Because a crime is by definition a public wrong, one against all the people of the state, it is
ordinarily no defense that a person injured by the crime condoned the offense. 99
Although
condonation or settlement with the criminal may bar the victim from recovering damages in a
civil action, it generally does not prevent the state from prosecuting the offender for the crime. 1
Hence, a criminal offender cannot, by restitution, payment or otherwise, before or after the
commencement of the prosecution, take away the state's right to insist upon a conviction for the
crime committed. 2 Thus, for example, forgiveness, compromise, or settlement between the
offender and the victim is no bar to a prosecution for seduction, in the absence of a statute
providing otherwise; the victim's personal preference concerning the decision to prosecute is
immaterial. 3
There are exceptions, however, to the general rule that condonation or compromise between the
offender and the victim is no defense to a criminal prosecution. It has been held that condonation
may be a defense where the crime involved is not against society or good morals, but relates
solely to the redressing of wrongs involving private property. 4 Moreover, statutes may
specifically authorize a compromise of both the criminal and civil liability arising out of certain
conduct. Such provisions usually allow dismissal of prosecutions for minor offenses or
misdemeanors only, and require the court's consent and the injured party's acknowledgement of
receipt of satisfaction for the injury. 5
It has been said that although a father would naturally not be inclined to prosecute his own son
and although any person might not be inclined to prosecute a neighbor or acquaintance who had
stolen property, the offense would, nonetheless, be a crime and the state would still have an
obligation to prosecute. 6 In cases where the victim is unwilling to testify against the defendant,
the prosecutor may subpoena the victim and examine him as a hostile witness. 7 Furthermore,
beyond the issue of condonation and compromise as defenses available to a criminal offender, a
victim who agrees not to inform against or prosecute the offender in return for a reward, bribe, or
reparation for injury may himself be guilty of the criminal offense of compounding a crime. 8
When a crime is also a private wrong, the victim's right to bring a civil action to recover damages
is a separate and independent remedy from the state's right to prosecute the crime. Hence, the
pendency or enforcement of a civil action is no defense to the criminal charge. 9
§ 190 – Condonation of compromise pendency of civil action [SUPPLEMENT] [21 Am Jur
2d CRIMINAL LAW]
Page 168 of 575
Case authorities:
The legislative purpose behind allowing civil compromise of criminal offenses (Pen. Code, §§
1377-1379) is not to insure that the victim is maximally compensated for his injury, but to
remove from criminal prosecution those offenses for which there is a civil remedy available. The
rationale is that the public interest in those cases is best served by requiring the accused to make
restitution directly and immediately to the individual victim instead of subjecting him to criminal
sanctions for the welfare of society in general. People v Stephen (1986) 182 Cal App 3d Supp 14,
227 Cal Rptr 380.
Footnotes
Footnote 99. Gilbert v United States (CA9 Cal) 359 F2d 285, cert den 385 US 882, 17 L Ed 2d
109, 87 S Ct 169; Williams v State, 126 Ala 50, 28 So 632; State v Garoutte, 95 Ariz 234, 388
P2d 809; Donohoo v State, 59 Ark 375, 27 SW 226; People v O'Rear, 220 Cal App 2d Supp 927,
34 Cal Rptr 61; Wooldridge v State, 49 Fla 137, 38 So 3; Lowe v State, 111 Ga 650, 36 SE 856;
State v Fowler, 13 Idaho 317, 89 P 757; Young v People, 193 Ill 236, 61 NE 1104; Reed v
Carrigan, 190 Ind 29, 129 NE 8, 13 ALR 411; State v Pingel, 128 Iowa 515, 105 NW 58; State v
Dye, 148 Kan 421, 83 P2d 113; State v Dejean, 159 La 900, 106 So 374; Commonwealth v
Brown, 167 Mass 144, 45 NE 1; Hilbun v State, 167 Miss 725, 148 So 365; State v Thomas, 318
Mo 605, 300 SW 823; People v Britton, 134 App Div 275, 118 NYS 989; State v Dunn, 138 NC
672, 50 SE 772; Ex parte Warford, 3 Okla Crim 381, 106 P 559; State v Cooper, 120 SC 280,
113 SE 132; State v Allen, 21 SD 121, 110 NW 92; Busby v State, 51 Tex Crim 289, 103 SW
638; Cook v Commonwealth, 178 Va 251, 16 SE2d 635; State v Austin, 93 W Va 704, 117 SE
607; Guenther v State, 137 Wis 183, 118 NW 640.
Practice Aids: –Condonation and Compromise. 1 Wharton's Criminal Law (14th ed) § 45.
Footnote 1. Commonwealth v Slattery, 147 Mass 423, 18 NE 399; State v Tull, 119 Mo 421, 24
SW 1010.
As to illegality of agreement to compromise a criminal offense, see 15A Am Jur 2d,
Compromise and Settlement § 28.
Footnote 2. Dean v State, 147 Ind 215, 46 NE 528.
Footnote 3. 70 Am Jur 2d, Seduction § 23.
Footnote 4. Holsey v State, 4 Ga App 453, 61 SE 836; State v Engle, 111 Iowa 246, 82 NW 763.
Page 169 of 575
Footnote 5. See 15A Am Jur 2d, Compromise and Settlement § 26.
Footnote 6. Breaker v State, 103 Ohio St 670, 134 NE 479.
Footnote 7. People v Michaels, 335 Ill 590, 167 NE 857; People v Hill, 236 Mich 672, 211 NW
39; People v Burnstein, 261 Mich 534, 246 NW 217; Commonwealth v Reeves, 267 Pa 361, 110
A 158; State v Laymon, 40 SD 381, 167 NW 402, State v Lapke, 62 SD 187, 252 NW 38; Farino
v State, 203 Wis 374, 234 NW 366.
As to persons subject to subpoena, in general, see 81 Am Jur 2d, Witnesses, § 11.
Footnote 8. See 15A Am Jur 2d, Compounding Crimes §§ 1-4.
Footnote 9. Freeman v United States, 217 US 539, 54 L Ed 874, 30 S Ct 592; Donohoo v State,
59 Ark 375, 27 SW 226; State v Keller, 8 Idaho 699, 70 P 1051; People v Kenyon, 93 Mich 19,
52 NW 1033; State v Hogard, 12 Minn 293; People v Hayes, 140 NY 484, 35 NE 951; People v
Judges (NY) 13 Johns 85; Commonwealth v Hurd, 177 Pa 481, 35 A 682.
Practice Aids: –Civil or criminal action pending. 1 Wharton's Criminal Law (14th ed) § 44.
§ 191 Inconsistent defenses [21 Am Jur 2d CRIMINAL LAW]
Generally, inconsistent defenses may be interposed in a criminal case. 10 The defenses of
insanity and self-defense are inconsistent within the purview of this rule. 11 Likewise, a
defendant may raise the alternative defenses of intoxication and noninvolvement in the offense.
12 On the other hand, although there is contrary authority, it has been held that a defendant who
denies the offense cannot raise the defense of entrapment, since the invocation of that defense
necessarily assumes that he committed the acts charged. 13
The Federal Rule of Civil Procedure that a party may plead as many separate defenses as he has,
regardless of consistency, has no counterpart in the Federal Rules of Criminal Procedure. It has
been held that no such rule would be appropriate since all possible defenses not raised by
appropaiate motion are embraced within the plea of not guilty. 14
Insanity and alibi are not inconsistent defenses; proof of one does not disprove the other. A
defendant in a criminal case may rely on both and show that he was not at the place where the
crime was committed, and also introduce evidence to prove that he does not have sufficient
mental capacity to be responsible for the offense charged. 15
§ 191 – Inconsistent defenses [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Page 170 of 575
Cal. Pen. Code, §§ 28, 29, and 188, which bar the reduction of murder to nonstatutory voluntary
manslaughter due to diminished responsibility arising from voluntary intoxication and/or mental
disorder, do not bar the imperfect self-defense doctrine, which reduces an intentional killing from
murder to manslaughter when a person kills under an honest but unreasonable belief in the
necessity to defend against imminent peril to life or great bodily injury. The imperfect
self-defense doctrine is not a variety of the former diminished responsibility defense, which
reduced the culpability of one who unlawfully and intentionally killed under mitigating
circumstances. Rather, imperfect self-defense is a killing done without malice, and emanates
from an individual's desire to protect himself or herself. Thus, the policy reasons behind the
elimination of the diminished responsibility defense would not be met by the elimination of
imperfect self-defense. In re Christian S. (1992, 4th Dist) 10 Cal App 4th 1325, 13 Cal Rptr 2d
232, 92 CDOS 9122, 92 Daily Journal DAR 15070.
Footnotes
Footnote 10. Whittaker v United States, 108 App DC 268, 281 F2d 631; Love v State, 16 Ala
App 44, 75 So 189; People v West, 139 Cal App 2d Supp 923, 293 P2d 166; People v Jersky,
377 Ill 261, 36 NE2d 347; Bartram v State, 33 Md App 115, 364 A2d 1119, affd 280 Md 616,
374 A2d 1144; People v Hansma, 84 Mich App 138, 269 NW2d 504; State v Wright, 352 Mo 66,
175 SW2d 866; People v Gaimari, 176 NY 84, 68 NE 112 (ovrld on other grounds People v
Miller 39 NY2d 543, 384 NYS2d 741, 349 NE2d 841).
Footnote 11. State v Morris (Mo) 248 SW2d 847.
Footnote 12. People v McLean, 52 Mich App 182, 217 NW2d 138.
Footnote 13. § 208, infra.
Footnote 14. Henderson v United States (CA5 Fla) 237 F2d 169, 61 ALR2d 666, pointing out
further that the common goal of all trials, civil or criminal, of issues of fact is to arrive at the
truth, and that it would seem that inconsistent positions should be permitted according to whether
they might help or hinder a search for the truth.
Footnote 15. State v Lora (Mo) 305 SW2d 452.
B. Alibi [192-201]
1. In General [192]
§ 192 Generally; what constitutes; purpose and effect [21 Am Jur 2d CRIMINAL LAW]
The literal significance of the word "alibi" is "elsewhere"; 16 as used in criminal law, it indicates
Page 171 of 575
that line of proof by which an accused undertakes to show that because he was not at the scene of
the crime at the time of its commission, 17 having been at another place at the time, 18 he
could not have committed the crime. In other words, by an alibi the accused attempts to prove
that he was at a place so distant that his participation in the crime was impossible. 19 To be
successful, his alibi must cover the entire time when his presence was required for
accomplishment of the crime. 20 To establish an alibi, the accused must show that he was at
another specified place at the time the crime was committed, thus making it impossible for him
to have been at the scene of the crime. It is not enough for the accused to say that he was not at
the scene and must therefore have been elsewhere. The latter statement does not constitute an
alibi. 21 And since an alibi defense derives its potency from the physical impossibility of the
accused's guilt, 22 a purported alibi that leaves it possible for the accused to be the guilty person
is no alibi at all. 23 Thus, in a conspiracy prosecution, the defense of alibi is not allowed since
the presence or absence of one of the conspirators at the precise time covered by the crime is
immaterial. 24 Alibi is a proper defense, however, when a direct issue is raised concerning the
defendant's absence at the time of the very formation of the conspiracy. 25
It is said that an alibi, if established, constitutes a complete, 26 legitimate, 27 and effective 28
defense, and that it precludes the possibility of guilt. 29 It is also said that an alibi is the most
perfect, physically conclusive evidence of the accused's innocence, 30 and, since it is a complete
defense by itself, that it is neither helped nor hurt by other defenses. 31
Although an alibi is sometimes classified as an affirmative defense, 32 and although from an
evidential standpoint it may be defensive in nature, 33 it is not an affirmative defense, strictly
speaking. 34 It is simply a denial that the accused committed the crime. 35 An offer to
establish an alibi is not the offer of an affirmative issue advanced by the accused; it is merely an
offer to show facts inconsistent with the essential element of the criminal charge. 36 In other
words, it is a denial of part of what is incumbent on the state to prove as a part of its case, that is,
that the accused was at the scene of the crime. 37 It merely negatives the prosecution's required
proof that the defendant was personally present at the place when the offense was committed. 38
Since an alibi is shown by evidence that the accused was at a point where he could not have been
guilty of participating in the offense, any evidence that tends to establish his whereabouts at the
time of the alleged offense is admissible in support of his defense and competent to weaken or
destroy the state's case. Furthermore, such evidence is not excluded even though the defendant is
unable to cover the exact time of the offense or every minute of the time involved. 39
If the
accused's alibi evidence raises a reasonable doubt in the minds of the jury as to his presence
when the crime was committed, it is sufficient for acquittal. 40
Although they are easily
fabricated, and therefore subject to searching scrutiny, alibis must be given fair consideration. 41
§ 192 – Generally; what constitutes; purpose and effect [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Practice Aids: 27 Am Jur Proof of Facts 2d 431, Alibi defense.
Page 172 of 575
Case authorities:
The defendant was denied effective assistance of counsel by his counsel's rejection of the trial
judge's offer of an alibi charge where alibi was the sole theory of the defense and, based on the
prosecutor's summation remarks, the absence of the charge gave rise to a conclusion by the jury
that it was impermissible for them to consider alibi as a defense. Riddle v State (1992, SC) 418
SE2d 308.
Court properly stated to jury that, although they might consider defendant's own alibi testimony,
they could not consider his testimony that his employer had written letter certifying that he was
working on day of crime, even though testimony regarding letter was not stricken from record,
since neither letter nor testimony of employer were admitted in evidence, and thus statements in
letter constituted hearsay. People v Quesada (1992, 1st Dept) 182 AD2d 440, 582 NYS2d 167,
app den 80 NY2d 896, 587 NYS2d 927, 600 NE2d 654.
An alibi defense is not required to place the defendant at some minimum distance away from the
scene of the crime; all that is required is that the defendant, because of the separation, could not
possibly have committed the crime. Commonwealth v Johnson (1994, Pa) 646 A2d 1170.
The defendant was not entitled to an alibi instruction where testimony by his wife stated only that
he was home for most of the evening of the crime except for one period when he went out for not
very long and testimony by the owner of a sub shop stated only that the defendant was there at
some point during the evening of the crime; the testimony did not necessarily place the defendant
at a location other than that of the crime scene at the time of the crime. Commonwealth v Repaci
(1992, Super Ct) 615 A2d 796.
The defendant in a prosecution for drug offenses was not entitled to an alibi instruction where the
relevant testimony did not place him at a location away from the scene of the crime but instead
implied that the defendant was at the scene but that the police mistakenly identified him as the
one who hid a bag of cocaine. Commonwealth v Johnson (1992, Super Ct) 618 A2d 415.
Footnotes
Footnote 16. Azbill v State, 19 Ariz 499, 172 P 658; State v Hubbard, 351 Mo 143, 171 SW2d
701; State v Poole, 161 Or 481, 90 P2d 472.
Footnote 17. Tomlinson v United States, 68 App DC 106, 93 F2d 652, cert den 303 US 642, 82
L Ed 1102, 58 S Ct 645 and cert den 303 US 646, 82 L Ed 1107, 58 S Ct 645; Singh v State,
35 Ariz 432, 280 P 672; Blackwell v State, 79 Fla 709, 86 So 224 (not followed on other grounds
Dixon v State (Fla App D4) 227 So 2d 740, cert den (Fla) 237 So 2d 179); State v Hubbard, 351
Mo 143, 171 SW2d 701; State v Steen, 185 NC 768, 117 SE 793; State v Payne, 104 Ohio App
410, 5 Ohio Ops 2d 87, 77 Ohio L Abs 558, 149 NE2d 583; State v Poole, 161 Or 481, 90 P2d
Page 173 of 575
472; Commonwealth v Russell, 149 Pa Super 326, 27 A2d 494.
Footnote 18. Jones v State (Fla App D2) 128 So 2d 754 (disagreed with on other grounds Dixon
v State (Fla App D4) 227 So 2d 740, cert den (Fla) 237 So 2d 179); State v Wagner, 207 Iowa
224, 222 NW 407; Huckett v State, 121 Neb 364, 237 NW 159; Commonwealth v McQueen,
178 Pa Super 38, 112 A2d 820; Windham v State, 162 Tex Crim 580, 288 SW2d 73.
Footnote 19. People v Thomas, 393 Ill 573, 67 NE2d 192; State v Baker, 246 Iowa 215, 66
NW2d 303; State v Ovitt, 126 Vt 320, 229 A2d 237.
Practice Aids: Alibi. 1 Wharton's Criminal Law (14th ed) § 43.
Footnote 20. Jones v State (Fla App D2) 128 So 2d 754 (disagreed with on other grounds Dixon
v State (Fla App D4) 227 So 2d 740, cert den (Fla) 237 So 2d 179); People v Todaro, 14 Ill 2d
594, 153 NE2d 563; Johnson v Commonwealth, 210 Va 16, 168 SE2d 97.
Footnote 21. Commonwealth v McQueen, 178 Pa Super 38, 112 A2d 820.
Footnote 22. Singh v State, 35 Ariz 432, 280 P 672; Kitchens v State, 209 Ga 913, 76 SE2d 618;
State v Searles, 82 NJ Super 210, 197 A2d 384; Baxter v State (Okla Crim) 364 P2d 705; State v
Gordon, 208 Or 455, 302 P2d 214.
Footnote 23. Singh v State, 35 Ariz 432, 280 P 672; Yarber v Denver, 116 Colo 540, 182 P2d
897; Commonwealth v Larue, 158 Pa Super 219, 44 A2d 535.
Footnote 24. State v McManaman, 120 Kan 376, 244 P 225; State v Johnson, 40 Kan 266, 19 P
749; State v Gatlin, 170 Mo 354, 70 SW 885; Cain v State, 42 Tex Crim 210, 59 SW 275.
In a prosecution of a man and three women for murder and conspiracy to commit murder arising
out of two successive multiple homicides, the male defendant, who was the alleged leader of the
group, was not entitled to a jury instruction on alibi, where the prosecution never contended he
was present at the time of the actual commission of any homicide and his presence was not a
requirement for culpability. People v Manson (2d Dist) 61 Cal App 3d 102, 132 Cal Rptr 265,
cert den 430 US 986, 52 L Ed 2d 382, 97 S Ct 1686 and later app (2d Dist) 113 Cal App 3d
280, 170 Cal Rptr 189.
Footnote 25. Jenkins v State, 45 Tex Crim 173, 75 SW 312.
As to defenses to a conspiracy prosecution, generally, see 16 Am Jur 2d (Rev) Conspiracy §§ 35
et seq.
Footnote 26. Haynes v Commonwealth, 304 Ky 753, 202 SW2d 400; Commonwealth v Bonomo,
187 Pa Super 521, 144 A2d 752, affd 396 Pa 222, 151 A2d 441.
Page 174 of 575
Footnote 27. State v Johnson, 70 SD 322, 17 NW2d 345; Markoff v State, 52 Wyo 457, 75 P2d
773.
Footnote 28. State v Martin, 2 Ariz App 510, 410 P2d 132, reh den 3 Ariz App 119, 412 P2d
294; Anderson v Commonwealth, 291 Ky 727, 166 SW2d 30.
Footnote 29. Basoff v State, 208 Md 643, 119 A2d 917.
Footnote 30. 30 Am Jur 2d, Evidence § 1162.
Footnote 31. People v Doody, 343 Ill 194, 175 NE 436.
Footnote 32. People v Perroni, 14 Ill 2d 581, 153 NE2d 578, cert den 359 US 980, 3 L Ed 2d
929, 79 S Ct 899, reh den 359 US 1005, 3 L Ed 2d 1034, 79 S Ct 1141 and (ovrld on other
grounds People v Nunn 55 Ill 2d 344, 304 NE2d 81, cert den 416 US 904, 40 L Ed 2d 108, 94
S Ct 1608); Witt v State, 205 Ind 499, 185 NE 645; State v Rourick, 245 Iowa 319, 60 NW2d
529.
Footnote 33. State v Stump, 254 Iowa 1181, 119 NW2d 210, cert den 375 US 853, 11 L Ed 2d
80, 84 S Ct 113; State v Hubbard, 351 Mo 143, 171 SW2d 701; Hall v State, 135 Neb 188, 280
NW 847; State v Minton, 234 NC 716, 68 SE2d 844, 31 ALR2d 682.
Footnote 34. People v Bradley, 71 Cal App 2d 114, 162 P2d 38; Halko v State, 54 Del 180, (Sup)
175 A2d 42; State v Baker, 246 Iowa 215, 66 NW2d 303; Parsley v Commonwealth (Ky) 321
SW2d 259; State v Hubbard, 351 Mo 143, 171 SW2d 701; State v Mucci, 25 NJ 423, 136 A2d
761; Commonwealth v Stein, 103 Pa Super 198, 158 A 600, revd on other grounds 305 Pa 567,
158 A 563.
Alibi is not an independent affirmative defense in the same sense that insanity is regarded as an
affirmative defense. Hall v State, 135 Neb 188, 280 NW 847, 118 ALR 1300.
As to nonaffirmative nature of defense as affecting burden of proof of alibi, see 29 Am Jur 2d,
Evidence § 157.
Footnote 35. State v Minton, 234 NC 716, 68 SE2d 844, 31 ALR2d 682.
Footnote 36. State v Searles, 82 NJ Super 210, 197 A2d 384.
Footnote 37. Parham v State, 120 Ga App 723, 171 SE2d 911.
As to presence of accused at place and time of crime as element of offense to be proven by
prosecution, see 29 Am Jur 2d, Evidence § 151.
Page 175 of 575
Footnote 38. People v Bradley, 71 Cal App 2d 114, 162 P2d 38; People v Pearson, 19 Ill 2d 609,
169 NE2d 252.
Footnote 39. 29 Am Jur 2d, Evidence § 440.
As to admissibility of other crimes to rebut alibi, see 29 Am Jur 2d, Evidence §§ 321, 440.
Practice Aids: Alibi testimony. Bailey & Rothblatt, Cross-examination in Criminal Trials, §§
149, 314-315, 333-336.
Difficult alibis; alibi witnesses. Bailey & Rothblatt, Investigation and Preparation of Criminal
Cases, §§ 108, 141.
Footnote 40. 30 Am Jur 2d, Evidence § 1162.
As to burden of proving alibi, see 29 Am Jur 2d, Evidence § 157.
As to alibi as question for jury where evidence is conflicting, see 75 Am Jur 2d, Trial § 425.
As to degree of proof and sufficiency of evidence of alibi, see 30 Am Jur 2d, Evidence § 1178.
As to jury instructions on alibi, see 75 Am Jur 2d, Trial §§ 729-737.
Footnote 41. 30 Am Jur 2d, Evidence § 1162.
2. Notice Requirements [193-201]
§ 193 Generally; validity of alibi notice statutes [21 Am Jur 2d CRIMINAL LAW]
Although an accused is not ordinarily required to give advance notice of the details of his claim
of alibi, 42 many states, by statute or rule of court, require him to notify the prosecution of his
intention to rely on alibi as a defense and, commonly, to specify the place at which he claims to
have been when the crime was committed and the witnesses on whose testimony he will rely in
establishing his defense. 43 In view of the ease of manufacturing or fabricating an alibi
defense, the courts have recognized that the purposes of such statutes are to prevent last-minute
surprises on the prosecution and to enable it to make a full and thorough investigation of the
merits of the defense. 44 In a jurisdiction without an alibi notice statute, it has been held that
such a procedural innovation should be introduced, if at all, only upon the considered judgment
of the state legislature and that, absent such legislation, a trial court cannot compel a defendant to
give notice of his alibi by a discovery order. 45
The validity of alibi notice statutes has been questioned on a variety of constitutional grounds. 46
Page 176 of 575
The United States Supreme Court has declared that under the due process clause of the
Fourteenth Amendment a state may not require an accused to give notice of the details of his
alibi defense without itself providing for meaningful reciprocal discovery of matters to be offered
by the prosecution in response to the alibi. 47 Thus, alibi notice statutes not providing for
reciprocal discovery between the defendant and the prosecution have been held invalid as
violative of due process. 48 On the other hand, the Supreme Court has upheld an alibi notice
statute that required a defendant, upon demand by the state, to disclose his proposed alibi
witnesses, required the state, in turn, to notify the defendant of any rebuttal witnesses, and
authorized the trial court, in its discretion, to exclude either party's alibi evidence, except for the
defendant's own testimony, upon that party's failure to comply with the statute. In so holding, the
Supreme Court noted that the statute was carefully hedged with reciprocal duties and that the
state's interest in protecting itself against an eleventh-hour defense was obvious and legitimate.
49 Accordingly, statutes providing for such reciprocal discovery between the defendant and the
prosecution concerning alibi witnesses have been held to satisfy due process requirements. 50
Furthermore, the courts have rejected claims that alibi notice statutes violate equal protection of
the laws, 51 the accused's privilege against self-incrimination, 52 or his right to remain silent,
53 to have compulsory process to compel the attendance of witnesses in his own behalf, 54
and to be heard in his own defense. 55
§ 193 – Generally; validity of alibi notice statutes [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Case authorities:
Testimony of defense alibi witness may not be precluded because of defense counsel's failure to
comply with court rules, absent complicity on part of defendant; preclusion sanction violated
defendant's constitutional right to call witnesses in his own defense. Hackett v Mulcahy (1980,
DC NJ) 493 F Supp 1329.
Defendant was denied his constitutional right to testify through operation of state's notice-of-alibi
statute which operated to exclude defendant's alibi testimony simply because he failed notify
prosecution that he intended to raise such defense. Alicea v Gagnon (1982, CA7 Wis) 675 F2d
913.
State rule of criminal procedure requiring prosecuting attorney to serve defendant with written
notice specifying alleged time and place of offense charged and requiring defendant who intends
to introduce evidence that he was at place other than that specified to serve prosecuting attorney
with statements specifying details of alleged alibi and names and addresses of supporting
witnesses was not facially unconstitutional as infringing defendant's right to present defense
where, although rule also provided that neither prosecution nor defense could be permitted at trial
to introduce evidence inconsistent with either prosecution or defense specification unless court
found good cause to permit specification to be amended, neither prevented defendant from
Page 177 of 575
exercising his right to present defense nor restricted nature or content of his alibi evidence, but
simply conditioned presentation of alibi evidence on timely pretrial disclosure, where
preconditions to exercise right were not unknown to criminal law and, when reasonable in nature,
did not constitute abridgement of right, where rule did not mandate automatic exclusion of
accused's alibi witnesses upon noncompliance but vested trial court with discretion to permit
witnesses to testify upon showing by defendant of good cause to admit evidence, and where rule
did not expressly exempt defendant's own testimony from exclusion sanction and court would
not extend either disclosure requirement or exclusion sanction to defendant's accused's own alibi
testimony since defendant's election to testify would come as no surprise to prosecution; further,
trial court did not err in finding that defendant failed to comply with disclosure requirements of
rule where defendant's contention that rule should have been interpreted so as to require
disclosure only after defendant had formed intent to use alibi defense at trial was incorrect
because rule expressly linked defendant's obligation of timely disclosure to prosecution's service
of specification at reasonable time before trial and not to time when defendant actually decided to
present alibi testimony at trial, where disclosure required by rule was eminently reasonable since
defendant in most cases would have little trouble in recalling his location during period of time
designated in prosecution's specification and after modest effort would be able to determine
names and addresses of those persons testifying to his whereabouts during critical time period,
where defendant's delay of one year in responding to prosecution's specification was not excused
by prosecution's filing of interlocutory appeal, and where there was nothing in record to support
defendant's claim that serving prosecuting attorney during trial itself with written specification of
alibi defense and names and addresses of alibi witnesses was disclosure made within reasonable
time as required by rule; however, court improperly excluded defendant's alibi evidence where
rule did not require automatic exclusion of evidence, and where court failed to give any reasons
for its exclusion so that appellate court was unable to determine whether court had properly
exercised its discretion in so ruling. People v Hampton (1985, Colo) 696 P2d 765.
Defendant had reciprocal right to discover names and addresses of witnesses prosecution
intended to rely on to rebut or discredit alibi defense where defendant complied with statute
requiring pretrial disclosure of alibi defense. State v Davis (1981, Hawaii) 624 P2d 376.
Defendant's constitutional right to compulsory process for obtaining witnesses was not violated
where trial court excluded alibi testimony of defendant's girlfriend following failure of defense to
comply with notice of alibi statute. State v Roberts (1979) 226 Kan 740, 602 P2d 1355.
In a prosecution of defendant for possession and sale of heroin where defendant was arrested and
taken to a police station, indictments were read to him, and defendant interrupted the reading to
state that he had not sold heroin to the person named in the indictments, defendant's failure to
disclose his alibi defense to the police officers then or to some other person prior to trial did not
amount to an inconsistent statement in light of his in-court testimony relative to an alibi, and the
district attorney's cross-examination of defendant concerning failure to disclose his alibi was
sufficiently prejudicial to warrant a new trial, since the cross-examination attacked defendant's
exercise of his right against self-incrimination in such a manner as to leave a strong inference
Page 178 of 575
with the jury that defendant's alibi defense was an after-the-fact creation, and the
cross-examination concerning defendant's failure to relate his defense of alibi prior to trial
probably substantially contributed to his conviction. State v Lane, 301 NC 382, 271 SE2d 273.
Application of court rule requiring notification of alibi defense did not constitute ex post facto
law even though enacted after defendant's arrest but prior to trial. State v Flohr (1980, ND) 301
NW2d 367, later app (ND) 310 NW2d 735.
Footnotes
Footnote 42. Orr v State, 40 Ala App 45, 111 So 2d 627, affd 269 Ala 176, 111 So 2d 639.
Footnote 43. Williams v Florida, 399 US 78, 26 L Ed 2d 446, 90 S Ct 1893, 53 Ohio Ops 2d
55.
Annotation: 45 ALR3d 958.
Rule 423 of the Uniform Rules of Criminal Procedure provides that a defendant must furnish to
the prosecuting attorney the names and addresses of defense witnesses, other than himself, whom
he intends to call to show that he was not present at the time and place specified in the
information or indictment. See 23 Am Jur 2d, Depositions and Discovery § 324.
Practice Aids: Defendant's response to court order to give notice of alibi defense. 1 Bailey &
Rothblatt, Complete Manual of Criminal Forms, Form 18:104.
Epstein, Advance Notice of Alibi. 1964, 55 J Crim L C & P S 29.
Alibi. 1 Wharton's Criminal Law (14th ed) § 43.
Discovery in favor of prosecution. 2 Wharton's Criminal Procedure (12th ed) § 387.
Footnote 44. Williams v Florida, 399 US 78, 26 L Ed 2d 446, 90 S Ct 1893, 53 Ohio Ops 2d
55; State v Dodd, 101 Ariz 234, 418 P2d 571; State v Baldwin, 47 NJ 379, 221 A2d 199, cert
den 385 US 980, 17 L Ed 2d 442, 87 S Ct 527; State v Payne, 104 Ohio App 410, 5 Ohio Ops
2d 87, 77 Ohio L Abs 558, 149 NE2d 583; Commonwealth v Shider, 209 Pa Super 133, 224 A2d
802; State ex rel. Simos v Burke, 41 Wis 2d 129, 163 NW2d 177.
Annotation: 45 ALR3d 958, § 3.
Footnote 45. Reynolds v Superior Court of Los Angeles County, 12 Cal 3d 834, 117 Cal Rptr
Page 179 of 575
437, 528 P2d 45.
But see Scott v State (Alaska) 519 P2d 774, where it was held that a trial court's discovery order
requiring a defendant in a rape prosecution to give notice of his alibi defense was within the
court's broad discretion in discovery matters.
Footnote 46. In the face of various objections to their validity other than those hereinafter
discussed, or unspecified, notice-of-alibi statutes have been generally held valid and
constitutional. Annotation: 45 ALR3d 958, § 10.
Thus, a provision requiring notice of not less than 5 days prior to trial of the fact that a defendant
in a criminal case intends to offer testimony to establish an alibi was held to be reasonable and
placed no undue hardship on the defendant in a prosecution for robbery and burglary, in State v
George, 100 Ariz 350, 414 P2d 730, the court noting that the defendant could no longer ask his
attorney, on the date of trial, to subpoena certain witnesses who would testify to his whereabouts
on at least one of the nights the alleged crimes were committed, since he did not give advance
notice of his intention to call these witnesses.
In State v Stump, 254 Iowa 1181, 119 NW2d 210, cert den 375 US 853, 11 L Ed 2d 80, 84 S Ct
113, the court noted that there was nothing essentially unconstitutional in a statute requiring
pretrial discovery of the names of witnesses whose testimony the other side might be called on to
refute, and that the modern trend in discovery is to broaden access to material facts and reduce
belated surprise.
The contention of the defendant in a prosecution for rape that the demand of the district attorney
for a bill of particulars as to an alibi was an unconstitutional invasion of his rights was held to be
without substance, in People v Shulenberg, 279 App Div 1115, 112 NYS2d 374.
Rejecting the argument of the defendant, in a prosecution for soliciting a bribe, that the Ohio
notice-of-alibi statute was unconstitutional, the court in State v Thayer, 124 Ohio St 1, 9 Ohio L
Abs 734, 176 NE 656, 75 ALR 48, said that the statute pertained to a very important feature of
the criminal law which gave the prosecution some protection against false and fraudulent claims
of alibi often presented by the accused so near the close of the trial as to make it impossible for
the state to ascertain any facts as to the credibility of the accused's witnesses, who may reside at
some point far distant from the place of trial.
The contention by the defendant, in a prosecution for aggravated robbery, that the Pennsylvania
notice-of-alibi statute was unconstitutional was rejected as without foundation, in
Commonwealth v Phoenix, 217 Pa Super 121, 268 A2d 460.
Footnote 47. Wardius v Oregon, 412 US 470, 37 L Ed 2d 82, 93 S Ct 2208.
Where a defendant complied with the New York alibi statute by furnishing the names of alibi
Page 180 of 575
witnesses, and the United States Supreme Court subsequently held a similar statute
unconstitutional for failure to provide reciprocal discovery rights, due process required only that
the defendant be given discovery of the People's rebuttal witnesses and defendant was not
entitled to dismissal of the indictment or to a declaration of the unconstitutionality of the New
York statute since the People proposed to offer no alibi rebuttal testimony. People v Baylis, 75
Misc 2d 397, 347 NYS2d 892.
Although the alibi notice statute was unconstitutional as being not significantly different from the
statute declared unconstitutional in Wardius v Oregon, 412 US 470, 37 L Ed 2d 82, 93 S Ct
2208, the ruling of unconstitutionality would not be applied retroactively to cases in which the
statute did not operate to exclude testimony. Thus, the ruling was not applied to the trial of a
defendant whose alibi witnesses had been allowed to testify, the defendant having furnished their
names in compliance with the statute, since the statute had operated only to deny the defendant
notice of the prosecution's rebuttal witnesses. People v Bush, 33 NY2d 921, 352 NYS2d 936,
308 NE2d 451, cert den 419 US 848, 42 L Ed 2d 77, 95 S Ct 85.
The defendant's conviction for burglary was properly reversed where at trial the testimony of his
alibi witness had been excluded for failure of the defendant to list her as a witness in the alibi
notice required under a statute that was subsequently declared unconstitutional, and, since
evidence of the defendant's involvement in burglary rested entirely on testimony of his two
alleged accomplices, the importance of the alibi witness' testimony rendered its improper
exclusion an error of constitutional magnitude requiring reversal. People v Cline, 60 Ill 2d 561,
328 NE2d 534.
Footnote 48. Wardius v Oregon, 412 US 470, 37 L Ed 2d 82, 93 S Ct 2208; United States ex
rel. Snyder v Mack (ED Pa) 372 F Supp 1077; Commonwealth v Contakos, 455 Pa 136, 314 A2d
259; Allison v State, 62 Wis 2d 14, 214 NW2d 437, cert den 419 US 1071, 42 L Ed 2d 667, 95
S Ct 659.
The Illinois alibi defense statute was held to be unconstitutional as a denial of due process since
it did not provide for discovery of the prosecution's alibi rebuttal witnesses, in People v Fields,
59 Ill 2d 516, 322 NE2d 33, cert den 423 US 843, 46 L Ed 2d 65, 96 S Ct 80. Such holding
was expressly based on the Supreme Court's decision in Wardius v Oregon, and effectively
overruled an earlier holding to the contrary in People v Holiday, 47 Ill 2d 300, 265 NE2d 634,
45 ALR3d 948, which had held that the discoverability of alibi-rebuttal witnesses was not an
essential element of due process where the defendant was otherwise accorded substantial
discovery of prosecution witnesses under other provisions of the State Criminal Procedure Code,
although the court did suggest, however, as an appropriate subject for consideration by the
general assembly, a provision for discovery of alibi-rebuttal witnesses, saying that such a
requirement would further implement the concept of a trial as a search for the truth.
A statute requiring the defendant to furnish the prosecutor with timely notice of his alibi with
names of the defendant's witnesses endorsed thereon was unconstitutional as a denial of due
Page 181 of 575
process where the statute contained no provision requiring the state to furnish names of witnesses
it planned to use to refute the alibi defense. Talley v State, 222 Kan 289, 564 P2d 504, ovrlg
State v Rider, 194 Kan 398, 399 P2d 564.
The alibi demand statute was unconstitutional since it lacked a reciprocal provision allowing the
defendant to discover the identity of the People's alibi rebuttal witnesses. People v Maryland, 79
Misc 2d 69, 359 NYS2d 477.
Where a defendant, pursuant to statute, notified the prosecutor of names and addresses of the
witnesses he intended to call to establish his alibi, the prosecutor's refusal to afford the defendant
reciprocal discovery violated his right to due process. Commonwealth v Jackson, 457 Pa 79, 319
A2d 161.
Footnote 49. Williams v Florida, 399 US 78, 26 L Ed 2d 446, 90 S Ct 1893, 53 Ohio Ops 2d
55.
Footnote 50. Williams v Florida, 399 US 78, 26 L Ed 2d 446, 90 S Ct 1893, 53 Ohio Ops 2d
55; Bowen v State, 263 Ind 558, 334 NE2d 691; State v Smith (App) 88 NM 541, 543 P2d 834.
Annotation: 45 ALR3d 958, § 4.
A statute requiring the defendant to furnish names, addresses, and statements of alibi witnesses
did not violate due process where the names and addresses of the state's rebuttal witnesses were
available to the defense upon motion. Wright v Superior Court of County of Maricopa, 110 Ariz
265, 517 P2d 1261.
Where rules and case law required reciprocal discovery, a statute requiring the defendant to give
notice of his intention to rely on an alibi was not unconstitutional; but where the state failed to
inform the defense of the names of rebuttal witnesses as soon as its intent to call each was
determined, admission of rebuttal testimony was prejudicial error. People v Jarrett, 22 Ill App 3d
61, 316 NE2d 659.
Testimony given by police officers to impeach the defendant's alibi witnesses was admissible and
did not deny him due process, even though he complied with the state's notice of alibi statute
without receiving recriprocal discovery, where the state had already learned of the defendant's
potential alibi witnesses before he gave notice. United States ex rel. Smith v Brierton (ND Ill)
424 F Supp 364.
A statute directing the trial court in mandatory terms to exclude alibi evidence for failure to give
timely notice did not suspend the defendant's right to present his case or deprive him of due
process. People v Jackson, 71 Mich App 395, 249 NW2d 132.
Although the New York alibi statute did not on its face provide for reciprocal discovery rights, it
Page 182 of 575
could be construed so as to afford a defendant such rights and, as so construed, did not deny him
due process. People v Collins, 75 Misc 2d 535, 348 NYS2d 99.
Footnote 51. People v Jackson, 71 Mich App 395, 249 NW2d 132.
Annotation: 45 ALR3d 958, § 5.
Footnote 52. Williams v Florida, 399 US 78, 26 L Ed 2d 446, 90 S Ct 1893, 53 Ohio Ops 2d
55; State ex rel. Sikora v District Court of Thirteenth Judicial Dist., 154 Mont 241, 462 P2d 897;
State v Angeleri, 51 NJ 382, 241 A2d 3, cert den 393 US 951, 21 L Ed 2d 362, 89 S Ct 372;
State v Smith (App) 88 NM 541, 543 P2d 834; People v Rakiec, 260 App Div 452, 23 NYS2d
607, mod on other grounds 261 App Div 864, 24 NYS2d 791 and affd 289 NY 306, 45 NE2d
812; People v Schade, 161 Misc 212, 292 NYS 612.
Annotation: 45 ALR3d 958, § 6.
See Scott v State (Alaska) 519 P2d 774, holding that a portion of a trial court's discovery order
requiring the defendant to give notice of his alibi defense was permissible, but that a further
requirement that he provide the prosecution with the names and statements of prospective alibi
witnesses and information concerning the locations to be relied on for alibi purposes violated his
privilege against self-incrimination under the Alaska constitution.
Footnote 53. State ex rel. Sikora v District Court of Thirteenth Judicial Dist., 154 Mont 241, 462
P2d 897; State ex rel. Simos v Burke, 41 Wis 2d 129, 163 NW2d 177.
Annotation: 45 ALR3d 958, § 7.
Footnote 54. State v Dodd, 101 Ariz 234, 418 P2d 571; State v Smith (App) 88 NM 541, 543
P2d 834; Commonwealth v Vecchiolli, 208 Pa Super 483, 224 A2d 96; State ex rel. Simos v
Burke, 41 Wis 2d 129, 163 NW2d 177.
Annotation: 45 ALR3d 958, § 9.
Footnote 55. State ex rel. Simos v Burke, 41 Wis 2d 129, 163 NW2d 177.
Annotation: 45 ALR3d 958, § 8.
Order which shortened time for defendant to give notice of alibi defense to four days rather than
usual ten days provided for in rule was not abuse of discretion and did not deprive defendant of
valuable defense where trial court allowed presentation of alibi defense, where defendant did not
indicate that he had other witnesses to call or evidence to present, where government did not call
any rebuttal witnesses, and where one government witness who placed defendant at time and
place in question was interviewed by defense prior to trial. United States v Singletary (CA8 SD)
Page 183 of 575
562 F2d 1058.
§ 194 Form of notice [21 Am Jur 2d CRIMINAL LAW]
The required form of the alibi notice depends on the wording of the applicable statute. Under a
statute requiring written notice, it has been held that mere oral notice renders evidence of the
alibi inadmissible. 56 On the other hand, a trial court's refusal to allow alibi testimony because
of the defendant's failure to serve written notice required by statute has been deemed an abuse of
the court's discretion where the prosecutor admittedly had one week's oral notice of the identity
of the two alibi witnesses who were in jail prior to trial and available for questioning. 57 In the
absence of an express statutory requirement that the defendant's alibi notice be "signed by him", a
defendant need not personally sign his notice. 58
Where the applicable statute requires that the notice contain specific information as to the place
or places where the defendant claims to have been when the offense was committed, a notice
merely declaring the defendant's intention to rely on alibi as a defense is not legally sufficient. 59
And, it has been held that an accused's statement in his motion for continuance that trial should
be postponed to enable an alibi witness to be present and testify does not suffice as a statutory
notice of alibi. 60
Footnotes
Footnote 56. Balzhiser v State (App) 10 Ohio L Abs 666; Jensen v State, 36 Wis 2d 598, 153
NW2d 566, reh den 36 Wis 2d 607A, 154 NW2d 769; State v Selbach, 268 Wis 538, 68 NW2d
37.
Annotation: 45 ALR3d 958, § 26.
Footnote 57. People v Robinson, 54 Mich App 704, 221 NW2d 596.
Footnote 58. Commonwealth v Davenport, 210 Pa Super 60, 231 A2d 429; Commonwealth v
Gonzales, 210 Pa Super 57, 231 A2d 414.
Annotation: 45 ALR3d 958, § 27.
Footnote 59. State v Anderson, 25 Utah 2d 26, 474 P2d 735.
Annotation: 45 ALR3d 958, § 28.
Footnote 60. People v Fleisher, 322 Mich 474, 34 NW2d 15.
Page 184 of 575
Annotation: 45 ALR3d 958, § 29.
§ 195 Duty of prosecutor to specify time and place of offense charged [21 Am Jur 2d
CRIMINAL LAW]
When a defendant submits a notice of intention to rely on an alibi defense, some statutes require
the prosecution to specify, absent a showing of good cause for failure to do so, the exact time and
place of the charged offense. Under such a statute, it has been held that the prosecution's refusal
to comply constituted reversible error. 61 Nevertheless, it has also been held that reversal of a
defendant's conviction was not required even though the date and place stated by the prosecution
in answer to the defendant's pretrial notice of alibi may not have been sufficiently exact where
the notice filed by the defendant accounted for the period of time encompassing the crime proved
at trial, where the defense placed him at locations outside the area described in the prosecution's
answer, and where specification of a more exact time and place would not have altered
presentation of defense evidence. 62
Other statutes make the requirement of giving notice of alibi dependent on a prior demand by the
state. 63 The prosecution need not provide exact details of the offense in its demand for the
defendant's alibi notice, however, where it is not practicable to do so, 64 or where the evidence of
the crime and the defendant's culpability are circumstantial. 65
Despite an express reference in an alibi notice statute to the charge of the specific time of the
offense alleged in the complaint, indictment, or information, the prosecution's failure to allege
the precise time of the commission of the crime does not deprive a defendant of his alibi defense
where he makes no effort to comply with the statute. 66 It has also been held that the omission
of the exact time of the offense in the indictment does not bar the applicability of the notice
requirement, since such information is readily obtainable through discovery. 67
Even absent an express statutory requirement that the prosecutor specify the time and place of the
offense, there is authority for the view that the prosecution must furnish the defendant with exact
details of the offense to allow him to comply with the alibi notice statute. 68 On the other hand,
under a statute not imposing a duty on the prosecution, it has also been held that the defendant
has the burden of seeking specificity from the prosecutor as to the date, time, and place of the
offense. 69
§ 195 – Duty of prosecutor to specify time and place of offense charged [SUPPLEMENT]
[21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Under notice of alibi statute which provided reciprocal burden on prosecutor to disclose exact
Page 185 of 575
date and place to be asserted at trial as date and place of crime, balance of discovery was afforded
parties and statute did not violate defendant's right of due process. Mauricio v Duckworth (1986,
ND Ind) 633 F Supp 1302 (construing Ind law).
Evidence as to time and place of abduction was erroneously admitted into evidence in
prosecution for criminal confinement where defendant filed and asserted timely notice of
intention to offer alibi (including request for specific statement of date, time, and place that
prosecution proposed to present at trial as date, time, and place defendant committed crimes) and
thereafter state failed without good cause to file such statement. Dew v State (1981, Ind) 416
NE2d 1245.
Fact that prosecutor's response to robbery defendant's notice of alibi was served seven days
before trial, rather than eight days as required by statute, did not warrant granting of defense
motion to strike state's response where noncompliance was attributable to oversight or
miscalculation of time and was not prejudicial. Brown v State (1982, Ind) 436 NE2d 285.
Where State failed to timely file its answer to defendant's notice of alibi, it was not reversible
error to admit State's evidence since defendant had procured from victim at deposition that
information which he would have received from timely answer by State to his notice of alibi and
which he did obtain from State's late answer, and since defendant suffered no prejudice by state's
delay. Tolbert v State (1984, Ind) 459 NE2d 1189.
In prosecution for robbery, defendant waived any error in prosecution's failure in response to
notice of alibi to file specific statement in regard to exact date and place of crime until day of
trial, where defendant's attorney declined offer of continuance and admitted that defendant was
not prejudiced by delay in that he knew specific time and place of alleged crime through
deposition and probable cause affidavit. Willis v State (1980, Ind App) 411 NE2d 696.
Footnotes
Footnote 61. Pearman v State, 233 Ind 111, 117 NE2d 362.
Annotation: 45 ALR3d 958, § 30[a].
Footnote 62. Monserrate v State, 265 Ind 153, 352 NE2d 721.
Footnote 63. State v Widenmayer, 128 NJL 239, 25 A2d 210.
Footnote 64. Bruce v State, 268 Ind 180, 375 NE2d 1042, 1 ALR4th 616, cert den 439 US 988,
58 L Ed 2d 662, 99 S Ct 586; Monserrate v State, 265 Ind 153, 352 NE2d 721; State v Lizotte
(Me) 249 A2d 874 (statement that criminal acts were committed between approximately 2:00
a.m. and 6:00 a.m. on certain date held sufficient).
Page 186 of 575
Annotation: 45 ALR3d 958, § 30[b].
Where the time sequence of the homicide was not so specific as to indicate the exact moment
when the victim was killed, and where the state, in its motion requiring the defendant to produce
the names and addresses of witnesses to any alibi defense, stated the time of the incident as
"between the hours of 9 a.m., and 3:39 p.m." on December 27, 1973, this was sufficient to
specify the place, date, and time of the crime charged. State v Cox (Mo App) 542 SW2d 40.
Footnote 65. State v Baldwin, 47 NJ 379, 221 A2d 199, cert den 385 US 980, 17 L Ed 2d 442,
87 S Ct 527; State v Rogers, 30 NJ Super 239, 104 A2d 89.
Annotation: 45 ALR3d 958, § 30[c].
Footnote 66. State v Wonser, 217 Kan 406, 537 P2d 197.
Footnote 67. State v Nunn, 113 NJ Super 161, 273 A2d 366.
Footnote 68. People v Wright, 172 Misc 860, 16 NYS2d 593; State v Morales, 266 Or 421, 513
P2d 798.
Annotation: 45 ALR3d 958, § 32.
Footnote 69. People v Smith, 58 Mich App 76, 227 NW2d 233.
§ 196 Discretion of trial court to exclude evidence [21 Am Jur 2d CRIMINAL LAW]
Although a particular statute may make exclusion of alibi evidence mandatory if the accused fails
to comply with the notice provisions, 70 many statutes give the trial court discretion to exclude
alibi evidence in the event of a party's noncompliance. 71
Thus, alibi evidence has been
excluded where a defendant failed to submit his notice within the time specified in the statute 72
or failed to comply with a statutory requirement that a copy of the notice be filed with the court
in addition to service on the prosecution. 73 Even under statutes silent on the exclusion of
evidence, some decisions recognize the court's inherent power to exclude alibi evidence where
the defendant fails to meet notice requirements. 74
Exclusion of alibi witnesses for failure to comply with a notice-of-alibi rule constitutes error
unless there is an inquiry into all of the surrounding circumstances to determine if good cause
exists for waiving the rule; 75 and an order of exclusion may be reversed when the court abuses
its discretion. 76 Thus, it has been held to be an abuse of the trial court's discretion to exclude
untimely offered alibi evidence where the defendant's tardiness of notice was not due to
egregious fault and did not prejudice the prosecution's case. 77 Similarly, where the defense
submitted notice of alibi to the prosecutor six months prior to trial, even though not within 10
Page 187 of 575
days after demand, the trial court abused its discretion in excluding the alibi testimony due to late
notice where failure to comply with the statute did not result in unfair surprise to the state or
preclude proper investigation of the validity of the claim. 78
Only testimony contemplated by the alibi notice statute may be excluded for noncompliance with
the notice provisions. Thus, in a prosecution for assault and battery, it has been held reversible
error to exclude the testimony of a participant who was previously adjudicated delinquent for the
same offense where his testimony to the effect that the defendant was not at the scene of the
crime did not show the defendant's whereabouts at the time the crime was committed. 79
§ 196 – Discretion of trial court to exclude evidence [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Practice Aids: Alibi Notice Rules: The Preclusion Sanction as Procedural Default, 51 U Chi LR
254, Winter, 1984.
Case authorities:
District court did not abuse its discretion in excluding alibi witness where defendant failed to
respond to government's demand for notice of alibi, even though defense counsel argued that he
did not know witness's name until one week before trial and could not locate witness until
morning of trial; although it may be better practice to hear alibi witness, district court maintains
discretion in such matters. United States v Davis (1994, CA10 Okla) 40 F3d 1069.
Trial court's exclusion of testimony of defendant's alibi witnesses was not appropriate as remedy
for defendant's labeling pleading "Amended Response to State's Motion for Discovery" instead of
"Notice of Alibi Defense" where no evidence existed of defendant's guilt other than testimony of
two alleged accomplices. People v Jones (1980) 86 Ill App 3d 1013, 42 Ill Dec 186, 408 NE2d
764.
Reversible error occurred in forgery and misdemeanor theft prosecution when thai court barred
corroborating alibi witness' testimony on basis that disclosure of temporary job site at which
defendant was supposed to have been located was inadequate disclosure of defendants
whereabouts at time of events; if prosecutor found disclosure inadequate, he was under duty to
seek clarification rather than moving to exclude evidence. People v Osborne (1983) 114 Ill App
3d 433, 71 Ill Dec 513, 451 NE2d 1.
Where defendant in prosecution for murder was permitted to testify as to alibi in spite of his
failure to file required notice, he was not prejudiced but received consideration not contemplated
by statute, and there was no error in excluding alibi testimony from particular witness. James v
State (1980, Ind) 411 NE2d 618.
Trial court did not abuse its discretion in refusing to admit alibi evidence offered without filing
Page 188 of 575
of timely notice and without showing of good cause, where defendant knew of witness from time
he was charged, where witness had only feeble excuse of desire not to get involved, and where
state did not have opportunity to investigate witness prior to his testimony. State v Christensen
(1982, Iowa) 323 NW2d 219.
When aggravated rape defendant complied with prosecutor's pretrial request for notice of alibi by
offering to particularize alibi evidence on first day of trial, trial judge improperly exercised his
discretionary power in excluding testimony of defense witnesses by applying disclosure statute as
mandatory rule excluding testimony of undisclosed alibi witnesses rather than determining
whether to exercise his discretionary power to exclude such testimony through consideration of
relevant criteria. State v Bias (1981, La) 393 So 2d 677.
Trial court in murder prosecution properly exercised its discretionary power to exclude
undisclosed alibi evidence offered by defense witness discovered on first day of trial where
existence of witness was disclosed by defendant's mother, who had participated in defense for
well over a year while apprised of need for notice regarding alibi testimony, and where state
presented testimony of three credible witnesses definitely placing defendant at scene only
minutes prior to murder. State v Brown (1982, La) 414 So 2d 689 (effect of retarded defendant's
confession not discussed).
Exclusion of alibi testimony was proper sanction rather than abuse of discretion in robbery
prosecution against two brothers, where fact counsel learned of witness' existence on first day of
trial did not excuse defendant's failure to reveal existence of that witness within time to comply
with disclosure requirements, and where prejudice to prosecution resulting from admission of
alibi witness' testimony, through depriving state of opportunity to interview her and investigate
veracity of her proposed testimony, was substantial. Middleton v State (1981) 49 Md App 286,
431 A2d 734.
In prosecution charging nighttime burglary with intent to commit rape and aggravated assault on
12-year-old girl, defendant's failure to assert alibi defense during August arraignment and defense
counsel's asserted unawareness of availability of defense until day before December 17
rearraignment on amended information, justified trial court's refusal to allow alibi defense at
December 21 trial; while defendant had statutory right to assert alibi defense within ten days of
rearraignment, denial of that right was not prejudicial error considering frivolousness of defense.
State v Wells (1983, Mont) 658 P2d 381.
In prosecution of prisoner for first-degree murder of fellow inmate, trial court did not abuse its
discretion in refusing to permit alibi witness to testify, where it appeared from record that major
thrust of proposed testimony was to place defendant in another cell after lockdown, and where
defendant failed to comply with statute requiring defendant to serve notice of alibi not less than
ten days before trial. McKenna v State (1985, Nev) 705 P2d 614, cert den (US) 88 L Ed 2d 907,
106 S Ct 868.
Page 189 of 575
Trial court in prosecution for possession of marijuana with intent to distribute by convicted felon
erred in overruling defense motion to exclude evidence withheld from defense in violation of
discovery order, where videotape of search under warrant of suspects' motel room, germination
report on seized marijuana seeds, and small scales seized from one suspect's person were not
disclosed pursuant to order. Skelly v State (1994, Okla Crim) 880 P2d 401.
Footnotes
Footnote 70. People v Jackson, 71 Mich App 395, 249 NW2d 132.
Footnote 71. State v Dodd, 101 Ariz 234, 418 P2d 571; Cox v State (Fla App D3) 219 So 2d 762,
later app (Fla App D3) 243 So 2d 611; Cockerham v State, 246 Ind 303, 204 NE2d 654; State v
Sharp, 202 Kan 644, 451 P2d 137; People v Sherrod, 32 Mich App 183, 188 NW2d 221; State v
Nunn, 113 NJ Super 161, 273 A2d 366; Commonwealth v Phoenix, 217 Pa Super 121, 268 A2d
460; State v Di Maggio, 49 Wis 2d 565, 182 NW2d 466, cert den 404 US 838, 30 L Ed 2d 70,
92 S Ct 127.
Annotation: 45 ALR3d 958, § 11[a].
Footnote 72. State v Martin, 2 Ariz App 510, 410 P2d 132, reh den 3 Ariz App 119, 412 P2d
294; People v Jones, 118 Ill App 2d 189, 254 NE2d 843; Riggs v State, 268 Ind 453, 376 NE2d
483.
Annotation: 45 ALR3d 958, § 11[b].
Footnote 73. Cockerham v State, 246 Ind 303, 204 NE2d 654.
Annotation: 45 ALR3d 958, § 11[d].
Footnote 74. People v Chamberlain, 15 Mich App 541, 166 NW2d 815, cert den 397 US 948,
25 L Ed 2d 128, 90 S Ct 967; State v Rourick, 245 Iowa 319, 60 NW2d 529.
Annotation: 45 ALR3d 958, § 12.
Footnote 75. Barnes v State (Fla App D2) 294 So 2d 679; State v Francis, 128 NJ Super 346, 320
A2d 173.
Footnote 76. State v Smith, 50 Ohio St 2d 51, 4 Ohio Ops 3d 118, 362 NE2d 988.
In a prosecution of inmates for aggravated battery of a correctional officer, the sanction of
excluding the testimony of 14 defense witnesses, fellow inmates of the defendants, whose names
had not been previously disclosed to the state, produced a degree of unfairness that constituted
Page 190 of 575
reversible error. People v Jackson, 48 Ill App 3d 769, 6 Ill Dec 710, 363 NE2d 392.
Footnote 77. People v Merritt, 396 Mich 67, 238 NW2d 31; State v Mitchell, 149 NJ Super 259,
373 A2d 700.
Footnote 78. State v Mitchell, 149 NJ Super 259, 373 A2d 700.
Footnote 79. State v Volpone, 150 NJ Super 524, 376 A2d 199.
§ 197 Exceptions to notice requirements [21 Am Jur 2d CRIMINAL LAW]
In certain cases, the statutory notice of alibi has not been necessary. Thus, alibi evidence has
been admitted despite the defendant's failure to comply with the notice statute where the
information did not allege the time or place of the offense, 80 where the prosecution's evidence
at trial suggested that the offense was committed at a time or place different from that alleged in
the information, 81 where the prosecution failed to demand in writing, as required by statute,
that the defendant file a notice of alibi, 82 where the prosecution did not object to alibi evidence
offered without prior notice under the statute, 83 where the court set trial too early for the
defendant to file notice according to the statute, 84 or where the alibi evidence was offered to
rebut the prosecution's evidence. 85
"Good cause" for noncompliance with an alibi notice statute may, under certain circumstances,
prevent exclusion of alibi testimony. Thus, a prosecutor's explanation that his five-day delay in
serving a statement of the exact place and time of the crime on the defendant was due to a
three-day Easter weekend and to difficulties in conveying the response to a special judge's law
office for his approval has been held sufficient for a finding of good cause for the prosecutor's
noncompliance with the statute. 86
On the other hand, a defense counsel's testimony that his
tardiness in complying with the alibi notice statute resulted solely from confusion as to which
prosecutor had been assigned to the case did not demonstrate good cause for noncompliance, and
it has been held proper, under such circumstances, to deny the defendant his right to present alibi
evidence. 87
§ 197 – Exceptions to notice requirements [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Case authorities:
Where statute required prosecution to file notice of rebuttal to prevent unfair surprise at trial, trial
court properly admitted testimony of rebuttal witnesses based on showing that names were not
available when notice was required and could not have been obtained with exercise of due
diligence. People v Diaz (1980) 98 Mich App 675, 296 NW2d 337.
Page 191 of 575
Defendant would be given new trial on grounds trial court improperly excluded alibi evidence,
notice of which was not timely filed under statute, where to construe statute strictly would violate
due process. People v Bennett (1982) 116 Mich App 700, 323 NW2d 520.
In rape prosecution trial court properly denied defense motion for mistrial after state submitted
evidence in rebuttal to defense alibi witnesses without giving notice required by statute where
state's failure to comply with statute was attributable to late compliance with notice requirement
by defense, and where defense failed to make timely objection. State v Reiman (1979, SD) 284
NW 2d 860.
Footnotes
Footnote 80. State v Ovitt, 126 Vt 320, 229 A2d 237.
45 ALR3d 958, § 13.
Footnote 81. State v Taylor, 198 Kan 290, 424 P2d 612.
Annotation: 45 ALR3d 958, § 14.
Footnote 82. State v Wiedenmayer, 128 NJL 239, 25 A2d 210.
Annotation: 45 ALR3d 958, § 15.
It was error to exclude the defendant's alibi witnesses where the prosecution had made
compliance by the defendant with the 10-day provision of the notice rule impossible by not filing
its written demand more than 10 days prior to trial and had not obtained an order of court setting
another time for the defendant's compliance. Shelby v State (Fla App D1) 301 So 2d 461.
Footnote 83. People v Miller, 250 Mich 72, 229 NW 475.
Annotation: 45 ALR3d 958, § 16.
Footnote 84. Bradley v State, 227 Ind 131, 84 NE2d 580.
Annotation: 45 ALR3d 958, § 17.
The trial court properly admitted testimony of the defendant's alibi witnesses, despite the
defendant's failure to comply with notice of alibi rule where the defendant was required to go to
trial on two felony counts only 18 days after arraignment and the prosecution neither claimed
surprise nor requested a continuance to permit the defendant to supply the statement
contemplated by the rule. People v Moore, 36 Colo App 328, 539 P2d 489.
Page 192 of 575
Footnote 85. Founts v State, 87 Nev 165, 483 P2d 654; State v Ovitt, 126 Vt 320, 229 A2d 237.
Annotation: 45 ALR3d 958, § 18.
But see State v Thayer, 124 Ohio St 1, 9 Ohio L Abs 734, 176 NE 656, 75 ALR 48, holding that
to admit such rebuttal testimony despite the defendant's failure to file the statutory notice would
be an indirect way of nullifying the statute.
Although no notice of alibi was filed by a criminal defendant, as required by criminal rule, the
defendant's work records and testimony relative thereto should have been admitted at trial to
establish an alibi where the alibi evidence was a vital factor in determining guilt or innocence,
where only a single witness placed the defendant at the scene of the crime, and where the
question of the credibility of the alibi evidence would be at a minimum. State v Edwards, 52
Ohio App 2d 120, 6 Ohio Ops 3d 91, 368 NE2d 302.
Although the prosecutor did not notify the defendant of those persons he intended to call to refute
the evidence of the alibi, the defendant having given prosecuting attorney notice in writing of his
intention to claim alibi, the trial court was justified in waiving the statutory requirement and
permitting the rebuttal witnesses to testify where the testimony of one rebuttal witness, the
robbery victim, would have been known to the defendant had it been inquired into, where the
other rebuttal witness, having been subpoened by defendant, was undoubtedly interviewed by the
defendant, and where there was no showing that prosecution intentionally attempted to make any
concealment of facts regarding alibi or its refutation. State v Case (Utah) 547 P2d 221.
Footnote 86. Bruce v State, 268 Ind 180, 375 NE2d 1042, 1 ALR4th 616, cert den 439 US 988,
58 L Ed 2d 662, 99 S Ct 586.
Footnote 87. Riggs v State, 268 Ind 453, 376 NE2d 483.
Where a statute required exclusion of a defendant's testimony if the notice of alibi was not filed
properly and if the defendant did not show "good cause" for failure to do so, the defendant's
failure to provide sufficient details for the alibi and his subsequent failure to bring himself within
compliance prior to trial provided sufficient bases for the trial court to grant the state's motion in
limine to exclude the defendant's alibi defense. Hartman v State (Ind App) 376 NE2d 100.
§ 198 Limiting effect of notice; unnamed witnesses [21 Am Jur 2d CRIMINAL LAW]
Having filed a notice of alibi specifying his whereabouts at the time of the offense, a defendant
may not prove other facts at trial that in effect constitute a new alibi. 88
Once a defendant has
submitted a list of alibi witnesses in a notice, the trial court, under certain statutes, has discretion
to exclude the testimony of witnesses not named in the original list. Thus, the exclusion of such
witnesses has been held a proper exercise of the court's discretion where the offered testimony
Page 193 of 575
was cumulative, 89 where the defendant failed to show good cause for having not included the
names of all his alibi witnesses in the notice, 90 or where other circumstances made the trial
court's decision reasonable. 91 Under a notice statute silent as to unnamed witnesses but giving
discretion to the trial court to exclude the entire defense of alibi for the defendant's failure to file
a timely notice, exclusion of the testimony of an unlisted witness has also been upheld as a
proper exercise of the trial court's discretion. 92 On the other hand, a decision to exclude the
testimony of witnesses not listed in the notice has been reversed as an abuse of the court's
discretion where the defendant was highly prejudiced and the prosecution would not have been
surprised by the unlisted witness, 93 or where a degree of unfairness constituting reversible error
would have resulted. 94
§ 198 – Limiting effect of notice; unnamed witnesses [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Case authorities:
Although in murder prosecution in which defendant relied on alibi defense state failed to disclose
identity of one of its witnesses before that witness testified, there was no violation of defendant's
right under rule relating to state's obligation on notice of defendant's intent to assert alibi defense
that it advise defendant within reasonable time of any witness state intended to call to refute alibi
defense, where witness' testimony was offered to impeach credibility of defendant and two of his
defense witnesses rather than as "rebuttal" to defendant's alibi defense. People v Muniz (1980,
Colo App) 622 P2d 100.
Court properly excluded alibi testimony under notice of alibi statute which provided reciprocal
discovery, where defendant filed his notice of alibi witnesses two years late, at a time when the
prosecution was close to closing its case in chief, and where disclosure was intentionally
withheld. Statute's notice requirements did not favor state and thus did not restrict defendant's
right to due process or violate his right against self-incrimination; nor did statute violate
defendant's right to compulsory process, since right to compel attendance of witnesses was not
absolute. State v Boucino (1986) 199 Conn 207, 506 A2d 125.
Trial court did not abuse its discretion in denying defendant's motion to endorse additional alibi
witness where defendant gave State notice that he intended to rely upon defense of alibi some 50
days prior to trial and disclosed names of three witnesses at that time but did not notify State of
existence of additional witness until State had rested upon third day of trial. State v Douglas
(1984) 234 Kan 605, 675 P2d 358.
That judge in rape prosecution did not abuse discretion by denying defense opportunity to call
new alibi witness on third day of that after two properly noticed alibi witnesses had testified,
where strong evidence had already been received by the court concerning defendant's movements
on night in question, and where defense counsel had failed to notify prosecution ten days before
Page 194 of 575
trial regarding identity and anticipated testimony of proposed witness. Commonwealth v La
Frennie (1982) 13 Mass App 977, 432 NE2d 535, app den (Mass) 440 NE2d 1175.
Footnotes
Footnote 88.
Annotation: 45 ALR3d 958, § 21.
A notice to the district attorney by an accused that he intends to rely on an alibi as a defense by
proof that, at the alleged time of the crime, he was engaged in moving furniture from one named
city to another was not a sufficient compliance with statutory requirements where the alibi relied
on at the trial was that defendant was moving furniture within the first named city. State v
Kopacka, 261 Wis 70, 51 NW2d 495, 30 ALR2d 476.
The trial court did not abuse its discretion in excluding the evidence of the defendant's second
alibi where he had filed, on the first day of trial, a belated notice of alibi that had placed him with
another person on the date of the defense, rather than with the person named in in the initial
notice of alibi. Fields v State (Ind App) 367 NE2d 36.
Footnote 89. State v Rafferty, 145 Kan 795, 67 P2d 1111.
Footnote 90. State v Berry, 170 Kan 174, 223 P2d 726; Bush v State, 203 Kan 494, 454 P2d 429.
Footnote 91. Commonwealth v Vecchiolli, 208 Pa Super 483, 224 A2d 196.
Annotation: 45 ALR3d 958, §§ 22-23.
Footnote 92. State v Adair, 106 Ariz 4, 469 P2d 823.
Annotation: 45 ALR3d 958, § 23[b].
Footnote 93. Commonwealth v Shider, 209 Pa Super 133, 224 A2d 802.
Footnote 94. People v Jackson, 48 Ill App 3d 769, 6 Ill Dec 710, 363 NE2d 392.
§ 199 Applicability to defendant's own testimony [21 Am Jur 2d CRIMINAL LAW]
It has been said that alibi notice statutes, being in derogation of the common law, must be strictly
construed. 95 In accordance with this rule of construction, it has been held that a statute
requiring a defendant intending to offer proof of an alibi to serve on the prosecuting officer a bill
of particulars setting forth his whereabouts at the time of the crime and the names and addresses
Page 195 of 575
of his alibi witnesses applies only to witnesses other than the defendant; 96 and that a defendant
who intends to offer only his own testimony in support of his alibi defense need not submit a
notice of alibi. 97 There is authority for the contrary view, however, that not even the accused
himself may testify as to his alibi where he fails to submit the statutory notice. 98
§ 199 – Applicability to defendant's own testimony [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Case authorities:
It is constitutionally impermissible to enforce notice-of-alibi statute against defendant by
precluding his own testimony; trial court therefore erred in precluding defendants offer to testify
where trial court had available alternative remedy of granting continuance to prosecutor in order
to alleviate any surprise or prejudice resulting from lack of notice. Walker v Hood (1988, SD
NY) 679 F Supp 372.
Since purpose of Wisconsin procedural rule forbidding presentation of alibi evidence by
defendant unless defendant had given notice to prosecution of his intention to present such
evidence was to prevent surprise to state, not to override defendant's constitutional right to testify
in his own behalf, trial court unconstitutionally but harmlessly applied rule in forbidding
armed-robbery defendant to testify personally to his alibi, where defendant had federal
constitutional right to testify on his own behalf, defendant had no corroborative evidence, state as
essential element of crime had to be prepared to place defendant at scene of crime, and
defendant's testimony was unlikely to overcome state's evidence, and where rule served little or
no purpose; proper procedure where defendant fails to give notice and presents persuasive alibi
evidence is for prosecution to seek continuance for further investigation or simply acquit. Alicea
v Gagnon (1982, CA7 Wis) 675 F2d 913 (overruling Sims v Lane (1969, CA7 Ind) 411 F2d 661,
cert den 396 US 943, 24 L Ed 2d 244, 90 S Ct 378 (to the extent it holds accused's right to
testify in his own defense is merely statutory).
Where detective testified to his preparation of photo lineup used by victim to identify defendant
as assailant in one of charged crimes, testimony of defendant that at time crimes were committed
in California he was intoxicated and on bus in either Utah or Colorado traveling to St. Paul for
chemical-dependency treatment, having left Los Angeles on May 11, 1985 between 5:00 and
7:00 p.m., and testimony of defendant's sister that she received telephone call from defendant's
wife in Los Angeles on May 12, 1985 that defendant had left and was intoxicated, and another on
following day inquiring whether defendant had arrived in St. Paul, both verified by entries on
sister's telephone bill, were insufficient to rebut State's evidence of his presence in California on
May 12, 1985 when crimes were committed, where he barely recalled boarding bus in Los
Page 196 of 575
Angeles and did not possess bus ticket stub to confirm his departure. State v Babb (1986, Minn
App) 393 NW2d 705.
In prosecution for sexual assault, alibi notice requirement was not applicable to defendant where
witness did not give alibi testimony, in that time period covered by witness' testimony did not
cover time established for actual crime, and therefor, excluded testimony was not alibi testimony;
moreover, testimony by witness was not relevant and it was within discretion of court to strike it.
State v Berg (1985, Mont) 697 P2d 1365.
Reversible error occurred in theft prosecution where defendant properly notified court of her
intention to testify as to alibi, but trial judge barred her from saying she was elsewhere at time
theft occurred. State v Douglas (1982) 292 Or 516, 641 P2d 561.
Footnotes
Footnote 95. State v Wiedenmayer, 128 NJL 239, 25 A2d 210.
Footnote 96. People v Rakiec, 289 NY 306, 45 NE2d 812.
Footnote 97. White v State (Fla App D4) 356 So 2d 56; State ex rel. Mitchell v Walker (Fla App
D2) 294 So 2d 124; State v Lanphear (Iowa) 220 NW2d 618; State v Schlater (Iowa) 170 NW2d
601; People v Merritt, 396 Mich 67, 238 NW2d 31.
Annotation: 45 ALR3d 958, § 25.
Footnote 98. Bowen v State, 263 Ind 558, 334 NE2d 691; Smetana v State (App) 22 Ohio L Abs
165, app dismd for want of debat q 131 Ohio St 329, 6 Ohio Ops 25, 2 NE2d 778; State ex rel.
Simos v Burke, 41 Wis 2d 129, 163 NW2d 177.
Annotation: 45 ALR3d 958, § 24.
§ 200 Evidentiary effect of notice [21 Am Jur 2d CRIMINAL LAW]
The prosecution may not regard a notice of alibi as the defendant's evidence to impeach the
prosecution witnesses in advance. 99 The notice may under certain circumstances, however, be
considered admissible as an admission against the defendant's interest. 1
Where a defendant fails to give the required notice but his alibi evidence is admitted without
objection by the prosecution, the defendant may not comment on it during his closing argument.
2 An instruction on alibi is not appropriate if the defendant has neither given notice of the alibi
nor presented evidence on it. 3
Page 197 of 575
Alibi notice statutes do not shift the burden of proof from the prosecution to the defendant on the
issue of alibi. 4
§ 200 – Evidentiary effect of notice [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Accused is not obligated to establish ironclad alibi in order to be entitled to alibi charge to jury.
People v Jack (1989, 1st Dept) 146 App Div 2d 532, 536 NYS2d 782, app gr 73 NY2d 985, 540
NYS2d 1019, 538 NE2d 371 and affd 74 NY2d 708, 543 NYS2d 381, 541 NE2d 410.
Footnotes
Footnote 99. Thomas v State, 237 Ind 537, 147 NE2d 577.
Annotation: 45 ALR3d 958, § 33[a].
Footnote 1. People v Nickopoulous, 26 Mich App 297, 182 NW2d 83.
Annotation: 45 ALR3d 958, § 33[b].
Footnote 2. State v Sharp, 202 Kan 644, 451 P2d 137.
Annotation: 45 ALR3d 958, § 34.
Footnote 3. State v Post, 255 Iowa 573, 123 NW2d 11.
Annotation: 45 ALR3d 958, § 35.
As to alibi instructions in general, see 75 Am Jur 2d, Trial §§ 729-737.
Footnote 4. 29 Am Jur 2d, Evidence § 157.
§ 201 Federal rules [21 Am Jur 2d CRIMINAL LAW]
The Federal Rules of Criminal Procedure govern notices of alibi in federal criminal prosecutions.
5 It has been held that the applicable federal rule is intended to reduce the possibility of surprise
at trial and to prevent trial delays that might otherwise be necessary to permit a surprised party to
meet an unexpected witness or an alibi defense. 6
The rule provides that upon the government attorney's written demand stating the time, date, and
Page 198 of 575
place at which the alleged offense was committed, the defendant must serve the government
within ten days, or at such different time as the court may direct, a written notice of his intention
to offer an alibi defense. Such notice must state the specific place or places where the defendant
claims to have been at the time of the alleged offense and the names and addresses of the
witnesses he intends to rely on to establish his alibi. 7 After proper demand has been made, a
defendant is under an obligation to disclose to the government the name of an alibi witness, even
though the defendant does not know where the witness can be located. 8
In response to the defendant's notice, the attorney for the government must inform the defendant
in writing, within 10 days thereafter, but in no event less than 10 days before trial, unless
otherwise directed by the court, of the names and addresses of the witnesses the government
intends to rely on to establish the defendant's presence at the scene of the alleged offense or to
rebut testimony of any of the defendant's alibi witnesses. 9 It has been said that the
prosecution's reciprocal disclosure duties are the essential quid pro quo of the rule, without which
it would likely be unconstitutional. 10 Because the rule expressly requires a written notice
stating the names and addresses of the witnesses to be relied on, the government cannot meet its
disclosure requirements orally. 11 Alibi rebuttal witnesses within the meaning of the rule
include not only those who directly place the defendant at the scene of the crime, but also those
who solely impeach the credibility of the defendant's alibi witnesses. 12 The government's
reciprocal obligation under the rule is not triggered, however, until the government makes a
written demand on the defendant that he serve notice of his intention to offer an alibi defense.
Unless the government makes that initial demand, the defendant cannot compel it to disclose the
names and addresses of the witnesses it will rely on to establish the defendant's presence at the
scene of the crime and to rebut his alibi witnesses. 13
The rule also imposes on each party a continuing duty to disclose and notify promptly the other
party or his attorney of the existence and identity of an additional witness whose identity, if
known, should have been included in the previously furnished information. 14
Upon the failure of either party to comply with the rule, the court may exclude the testimony of
any undisclosed witness offered by such party as to the defendant's absence from or presence at
the scene of the alleged offense. The rule, however, does not limit the defendant's right to testify
in his own behalf. 15 It has been said that the court's authority to exclude evidence flowing from
undisclosed sources is an integral part of the rule and is essential to its effective operation. Thus,
the trial court has the power not only to exclude testimony of undisclosed witnesses, but also
documentary evidence supplied by them. 16 The court's power to exclude the testimony of an
undisclosed witness is discretionary. It has been held that in exercising its power the court
should consider the amount of prejudice that resulted from the failure to disclose, the reason for
nondisclosure, the extent to which harm caused by the nondisclousre was mitigated by
subsequent events, the weight of properly admitted evidence supporting the defendant's guilt, and
other relevant factors arising out of the circumstances of the case. 17 Abuse of discretion is the
appropriate standard of review of the trial court's imposition of sanctions; and it is said the trial
court should carefully weigh the interest of the defendant in having a full and fair trial against the
Page 199 of 575
interests of avoiding surprise and delays. 18 For good cause shown, the court may grant an
exception to any of the disclosure requirements of the rule. 19
The federal alibi notice rule further provides that neither evidence of an intention to rely upon an
alibi defense that is later withdrawn nor a statement made in connection with such an intention is
admissible in any civil or criminal proceeding against a defendant who gave notice of the
intention. 20 The rule in no way changes, moreover, the government's burden to prove guilt
beyond a reasonable doubt. 21
Although the federal rule is silent on the point, a trial court may, upon request by the government
before a given witness testifies, compel a defendant to deliver to the court a written statement of
any witness listed on the alibi notice. The court may then give the statement, edited of
irrelevancies, to the government upon completion of the direct examination of the witness. If the
existence of a statement is disputed, the court determines the matter after taking evidence on it;
and may prohibit an alibi witness from testifying if the defendant refuses to produce a witness'
statement that is acknowledged to exist. 22
The federal alibi notice rule has been applied to a defendant's request for disclosure of the
government's witnesses, even though the defendant did not brief or formally present the rule to
the district judge. Thus, an appellate court, on an assumption that the government had a duty to
disclose witnesses under the alibi notice rule, has applied the alibi notice rule but held that the
trial court's explicit denial of disclosure under the general discovery provision of the Federal
Rules of Criminal Procedure 23 was not reversible in the absence of material prejudice to the
defendant. 24
In a prosecution against multiple defendants, one defendant's standing to complain of the
exclusion of the testimony of his codefendant's alibi witness has been seriously questioned where
the excluded testimony would have been on the codefendant's behalf and there was no claim that
it would have been relevant to the other defendant's guilt or innocence. 25
§ 201 – Federal rules [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Rules:
FRCrP, Rule 16, amended in 1994, clarifies the rule's applicability to organizational as well as
individual defendants.
FRCrP 16(a)(1)(E), which was added in 1993, provides that at the defendant's request, the
government must disclose to the defendant a written summary of testimony the government
intends to use under FRE 702, 703, or 705 during its case in chief at trial. This summary must
describe the witnesses' opinions, the bases and reasons therefor, and the witnesses' qualifications.
FRCrP 16(b)(1)(C) provides that if the defendant requests such disclosure and the government
complies, the defendant, at the government's request, must disclose to the government a similar
Page 200 of 575
written summary.
Case authorities:
Government was not required to disclose its written statements of interviews with defendant's
alibi witnesses since duty imposed on government is limited to disclosure of names and
addresses of witnesses upon whom government intends to rely to place defendant at crime scene
or rebut alibi witness testimony. United States v Carrasquillo-Plaza (1989, CA1 Puerto Rico) 873
F2d 10.
Defendant need not disclose his intent to offer alibi defense unless and until government submits
written request specifying time, date, and place of alleged offense. It was erroneous for District
Court to preclude testimony of two alibi witnesses on ground that defendants failed to comply
with FRCrP 12.1; government's letter requesting reciprocal discovery did not trigger notice of
alibi requirements of Rule 12.1(a) because it did not specify time, place, and date of alleged
defense, nor did government notes of interview in combination with letter satisfy Rule 12.1(a)
because notes did not specify any date, and also because government did not state in writing that
offense was committed at times and places referred to in notes. United States v Saa (1988, CA2
NY) 859 F2d 1067.
Only fair reading that can be subscribed to Rule 12.1 is that it was intended to be reciprocal in
sense that, while defendant must respond to Government's demand by stating specific place or
places at which he claims to have been at time of alleged offense, Government must also initially
state with specificity time, date and place at which alleged offenses were committed. United
States v Bickman (1980, ED Pa) 491 F Supp 277.
It is permissible and consistent with Rule's 12.1 purpose for prosecution to seek notice-of alibi
with respect to discrete temporal aspect of crime charged and defendant is amply protected if
prosecution makes it clear that it is invoking Rule in that manner. United States v Vela (1982,
CA5 Tex) 673 F2d 86.
Notice requirement of Federal Rule of Criminal Procedure 12.1 is only reciprocal obligation
triggered by government's written demand, under Rule, of notice to offer alibi defense; where
government makes no written demand under Rule, it is under no duty to provide defendants with
list of rebuttal witnesses. United States v Onega-Chavez (1982, CA5 Tex) 682 F2d 1086.
Documents supporting defendant's alibi were properly excluded where defendant did not provide
those documents as part of reciprocal discovery, even though prosecution made no demand for
notice of alibi defense. United States v King (1983, CA5 Miss) 703 F2d 119, 12 Fed Rules Evid
Serv 1633, reh den (CA5 Miss) 706 F2d 315 and cert den (US) 78 L Ed 2d 123, 104 S Ct 127
and cert den (US) 78 L Ed 2d 138, 104 S Ct 148 and cert den (US) 78 L Ed 2d 160, 104 S Gt
179.
Page 201 of 575
Although FRCrP 12.1 had technically been violated by government, trial court did not abuse its
discretion in admitting testimony of a government alibi rebuttal witness where defendant did not
contemporaneously object to admission of the testimony, request a continuance, voir dire the
witness, or move to strike the testimony; furthermore, government had unsuccessfully attempted
to subpoena the witness, notice was provided within 48 hours of time government became aware
of potential testimony & within 24 hours of government's decision to call witness, and record
indicated that threats were being made to witnesses in an attempt to preclude their testimony.
United States v Causey (1987, CA6 Mich) 834 F2d 1277.
Alibi notice requirements are satisfied where defense counsel identifies defendant's mother as
possible alibi witness in letter to government and government itself calls mother as witness.
United States v Webster (1985, CA8 Minn) 769 F2d 487.
Government request for notice of alibi is not bill of particulars limiting charges as to time, place,
and date indicated on request; accordingly, government is not limited to proof of events which
took place during time frame indicated in request for notice of alibi and defense is not limited by
request to alibi witnesses for that time frame; defendant is free to bring forth alibi witnesses
deemed appropriate for other days encompassed by charges against defendant and government
cannot claim unfair surprise as it has not requested notice of alibi for those days; defendant
confused by request seeking notice of alibi for limited period should seek bill of particulars.
United States v Dupuy (1985, CA9 Ariz) 760 F2d 1492.
Timely notice of alibi defense does not require government to disclose evidence rebutting
defendant's affirmative evidence that someone else was responsible for crime where government
is not aware prior to resting case in chief that defendant would offer such evidence. United States
v Givens (1985, CA9 Cal) 767 F2d 574.
Where defendant failed to file notice of alibi, pursuant to statute, court held that defendant did
not have constitutional right to testify as to where he was at time of crime if he claimed that he
was not at place of its commission; statute did not deny defendant right to testify, but rather, only
required that, if he was going to claim not to have been at scene of crime, then he had to notify
state as to where he was. State v Burroughs (1984) 117 Wis 2d 293, 344 NW2d 149.
Footnotes
Footnote 5. FRCrP, Rule 12.1.
Footnote 6. United States v Barron (CA9 Cal) 575 F2d 752.
Practice Aids: Orfield, Criminal Procedure Under the Federal Rules, Vol. 2.
Footnote 7. FRCrP, Rule 12.1(a).
Page 202 of 575
Annotation: 42 ALR Fed 878, § 6.
Neither reversible error nor a violation of due process occurred when the district court allowed
the government to file a written demand for a notice of alibi on the second day of a three-day
trial. Although the government's notice was belated, the trial court did not abuse its considerable
discretion under Rule 12.1, and any error was harmless beyond a reasonable doubt. United States
v Hutton (CA6 Ky) 558 F2d 1265, cert den 434 US 970, 54 L Ed 2d 459, 98 S Ct 519.
An order giving a defendant four days instead of ten days to give notice of an alibi defense was
not an abuse of discretion where the court allowed the defense to reopen the case and call alibi
witnesses after both sides had rested and instructions had been settled upon during trial, where
the defense called three alibi witnesses and the court allowed presentation of the defense, where
the defendant did not give any indication that he had other witnesses to call or evidence to
present, where the government did not call any rebuttal witnesses, and where no prejudice
resulted. United States v Singletary (CA8 SD) 562 F2d 1058.
Footnote 8. United States v White (CA6 Ohio) 583 F2d 899.
Practice Aids: –Demand–By United States Attorney–To determine if defendant intends to offer
alibi defense [FRCrP 12.1(a)]. 7 Federal Procedural Forms L Ed § 20:276.
Notice–By defendant–Of intent to offer alibi defense, specifying place and witnesses [FRCrP
12.1(a)]. 7 Federal Procedural Forms L Ed § 20:277.
Footnote 9. FRCrP, Rule 12.1(b).
The defense was not prejudiced by the government's failure to give pretrial notice of its intent to
call an alibi rebuttal witness where the witness' name and anticipated testimony were made
known to the defense on the first morning of trial. United States v Floyd (CA2 NY) 555 F2d 45,
cert den 434 US 851, 54 L Ed 2d 120, 98 S Ct 163.
A conspiracy defendant's motion for a bill of particulars setting forth with enhanced specificity
the dates, locations, names, and addresses of the participants and the exact date, time, and
location of the overt act alleged in the indictment was proper where the information requested
was necessary for the defendant to propare an alibi defense; but the defendant was not entitled to
disclosure of testimony relating to overt acts not enumerated in the indictment. United States v
Orsini (ED NY) 406 F Supp 1264.
Footnote 10. United States v Barron (CA9 Cal) 575 F2d 752.
Footnote 11. United States v Myers (CA5 Fla) 550 F2d 1036, 42 ALR Fed 855, later app (CA5
Fla) 572 F2d 506, cert den 439 US 847, 58 L Ed 2d 149, 99 S Ct 147.
Page 203 of 575
Annotation: 42 ALR Fed 878, §§ 3-4.
Footnote 12. United States v Myers (CA5 Fla) 550 F2d 1036, 42 ALR Fed 855, later app (CA5
Fla) 572 F2d 506, cert den 439 US 847, 58 L Ed 2d 149, 99 S Ct 147.
Footnote 13. United States v Savage (MD Pa) 430 F Supp 1024, affd without op (CA3 Pa) 566
F2d 1170, cert den 434 US 1078, 55 L Ed 2d 786, 98 S Ct 1273.
Footnote 14. FRCrP, Rule 12.1(c).
Under Rule 12.1, the defendant is under a continuing duty to give names and addresses of alibi
witnesses. United States v Higginbotham, (CA9 Or) 539 F2d 17.
Rule 12.1 sets out the procedure for a defendant's use of an alibi defense and places a continuing
obligation on him to give notice. United States v Boatwright (ED Pa) 425 F Supp 747.
Practice Aids: –Notice–By defendant–Of additional alibi witness [FRCrP 12.1(c)]. 7 Federal
Procedural Forms L Ed § 20:278.
Footnote 15. FRCrP, Rule 12.1(d).
Annotation: 42 ALR Fed 878, §§ 7-9.
Footnote 16. United States v Myers (CA5 Fla) 550 F2d 1036, 42 ALR Fed 855, later app (CA5
Fla) 572 F2d 506, cert den 439 US 847, 58 L Ed 2d 149, 99 S Ct 147.
Footnote 17. United States v Myers (CA5 Fla) 550 F2d 1036, 42 ALR Fed 855, later app (CA5
Fla) 572 F2d 506, cert den 439 US 847, 58 L Ed 2d 149, 99 S Ct 147.
Footnote 18. United States v Barron (CA9 Cal) 575 F2d 752 (exclusion of testimony justified
where defendant steadfastly refused to cooperate in his own defense up until scheduled trial date
and did not make timely disclosure of alibi defense to attorney and where government had strong
case against him through seven eyewitnesses who made positive in-court identification of him as
bank robber).
The district court abused its discretion in failing to exclude the testimony of four undisclosed
alibi rebuttal witnesses where the prejudice to the defense was substantial and remained
unabated, where the government's reason for nondisclosure, its belief that the witnesses were not
within the scope of Rule 12.1, was feeble, and where the evidence against the defendant was
weak. United States v Myers (CA5 Fla) 550 F2d 1036, 42 ALR Fed 855, later app (CA5 Fla)
572 F2d 506, cert den 439 US 847, 58 L Ed 2d 149, 99 S Ct 147.
Authority in the trial judge to exclude evidence for noncompliance with FRCrP Rule 12.1 is
Page 204 of 575
contemplated by the wording and history of rule, and indeed, exclusion for noncompliance may
be the normal sanction applied; although, in light of extenuating circumstances (counsel was not
appointed until the time for compliance with Rule 12.1 had nearly run out, and the lawyer was
inexperienced) it would have been better practice to have allowed the testimony, it cannot be said
that the trial judge abused his discretion in not doing so. United States v Fitts (CA10 Okla) 576
F2d 837.
Footnote 19. FRCrP, Rule 12.1(e).
Annotation: 42 ALR Fed 878, § 10.
The trial judge properly excluded alibi testimony (other than by the defendant himself) where the
10-day notice requirement of Rule 12.1 was not complied with, where there was no showing by
the defendant of good cause for his noncompliance, and where such exclusion did not
substantially prejudice him. United States v Smith, 173 App DC 314, 524 F2d 1288.
A defendant who did not disclose the name of an alibi witness to the government upon demand
made under Rule 12.1(a), allegedly because he did not know where the alibi witness could be
located, did not show good cause under Rule 12.1(e) for avoiding exclusion of such alibi
testimony under Rule 12.1(d). The government's case would have been seriously prejudiced had
the witness been permitted to testify since the government had not had an opportunity to
interview the witness and investigate testimony, the witness' testimony was not offered until both
parties had rested at the close of a three-day jury trial, a continuance for the purpose of
investigation would not have been satisfactory and it is doubtful the jury would have believed the
alibi testimony of the additional witness. United States v White (CA6 Ohio) 583 F2d 899.
Defendant's failure to inform his counsel of the existence of two alibi witnesses because of a
desire not to involve them in the case did not show "good cause" to warrant granting an
exception to the exclusion of their testimony. United States v Boatwright (ED Pa) 425 F Supp
747.
Practice Aids: –Motion–To permit defendant to offer alibi defense, specifying reasons for failure
to give notice of defense [FRCrP 12.1(e)]. 7 Federal Procedural Forms L Ed § 20:279.
Footnote 20. FRCrP, Rule 12.1(f).
Footnote 21. 29 Am Jur 2d, Evidence § 157.
Footnote 22. United States v Pulvirenti (ED Mich) 408 F Supp 12.
Annotation: 42 ALR Fed 878, § 5.
Footnote 23. FRCrP, Rule 16.
Page 205 of 575
As to discovery and inspection of prosecution evidence in general under the FRCrP, see 23 Am
Jur 2d, Depositions and Discovery §§ 309 et seq.
Footnote 24. McClendon v United States (CA8 Ark) 587 F2d 384, cert den 440 US 983, 60 L
Ed 2d 244, 99 S Ct 1793 (noncompliance by Government with Rule 12.1, assuming a duty to
comply, could not have been prejudicial to defendant's case where element of surprise at trial was
not a substantial factor in the case).
Footnote 25. United States v Boatwright (ED Pa) 425 F Supp 747
C. Entrapment [202-209]
§ 202 Generally; definitions and distinctions [21 Am Jur 2d CRIMINAL LAW]
Entrapment has been defined as the inducement of one to commit a crime not contemplated by
him, for the mere purpose of instituting a criminal prosecution against him. 26 It has also been
defined as the conception and planning of an offense by an officer and the procurement of its
commission by one who would not have perpetrated it except for the trickery, persuasion, or
fraud of the officer. 27 This definition is too narrow, however, in that it refers only to
entrapment by an officer, whereas entrapment may, in some jurisdictions at least, consist of the
action of a person other than an officer, as, for example, a private detective, 28 or even a private
citizen. 29 Thus, where law enforcement officers use an individual to help them arrange the
commission of a crime by another person, the officers cannot disclaim the inducements such
individual made in the course of his efforts on their behalf. 30 Furthermore, manipulation of a
third party by law enforcement officers to procure the commission of a criminal offense by
another renders the third party a government agent for purposes of the entrapment defense, even
though the third party remains unaware of the law enforcement object. 31
In essence, the defense of entrapment prohibits law enforcement officials from instigating
criminal acts by otherwise innocent persons in order to punish them. 32 The defense therefore
consists of two elements: (1) acts of persuasion, trickery, or fraud carried out by law enforcement
officers or their agents to induce a defendant to commit a crime, and (2) the origin of the criminal
design in the minds of the government officials rather than that of the innocent defendant, such
that the crime is the product of the creative activity of the law enforcement officers. 33
Although in every arrest there is a certain amount of entrapment in order to outwit the persons
who are violating the law or who are about to violate the law, it is not the deception that is
forbidden. The type of entrapment the law forbids is the inducing of another to violate the law.
34 Generally, therefore, where the criminal intent originates in the mind of the entrapping
person and the accused is lured into the commission of the offense charged in order to prosecute
him, no conviction may be had. 35 But where the criminal intent originates in the mind of the
accused and the criminal offense is completed, the fact that a person acting as a decoy for the
Page 206 of 575
state or public officials furnished the accused an opportunity for commission of the offense, or
that the accused is aided in the commission of the crime in order to secure the evidence necessary
to prosecute him, constitutes no defense. 36 in other words, entrapment occurs when a law
enforcement agent induces the commission of an offense, using persuasion or other means likely
to cause normally law-abiding persons to commit the offense. Conduct merely affording a person
an opportunity to commit an offense, however, does not constitute entrapment. 37
There is a clear distinction between inducing a person to do an unlawful act and setting a trap to
catch him in the execution of a criminal plan of his own conception. 38 There is also a
distinction between the terms "detection" and "entrapment," as applied to the activities of law
enforcement officers. Legitimate detection of crime occurs when officers test a suspected person
by offering him an opportunity to transgress the law in such manner as is usual in the activity
alleged to be unlawful. On the other hand, entrapment occurs when officers induce a person to
violate the law when he would not otherwise do so. 39 The United States Supreme Court has
stated that in deciding the issue of entrapment, "a line must be drawn between the trap for the
unwary innocent and the trap for the unwary criminal." 40 Where the officers merely afford an
opportunity to one intending to violate the law, they do not procure the offense to be committed.
The offender in such a case acts of his own volition and is simply caught in his own devices. 41
The defense of entrapment concerns the manufacturing of crime by law enforcement officials and
their agents, conduct far different from the permissible stratagems involved in the detection and
prevention of crime. 42 Recognizing that the use of deceit may be the only practicable law
enforcement technique available under certain circumstances, the Supreme Court has further held
that the defense of entrapment only comes into play when the government's deception actually
implants the criminal design in the defendant's mind. 43 For entrapment to occur, the officer
must do something causing the accused to violate the law when he would not otherwise have
done so; the accused's normal course of legal conduct must in some way be diverted into an
illegal course by the acts of the officer. Thus, it has been noted that it is difficult to state an
all-embracing rule to define the course of conduct or provocation by government officials
constituting entrapment and that each case must usually be analyzed on its facts. 44
§ 202 – Generally; definitions and distinctions [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Practice Aids: Sentence entrapment: A casualty of the war on crime, 1994 Ann Surv Am L 165
(1994).
Scrutiny for the serpent: the Court refines entrapment law in Jacobson v. United States [ 112 S.
Ct. 1535 (1992)], 42 Cath U LR 1027 (1993).
Government manufacture of crime and the entrapment defense, 22 Col Law 925 (1993).
The evolution of the federal law of entrapment: A need for a new approach, 58 Mo LR 403
Page 207 of 575
(1993).
Entrapment and Jacobson v. United States: "Doesn't the government realize that they can destroy
a man's life?" 13 N Ill LR 431 (1993).
Entrapment by estoppel: A defense of fairness, 213 New York LJ 81:1 (1995).
The due process defense in "reverse sting" cases: when do police overstep the bounds of
permissible conduct?, 22 Stet LR 1305 (1993).
Perelli-Minetti, Causation and Intention in the Entrapment Defense. 28 UCLA LR 859, April,
1981.
Actions by state official involving defendant as constituting "outrageous" conduct violating due
process guaranties 18 ALR5th 1.
Right of criminal defendant to raise entrapment defense based on having dealt with other party
who was entrapped 15 ALR5th 39.
Entrapment as defense to charge of selling or supplying narcotics where government agents
supplied narcotics to defendant and purchased them from him, 9 ALR5th 464.
Maintainability of burglary charge, where entry into building is made with consent. (See also 13
Am Jur 2d, Burglary § 64.) 58 ALR4th 335.
Burden of proof as to entrapment defense–state cases. 52 ALR4th 775.
Entrapment to commit traffic offense. 34 ALR4th 1167.
Entrapment defense in sex offense prosecutions; 12 ALR4th 413. superseding 52 ALR2d 1194
and 53 ALR2d 1156.
What conduct of federal law enforcement authorities in inducing or co-operating in criminal
offense raises due process defense distinct from entrapment. 97 ALR Fed 273.
Entrapment to commit bribery offense under 18 USCS § 201. 83 ALR Fed 624.
Entrapment: A Source of Continuing Confusion in the Lower Courts. 5 Am Jur Trials 293.
Entrapment as defense to federal criminal charge–Supreme Court cases 118 L ED 2nd 703.
Barker, Entrapment in Ohio. 17 Akr LR 709, Spring, 1984.
Page 208 of 575
The Michigan Entrapment Defense: Review and Analysis. 61 U Det J Urb L 287, Winter, 1984.
Whelan, Lead Us Not Into (Unwarranted) Temptation: A Proposal to Replace the Entrapment
Defense Without a Reasonable Suspicion Requirement. 133 U Pa LR 1193, June, 1985.
Stavsky, The "Sting" Reconsidered: Organized Crime, Corruption and Entrapment. 16 Rut LJ
937, Spring & Summer 1985.
Marcus, The Development of Entrapment Law. 33 Wayne LR 5, Fall. 1986.
Borgida and Park, The Entrapment Defense. 12 Law & Hum Behav 19, March, 1988.
Schreibstein, Entrapment in light of Mathews v United States: The propriety of inconsistency and
the need for objectivity. 24 U San Fran LR 541, Spring, 1990.
Webster, Building a Better Mousetrap: Reconstructing Federal Entrapment Theory From Sorrels
to Mathews. 32 Ariz LR 605, 1990.
Criminal procedure–entrapment–defendant has been entrapped as a matter of law when the
government's protracted and insistent efforts create in defendant a predisposition to engage in
unlawful conduct– Jacobson v United States, 112 S Ct 1535 (1992), 23 Set Hall LR 728 (1993).
Entrapment targets and tactics: Jacobson v United States 29 Crim L Bull 241 (1993).
Reshaping the federal entrapment defense: Jacobson v United States [ 112 S Ct 1535 (1992)], 68
Wash LR 185 (1993).
The government as pornographer: government sting operations and entrapment: United States v
Jacobson, 112 S Ct 1535 (1992), 61 U Cin LR 1067 (1993).
Case authorities:
The question of the validity of an accused's entrapment defense is generally one for the jury,
rather than for the court. Mathews v United States (1988, US) 99 L Ed 2d 54, 108 S Ct 883, on
remand (CA7 Wis) 848 F2d 196.
Defendant's conviction for false statement made in response to Department of Labor information
forms did not violate due process clause, where defendant knew that forms were sent by
government agency and forms placed him on notice through conspicuous warnings that honest
answers were required. United States v Arcadipane (1994, CA1 Mass) 41 F3d 1.
Undercover operations for purpose of exposing bribery among public officials certainly are not
per se unconstitutional. United States v Carpentier (1982, CA2 NY) 689 F2d 21.
Page 209 of 575
Government did not engage in outrageous conduct in violation of due process by engaging in
sting operation in which informant supplied government-owned automobile to be burned by
defendant. United States v LaPorta (1994, CA2 NY) 46 F3d 152.
Government infiltration of criminal activity is recognized and permissible means of investigation
even where government agents supply something of value to criminal since such supply may be
necessary to be taken into confidence of illegal entrepreneur; however, government may not
instigate criminal activity, provide place, equipment, supplies and know-how, and run entire
operation with only meager assistance from defendants without violating fundamental fairness.
United States v Tobias (1981, CA5 Ala) 662 F2d 381.
Defendant's prosecution for knowing possession of child pornography did not violate due
process, since such possession was not a wholly passive act. United States v Layne (1995, CA5
Tex) 43 F3d 127.
In prosecution for knowingly and intentionally attempting to possess with intent to distribute
cocaine, evidence supported jury's rejection of entrapment defense, where defendant had been
involved in prior drug deals, was at ease in communicating in code or in jargon of drug trade,
initiated contact with informant, and was willing and eager to participate in drug transaction.
United States v Cervante (1992, CA7 Ill) 958 F2d 175.
Defendant was not entrapped as matter of law to purchase child pornography, where he promptly
and independently inquired without pressure to do so, and ordered such material at first available
opportunity. United States v LaChapelle (1992, CA8 Minn) 969 F2d 632.
Defendant has not shown inducement to violate 18 USCS § 2252 as matter of law, where he
ordered child pornography after receiving one questionnaire and one catalog from government
sting operation, where two mailings exerted no pressure, and questionnaire specifically stated
products were illegal, since government merely afforded him opportunity to commit crime.
United States v Stanton (1992, CA8 Ark) 973 F2d 608.
Element of defense of entrapment are government inducement of crime and absence of
defendant's predisposition. Thus, court reversed narcotics prosecution with instructions to enter
judgment of acquittal where defendant had been entrapped as matter of law; evidence established
that government had induced commission of the crime and that no reasonable jury could have
found beyond reasonable doubt that defendant had been predisposed to sell narcotics independent
of government's actions. United States v Skarie (1992, CA9 Gal) 971 F2d 317, 92 CDOS 6537,
92 Daily Journal DAR 10411.
Permissible police conduct must be limited by constitutional due process, i.e., prosecution of a
defendant may be barred where the government's involvement in the criminal enterprise is so
extensive that it may be characterized as outrageous. Simmons v State (1991, Fla App DI) 590
So 2d 442, 16 FLW D2788, reh gr, in part, ques certified (Fla App DI) 16 FLW 3092.
Page 210 of 575
Evidence of defendant's predisposition to commit offense is sufficient to negate entrapment
defense where defendant willingly attended several meetings with informant, made additional
contacts by phone in order to arrange transaction, and furthermore, contacted others in attempt to
have them invest in drugs. United States v Sayers (1983, CA11 Fla) 698 F2d 1128.
Federal license to sell firearms does not transform private licensee into government official, and
creates no entrapment by estoppel defense, since, if it were otherwise, convicted felons would be
allowed to withhold material facts from federally licensed firearms dealers, elicit erroneous
responses based on such non-disclosure, and then plead entrapment. United States v Billue
(1993, CA11 Fla) 994 F2d 1562, 7 FLW Fed C 535, 37 Fed Rules Evid Serv 468.
The defense of deprivation of constitutional due process, based upon the due process provision of
Fla Const Art I § 9, was properly applied to dismiss a prosecution for trafficking and conspiring
to traffic in cannabis, despite defendants' admitted predisposition to commit the crime and the
consequent result that an entrapment defense would be inapplicable, where sheriffs made an
agreement to pay a third party informant and reverse sting participant 10 percent of all civil
forfeitures arising out of successful criminal prosecutions in connection with the sting if the
informant would testify and cooperate in the prosecutions; the contingency fee arrangement with
the informant seemed to manufacture, rather than detect, crime, and created an enormous
financial incentive for the informant to color his testimony or even commit perjury in pursuit of
such fee. State v Glosson (1985, Fla) 462 So 2d 1082, 10 FLW 56.
Accused video store owner was entrapped as a matter of law, where accused was charged with
the sale or distribution of harmful materials to a person under 18 years of age after police
obtained a membership card under a fictitious name and had a 16 year-old girl use the card to
rent x-rated videotapes by posing as the girlfriend of the card holder and lying about her age,
because the undisputed facts clearly established that law enforcement agents induced accused to
rent the tape to a juvenile, and there was no evidence whatsoever of accused's predisposition
prior to and independent of the government inducement. Munoz v State (1993, Fla) 629 So 2d
90, 18 FLW S 537.
In determining whether an entrapment evaluation should go to the jury, if the factual
circumstances of the case are not in dispute, if the accused established that the government
induced the accused to commit the offense charged, and if the State is unable to demonstrate
sufficient evidence of predisposition prior to and independent of the government conduct at
issue, then the trial judge has the authority to rule on the issue of predisposition as a matter of
law because no factual "question of predisposition" is at issue. Munoz v State (1993, Fla) 629 So
2d 90, 18 FLW S 537.
The legislature has the authority to statutorily establish entrapment as a defense, but the
legislature cannot enact a statute that overrules a judicially established legal principle enforcing
or protecting a federal or Florida constitutional right; accordingly, FS § 777.201 cannot overrule
a decision of the Florida Supreme Court regarding entrapment in any case decided under the due
Page 211 of 575
process provision of Fla. Const Art I, § 9, Munoz v State (1993, Fla) 629 So 2d 90, 18 FLW S
537.
Once issue whether defendant was entrapped is before jury, burden is on Commonwealth to
prove beyond reasonable doubt that (1) there was no governmental inducement or (2) defendant
was predisposed to commit crime. Commonwealth v Penta (1992) 32 Mass App 36, 586 NE2d
996, review den 412 Mass 1103, 590 NE2d 195.
Regarding constitutional due process entrapment (as distinguished from statutory entrapment),
once defendant has initially put forth some evidence of due process entrapment, state must
disprove it by clear and convincing evidence. State v Abdelnoor (1994, App Div) 273 NJ Super
321, 641 A2d 1102.
In a prosecution for bribery, conspiracy, and criminal facilitation in which defendant contended
that he only intended to catch and to report to the proper authorities the public official he was
accused of bribing, the trial court committed reversible error in charging the jury with respect to
the defense of entrapment, thereby shifting the burden of proof of criminal intent from the
prosecution to defendant, where both the defendant and the prosecution excepted to the charge on
entrapment, inasmuch as defendant's defense was not entrapment but lack of criminal intent.
People v Albright (1985) 65 NY 2d 666, 491 NYS2d 614, 481 NE2d 246.
There is no constitutional infirmity in imposing the burden of proving entrapment by a
preponderance of evidence upon defendant as an affirmative defense since the establishment of
entrapment defense does not negate commission of the crime charged nor the existence of any
element thereof. People v Millard (1982, 3d Dept) 90 App Div 2d 590, 456 NY S2d 201.
Defendant was entrapped as a matter of law, where law enforcement officers obtained cocaine
from police property custodian without written authorization from supervisory personnel and
gave it to informant, who sold it to defendant, resulting in his arrest for possession of controlled
substance with intent to deliver. State v Kummer (1992, ND) 481 NW2d 437.
Convicted drug dealer was not entrapped where the state merely provided him with the
opportunity the commit 3 offenses of selling cocaine to a confidential police informant because
the testimony showed that the criminal intent originated in the mind of the dealer; additionally,
the trial court did not err in refusing to introduce expert testimony regarding a drug-dependent
person's ability to resist a temptation to share drugs because the expert did not have actual
knowledge of the dealer's dependency. State v Rios (1991, Cuyahoga Co) 75 Ohio App 3d 288,
599 NE2d 374, dismd, motion overt 62 Ohio St 3d 1475, 581 NE2d 1097, post-conviction
proceeding (Ohio App, Cuyahoga Co) 1993 Ohio App LEXIS 2089.
In a prosecution for criminal solicitation arising from a reverse sting operation in which the
defendant attempted to purchase 100 pounds of marijuana from a detective, there was no
entrapment as a matter of law where there was sharply conflicting evidence as to inducement,
Page 212 of 575
and the conflict was for the jury to resolve; the detective testified that he approached the
defendant because he knew that the defendant had previously purchased marijuana and recorded
conversations showed the defendant to be an experienced marijuana dealer, but the defendant
testified that he was induced to purchase marijuana by the detective's plea for assistance in
paying off a debt to some "big people" and that the detective coached him in what to say before
the conversations were recorded. Commonwealth v Mance (1993, Super Ct) 619 A2d 1378.
The promise to the defendant made by a long-time friend to get him high on dope if he obtained
dope and delivered it to strangers was not entrapment. Bush v State (1980, Tex Crim) 611 SW2d
428.
Defendant may raise due process-based defense of outrageous government conduct against
criminal indictment; defendant who is target of government's activity has standing to contest his
conviction on grounds of outrageous government conduct, but defendants who were not targets
of government conduct but who were also arrested for conspiracy with first defendant do not
have standing to contest government's conduct as unconstitutional where (1) their conduct was
clearly voluntary criminal behavior, (2) government agents repeatedly sought to dissuade
involvement of at least one of these defendants from crime and (3) their involvement as a whole
was incidental to government's alleged plan to entrap first defendant. United States v Bogart
(1986, CA9 Cal) 785 F2d 1428.
Footnotes
Footnote 26. State v Marquardt, 139 Conn 1, 89 A2d 219, 31 ALR2d 1206 (making, recording,
and registering bets on horseraces); State v Jarvis, 105 W Va 499, 143 SE 235 (sale of liquor);
State v Hochman, 2 Wis 2d 410, 86 NW2d 446, 77 ALR2d 784 (selling obscene booklets and
pictures); State v Rice, 37 Wis 2d 392, 155 NW2d 116, cert den 393 US 878, 21 L Ed 2d 152,
89 S Ct 180 (possession and use of narcotic drugs).
Practice Aids: Comment, Administration of the Affirmative Trap and the Doctrine of
Entrapment: Device and Defense. 31 U Chi L Rev 137.
Entrapment. 1 Wharton's Criminal Law (14th Ed) § 52.
Mirakian, Entrapment: Time to Take an Objective Look. 16 Washburn LJ 324.
Note, Entrapment. 73 Harv L Rev 1333.
Note, Entrapment: An Analysis of Disagreement. 45 B U L Rev 542.
Park, The Entrapment Controversy. 1976, 60 Minn L Rev 163.
Page 213 of 575
Ranney, The Entrapment Defense–What Hath the Model Penal Code Wrought. 1977-78, 16
Duquesne L Rev 157.
Rotenberg, The Police Detection Practice of Encouragement. 49 Va L Rev 871.
Tanford, Entrapment: Guidelines for Counsel and the Courts. 1977, 13 Crim L Bull 5.
Footnote 27. People v Bernal (4th Dist) 174 Cal App 2d 777, 345 P2d 140 (sale of narcotics);
Halko v State (Sup) 58 Del 383, 209 A2d 895 (using false statement in applying for license);
People v Outten, 13 Ill 2d 21, 147 NE2d 284 (sale of narcotic drugs); Eisner v Commonwealth
(Ky) 375 SW2d 825 (engaging in prostitution); State v Burnette, 242 NC 164, 87 SE2d 191, 52
ALR2d 1181 (assault with intent to commit rape); Watson v State (Okla Crim) 382 P2d 449
(ovrld on other grounds McInturff v State (Okla Crim) 554 P2d 837; sale of narcotics); Swift v
Commonwealth, 199 Va 420, 100 SE2d 9 (sales of alcoholic beverages); Wood v
Commonwealth, 213 Va 363, 192 SE2d 762 (distributing marijuana).
Footnote 28. Re Application of Moore, 70 Cal App 483, 233 P 805 (unlawful possession of
liquor).
Footnote 29. Beasley v State (Okla Crim) 282 P2d 249, holding, in the prosecution of a police
officer for accepting a bribe from an admitted bootlegger, that the defense of entrapment was
available to the defendant where, although the entrapping person, the bootlegger, was not acting
as a decoy for law enforcement officers at the inception of the transaction, the officers were fully
informed of the criminal act before it was committed.
Annotation: 69 ALR2d 1397, § 13.
North Carolina follows the majority rule that entrapment is a defense only when the entrapper is
an officer or agent of the government. State v Whisnant, 36 NC App 252, 243 SE2d 395 (sale
and delivery of controlled substances).
In a prosecution for possession of heroin, the trial court erred in refusing to give an instruction on
entrapment, where the evidence showed that there was arguable undue persuasion and coercion
or unusual enticement by a confidential informant who was working directly for the police.
Weaver v State (Fla App D4) 370 So 2d 1189.
Under a statute limiting the defense of entrapment to an inducement by a "law enforcement
agent" (defined as personnel of the federal, state, and local law enforcement agencies and their
agents), local traffic engineers and the state highway commission would not fall within the
definition. Drago v State (Tex Crim) 553 SW2d 375 (rejecting defendant's contention that the
traffic violation leading to his being stopped by police officers and the discovery of marijuana in
his vehicle resulted from obscure traffic control devices that constituted an entrapment as a
matter of law).
Page 214 of 575
Footnote 30. State v Ostrand (Iowa) 219 NW2d 509 (delivery of marijuana); State v Tomlinson
(Iowa) 243 NW2d 551 (delivery of cocaine); State v Cooper (Iowa) 248 NW2d 908 (delivery of
cocaine).
Footnote 31. People v McIntire, 23 Cal 3d 742, 153 Cal Rptr 237, 591 P2d 527 (possessing
marijuana for sale).
But see Thompson v State, 259 Ind 587, 290 NE2d 724, cert den 412 US 943, 37 L Ed 2d 404,
93 S Ct 2788 and (ovrld on other grounds Elmore v State 269 Ind 532, 382 NE2d 893)
(possession and sale of dangerous drugs), holding that where a third party, who does not know
the true identity of the government agent, unwittingly leads the government agent to the
defendant, there is no entrapment since it is the third party who induces the initial violation, not
the government agent.
Where a defendant claimed entrapment, the trial court properly instructed the jury that if the
crime had been suggested by another person, whether or not a law enforcement officer, for the
purpose of entrapment, the defendant was not criminally liable. People v Moran, 1 Cal 3d 755,
83 Cal Rptr 411, 463 P2d 763.
Footnote 32. United States v Russell, 411 US 423, 36 L Ed 2d 366, 93 S Ct 1637, conformed to
(CA9) 479 F2d 1046 (unlawful manufacture and sale of drug); Sherman v United States, 356 US
369, 2 L Ed 2d 848, 78 S Ct 819 (sale of narcotics); Sorrells v United States, 287 US 435, 77 L
Ed 413, 53 S Ct 210 (illegal possession and sale of liquor).
As to entrapment as defense to particular crimes see: 5 Am Jur 2d, Arson § 29; 12 Am Jur 2d,
Bribery §§ 29-30; 13 Am Jur 2d, Burglary § 64; 25 Am Jur 2d, Drugs §§ 43 et seq; 31 Am Jur
2d, Explosions and Explosives § 129; 35 Am Jur 2d, Federal Tax Enforcement § 121; 35 Am
Jur 2d, Fish and Game § 52; 38 Am Jur 2d, Gambling §§ 164, 168; 40 Am Jur 2d, Homicide §
124; 45 Am Jur 2d, Intoxicating Liquors §§ 349-350; 50 Am Jur 2d, Larceny § 139; 50 Am Jur
2d, Lewdness § 39; 62 Am Jur 2d, Post Office § 129; 63 Am Jur 2d, Prostitution §§ 3, 16; 65
Am Jur 2d, Rape § 31; 66 Am Jur 2d, Receiving Stolen Property § 37; 67 Am Jur 2d, Robbery
§ 47; 70 Am Jur 2d, Sodomy § 18.
As to defense of entrapment in contempt proceedings, see 17 Am Jur 2d, Contempt § 78.
As to defense of entrapment in disciplinary proceedings involving physicians, surgeons, and
other healers, see 61 Am Jur 2d, Physicians and Surgeons § 67.
As to exclusion of evidence obtained by entrapment, see 29 Am Jur 2d, Evidence § 409.
Footnote 33. State v Walker, 295 NC 510, 246 SE2d 748.
Footnote 34. Butler v United States (CA4 Md) 191 F2d 433 (sale of narcotics).
Page 215 of 575
In Hill v United States (CA5 Miss) 328 F2d 988, cert den 379 US 851, 13 L Ed 2d 54, 85 S Ct
94, it was held, in a prosecution for the possession of untaxed whisky, that there was no
entrapment where neighbors had made numerous complaints of the accused's activities and he
had a past criminal record, although a government agent hired an informer at $10 per day and
promised that he would try to get the informer a reward if the accused was caught.
Footnote 35. Sorrells v United States, 287 US 435, 77 L Ed 413, 53 S Ct 210 (selling liquor in
violation of Prohibition Act); United States v Klosterman (CA3 Pa) 248 F2d 191, 69 ALR2d
1390 (bribery); Hoy v State, 53 Ariz 440, 90 P2d 623 (bribery); State v Marquhardt, 139 Conn 1,
89 A2d 219, 31 ALR2d 1206 (making, recording, and registering bets on horseraces); People v
Outten, 13 Ill 2d 21, 147 NE2d 284 (sale of narcotic drug); Alford v Commonwealth, 240 Ky
513, 42 SW2d 711 (attempting to State v Dolce, 41 NJ 422, 197 A2d 185 (not followed on other
grounds State v Branam 161 NJ Super 53, 390 A2d 1186, affd 79 NJ 301, 399 A2d 299;
receiving stolen goods); open safe with explosives); State v Burnette, 242 NC 164, 87 SE2d 191,
52 ALR2d 1181 (assault with intent to commit rape); Cooper v State, 162 Tex Crim 624, 288
SW2d 762 (procuring).
The function of law enforcement officers is to prevent crime and apprehend criminals, not to
manufacture evidence. Sherman v United States, 356 US 369, 2 L Ed 2d 848, 78 S Ct 819.
The purpose of the detective or government agent is not to solicit the commission of, nor to
create, an offense, but to ascertain whether the accused is engaged in an unlawful business. State
v Parr, 129 Mont 175, 283 P2d 1086, 55 ALR2d 1313 (sale of liquor to minor); Watson v State
(Okla Crim) 382 P2d 449 (ovrld on other grounds McInturff v State (Okla Crim) 554 P2d 837;
sale of narcotics); State v Hochman, 2 Wis 2d 410, 86 NW2d 446, 77 ALR2d 784 (selling
obscene booklets and pictures).
Where defendant was approached by an acquaintance and two government agents who proposed
an illegal hunting expedition, with one of the agents stating he wanted to make a present of slain
deer to his wife, and the acquaintance informed defendant that he had known the agent for four
years and that he need fear no treachery, the defendant who initially refused and then killed a
deer which he gave to the agent was entrapped within the meaning of the statute. United States v
Cunningham (MD Fla) 349 F Supp 1115.
Entrapment constitutes a valid defense if officers inspire, incite, persuade, or lure a defendant to
commit a crime which he otherwise had no intention of perpetrating. State v McDonald, 32 Ohio
App 2d 231, 61 Ohio Ops 2d 252, 289 NE2d 583 (possession and sale of marijuana).
Footnote 36. Hoy v State, 53 Ariz 440, 90 P2d 623 (bribery); Smith v State, 214 Ind 169, 13
NE2d 562, reh den 214 Ind 174, 14 NE2d 1017 (selling morphine); State v Parr, 129 Mont 175,
283 P2d 1086, 55 ALR2d 1313 (sale of liquor to minor); State v Burnette, 242 NC 164, 87 SE2d
191, 52 ALR2d 1181 (assault with intent to commit rape); State v Jarvis, 105 W Va 499, 143 SE
235 (sale of liquor); State v Hochman, 2 Wis 2d 410, 86 NW2d 446, 77 ALR2d 784 (selling
Page 216 of 575
obscene booklets and pictures).
Annotation: 31 ALR2d 1212 (gambling or lottery offenses); 33 ALR2d 883, § 3 (narcotics
offenses); 52 ALR2d 1194, 1198-1202 (sexual offenses); 53 ALR2d 1156 (abortion offenses);
69 ALR2d 1397, § 3 (bribery offenses); 55 ALR2d 1322 (offenses against laws regulating sales
of liquor); 75 ALR2d 709 (violation of fish and game laws); 77 ALR2d 792 (obscenity
offenses); 10 ALR3d 1121 (larceny); 41 ALR3d 418 (contempt proceedings); 62 ALR3d 110
(narcotics offenses); 22 ALR Fed 731 (narcotics offenses).
Artifice and stratagem may be employed to catch those engaged in criminal enterprises. Sorrells
v United States, 287 US 435, 77 L Ed 413, 53 S Ct 210 (selling liquor in violation of
Prohibition Act); Johnson v State, 36 Ala App 634, 61 So 2d 867 (possession or sale of
marijuana); State v Dolce, 41 NJ 422, 197 A2d 185 (not followed on other grounds State v
Branam 161 NJ Super 53, 390 A2d 1186, affd 79 NJ 301, 399 A2d 299; receiving stolen goods);
Commonwealth v Kutler, 173 Pa Super 153, 96 A2d 160 (bookmaking and setting up a gambling
establishment).
The mere fact that a local police officer, acting as an informer for the FBI, told an attorney
truthfully that he knew some members of a jury panel in a prospective federal criminal trial
involving one of the attorney's clients and that one of them was his cousin, does not support the
defense of entrapment in the attorney's prosecution on charges of endeavoring to bribe a member
of the jury panel, the informer's statements at the most affording the attorney opportunities or
facilities for the commission of the criminal offense. Osborn v United States, 385 US 323, 17 L
Ed 2d 394, 87 S Ct 429, reh den 386 US 938, 17 L Ed 2d 813, 87 S Ct 951.
It is a well-known fact that criminals usually work in secrecy and that some unlawful practices
are encouraged and protected by a large class of citizens, so that it often becomes necessary to
resort to various artifices to enforce the law and punish its violation. State v Marquardt, 139
Conn 1, 89 A2d 219, 31 ALR2d 1206 (making, recording, and registering bets on horseraces).
If officers of the law, by the use of feigned accomplices, apprehend one who is engaging in a
crime without their instigation or inducement, there is no entrapment and the use of such
evidence is not a defense to the crime charged. State v Del Bianco, 96 NH 436, 78 A2d 519
(accepting bets on horseraces).
The activity of policemen and their agent in delivering marked money and football pools to
defendants at certain designated places was no more unlawful or improper than the use of decoy
letters to trap mail thieves or users of the mail for obscene matter. Ferraro v State, 200 Md 274,
89 A2d 628.
Footnote 37. State v Mullen (Iowa) 216 NW2d 375 (delivery of marijuana).
Footnote 38. Johnson v State, 36 Ala App 634, 61 So 2d 867 (possession or sale of marijuana);
Page 217 of 575
Hoy v State, 53 Ariz 440, 90 P2d 623 (bribery); State v Mantis, 32 Idaho 724, 187 P 268
(attempting to induce female to reside with defendant for immoral purposes); State v Burnette,
242 NC 164, 87 SE2d 191, 52 ALR2d 1181 (assault with intent to commit rape); State v Jarvis,
105 W Va 499, 143 SE 235 (sale of liquor); State v Rice, 37 Wis 2d 392, 155 NW2d 116, cert
den 393 US 878, 21 L Ed 152, 89 S Ct 180 (possession and use of narcotic drugs); State v
Hochman, 2 Wis 2d 410, 86 NW2d 446, 77 ALR2d 784 (selling obscene booklets and pictures).
Footnote 39. Reigan v People, 120 Colo 472, 210 P2d 991, holding that, in the case of
entrapment, officers can be convicted of conspiracy to commit an offense, although their ultimate
purpose may have been to arrest the offenders while in the act.
Footnote 40. Sherman v United States, 356 US 369, 372, 2 L Ed 2d 848, 78 S Ct 819 (sale of
narcotics).
Footnote 41. Story v State (Fla App D4) 355 So 2d 1213, cert den (Fla) 364 So 2d 893
(possession, sale and delivery of heroin); State v Parr, 129 Mont 175, 283 P2d 1086, 55 ALR2d
1313 (sale of liquor to minor); State v Ice & Fuel Co., 166 NC 366, 81 SE 737, petition dismd
166 NC 403, 81 SE 956 (wherein it was held that defendant was properly convicted of obtaining
money under false pretenses by short weights in the sale of coal, even though the prosecutor,
being suspicious of defendant's practices, bought a ton of coal from him solely for the purpose of
catching him in the act); Watson v State (Okla Crim) 382 P2d 449 (ovrld on other grounds
McInturff v State (Okla Crim) 554 P2d 837; sale of narcotics); State v Porter, 251 SC 393, 162
SE2d 843, cert den 393 US 1079, 21 L Ed 2d 773, 89 S Ct 859 (occupying room for illegal
betting); State v Hochman, 2 Wis 2d 410, 86 NW2d 446, 77 ALR2d 784 (selling obscene
booklets and pictures).
Footnote 42. Lopez v United States, 373 US 427, 10 L Ed 2d 462, 83 S Ct 1381, reh den 375
US 870, 11 L Ed 2d 99, 84 S Ct 26 (attempted bribery).
Footnote 43. United States v Russell, 411 US 423, 36 L Ed 2d 366, 93 S Ct 1637, conformed to
(CA9) 479 F2d 1046 (unlawful manufacture and sale of drug).
The defense of entrapment did not apply where, although the government sought by use of its
informer to confirm its view of the defendant's conduct to encourage them to seek to obstruct
justice, the governmental actions were not so outrageous as to deny the defendant's due process
of law. The government could not be said to have implanted a criminal design in the minds of
the defendants where the record established that they were counseling each other in an attempt to
prevent the grand jury from learning facts concerning certain payments. United States v De
Palma (SD NY) 461 F Supp 778.
Footnote 44. Shanks v Commonwealth (Ky) 463 SW2d 312 (sale and possession of narcotics).
Page 218 of 575
§ 203 Nature of defense [21 Am Jur 2d CRIMINAL LAW]
The defense of entrapment was not known at common law. 45 It has been described as a
judicially created twentieth-century American doctrine that probably evolved from the increasing
use of informers and undercover agents in the detection of crimes, particularly liquor and
narcotics offenses. 46 In the federal court system, the defense has been recognized and refined
in many decisions, 47 and it has been universally accepted by the states through judicial
decision or legislation. 48
Although it is firmly recognized in the federal courts, 49 the doctrine there does not extend to
acts of inducement by a private citizen who is not an officer of the law. 50 But when a state
officer has induced a person otherwise innocent to commit a crime in order to punish him
therefor, the United States cannot take over the task of punishment by prosecuting for the federal
offense without allowing the defense of entrapment, the same as if the inducement had been by a
federal officer. 51
Entrapment is an affirmative 52 or positive 53 defense that must be raised by the defendant. 54
It is in the nature of a confession and avoidance. 55
The defense of entrapment is not of constitutional dimension. 56 Accordingly, Congress may
address itself to the question of entrapment and adopt any substantive definition of the defense
that it may find desirable for the purposes of federal criminal law, 57 and a state court or
legislature is free to select its own standards for the defense. 58 It has been held that a convicted
defendant has no constitutional right through federal habeas corpus to invoke the jurisdiction of a
federal district court to review a determination of his defense of entrapment by a state court. 59
Although the defense of entrapment may not apply to the case, it is possible that an accused may
be acquitted on due process grounds where the government's involvement in the crime was
outrageous and reprehensible. 60 Thus, where the defendant's predisposition to commit the
crime prevented use of the defense of entrapment, 61 it has been held that police conduct
warranted a dismissal on due process grounds where a third party became an informant because
of police brutalization and trickery giving him the misconception that he was facing a stiff prison
sentence and where the defendant, an out-of-state resident with no prior record, was contacted by
the informant and deceitfully lured into a state for a narcotic sale to which he finally agreed after
persistent solicitation. 62 It has been held, however, that the limitations of the due process
clause of the Fifth Amendment come into play only when the government activity violates some
protected right of the defendant. 63
In keeping with the general rule that appellate courts normally only consider questions that were
raised and reserved in the lower court, 64 the defense of entrapment cannot be raised for the
first time on appeal. 65 In applying this rule, courts have noted that the defense must be raised
at trial since it rests on factual questions 66 and, under the circumstances, is not so
"fundamental" that it can be considered on appeal without presentation at trial or in a motion to
Page 219 of 575
correct errors. 67
§ 203 – Nature of defense [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Marcus, The Due Process Defense In Entrapment Cases: The Journey Back, 27
Am Crim LR 457, 1990.
Abramson & Linderman, Entrapment and Due Process in the Federal Courts. 8 Am J Crim L
139, July, 1980.
Marcus, The Entrapment Defense and the Procedural Issues: Burden of Proof, Questions of Law
and Fact, Inconsistent Defenses. 22 Crim L Bul 197, May-June, 1986.
O'Neill, Entrapment, De Lorean and the Undercover Operation: A Constitutional Connection. 18
John Marsh LR 365, Winter, 1985.
Green, Police Encouragement and the Fourth Amendment. 20 John Marsh LR 661, Summer,
1987.
Long, Entrapment–A Due Process Defense–What Process is Due? 11 Southw U LR 663, 1979.
Mascolo, Due Process, Fundamental Fairness, And Conduct That Shocks The Conscience: The
Right Not To Be Enticed Or Induced to Crime By Government And Its Agents. 7 W N Eng LR 1,
1984.
Gershman, Abscam, the Judiciary, and the Ethics of Entrapment. 91 Yale LJ 1565, July, 1982.
Actions by state official involving defendant as constituting "outrageous" conduct violating due
process guaranties. 18 ALR5th 1.
Right of criminal defendant to raise entrapment defense based on having dealt with other party
who was entrapped. 15 ALR5th 39.
Entrapment defense in sex offense prosecutions; 12 ALR4th 413. superseding 52 ALR2d 1194
and 53 ALR3d 1156.
Case authorities:
Government does not exceed due process limit of governmental participation in crime where
Page 220 of 575
government produced people with fictitious identities ready to pay bribes to Congressmen, word
of availability of bribe money was made known, and from that point on, essential conduct of
agents and their paid informant was to see who showed up to take bribes and videotape them in
act of doing so. United States v Myers (1982, CA2 NY) 692 F2d 823.
Government's use of former drug purchaser as informant, allowance of frequent meetings
between defendant and informant in absence of DEA undercover agent, failure to record
conversations between defendant and informant, and use of untrained informant who had
previously served defendant as attorney on commercial matters was not such rare and outrageous
circumstance as to violate defendant's right to due process; further, since outrageous conduct
defense requires not only government overinvolvement in charged crime but passive role by
defendant as well, defendant who actively participated in crime could not avail himself of
defense. United States v Arteaga (1986, CA5 Tex) 807 F2d 424.
Even when defendant is predisposed to commit offense, his conviction may be overturned if
government was so involved in criminal endeavor that it shocks sense of justice and violates due
process; sense of justice would be shocked were government agents to engineer and direct
criminal enterprise from start to finish; sense of justice is not shocked however when government
merely infiltrates criminal organization, approaches persons already engaged in or anticipating
criminal activity, or provides valuable and necessary items to conspiracy. United States v So
(1985, CA9 Cal) 755 F2d 1350.
Inspector's conduct in preparing false accident reports and traffic tickets and entering pleas of
guilty to falsified charges under assumed identities did not violate due process rights of physician
convicted of mail fraud in submitting fraudulent insurance claims; government need not have
reasonable suspicion of wrongdoing in order to conduct undercover investigation. United States v
Warren (1984, CA10 Kan) 747 F2d 1339.
Conduct of government agents in establishing extensive drug distribution network, in posing as
associates of Columbians and Cubans, in making extravagant proposals to buy Corvettes and
condominiums from businessman who deals in Corvettes and real estate, and in proposing to use
businessman's real estate services to find location for club is not so outrageous as to violate
businessman's due process rights when businessman sells cocaine to agent in order to avoid
losing agent as client for businessman's legitimate business ventures. United States v Rivera
(1985, CA10 NM) 778 F2d 591.
In a prosecution for conspiracy to traffic in cannabis and trafficking in cannabis, a contingent-fee
arrangement between a paid informant and the sheriff's department whereby part of the
informant's fee was based on the size of the resulting narcotics deal did not violate defendant's
constitutional due process rights, where the informant's fee was not contingent upon his
cooperation in defendant's prosecution, the state attorney was not involved in the "reverse-sting,"
and defendant was not a preselected target of law enforcement authorities. Yolman v State (1985,
Fla App D2) 473 So 2d 716, 10 FLW 880, review den (Fla) 475 So 2d 696.
Page 221 of 575
Defendant's conviction for aiding and abetting crime of possession of cocaine with intent to
distribute was not result of outrageous government overreaching in violation of due process
clause, despite fact that co-indictee was informer and government agent, where defendant
initiated contact with informer and informer testified that defendant was predisposed to engage in
criminal enterprise. Kett v United States (1984, CA11 Ga) 722 F2d 687.
In a murder prosecution, the prosecution did not intentionally withhold evidence favorable to the
defendant, even though the state failed to inform the defense about an in-house parole
commission memo concerning a witness. The memo, stating that the parole commission had
been asked to take no action on either the witness' or defendant's parole because the case was in a
critical posture, would not have conveyed any information to the jury that already revealed by the
examination and the cross-examination of the witness. Aldridge v State (1987, Fla) 503 So 2d
1257, 12 FLW 129, later proceeding (CA8 Ark) 821 F2d 469, 23 Fed Rules Evid Serv 756, cert
den 484 US 930, 98 L Ed 2d 258, 108 S Ct 299, later app (CA8 Ark) 865 F2d 954, amd (CA8)
1989 US App LEXIS 3515 and cert den (US) 107 L Ed 2d 270, 110 S Ct 291, habeas corpus
proceeding (CA11 Fla) 925 F2d 1320.
The defense of entrapment was established under the first prong of Cruz where police informant
entered into cooperation agreement before she knew of drug trafficker's involvement with drugs
and trafficker was not a targeted suspect in a specific ongoing criminal prosecution; however
informant's cooperation agreement did not violate due process under Glossen where though
agreement was conditioned on trial testimony, it was not conditioned on conviction. State v
Evans (1992, Fla App D2) 597 So 2d 813, 17 FLW D 431, review den (Fla) 601 So 2d 553.
Defense of entrapment is not one of constitutional dimension but due process can be violated if
law enforcement tactics and activities used against defendant violate fundamental fairness and
are shocking to universal sense of justice; as general rule, Federal Congress and state government
are free to adopt their own rules governing use of entrapment defense in their respective
jurisdictions. State v Little (1981, NH) 435 A2d 517.
See State v Jones (1980, Tenn) 598 SW2d 209, § 205,.
Plea of entrapment does not raise constitutional issue, but is rather defense on merits.
Accordingly, motion to quash or motion to suppress may not be utilized to raise such defense in
advance of trial. State v Smith (1993, La App 2d Cir) 614 So 2d 778.
Footnotes
Footnote 45. People v Pugh, 48 Mich App 242, 210 NW2d 376 (armed robbery); State v Good,
110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr
(possession and sale of narcotics).
Page 222 of 575
Footnote 46. State v Campbell, 110 NH 238, 265 A2d 11 (sales of narcotic drugs).
Annotation: 62 ALR3d 110, § 2[a].
Footnote 47. United States v Russell, 411 US 423, 36 L Ed 2d 366, 93 S Ct 1637, conformed to
(CA9) 479 F2d 1046 (unlawful manufacture and sale of drug); Lopez v United States, 373 US
427, 10 L Ed 2d 462, 83 S Ct 1381, reh den 375 US 870, 11 L Ed 2d 99, 84 S Ct 26
(attempted bribery); Sherman v United States, 356 US 369, 2 L Ed 2d 848, 78 S Ct 819 (sale of
narcotics); Sorrells v United States, 287 US 435, 77 L Ed 413, 53 S Ct 210 (illegal possession
and sale of liquor).
Practice Aids: –Murchison, The Entrapment Defense in Federal Courts: Modern Developments.
1976, 47 Miss L J 573.
Footnote 48. State v Campbell, 110 NH 238, 265 A2d 11 (sales of narcotic drugs); People v
Calvano, 30 NY2d 199, 331 NYS2d 430, 282 NE2d 322.
Tennessee was the only jurisdiction in the United States that did not recognize the defense of
entrapment. State v Jones (Tenn) 598 SW2d 209 (holding that entrapment is a defense to a
Tennessee criminal prosecution).
Footnote 49. State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165
NE2d 28, motion overr (possession and sale of narcotics); State v Gilman, 110 RI 207, 291 A2d
425 (conspiring to deliver and unlawful possession of a central nervous system stimulant); State
v Hochman, 2 Wis 2d 410, 86 NW2d 446, 77 ALR2d 784 (selling obscene booklets and
pictures).
Footnote 50. Entrapment was not available as a defense in a prosecution for attempted bribery of
a juror where the alleged entrapment was by an individual who was neither a law enforcement
official nor an agent of law enforcement officials. United States v De Alesandro (CA2 NY) 361
F2d 694, cert den 385 US 842, 17 L Ed 2d 74, 87 S Ct 94.
Annotation: 69 ALR2d 1397, § 13.
Footnote 51. Henderson v United States (CA5 Fla) 237 F2d 169, 61 ALR2d 666 (conspiracy in
operation of still in violation of Federal Internal Revenue Code).
Footnote 52. State v Anderson, 58 Hawaii 479, 572 P2d 159 (promoting dangerous drug); Averitt
v State, 246 Miss 49, 149 So 2d 320, 10 ALR3d 1111, cert den and app dismd 375 US 5, 11 L
Ed 2d 38, 84 S Ct 51, reh den 375 US 936, 11 L Ed 2d 268, 84 S Ct 328 (grand larceny); State
v Parr, 129 Mont 175, 283 P2d 1086, 55 ALR2d 1313 (sale of liquor to minor); State v Dolce,
41 NJ 422, 197 A2d 185 (not followed on other grounds State v Branam 161 NJ Super 53, 390
A2d 1186, affd 79 NJ 301, 399 A2d 299; receiving stolen goods); People v McGee, 49 NY2d
Page 223 of 575
48, 424 NYS2d 157, 399 NE2d 1177, cert den 446 US 942, 64 L Ed 2d 797, 100 S Ct 2166
(bribery and conspiracy); State v Braun, 31 NC App 101, 228 SE2d 466, cert den and app dismd
291 NC 449, 230 SE2d 766 (possession of marijuana with intent to sell and deliver); State v
Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr
(possession and sale of narcotics).
Entrapment is an affirmative defense available on a plea of not guilty, and is in the nature of a
confession and avoidance and assumes that the act charged as an offense was committed. State v
Hsie, 36 Ohio App 2d 99, 65 Ohio Ops 2d 99, 303 NE2d 89 (sale of marijuana).
Footnote 53. People v Terry, 44 Cal 2d 371, 282 P2d 19 (giving bribe to influence testimony of
witness).
Footnote 54. State v Hoffman (Utah) 558 P2d 602 (practicing medicine without a license).
As to availability of mandamus to compel judge to hear defendant's motion on the issue of
entrapment, see 52 Am Jur 2d, Mandamus § 365.
Footnote 55. State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165
NE2d 28, motion overr (possession and sale of narcotics).
Footnote 56. United States v Russell, 411 US 423, 36 L Ed 2d 366, 93 S Ct 1637, conformed to
(CA9) 479 F2d 1046 (illegal manufacture and sale of drug); Ainsworth v Reed (CA5 Miss) 542
F2d 243, reh den (CA5 Miss) 544 F2d 518 and cert den 430 US 917, 51 L Ed 2d 596, 97 S Ct
1332 (selling marijuana).
Practice Aids: –Comment, The Serpent Beguiled Me and I Did Eat: The Constitutional Status of
the Entrapment Defense. 74 Yale L J 942.
Footnote 57. United States v Russell, 411 US 423, 36 L Ed 2d 366, 93 S Ct 1637, conformed to
(CA9) 479 F2d 1046 (illegal manufacture and sale of drug).
Footnote 58. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled
substance).
Footnote 59. United States ex rel. Hall v Illinois (CA7 Ill) 329 F2d 354, cert den 379 US 891,
13 L Ed 2d 94, 85 S Ct 164 (unlawful sale and possession of narcotic drugs) (rejecting the
defendant's contentions that entrapment is analogous to the exclusionary rule and that due
process precludes admission of evidence obtained through entrapment in state court criminal
trials).
Footnote 60. United States v Russell, 411 US 423, 36 L Ed 2d 366, 93 S Ct 1637, conformed to
(CA9) 479 F2d 1046 (dictum); State v Pooler (Iowa) 255 NW2d 328 (dictum).
Page 224 of 575
Footnote 61. As to effect of defendant's predisposition to commit crime on defense of
entrapment, see § 205, infra.
Footnote 62. People v Isaacson, 44 NY2d 511, 406 NYS2d 714, 378 NE2d 78.
Footnote 63. Hampton v United States, 425 US 484, 48 L Ed 2d 113, 96 S Ct 1646 (plurality
opinion).
Footnote 64. 5 Am Jur 2d, Appeal and Error § 545.
Footnote 65. United States v Patterson (CA5 Tex) 528 F2d 1037, reh den (CA5 Tex) 534 F2d
1113 and cert den 429 US 942, 50 L Ed 2d 313, 97 S Ct 361 (wire fraud); United States v
Donell (CA9 Cal) 469 F2d 85, cert den 410 US 935, 35 L Ed 2d 599, 93 S Ct 1390
(counterfeiting); United States v Cambre (CA9 Cal) 467 F2d 216 (bribery of government official
and conspiracy to smuggle marijuana); United States v Priest (CA10 Colo) 419 F2d 570 (illegal
transfer of marijuana); Longmire v United States (CA5 Ala) 404 F2d 326, cert den 395 US 912,
23 L Ed 2d 225, 89 S Ct 1757 (sale of nontaxpaid whiskey); United States v Bishop (CA2 NY)
367 F2d 806 (counterfeiting); People v Pijal (1st Dist) 33 Cal App 3d 682, 109 Cal Rptr 230
(selling a restricted dangerous drug); People v Werber (1st Dist) 19 Cal App 3d 598, 97 Cal Rptr
150 (cultivation and possession of marijuana); People v Fleming, 50 Ill 2d 141, 277 NE2d 872
(official misconduct and soliciting and receiving a bribe); Di Natale v State, 8 Md App 455, 260
A2d 669 (possession, control and sale of marijuana); State v Harris, 159 Mont 425, 498 P2d
1222 (burglary).
Footnote 66. United States v Cuomo (CA2 NY) 479 F2d 688, cert den 414 US 1002, 38 L Ed
2d 238, 94 S Ct 357 (transportation and sale of heroin).
Footnote 67. Releford v State, 163 Ind App 534, 325 NE2d 214 (possession and sale of heroin).
§ 204 Bases for and limitations on defense [21 Am Jur 2d CRIMINAL LAW]
Courts have recognized various bases for the defense of entrapment. It has been said to flow
from the doctrine of estoppel, the public interest, and the formulation and application of decent
standards in the enforcement of criminal law. 68 It is also said that the whole doctrine
originates from a spontaneous moral revulsion against using the powers of government to beguile
innocent but ductile persons into lapses that they might otherwise resist, 69 and that conviction
for a crime committed by an entrapped offender is against public policy. 70
According to the prevailing view, entrapment is a relatively limited defense rooted, not in any
authority of the judicial branch to dismiss prosecutions for what it feels to have been
"overzealous law enforcement," but instead in the notion that the legislative branch could not
have intended criminal punishment for a defendant who was induced by the government to
Page 225 of 575
commit the elements of a proscribed offense. 71 According to the other view, the defense is
primarily a curb upon improper law enforcement techniques whereby an otherwise guilty
defendant is permitted to go unpunished since seriously objectionable police conduct may not be
tolerated. 72 In a jurisdiction taking this approach, it has been said that the defense of
entrapment, unlike more common defenses in criminal cases such as alibi, insanity, self-defense,
lack of specific intent, and the like, is not interjected to establish the absence of an essential
element in the crime but to present facts collateral or incidental to the criminal act that justify
acquittal on the ground of an overriding public policy to deter instigation of crime by
enforcement officers in order to get a conviction. According to this view, the purposes of the
doctrine are to deter unlawful government activities and to preclude the implication of judicial
approval of impermissible government conduct. 73 It has been described as a rule of fairness
that bars a conviction as a result of improper police conduct, contrary to public policy. 74
§ 204 – Bases for and limitations on defense [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Practice Aids: Gershman, Abscam, the Judiciary, and the Ethics of Entrapment. 91 Yale LJ 1565,
July, 1982.
Actions by state official involving defendant as constituting "outrageous" conduct violating due
process guaranties 18 ALR5th 1.
Right of criminal defendant to raise entrapment defense based on having dealt with other party
who was entrapped 15 ALR5th 39.
Entrapment defense in sex offense prosecutions; 12 ALR4th 413. superseding 52 ALR2d 1194
and 53 ALR2d 1156.
Case authorities:
The fact that officers or employees of the government merely afford opportunities or facilities for
the commission of an offense does not defeat the prosecution for the offense, because artifice and
stratagem may be employed to catch those engaged in criminal enterprises; however, government
agents may not originate a criminal design, implant in an innocent person's mind the disposition
to commit a criminal act, and then induce the commission of the crime so that the government
may prosecute. Jacobson v United States (1992, US) 118 L Ed 2d 174, 112 S Ct 1535, 92
CDOS 2901, 92 Daily Journal DAR 4584.
The trial court erred in dismissing narcotics charges, where accused moved to dismiss the
charges, alleging entrapment, but a police informant disputed accused's allegations stating that
accused had initiated conversations relating to the sale of cocaine and had provided the kilogram
of cocaine that led to accused's arrest, because criminal charges should be dismissed only when
the state cannot establish a minimal prima facie case. State v Valdes (1992, Fla App D3) 599 So
Page 226 of 575
2d 1046, 17 FLW D 1400.
Fact that informant furnished marijuana to predisposed defendant to sell to female undercover
agent so that defendant could "get in good" with female agent did not establish entrapment.
Venable v State (1992) 203 Ga App 517, 417 SE2d 347, 103-53 Fulton County D R 20B, cert
den (Ga) 1992 Ga LEXIS 532.
In prosecution for promoting dangerous drug, "reverse buy" operation was not entrapment, where
there was no evidence that "reverse buy" operation displayed cocaine for sale to general public or
in any manner persuaded or induced persons other than those who were actively seeking to
purchase cocaine, and where defendant did not have any contact with agent prior to date of drug
transaction. State v Agrabante (1992) 73 Hawaii 179, 830 P2d 492.
Road-test examiner accused of accepting ten dollar bribe from investigator who had no reason to
believe she would accept bribe and who initiated offer to defendant in exchange for passing score
on road test, was properly denied entrapment instruction where defendant denied acting with
required mental state. People v Arriaga (1981) 92 Ill App 3d 951, 48 Ill Dec 387, 416 NE2d 418.
Entrapment is a defense only when the entrapped is an officer or agent of the government. State v
Luster (1982) 306 NC 566, 295 SE2d 421.
In a prosecution of defendant for possession with intent to sell and sale and delivery of LSD, the
question of entrapment did not arise from defendant's evidence, since defendant denied
committing any offense, nor was the question of entrapment raised by the State's evidence. State
v Neville, 49 NC App 678, 272 SE2d 164, affd (NC) 276 SE2d 373.
The trial court in a first-degree burglary case did not err in failing to instruct the jury on the
defense of entrapment where a State's witness advised the victim of a plan to burglarize the
victim's home on a certain date; the victim, in turn, notified the sheriff; officers were inside the
victim's home waiting for the burglars when the crime occurred; the witness had arranged to let
the police know if he found out for sure that the victim's home was to be broken into; and there
was no evidence from which the jury could infer that the witness was acting as an agent of the
police. State v Thomas (1981) 52 NC App 186, 278 SE2d 535.
Footnotes
Footnote 68. United States ex rel. Hall v Illinois (CA7 Ill) 329 F2d 354, cert den 379 US 891,
13 L Ed 2d 94, 85 S Ct 164 (unlawful sale and possession of narcotic drugs).
Footnote 69. United States v Becker (CA2 NY) 62 F2d 1007 (sending obscene matter in
interstate commerce).
Page 227 of 575
Footnote 70. State v Gellers (Me) 282 A2d 173, cert den 406 US 949, 32 L Ed 2d 337, 92 S Ct
2047 (unlawful possession of marijuana).
The defense of entrapment is based on the policy of not convicting persons who have no
preconceived criminal disposition until such disposition is implanted by government agents.
United States ex rel. Hall v Illinois (CA7 Ill) 329 F2d 354, cert den 379 US 891, 13 L Ed 2d 94,
85 S Ct 164 (narcotics offense).
It is unconscionable, contrary to public policy, and to the established law of the land to punish a
man for the commission of an offense of the like of which he had never been guilty, either in
thought or in deed, and evidently never would have been guilty of if the officers of the law had
not inspired, incited, persuaded and lured him to attempt to commit it. Butts v United States
(CA8 Neb) 273 F 35, 18 ALR 143 (illegal sale of narcotic drugs).
It is plain enough that the underlying basis of entrapment is found in public policy, as discerned
and announced by the courts. Grossman v State (Alaska) 457 P2d 226 (selling morphine).
The entrapment defense is soundly grounded in public policy. State v Nelsen, 89 SD 1, 228
NW2d 143 (unlawfully distributing a controlled substance).
Footnote 71. United States v Russell, 411 US 423, 36 L Ed 2d 366, 93 S Ct 1637, conformed to
(CA9) 479 F2d 1046 (illegal manufacture and sale of drug).
Footnote 72. State v Mullen (Iowa) 216 NW2d 375 (delivery of marijuana); Commonwealth v
Jones, 242 Pa Super 303, 363 A2d 1281 (delivery of heroin).
In his separate opinion to Sorrells v United States, 287 US 435, 77 L Ed 413, 53 S Ct 210,
Justice Roberts, rejecting the majority's view grounded in legislative intent, stated that the true
foundation of the entrapment doctrine is the fundamental rule of public policy that the courts
must be closed to the trial of crime instigated by the government's own agents.
Footnote 73. People v D'Angelo, 401 Mich 167, 257 NW2d 655 (delivery of LSD and breaking
and entering with intent to commit larceny).
Footnote 74. Wood v Commonwealth, 213 Va 363, 192 SE2d 762.
§ 205 – "Subjective" test; predisposition of accused to commit crime [21 Am Jur 2d
CRIMINAL LAW]
The generally accepted test of entrapment is the "subjective" or "origin of intent" test, which
allows the defense only if the criminal act was the product of the creative activity of law
enforcement officials. Under this test, which applies in the federal courts and a majority of state
Page 228 of 575
courts, the focus of inquiry is on the defendant's predisposition to commit the offense charged. 75
It is said that in deciding the issue of entrapment the jury should focus on the subjective intent of
the defendant and determine if he was intent on performing the criminal act with the police only
furnishing him an opportunity, or if he was an innocent person lured into committing the crime.
76
Although it has been said that decoys may not ensnare the innocent and law-abiding into the
commission of crime, 77 this does not mean that the defense of entrapment under the subjective
approach is available only to a person who has no criminal record. What is meant by "innocent"
in this connection is the absence of a predisposition or state of mind that readily responds to the
opportunity furnished by the officer or his agent to commit the forbidden act with which the
accused is charged. "Innocent" in the context of entrapment means that defendant would not
have perpetrated the crime with which he is presently charged but for the enticement of the police
official. 78 Under this approach, once it is established that a defendant engaged in illegal
activity as a result of his own preexisting readiness to do so, it becomes virtually irrelevant that
the government's blandishments might have been sufficient to induce some hypothetically
innocent person to commit the same criminal acts. 79 Thus, when the accused is continuously
engaged in the proscribed conduct, it is permissible to provoke him to a particular violation that
will be no more than an instance in a uniform series. 80 Yet, the fact that a defendant made the
initial suggestion to commit an offense does not preclude the entrapment defense where the
evidence shows that he thereafter abandoned his original scheme and then was lured back into it
by repeated solicitations of the entrapping officer. 81 Furthermore, although proof of a
predisposition to commit the crime will bar application of the entrapment defense, the
fundamental fairness aspect of due process will not permit any defendant to be convicted of a
crime in which police conduct in arranging the circumstances which led to commission of the
crime was "outrageous." 82
When the question of entrapment is raised, a court applying the subjective test must make a
two-part inquiry to determine if the police officers or their informants initiated and actively
participated in the criminal activity and if there is evidence that the accused was predisposed to
commit the crime so that the proscribed activity was not solely the idea of the police officers. 83
Under this approach, two components are required to successfully establish an entrapment
defense; the defendant must show that the police induced him to commit the crime and that, prior
to this inducement, he was not predisposed to commit it. 84 Therefore, there arise two
questions of fact: (1) Did the agent induce the accused to commit the offense charged? and, if so
(2) Was the accused ready and willing without persuasion to commit the offense and awaiting
any propitious opportunity to do so? 85 Provided the inducement exercised by the law
enforcement officer was not "shocking or offensive per se," the only issue is whether the
defendant was sufficiently predisposed such that the inducement, although bringing about the
particular offense, did not create his criminality or "corruption." 86 Once government
instigation is shown, the ultimate question is whether the inducement by the officers or the
defendant's own predisposition caused the criminal conduct. 87
Page 229 of 575
Under the subjective test, it is said that the government cannot object to evidence of its
representatives' activities in relation to the accused who, in turn, cannot complain of an
appropriate and searching inquiry into his own conduct and predisposition. 88 Although there is
authority for the view that a defendant's prior convictions should not be introduced on the issue
of his criminal predisposition under the subjective test, the federal courts and an overwhelming
majority of state courts admit evidence of similar unlawful acts of the defendant, other than those
for which he is on trial, as rebuttal to his defense of entrapment. It has been recognized, however,
that such crimes must be of a similar character to the offense charged and that the trial court, in
determining their admissibility, should consider the remoteness of the offenses and the possibility
that their prejudicial effect outweighs their probative value on the issue of predisposition. 89
Other definite criteria helpful on the issue of predisposition include the defendant's initial
suggestion of the crime, his readiness to commit it, his familiarity with the criminal activity, his
possession of illegal contraband prior to the alleged entrapment, his ready access to the
contraband, his ability to collect a large quantity of contraband in a short time, and his in-court
testimony and admissible out-of-court statements. 90 A defendant's predisposition to commit
the offense can be inferred from evidence that he readily acquiesced in the commission of the
proposed offense. If the conduct of the police prior to the commission of the crime was very
slight and consisted of merely providing the opportunity for the offense, the logical inference is
that the defendant had a predisposition to commit the crime. 91 On the other hand, inducement
that may locate the intent in the government rather than in the accused includes offers of
excessive amounts of money, and appeals to friendship, sympathy, or a narcotic's need. 92
Although the predisposition of an accused to commit the crime charged is an issue when the
defense of entrapment is raised, it is not an issue if the evidence, viewed most favorably to the
prosecution, shows the acts of the accused constituting the gravamen of the indictment were the
intended consequence of duress at the hands of government agents. 93 It has been held that
entrapment is established as a matter of law only where the absence of the defendant's
predisposition appears from uncontradicted evidence; if the issue of predisposition is in conflict,
it must be submitted to the jury. 94
§ 205 – "Subjective" test; predisposition of accused to commit crime [SUPPLEMENT] [21
Am Jur 2d CRIMINAL LAW]
Practice Aids: Marcus, Proving Entrapment Under the Predisposition Test. 14 Am J Crim L 53,
Fall/ Winter, 1986-87.
Defendant finds catch to Catch-22 of entrapment defense, 140 Chi Daily L Bull 249:5 (1995).
Proving a criminal predisposition: Separating the unwary innocent from the unwary criminal, 43
Duke LJ 384 (1993).
Actions by state official involving defendant as constituting "outrageous" conduct violating due
process guaranties 18 ALR5th 1.
Page 230 of 575
Right of criminal defendant to raise entrapment defense based on having dealt with other party
who was entrapped 15 ALR5th 39.
Entrapment defense in sex offense prosecutions; 12 ALR4th 413. superseding 52 ALR2d 1194
and 53 ALR2d 1156.
Case authorities:
Predisposition, the principal element in the affirmative defense of entrapment, focuses upon
whether the accused was an "unwary innocent" or, instead, an "unwary criminal" who readily
availed himself of the opportunity to perpetrate the crime. Mathews v United States (1988, US)
99 L Ed 2d 54, 108 S Ct 883, on remand (CA7 Wis) 848 F2d 196.
Defendant is entitled to have entrapment defense presented to jury in prosecution for interstate
transportation for stolen motor vehicle (18 USCS § 2312) and aiding and abetting such
transportation (18 USCS § 2) where evidence provides basis for reasonable doubt on ultimate
jury entrapment issue of whether criminal intent originated with government; requisite basis for
entrapment defense is provided when businessman with no criminal history or experience is
approached by informant who acts upon vendetta in using persuasion or mild coercion to engage
defendant's cooperation in committing crime. United States v Nations (1985, CA5 Tex) 764 F2d
1073.
Evidence was sufficient to prove predisposition to violate 18 USCS § 146l beyond reasonable
doubt, where defendant, who was target of sting operation aimed at child pornography offenders,
was contacted 3 times by agents, and each time responded voluntarily and promptly to letter
which was carefully coded to attract child pornography connoisseurs, and in addition he signed
"affidavit" of his intent and admitted to frequently ordering adult obscene films. United States v
Kussmaul (1993, CA6 Ohio) 987 F2d 345.
Government must prove predisposition beyond reasonable doubt, where defendant, although
acquitted of child pornography charges, asserted entrapment defense to causing obscene
pornographic videotapes to be delivered by mail in violation of 18 USCS § 1461, since he was
target of sting operation aimed at child pornography offenders, and government used evidence
obtained during operation to prosecute him for § 146l offense. United States v Kussmaul (1993,
CA6 Ohio) 987 F2d 345.
Defense of entrapment focuses upon whether government's actions implanted criminal design in
mind of otherwise unpredisposed person; to raise defense of entrapment, defendant is required to
produce evidence that prohibited actions were induced by government and that he lacked any
predisposition to commit crime, and once defendant accomplishes this, burden shifts to
government to prove beyond reasonable doubt that defendant was predisposed to commit
offense. United States v Thoma (1984, CA7 Ill) 726 F2d 1191.
Page 231 of 575
Secret service agents' conduct in selling food stamp coupons to defendant was not so outrageous
that due process principles barred government from invoking judicial processes to obtain
conviction, since uncontroverted evidence established that defendant was predisposed to buy
food stamps and had, in fact, initiated second and third transactions with undercover agents.
United States v Dougherty (1987, CA8 Neb) 810 F2d 763.
Drug conspiracy defendant's failure to raise outrageous government conduct claim until posttrial
motions constituted waiver of claim; defendant know of basis of claim at least six weeks before
trial, of specific facts two weeks before, prepared pro se motion sent to clerk but specifically not
filed after colloquy among defense counsel, prosecutor, and court and opportunity for defense
counsel to investigate. United States v Henderson-Durand (1993, CA8 Minn) 985 F2d 970.
Different standard is to be employed by court analyzing defense of outrageous government
conduct, than standard employed in considering entrapment defense since defendant's subjective
criminal predisposition bars successful entrapment defense but it is appropriate to evaluate
objectively government's conduct without regard to defendant's criminal predisposition in
evaluating defendant's defense of outrageous conduct; court must take especial care not to permit
objective analysis of due process defense of outrageous government conduct to swallow
subjective entrapment rule. United States v Bogart (1986, CA9 Cal) 783 F2d 1428.
Entrapment is not shown where government suspects existence of drug distribution network and
seeks to reach prime distributor through one of his intermediaries, and intermediary acted with
criminal purpose and intent of his own, unaware that he was acting for law enforcement officials,
therefore alleged inducement of defendant, who was charged with violating 21 USCS §§ 841
and 846 was at sole instance of intermediary, not government, thus defendant was unable to
demonstrate that he was induced to commit crime by government agent. United States v
Goodacre (1986, CA9 Cal) 793 F2d 1124.
Defendant who seeks to raise defense of entrapment in prosecution under 7 USCS § 2024 must
first come forward with evidence sufficient to raise jury issue that government's conduct created
substantial risk that offense would be committed by person other than one ready to commit it;
however, evidence that government agent sought out or initiated contact with defendant, or was
first to propose illicit transaction, is insufficient to meet defendant's burden; rather, defendant
must demonstrate not merely inducement or suggestion on part of government but element of
persuasion or mild coercion; defendant may make such showing by demonstrating that he had not
favorably received government plan, and government had to "push it" on him, or that several
attempts at setting up illicit deal had failed and on at least one occasion he had directly refused to
participate; when defendant makes such showing, burden shifts to government to demonstrate
beyond reasonable doubt that defendant was predisposed to commit offense charged; evidence of
predisposition may include readiness or eagerness of defendant to deal in proposed transaction.
United States v Andrews (1985, CA11 Ala) 765 F2d 1491.
Three questions must be addressed in determining whether subjective entrapment exists under FS
Page 232 of 575
§ 777.201: whether an agent of the government induced the accused to commit the offense
charged; whether the accused was predisposed to commit the offense charged; and whether the
entrapment evaluation should be submitted to the jury. Munoz v State (1993, Fla) 629 So 2d 90,
18 FLW S 537.
Defendant sufficiently established that he had been entrapped into committing grand larceny by
evidence that the police had placed a decoy, dressed in old clothes and doused with alcohol, in a
semi-prone position with several bills protruding from his rear pants pocket, that the area had
been the scene of several purse snatchings and robberies but had not been the scene of thefts
from persons similar to the decoy, that defendant had walked by and then returned to the decoy,
reaching down and removing the protruding money, and that defendant had not been engaging in
criminal activity before he took the money from the decoy. This evidence indicated that the
decoy had not detected or discovered the robberies and purse snatchings which he had
presumably been employed to prevent, and had instead merely provided an opportunity to
commit a crime to anyone who succumbed to the lure of the bait, and the State's failure to come
forward with evidence of defendant's predisposition warranted dismissal of the charges pursuant
to R Cr P 3.190(c)(4). State v Casper (1982, Fla App D1) 417 So 2d 263.
Defendant who responded to police advertisement and thereafter bought child pornography video
established defense of entrapment because law enforcement officers' advertisement created
criminal activity where none existed before, the government knew of no ongoing criminal
activity prior to placing the advertisement, and law enforcement officers had no knowledge of
defendant prior to the placement of the advertisement. Beattie v State (1992, Fla App D2) 595 So
2d 249, 17 FLW D657.
Drug charges against a car salesman who had no prior criminal history were dismissed based on
an entrapment defense where salesman, who initially refused to get involved, finally introduced a
willing buyer to the police informant, who was importuning him for such an introduction because
car salesman was not involved in an ongoing criminal activity and the police conduct was not
reasonably tailored to apprehend those involved in ongoing crime. Lewis v State (1992, Fla App
D3) 597 So 2d 842, 17 FLW D 793, review pending (Fla) 605 So 2d 1266.
The trial court did not err in failing to dismiss the case on the ground that the evidence disclosed
entrapment as a matter of law, since the evidence indicated that an officer met defendant for the
first time when the alleged offense occurred and the officer never told persons from whom he
purchased drugs that he would help them find employment if they provided controlled substances
for him, and the evidence therefore did not compel a finding that the criminal intent and design
originated in the mind of one other than defendant. State v Hartman, 49 NC App 83, 270 SE2d
609.
A person was not entrapped by undercover agents into selling them marijuana where the jury
could well have determined that the delay in consummating a sale was due not to a lack of
predisposition to commit the crime as much as to a lack of inventory. State v Hackworth
Page 233 of 575
(Sandusky Co) 80 O App 3d 362, 609 NE2d 228.
Entrapment occurs when law enforcement officials, acting either directly or through agent,
induce or persuade otherwise unwilling person to commit unlawful act; however, where person is
predisposed to commit offense, fact that law enforcement officials or their agents merely afford
opportunity does not constitute entrapment, absent outrageous police behavior in light of
surrounding circumstances whereby overinvolvement of police or intensity of their activities
reaches such level that due process is so offended that predisposition is irrelevant. State v Jones
(1980, Tenn) 598 SW2d 209.
Footnotes
Footnote 75. Hampton v United States, 425 US 484, 48 L Ed 2d 113, 96 S Ct 1646
(distributing heroin); United States v Russell, 411 US 423, 36 L Ed 2d 366, 93 S Ct 1637,
conformed to (CA9) 479 F2d 1046 (illegal manufacture and sale of drug); Sherman v United
States, 356 US 369, 2 L Ed 2d 848, 78 S Ct 819 (sale of narcotics); Sorrells v United States,
287 US 435, 77 L Ed 413, 53 S Ct 210, 86 ALR 249 (illegal possession of liquor); United
States v Elorduy (CA5 Tex) 612 F2d 986, reh den (CA5 Tex) 615 F2d 919 and cert den 447 US
910, 64 L Ed 2d 861, 100 S Ct 2997 (conspiracy and possession of marijuana with intent to
distribute); United States v Navar (CA5 Tex) 611 F2d 1156 (illegal drugs); United States v
Esquer-Gamez (CA9 Ariz) 550 F2d 1231 (importing, possessing, and distributing cocaine);
United States v Russo (CA1 Mass) 540 F2d 1152, cert den 429 US 1000, 50 L Ed 2d 611, 97 S
Ct 529 (counterfeiting); United States v Jackson (CA6 Mich) 539 F2d 1087 (sale and distribution
of heroin and cocaine); Hardin v State, 265 Ind 635, 358 NE2d 134 (delivery of a controlled
substance); Maynard v State (Ind App) 367 NE2d 5 (delivery of a controlled substance); State v
Batiste (La) 363 So 2d 639 (attempted distribution of heroin); State v McCrillis (Me) 376 A2d 95
(selling amphetamie and marijuana); State v Devine (Mo App) 554 SW2d 442 (selling a
controlled substance); State v Hogervorst (App) 90 NM 580, 566 P2d 828, cert den 90 NM 636,
567 P2d 485 (bribery); State v Anderson, 16 Wash App 553, 558 P2d 307, affd 93 Wash 2d 329,
610 P2d 869, cert den (US) 66 L Ed 2d 93, 101 S Ct 213 (possession and delivery of
marijuana).
Footnote 76. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled
substance).
Footnote 77. Sorrells v United States, 287 US 435, 77 L Ed 413, 53 S Ct 210 (selling liquor in
violation of Prohibition Act); People v Makovsky, 3 Cal 2d 366, 44 P2d 536 (unlawful selling of
billies).
Footnote 78. Hansford v United States, 112 App DC 359, 303 F2d 219 (sale, possession, and
importation of narcotic drugs); State v Whitney, 157 Conn 133, 249 A2d 238 (narcotic drugs).
Page 234 of 575
In prosecution of two restaurant employees for offering bribes to immigration service agents
investigating illegal aliens working at restaurant, predisposition of employees was shown by
substantial evidence, though agents had suggested meeting and had suggested payment of money
as way to obtain favorable treatment, where first employee had volunteered request that agents
"work something out" and had actively participated in events culminating in bribes and where
second employee had spontaneously offered nonmonetary bribes and plans for phasing out raids.
United States v Steinberg (CA2d NY) 551 F2d 510.
A state statute providing that it shall not constitute a defense to a prosecution that a law
enforcement officer solicited a person predisposed to engage in conduct in violation of the state
anti-fencing act, in order to gain evidence, codified the defense of entrapment, preserved the line
between the predisposed criminal and the unwary innocent, and was not unconstitutional. State v
Dickinson (Fla) 370 So 2d 762.
Officers of the law are not permitted to generate in the mind of a person who is entirely innocent
of any criminal purpose the original intent to commit acts which that person would not have
committed or contemplated, except for such inducements. Dorchincoz v Commonwealth, 191
Va 33, 59 SE2d 863 (using a hotel for lewdness, assignation, and prostitution).
Footnote 79. United States v Principe (CA1 Mass) 482 F2d 60 (conspiracy to distribute and
distributing heroin).
Footnote 80. United States v Becker (CA2 NY) 62 F2d 1007 (sending obscene matter in
interstate commerce).
Footnote 81. United States v Klosterman (CA3 Pa) 248 F2d 191, 69 ALR2d 1390 (bribery).
Footnote 82. United States v Twigg (CA3 NJ) 588 F2d 373.
Entrapment, normally recognized as a defense in criminal cases, can be so outrageous as to be
illegal because it deprives defendant of due process of law. Wager v Pro, 195 App DC 423, 603
F2d 1005.
Footnote 83. Hardin v State, 265 Ind 635, 358 NE2d 134 (conspiracy to delivery an unlawful
delivery of a controlled substance).
Footnote 84. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled
substance).
As to allocation of burden of proving inducement and predisposition where defendant raises
defense of entrapment, see 29 Am Jur 2d, Evidence § 156.
Footnote 85. United States v Glassel (CA9 Ariz) 488 F2d 143, cert den 416 US 941, 40 L Ed 2d
Page 235 of 575
292, 94 S Ct 1945 (possession of and attempting to distribute cocaine); Simmons v State, 8 Md
App 355, 259 A2d 814 (selling marijuana).
Footnote 86. Walker v United States (CA1 Mass) 344 F2d 795 (illegal transfer of marijuana);
Commonwealth v Harvard, 356 Mass 452, 253 NE2d 346 (sale and possession of marijuana).
Footnote 87. State v Batiste (La) 363 So 2d 639 (attempted distribution of heroin).
Defendant in prosecution for violation of 18 USCS § 1001 presented insufficient evidence of
entrapment where there was no evidence on record that defendant's participation in conspiracy
was induced by government agents, but rather he was induced to conspire with law breaker
unassociated with government. United States v Freedson (CA9 Cal) 608 F2d 739.
Footnote 88. Sorrells v United States, 287 US 435, 77 L Ed 413, 53 S Ct 210 (illegal
possession and sale of liquor).
Footnote 89. 29 Am Jur 2d, Evidence § 321.
Footnote 90. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled
substance).
Footnote 91. 30 Am Jur 2d, Evidence § 1160.
Footnote 92. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled
substance).
As to weight and and sufficiency of evidence showing entrapment, see 30 Am Jur 2d, Evidence
§ 1160.
Footnote 93. State v Metcalf, 60 Ohio App 2d 212, 14 Ohio Ops 3d 186, 396 NE2d 786.
Footnote 94. 75 Am Jur 2d, Trial § 425.
As to jury instructions on entrapment, see 75 Am Jur 2d, Trial § 727.
§ 206 – "Objective" test; activity of law enforcement officials [21 Am Jur 2d CRIMINAL
LAW]
Several state courts have shown disfavor with the "subjective" test of entrapment and have
adopted instead an "objective" test whereby the court considers the nature of the police activity
involved, without reference to the predisposition of the defendant. 95 This approach to
entrapment reflects the view expressed by a minority of the United States Supreme Court. 96
Page 236 of 575
In some jurisdictions, such a test has been adopted by statute. 97 As justification for this
approach, it is said that the "objective" test avoids the introduction into evidence of hearsay,
suspicion, and rumor to prove the defendant's predisposition and focuses instead on the real
concern in the case–whether the actions of the police were so reprehensible under the
circumstances that the court should refuse, as a matter of public policy, to allow conviction. 98
It has been recognized that, even though entrapment should not become a ready escape hatch for
those who are engaged in a course of criminal enterprise, there must be, under standards of
civilized justice, some control on the kind of police conduct that can be permitted in the
manufacture of crime. 99 It is said that the success of an entrapment defense should not turn on
differences among defendants. The concern is not with who conceived or who acquiesced in a
criminal project, but rather how much and what manner of persuasion, pressure, and cajoling are
brought to bear by law enforcement officials to induce persons to commit crimes. 1
Under the objective test, which focuses on the particular conduct of the police in the case
presented, unlawful entrapment occurs when a public law enforcement official, or a person
working in cooperation with him, in order to obtain evidence of the commission of an offense,
induces another person to commit such an offense by persuasion or inducement that would be
effective to persuade an average person, other than one who is ready and willing, to commit the
offense. Conversely, instigations that would induce only a person engaged in an habitual course
of unlawful conduct for gain or profit do not constitute entrapment. 2 Under this approach, the
test of entrapment is whether the conduct of the law enforcement agent was likely to induce a
normally law-abiding person to commit the offense. For purposes of the test, it is assumed that
such a person would normally resist the temptation to commit a crime by the simple opportunity
to act unlawfully. Thus, official conduct that merely offers such an opportunity is permissible,
but overbearing conduct, such as badgering, cajoling or importuning, is not. 3 Because, under
this test, the defense of entrapment is viewed as primarily a curb upon improper law enforcement
techniques, the predisposition of the accused is irrelevant. 4 The focus of the objective test is on
reprehensible government conduct and not on the character and propensities of the defendant.
The issue is whether the government conduct induced or instigated the commission of a crime. 5
There is no concern with the defendant's prior criminal activity or other indicia of a
predisposition to commit crime. 6 The nature of the police conduct is the focus of inquiry and
the guilt or innocence of the defendant is irrelevant to that determination. 7
Under the objective definition of entrapment, it has been held that a defendant who asserts the
defense will succeed if it is shown that the police conduct would have induced an innocent
person to commit the crime. 8 Nevertheless, in applying the objective test, it has been held that
the course of conduct between the officer and the defendant should not be ignored. Thus, the
transactions leading up to the offense, the interaction between them, and the defendant's response
to the officer's inducements are to be considered in judging what the effect of the officer's
conduct would be on a normal person. 9 It is said that the conduct of the law enforcement agent
is not to be viewed in a vacuum, but to be judged by the effect it would have on a normally
law-abiding person situated in the same circumstances as the accused. 10
Page 237 of 575
Although determining what constitutes impermissible police conduct must proceed on an ad hoc
basis, certain guiding principles have been recognized. Entrapment is established if actions of the
law enforcement agent generate in a normally law-abiding person a motive for crime other than
ordinary criminal intent as, for example, when the police appeal to such person to commit the act
because friendship or sympathy, rather than a desire for personal gain or other typical criminal
purpose. Likewise, entrapment exists if the police affirmatively engage in conduct that makes
commission of the crime unusually attractive to a normally law-abiding person, such as
guaranteeing to him that the act is not illegal or will go undetected, offering him an exhorbitant
consideration, or similarly enticing him. Nevertheless, there is no entrapment where the official
conduct goes no further than necessary to assure the suspect that he is not being "set up." Hence,
the police remain free under the objective test to take reasonable, though restrained, steps to gain
the confidence of suspects. 11 In short, depending upon the facts in each case, examples of
prohibited governmental activity may include extreme pleas of desperate illness, appeals based
primarily on sympathy, pity, or close personal friendship, and offers of inordinate sums of
money. 12
Although there is contrary authority, it is generally held that the trial court, not the jury, rules on
the issue of entrapment under the objective test. 13 It has been said, however, that the better
rule on entrapment is one that approves both the "objective" and "subjective" tests and applies
them in a manner consistent with the evidence. 14 Under this approach, if the evidence
establishes, under the "objective" test, that the officer or agent conceived the plan and procured
or directed its execution in such an unconscionable way that he could only be said to have
created the crime for the purpose of making an arrest and obtaining a conviction, the court will
resolve the issue of entrapment rather than the jury where the minds of reasonable men could not
differ on the issue. On the other hand, if the evidence of entrapment is not so overwhelming as
to show under the "objective" test such monstrous or unconscionable government conduct
requiring the court to hold that entrapment was proved as a matter of law, the issue of entrapment
is submitted to the jury under the "subjective" test. 15
§ 206 – "Objective" test; activity of law enforcement officials [SUPPLEMENT] [21 Am Jur
2d CRIMINAL LAW]
Practice Aids: Government manufacture of crime and the entrapment defense, 22 Col Law 925
(1993).
"The government made me do it": A proposed approach to entrapment under Jacobson v. United
States [ 118 LEd2d 174 (1992)], 79 Cornell LR 995 (1994).
Actions by state official involving defendant as constituting "outrageous" conduct violating due
process guaranties 18 ALR5th 1.
Right of criminal defendant to raise entrapment defense based on having dealt with other party
who was entrapped 15 ALR5th 39.
Page 238 of 575
Entrapment defense in sex offense prosecutions; 12 ALR4th 413. superseding 52 ALR2d 1194
and 53 ALR2d 1156.
Case authorities:
The government may not play on the weaknesses of an innocent party and beguile the party into
committing crimes which the party otherwise would not have attempted; law enforcement
officials go too far when they implant in the mind of an innocent person the disposition to
commit an alleged offense and induce its commission in order that they may prosecute; when the
government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen
who, if left to the citizen's own devices, likely would never have run afoul of the law, the courts
should intervene. Jacobson v United States (1992, US) 118 L Ed 2d 174, 112 S Ct 1535, 92
CDOS 2901, 92 Daily Journal DAR 4584.
Official conduct that does no more than offer an opportunity to the suspect, such as ruses, stings,
and decoys, is a permissible strategem in the enforcement of criminal law, and becomes invalid
only when badgering or importuning takes place to an extent and degree that is likely to induce
an otherwise law-abiding person to commit a crime. Reyes v Municipal Court (1981) 117 Cal
App 3d 771, 173 Cal Rptr 48.
The "normally law-abiding person" entrapment standard, as set out in the standard jury
instructions for entrapment, makes clear that the test of entrapment is an objective, not
subjective, one. The use of such a standard does not unfairly focus the jurors' attention on the
subjective character, predisposition and intent of the actor (defendant) and away from the
objective nature and extent of the police conduct at issue. Thus, in a prosecution for selling
cocaine, the trial court properly gave the jury such standard jury instructions on entrapment.
People v Arthurlee (1985, 1st Dist) 168 Cal App 3d 246, 214 Cal Rptr 5.
In a prosecution for sale of a controlled substance, in which defendant alleged entrapment, the
trial court erred in giving the standard jury instructions on entrapment, since they focused on
whether the law enforcement activity was likely to induce a normally law-abiding person to
commit the crime and provided that defendant's predisposition to commit the crime was
irrelevant, and thus did not accurately reflect the law of entrapment. The predisposition of the
accused to commit the crime is the principal element of the defense, and the fact that officers
afford opportunities or facilities for the commission of the offense does not defeat the
prosecution. People v Allen (1987, 1st Dist) 192 Cal App 3d 477, 237 Cal Rptr 446.
The proper test for entrapment is whether the conduct of the law enforcement agent was likely to
induce a normally law-abiding person to commit the offense. Entrapment focuses upon police
conduct and not the defendant's predisposition. Matters such as the character of the suspect, his
predisposition to commit the offense, and his subjective intent are irrelevant. This objective test
of entrapment is used so as to guard against socially undesirable police persuasion, pressure, and
cajoling. People v Lee (1990, 4th Dist) 219 Cal App 3d 829, 268 Cal Rptr 595.
Page 239 of 575
Of the two approaches to entrapment law, California has adopted the "objective" test, which
focuses on the conduct of police and the impact of such conduct on a "normally law-abiding
person," and has rejected the "subjective" test, which focuses on a defendant's predisposition to
commit the offense. "Normally law-abiding person" does not refer to the "average" person, and
applies to a person who, although possessing abnormal tastes, is normally law-abiding. Thus,
jury instructions on the entrapment defense (CALJIC Nos. 4.60, 4.61, 4.61.5) referring to
"normally law-abiding persons" are sufficient without regard to a defendant's abnormal
proclivities. People v Burns (1992, 4th Dist) 8 Cal App 4th 715, 10 Cal Rptr 2d 483, 92 CDOS
6756, 92 Daily Journal DAR 10713, review den, op withdrawn by order of ct (Cal) 92 CDOS
8704, 92 Daily Journal DAR 14438 and review den (Oct 22, 1992).
The objective entrapment test set forth in Cruz has been eliminated by FS § 777.201, and in the
absence of egregious law enforcement conduct, the statutory subjective test is to be applied on
the issue of entrapment, but in the presence of egregious law enforcement conduct, an entrapment
defense is to be evaluated under the due process provision of Fla. Const. Art I, § 9 and the
objective test articulated in earlier cases. Munoz v State (1993, Fla) 629 So 2d 90, 18 FLW S
537.
Government's conduct in Abscam investigation did not reach that demonstrable level of
outrageousness which would bar prosecution of corrupt officials that were uncovered, where
government created fictitious corporation purportedly representing wealthy Arabs who let it be
known that they would pay substantial sums of money to Congressmen willing to assist Arabs
with their immigration difficulties, since government merely provided opportunity, and not
means, to commit crime. United States v Kelly (1983) 228 App DC 55, 707 F2d 1460, cert den
464 US 908, 78 L Ed 2d 247, 104 S Ct 264, later app 242 App DC 1, 748 F2d 691.
In a prosecution for conspiracy arising from a reverse sting drug operation in which undercover
agents posed as drug dealers and the defendant and others arranged to purchase drugs from them,
application of the objective test to determine whether entrapment occurred offered no basis for
relief where the most that could be said about the informant's involvement was that he was an
intermediary between the police and the defendant and there was no evidence that the informant
supplied money for the drug purchase or that he was to receive money or drugs for his part in the
purchase. Commonwealth v Timer (1992) 422 Pa Super 636) 613 A2d 1265, reported in full 415
Pa Super 376, 609 A2d 572.
Footnotes
Footnote 95. Grossman v State (Alaska) 457 P2d 226 (selling morphine); People v Barraza, 23
Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin); State v Anderson, 58 Hawaii 479,
572 P2d 159 (promoting a dangerous drug); State v Cooper (Iowa) 248 NW2d 908 (delivery of
cocaine); State v Mullen (Iowa) 216 NW2d 375 (delivery of marijuana).
Page 240 of 575
Footnote 96. The "objective test" is exemplified by the concurring opinions by Justice Roberts in
Sorrells v United States, 287 US 435, 77 L Ed 413, 53 S Ct 210, by Justice Frankfurter in
Sherman v United States, 356 US 369, 2 L Ed 2d 848, 78 S Ct 819, and by Justice Stewart in
United States v Russell, 411 US 423, 36 L Ed 2d 366, 93 S Ct 1637, conformed to (CA9) 479
F2d 1046.
Footnote 97. State v Anderson, 58 Hawaii 479, 572 P2d 159 (promoting a dangerous drug); State
v Pfister (ND) 264 NW2d 694 (delivery of a controlled substance); Commonwealth v Jones, 242
Pa Super 303, 363 A2d 1281 (delivery of heroin).
"Objective" test of entrapment is adopted under statutory provision that entrapment occurs when
law enforcement agent induces commission of an offense, using persuasion or other means likely
to cause normally law-abiding persons to commit offense; defendant's predisposition to commit
the crime is not included in statutory definition of entrapment, and is irrelevant to entrapment
issue; accordingly, trial court erroneously instructed jury on subjective test by stating that
entrapment defense involved issue of "whether the defendant was ready and willing to commit
the crime without persuasion." State v Pfister (ND) 264 NW2d 694 (delivery of a controlled
substance).
Under a Pennsylvania statute defining the defense of entrapment, the state of mind of the
particular defendant is irrelevant, and a defendant who asserts the defense of entrapment will
succeed if it is shown that the police conduct complained of would have induced an innocent
person to commit the crime; the objective test of entrapment does not affect the guilt of the
accused–the defense allows an otherwise guilty defendant to go unpunished because the
Legislature has determined that seriously objectionable police conduct may not be tolerated;
because entrapment does not negate an element of the offense, it is constitutionally permissible to
place the burden of proving entrapment on the criminal defendant. Commonwealth v Jones, 242
Pa Super 303, 363 A2d 1281 (delivery of heroin).
Section 2.Section 13 of the Proposed Official Draft of the Model Penal Code of the American
Law Institute departs from the generally accepted "subjective" view of entrapment and apparently
adopts the "objective" view.
Footnote 98. People v Turner, 390 Mich 7, 210 NW2d 336 (sale and possession of heroin).
Footnote 99. Grossman v State (Alaska) 457 P2d 226 (selling morphine).
Footnote 1. People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin).
Footnote 2. Grossman v State (Alaska) 457 P2d 226 (selling morphine).
Footnote 3. People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin).
Page 241 of 575
Footnote 4. People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin);
State v Mullen (Iowa) 216 NW2d 375 (delivery of marijuana); State v Pfister (ND) 264 NW2d
694 (delivery of controlled substance); Commonwealth v Jones, 242 Pa Super 303, 363 A2d
1281 (delivery of heroin).
Footnote 5. People v Alford, 73 Mich App 604, 251 NW2d 314, affd 405 Mich 570, 275 NW2d
484.
Entrapment was not a defense in a prosecution for violation of 18 USCS § 152 despite the fact
that defendant president of a bankrupt corporation filed reports unsigned, and only signed them
later, when the omission was called to his attention by a clerk, since that did not mean that he
was overreached and entrapped by the government's action in forcing his signature. United
States v Montilla Ambrosiani (CA1 Puerto Rico) 610 F2d 65, cert den 445 US 930, 63 L Ed 2d
763, 100 S Ct 1318.
Footnote 6. Commonwealth v Jones, 242 Pa Super 303, 363 A2d 1281 (delivery of heroin).
Footnote 7. People v D'Angelo, 401 Mich 167, 257 NW2d 655 (delivery of a controlled
substance).
Footnote 8. Commonwealth v Jones, 242 Pa Super 303, 363 A2d 1281 (delivery of heroin).
Footnote 9. Grossman v State (Alaska) 457 P2d 226 (selling morphine); People v Barraza, 23 Cal
3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin).
Footnote 10. People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin).
Footnote 11. People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P 2d 947 (selling heroin).
Footnote 12. Grossman v State (Alaska) 457 P2d 226 (selling morphine); State v Cooper (Iowa)
248 NW2d 908 (delivery of cocaine); State v Mullen (Iowa) 216 NW2d 375 (delivery of
marijuana).
Footnote 13. 75 Am Jur 2d, Trial § 425.
As to burden of proof of entrapment under "objective" approach, see 29 Am Jur 2d, Evidence §
156.
Footnote 14. State v Knight (W Va) 230 SE2d 732 (delivery of marijuana).
Footnote 15. 75 Am Jur 2d, Trial § 425.
Page 242 of 575
§ 207 Imputation of decoy's acts to accused; victim's consent [21 Am Jur 2d CRIMINAL
LAW]
Since a decoy acts without criminal intent, his acts cannot be imputed to the accused as criminal.
In other words, where there is no act other than that of the decoy, that act cannot be the basis of a
conviction of the accused. 16 For example, where a property owner by himself or through his
agent, actually or constructively aids in the commission of the offense of larceny, as intended by
the wrongdoer, by performing or rendering unnecessary some act in the transaction essential to
the offense, the would-be criminal is not guilty of all of the elements of the offense. 17
Similarly, where the decoy is the supposed victim and the victim's lack of consent is an element
of the crime, the decoy's cooperation may constitute consent such as will eliminate an essential
element and thus prevent the accused's conviction of the alleged crime. 18 Thus, for example,
one who seeks to entrap another in the commission of larceny must take care that in his efforts he
does not overreach himself and consent to the taking of his property. Where the owner himself
or by his agent originates the criminal design and actively urges and assists the defendant in the
taking of the goods, such conduct amounts to consent, and the element of trespass essential to
larceny is lacking. On the other hand, if the criminal design originates with the accused, and the
owner or his agent does not suggest or actively urge the commission of the crime, but merely
exposes the property, neglects to protect it, or furnishes facilities for the execution of the criminal
design, there is no consent. 19 Likewise, if a burglary victim, himself or through an agent,
induces another to commit the offense for the purpose of entrapping and apprehending him,
entrapment is a defense, on the theory that the owner of the premises by his conduct has
consented to the breaking and entering by the alleged burglar, thereby destroying the essential
element that the breaking and entering be against the owner's consent. On the other hand, there is
no consent to the crime where the owner does not induce the original intent, but only makes
provision for the exposure of the offense or, knowing that his property is to be burglarized, takes
no action to thwart the plan. 20 And it may be a defense to a robbery prosecution that the crime
was instigated by the person robbed or that the property was handed over solely for the purpose
of prosecuting the offender, since want of the victim's consent is an essential element of the
crime. Nevertheless, there is no defense where the inducement to the taking is only passive, as
where a person who knows that a robbery is contemplated remains passive or takes steps to
provide an opportunity for the apprehension of the would-be robber. 21
§ 207 – Imputation of decoy's acts to accused; victim's consent [SUPPLEMENT] [21 Am
Jur 2d CRIMINAL LAW]
Practice Aids: Right of criminal defendant to raise entrapment defense based on having dealt
with other party who was entrapped 15 ALR5th 39.
Maintainability of burglary charge, where entry into building is made with consent. (See also 13
Am Jur 2d, Burglary 64.) 58 ALR4th 335.
Page 243 of 575
Case authorities:
The trial court properly granted defendants' motions to dismiss under R Cr P 3.190 on the ground
that they had been entrapped as a matter of law, where the facts as stipulated by the parties
indicated that the police had posted decoys in a neighborhood plagued by robberies and
purse-snatching, each of the defendants had taken clearly exposed money from the pocket of a
decoy lying prone on the sidewalk, and there was no indication that any defendant had engaged in
prior similar conduct, in that this evidence did not suggest any predisposition on the part of
defendants but rather suggested that defendants had simply succumbed to the lure of the bait held
out by the decoys. Peterson v Title & Trust Co. (1983, Fla App D1) 431 So 2d 311.
Footnotes
Footnote 16. People v Lanzit, 70 Cal App 498, 233 P 816 (attempt to commit murder); State v
Hayes, 105 Mo 76, 16 SW 514 (ovrld on another point State v Barton 142 Mo 450, 44 SW 239;
burglary).
Footnote 17. 50 Am Jur 2d, Larceny § 139.
Footnote 18. State v Dougherty, 88 NJL 209, 96 A 56 (conspiracy to pervert due administration
of laws).
Footnote 19. 50 Am Jur 2d, Larceny § 139.
Footnote 20. 13 Am Jur 2d, Burglary § 64.
Footnote 21. 67 Am Jur 2d, Robbery § 47.
§ 208 Manner of raising defense; accused's denial of any participation in offense [21 Am
Jur 2d CRIMINAL LAW]
The defense of entrapment is raised under a plea of not guilty. 22 It is said that the defense of
entrapment is no exception to the rule that under a not guilty plea a defendant is entitled to have
the jury consider, under proper instructions, every theory of defense that the evidence or
reasonable inference therefrom entitles him. 23 It is also said that to require an accused to plead
guilty as a prerequisite to utilizing the entrapment defense would be to equate his participation in
a course of conduct with his legal guilt. 24
Although the defense of entrapment may be raised by a plea of not guilty, the overwhelming
weight of authority holds that the defense is not available to one who denies the offense, 25
since the invocation of such defense necessarily assumes that the act charged was committed. 26
Page 244 of 575
The majority rule and its rationale have been held generally proper and adequate on the ground
that a defendant who denies the crime will ordinarily be unable to establish any evidentiary base
for the defense of entrapment. 27 It is said that the phrases, "I was entrapped," and "I didn't do
it," are mutually exclusive. 28 Generally, therefore, a defendant who raises the defense of
entrapment cannot controvert the allegations of the indictment. 29 Nevertheless, an exception to
the general rule has been recognized where the state, rather than the defendant, injects evidence
of entrapment into the case. 30 There is also a qualification in cases involving a charge of
conspiracy, whereby a defendant may deny being a party to a conspiracy and yet raise the issue
that any overt acts done by him resulted from entrapment. 31 However, this qualification
applies only if proof that the defendant was not a member of the conspiracy does not necessarily
disprove that he was entrapped into committing a particular overt act; the defense will not be
permitted where the defendant does not admit to some culpable act that he claims he was
entrapped into committing. 32
On the other hand, there is also authority for the view that a defendant may assert entrapment
without being required to concede that he committed the crime charged or any of its elements. 33
As justification for this view, it has been said that the rule in favor of inconsistent offenses
should extend to entrapment since the primary function of the defense is to safeguard the
integrity of law enforcement and the prosecution process. 34 It has also been said that
compelling a defendant to admit guilt as a condition to invoking the defense of entrapment
effectively relieves the prosecution of its burden of proving his guilt beyond a reasonable doubt
and puts the defendant in a dilemma that frustrates the assertion of the defense itself and
undermines its policy. 35 In a jurisdiction adhering to the "objective" test for entrapment, it has
been held that a defendant is not required to admit the criminal act in order to raise the
entrapment issue since the test for entrapment does not look to his so-called predisposition to
commit the crime charged but focuses instead on the challenged governmental activity. 36
It has been held that defendants who raised the defense of entrapment by pretrial motions but
later changed their pleas to no contest thereby gave up any chance they might have had to present
the entrapment defense to the jury and, on appeal, were not entitled to reversals of their
convictions where they had not established entrapment as a matter of law. 37
§ 208 – Manner of raising defense; accused's denial of any participation in offense
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Note, Entrapment and Denial of the Crime: A Defense of the Inconsistency Rule.
1986 Duke LJ 866, November, 1986.
Note, Denying the Crime and Pleading Entrapment: Putting the Federal Law in Order. 20 U Mich
J L Ref 567, Winter, 1987.
Right of criminal defendant to raise entrapment defense based on having dealt with other party
who was entrapped 15 ALR5th 39.
Page 245 of 575
Entrapment defense in sex offense prosecutions; 12 ALR4th 413. superseding 52 ALR2d 1194
and 53 ALR2d 1156.
Availability in state court of defense of entrapment where accused denies committing acts which
constitute offense charged; 5 ALR4th 1128. superseding for state cases 81 ALR2d 877.
Availability in federal court of defense of entrapment where accused denies committing acts
which constitute offense charged. 54 ALR Fed 644.
Case authorities:
A defendant in a federal criminal trial is entitled to have the jury instructed on the affirmative
defense of entrapment whenever there is sufficient evidence from which a reasonable jury could
find entrapment, even if the defendant denies one or more elements of the crime. Mathews v
United States (1988) 485 US 58, 99 L Ed 2d 54, 108 S Ct 883.
See United States v Hill (1981, CA3 Pa) 655 F2d 512, § 70.
Defendant did not waive due process challenge to prosecution based on extent of government
operative's involvement in narcotics transaction where information was not available to him until
eve of trial. United States v Gonzales (1991, CA3 NJ) 927 F2d 139.
In prosecution for conspiracy to buy bobcat hides brought into United States from Mexico
contrary to law and for smuggling, trial court erred in refusing to give instruction on entrapment
on ground that defense of entrapment was unavailable to defendant so long as defendant denied
committing acts which constituted crime, where law had been changed at time defendants were
tried and entrapment defense was available to defendant even though he denied committing acts
upon which criminal charge was based. United States v Ivey (1991, CA5 Tex) 949 F2d 759.
As result of defendant's failure to raise entrapment defense in District Court, point was therefore
not open for normal review. United States v Porter (1988, CA8 Mo) 850 F2d 464.
On the question of whether accused was predisposed to commit the offense charged, an accused
asserting the entrapment defense initially has the burden to establish lack of predisposition, but as
soon as the accused produces evidence of no predisposition, the burden then shifts to the
prosecution to rebut this evidence beyond a reasonable doubt, which the prosecution may
accomplish by making "an appropriate and searching inquiry" into the conduct of the accused and
present evidence of the accused's prior criminal history, even though such evidence is normally
inadmissible. Munoz v State (1993, Fla) 629 So 2d 90, 18 FLW S 537.
On the issue of whether an agent of the government induced the accused to commit the offense
charged, the accused asserting the entrapment defense has the burden of proof and pursuant to FS
§ 777.201, must establish this factor by a preponderance of the evidence. Munoz v State (1993,
Page 246 of 575
Fla) 629 So 2d 90, 18 FLW S 537.
Defendant, to be permitted to raise the defense of entrapment, must admit his commission of the
offense charged. People v Bradley (1979, Ill App) 391 NE2d 1078, 5 ALR4th 1121 (robbery).
In prosecution for prostitution, defendant sufficiently raised entrapment defense in presentation
of evidence by showing police involvement in criminal activity and evidence of lack of
predisposition to commit act of prostitution; to extent claim of entrapment was inconsistent with
claim of innocence, self-penalizing effect of undermining defendant's credibility obviated any
need to prohibit defense of entrapment in case where defendant claimed innocence. Strong v
State (1992, Ind App) 591 NE2d 1048, transfer den (Jul 16, 1992).
A defendant may assert the defense of entrapment where he has denied committing the crime
since (1) a defendant is unlikely to confess a crime when there is a risk that he will not be able to
meet the burden of showing inducement, and (2) the ultimate effect of requiring the defendant to
admit to the crime in order to raise entrapment would be to relieve the Commonwealth of its
burden of proving all elements of the crime beyond a reasonable doubt. Commonwealth v Tracey
(1993) 416 Mass 528, 624 NE2d 84, summary op at (Mass) 22 M.L.W. 736.
In trial for fourth-degree patronizing prostitute, defendant was not entitled to jury charge on
affirmative defense of entrapment based on his testimony that man dressed as woman approached
his car, offering to perform oral sodomy for money, and that he did not respond to offer, since (1)
defendant's testimony denying that he committed proscribed conduct did not by itself support
requested charge, and (2) undercover officers' testimony that they merely afforded defendant
opportunity to commit offense was insufficient to warrant entrapment charge. People v Brown
(1993) 82 NY2d 869, 609 NYS2d 164, 631 NE2d 106.
Where a defendant denies the commission of the acts underlying the offense charged, he cannot
raise the inconsistent defense of entrapment. State v Neville, 302 NC 623, 276 SE2d 373.
Defendant has the burden to prove the defense of entrapment to the satisfaction of the jury, and
once defendant has presented evidence of entrapment, the burden does not then shift to the
prosecution to prove predisposition beyond a reasonable doubt. State v Hageman (1982) 307 NC
1, 296 SE2d 433.
The trial judge did not err in denying defendant's request for an instruction on the defense of
entrapment, where defendant took the witness stand and denied committing the crime of which
defendant was charged and found guilty. Williams v State (1986, Fla App D2) 482 So 2d 600, 11
FLW 370.
Prostitution defendant who denied crime was still entitled, notwithstanding such denial, to
entrapment instruction in view of evidence. State v McBride (1979) 287 Or 315, 599 P2d 449.
Page 247 of 575
Under state statute, defense of entrapment would be available to defendant even where defendant
denies commission of crime. State v Taylor (1979, Utah) 599 P2d 496.
Footnotes
Footnote 22. See § 452, infra.
Footnote 23. State v Knight (W Va) 230 SE2d 732 (delivery of marijuana).
Footnote 24. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing LSD).
A defendant in a prosecution for conspiracy to transport stolen trucks in foreign commerce was
entitled to raise the defense of entrapment where he chose not to testify, so that no evidence
inconsistent with the defense was introduced; a plea of not guilty is not repugnant to the defense
of entrapment. United States v Groessel (CA5 Tex) 440 F2d 602, cert den 403 US 933, 29 L Ed
2d 713, 91 S Ct 2263.
The holding in the Groessel case, supra, was distinguished in United States v Henciar (CA6
Mich) 568 F2d 489, cert den 435 US 953, 55 L Ed 2d 803, 98 S Ct 1582, where it was held that
the district court did not err in failing to permit defendant, who did not take the stand, to raise the
defense of entrapment in spite of his refusal to admit that he was guilty of the crime charged,
since there was no evidence from which the jury could have concluded that defendant was
entrapped.
Footnote 25. United States v O'Leary (CA5 Fla) 529 F2d 1202 (conspiracy to import drugs);
United States v Mitchell (CA6 Tenn) 514 F2d 758, cert den 423 US 847, 46 L Ed 2d 68, 96 S
Ct 86 (influencing a witness); United States v Gibson (CA10 Kan) 446 F2d 719 (giving money to
prison employee to obtain contraband for inmate); Burris v United States (CA7 Ill) 430 F2d 399,
cert den 401 US 921, 27 L Ed 2d 824, 91 S Ct 909 (possession of heroin); United States v
Freeman (CA10 Colo) 412 F2d 1181 (selling LSD); United States v Blanket (WD Okla) 391 F
Supp 15 (illegal sale of feathers); United States v Ramsey (CA2 Conn) 374 F2d 192 (possession
and sale of illegally imported heroin); Owens v State, 291 Ala 107, 278 So 2d 693 (possession of
heroin); State v Mendoza, 109 Ariz 445, 511 P2d 627 (unlawful sale of narcotics); Robinson v
State, 255 Ark 893, 503 SW2d 883 (selling cocaine); State v Avery, 152 Conn 582, 211 A2d 165
(policy playing); Ivory v State (Fla App D3) 173 So 2d 759, cert dismd (Fla) 183 So 2d 212
(illegal sale of narcotic); Reed v State, 130 Ga App 659, 204 SE2d 335 (disapproved on other
grounds State v McNeill 234 Ga 696, 217 SE2d 281, on remand 135 Ga App 876, 219 SE2d 613
and (ovrld on other grounds Chandle v State 230 Ga 574, 198 SE2d 289) as stated in Gibbons v
State 136 Ga App 609, 222 SE2d 55, cert dismd 237 Ga 283, 227 SE2d 265 and (ovrld on other
grounds Webb v State 136 Ga App 90, 220 SE2d 27; sale of marijuana); People v Calcaterra, 33
Ill 2d 541, 213 NE2d 270, cert den and app dismd 385 US 7, 17 L Ed 2d 8, 87 S Ct 65 (selling
a nonnarcotic under representation that it was a narcotic); State v Bruno (Iowa) 204 NW2d 879
(selling hallucinogenic drugs); State v Amodei, 222 Kan 140, 563 P2d 440 (narcotic offenses);
Page 248 of 575
Tomita v Tucker, 18 Mich App 559, 171 NW2d 564 (false arrest); People v Bersine, 48 Mich
App 295, 210 NW2d 501 (unlawful sale of heroin); Landers v State (Miss) 304 So 2d 641 (sale
of marijuana); State v Sykes (Mo) 478 SW2d 387 (felonious sale of a narcotic drug); State v
O'Donnell, 138 Mont 123, 354 P2d 1105 (grand larceny); State v Dennis, 43 NJ 418, 204 A2d
868 (conspiracy to violate narcotic drug law); State v Garcia, 79 NM 367, 443 P2d 860
(possession of marijuana); State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L
Abs 65, 165 NE2d 28, motion overr (illegal possession and sale of narcotics); Stephens v State
(Tex Crim) 522 SW2d 924 (sale of heroin); State v Draper, 10 Wash App 802, 521 P2d 53
(unlawful delivery of a controlled substance).
Annotation: 61 ALR2d 677.
Footnote 26. Brown v State, 248 Ark 561, 453 SW2d 50 (illegal possession of narcotics);
Sassnett v State, 156 Fla 490, 23 So 2d 618 (larceny); State v Boles, 246 NC 83, 97 SE2d 476
(possession and sale of liquor); State v Williams, 84 SD 547, 173 NW2d 889 (unlawful
possession and sale of marihuana); Cooper v State, 162 Tex Crim 624, 288 SW2d 762
(procuring); State v Hochman, 2 Wis 2d 410, 86 NW2d 446, 77 ALR2d 784 (selling booklets
and playing cards containing obscene pictures).
In a prosecution for the sale of heroin, there was no contradiction in the defendant's maintaining
that he was merely a procuring agent and was entrapped into even that service. United States v
Rodrigues (CA1 Mass) 433 F2d 760, cert den 401 US 943, 28 L Ed 2d 224, 91 S Ct 950.
The defendant's denial that he made a sale but that he merely "fetched" heroin as an errand boy
precluded the defense of entrapment. Dunbar v United States (CA9 Or) 342 F2d 979.
While the defense of entrapment may be raised when the defendant pleads not guilty, the
assumption being that the act charged was committed, the entrapment defense was not available
to the defendant charged with selling heroin where he admitted he had sold capsules to the agent,
but contended that the capsules had contained whole wheat flour. McCarroll v State, 294 Ala 87,
312 So 2d 382.
Where the defendant admitted involvement in the sale of narcotics but sought exoneration on the
ground that he was merely a procuring agent, the defense of entrapment was available
notwithstanding that the defendant had denied the offense charged. State v Fitzgibbon, 211 Kan
553, 507 P2d 313.
A defendant charged with the illegal sale of a nonnarcotic drug was entitled to a jury instruction
on entrapment where he admitted all elements of the offense except the agreement to sell,
concerning which his testimony was uncertain. State v Farmer, 212 Kan 163, 510 P2d 180.
The defendant who was accused of bribing police officers to forestall her arrest for prostitution
was entitled to instructions on entrapment, even though she claimed that she had not bribed the
Page 249 of 575
police officer, but rather, that he had taken money away from her when she refused to pay the
bribe. State v Harrington (La) 332 So 2d 764.
Where a defendant admittedly located a willing seller of narcotics at the behest of an undercover
agent, arranged for the sale, and was present at the transfer, he was entitled to an entrapment
instruction since his two defenses–that his acts did not constitute a sale or joint action with the
seller and that he was entrapped–were not entirely repugnant. State v Taylor (Mo) 375 SW2d 58.
The court properly refused the defendant's request for a jury instruction presenting the defense of
entrapment where the defendant had not only denied participation in the alleged defense but also
had denied that he was entrapped. State v Wilmore, 192 Neb 807, 224 NW2d 756 (possession of
a controlled substance with intent to distribute).
In a prosecution for possession of marijuana, the defendant was not entitled to a jury charge on
entrapment where his defense was based on lack of knowledge that there was contraband in
vehicle in which he was passenger. Zamora v State (Tex Crim) 508 SW2d 819.
Footnote 27. State v Knight (W Va) 230 SE2d 732 (delivery of marijuana).
Footnote 28. United States v Brooks (CA5 Fla) 611 F2d 614 (illegal sale of firearms); People v
Pugh, 48 Mich App 242, 210 NW2d 376 (armed robbery).
Footnote 29. Zinn v State, 134 Ga App 51, 213 SE2d 156 (unlawful sale of heroin).
Footnote 30. Sears v United States (CA5 Ga) 343 F2d 139 (conspiracy to violate liquor laws);
State v Knight (W Va) 230 SE2d 732 (delivering marijuana).
Footnote 31. Sears v United States (CA5 Ga) 343 F2d 139 (conspiracy to violate liquor laws);
Henderson v United States (CA5 Fla) 237 F2d 169, 61 ALR2d 666 (conspiracy to violate federal
liquor laws); Stripling v State (Fla App D3) 349 So 2d 187, cert den (Fla) 359 So 2d 1220
(bribery and conspiracy to commit bribery).
In a prosecution for conspiracy to smuggle marijuana, wherein the defendant denied both
conspiracy and having committed any of the overt acts charged, the government's evidence that
custom agents only provided the defendant with an anticipated opportunity to commit a criminal
act for which he was predisposed did not establish entrapment as a matter of law or constitute
substantial evidence of it. Sendejas v United States (CA9 Cal) 428 F2d 1040, cert den 400 US
879, 27 L Ed 2d 116, 91 S Ct 122 and cert den 400 US 879, 27 L Ed 2d 116, 91 S Ct 127.
In a prosecution for conspiracy to defraud the United States, the defendant was not permitted to
argue that he was not part of the conspiracy but was entrapped to commit the overt act charged in
the indictment, where there was no evidence in the record introduced by either the prosecution or
the defendants to support the theory that the defendants were entrapped in the conspiracy. United
Page 250 of 575
States v Morrow (CA5 Fla) 537 F2d 120, reh den (CA5 Fla) 541 F2d 282 and cert den 430 US
956, 51 L Ed 2d 806, 97 S Ct 1602 and cert den 430 US 956, 51 L Ed 2d 806, 97 S Ct 1602.
Footnote 32. United States v Newcomb (CA5 Fla) 488 F2d 190, cert den 417 US 931, 41 L Ed
2d 234, 94 S Ct 2642 (conspiracy to possess with intent to distribute marijuana).
Footnote 33. United States v Demma (CA9 Cal) 523 F2d 981 (conspiracy to import and
distribute heroin); People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling
heroin); People v Perez, 62 Cal 2d 769, 44 Cal Rptr 326, 401 P2d 934 (possession of marijuana).
Rule governing presentment of entrapment defense by accused announced in United States v
Demma (CA9 Cal) 523 F2d 981, which corrected aberration of law concerning entrapment which
began with Eastman v United States (CA9 Ariz) 212 F2d 320, was applicable to cases pending
on appeal at time Demma was decided. United States v Stagg (CA9 Cal) 540 F2d 1010
(conspiracy, possession and distribution of cocaine).
The court erred in foreclosing the defendant in a drug prosecution from raising an entrapment
defense on the ground that he had refused to take the stand to admit the offense. United States v
Hart (CA9 Ariz) 546 F2d 798, cert den 429 US 1120, 51 L Ed 2d 571, 97 S Ct 1155 and later
app (CA9 Ariz) 563 F2d 1308, cert den 435 US 925, 55 L Ed 2d 519, 98 S Ct 1491, reh den
436 US 914, 56 L Ed 2d 416, 98 S Ct 2257.
Where the defendant denied making a sale of narcotics yet invoked the issue of entrapment, the
defenses were alternative but not inconsistent. It was consistent with the defendant's denial of
the transaction to urge that if the jury believed it did occur the government's evidence as to how it
occurred indicated entrapment. Hansford v United States 112 App DC 359, 303 F2d 219 (sale of
narcotics).
The trial court erred in instructing the jury that the defendants conceded their guilt by raising the
defense of entrapment. People v Johnston (2d Dept) 47 App Div 2d 897, 366 NYS2d 198
(criminal possession of a dangerous drug).
Practice Aids: Groot, The Serpent Beguiled Me and I (Without Scienter) Did Eat–Denial of
Crime and the Entrapment Defense, 1973 U Ill L F 254.
Footnote 34. United States v Demma (CA9 Cal) 523 F2d 981 (conspiring to import and
distribute heroin).
Footnote 35. People v Perez, 62 Cal 2d 769, 44 Cal Rptr 326, 401 P2d 934 (possession of
marijuana).
Footnote 36. People v D'Angelo, 401 Mich 167, 257 NW2d 655 (delivery of LSD and breaking
and entering with intent to commit larceny).
Page 251 of 575
Footnote 37. Bell v State (Fla) 369 So 2d 932 (prostitution, lewdness, or assignation).
§ 209 Purchase of contraband by officer [21 Am Jur 2d CRIMINAL LAW]
In the absence of some persuasion or inducement outside the ordinary transaction of purchase
and sale between a willing purchaser and the willing seller, 38 where a person is engaged in
illegal sales, the mere fact that police officers go to his place of business and ask for a product
which may not lawfully be sold, 39 or that a particular sale for which he is prosecuted was
induced by them, 40 does not show entrapment. In other words, where a person is regularly
engaged in doing certain prohibited acts, such as unlawfully selling liquor, 41 unlawfully selling
narcotics, 42 or accepting bets on horseraces, 43 and has done such acts on his own initiative,
it is no defense for him to show that for the purpose of bringing him to justice, an officer of the
law directly or indirectly occasioned the commission of the particular act charged. 44
In a jurisdiction applying the "objective" test of entrapment, 45 it has been recognized that an
officer should be able to offer money in reasonable amounts at a prevailing price level in an
unlawful traffic, but that offers of profit grossly disproportionate to what is reasonably expected
in that traffic should not be permitted when they would overwhelm the self-control of a normal
person. 46
§ 209 – Purchase of contraband by officer [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Practice Aids: Actions by state official involving defendant as constituting "outrageous" conduct
violating due process guaranties 18 ALR5th 1.
Right of criminal defendant to raise entrapment defense based on having dealt with other party
who was entrapped 15 ALR5th 39.
Case authorities:
In cases in which the government has induced a defendant to break the law and the defense of
entrapment is at issue, the prosecution must prove beyond a reasonable doubt that the defendant
was disposed to commit the criminal act prior to first being approached by government agents;
thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell
drugs and, if the offer is accepted, make an arrest on the spot or later, because in such a typical
case, or in a more elaborate "sting" operation involving government-sponsored fencing where the
defendant was simply provided with the opportunity to commit a crime, the entrapment defense
is of little use, since the ready commission of the criminal act simply demonstrates the
defendant's predisposition. Jacobson v United States (1992, US) 118 L Ed 2d 174, 112 S Ct
1535, 92 CDOS 2901, 92 Daily Journal DAR 4584.
Page 252 of 575
Narcotics defendant's non involvement defense did not conflict with codefendant's entrapment
defense since it was not necessary for jury to have disbelieved one defense in order to believe
other. United States v Gutberlet (1991, CA8 Minn) 939 F2d 643.
The evidence in a prosecution for possession and sale of cocaine did not show entrapment as a
matter of law but presented a question of entrapment for the jury where the State's evidence
tended to show that defendant produced quantities of cocaine for an undercover agent to
purchase, defendant was actually the first one to raise the issue of a drug purchase, defendant
knew exactly where to go and who to see in order to make a drug purchase, and other people who
frequented defendant's home looked upon her as one familiar with drug trafficking in the area,
and where defendant's evidence tended to show that the undercover agent knew defendant was
unemployed and in need of money, he offered financial assistance to fix her car and leaky
basement, he often brought beer, food, and cigarettes for her as gifts, the undercover agent was
the first one to raise the subject of a drug transaction, the undercover agent provided defendant
with all the money for the drugs purchased and drove her on each of the three occasions in
question to buy the drugs, and defendant did not profit on any of the three purchases. State v
Grier, 51 NC App 209, 275 SE2d 560.
In a prosecution for delivery of heroin in which defendant testified he delivered the heroin as a
result of inducement by his girlfriend, a police informant, but in which the police officer's
testimony suggested a different motive, i.e., defendant's desire to obtain heroin for himself, the
trier of fact was authorized to weigh the evidence and draw a conclusion from the circumstances
that defendant was not induced by the informant to commit the offense; moreover, the evidence
did not show that the informant was a law enforcement agent as defined in PC § 8.06, such as to
support a finding of entrapment. Soto v State (1984, Tex Crim) 681 SW2d 602, on remand (Tex
App Austin) 685 SW2d 131.
Footnotes
Footnote 38. People v Makovsky, 3 Cal 2d 366, 44 P2d 536 (unlawful selling of billies).
Footnote 39. State v Franco, 76 Utah 202, 289 P 100 (marijuana).
Footnote 40. People v Carner, 117 Cal App 2d 362, 255 P2d 835 (selling heroin).
In a prosecution for selling obscene booklets and pictures, evidence that defendant stated to a
police officer on his first visit that defendant sold "hotter stuff" only to the better customers, that
defendant encouraged the officer to become a regular customer, and that on a subsequent visit
defendant stated that the officer arrived too late and that the material was sold to another
customer, showed that defendant entertained the criminal intent before he was afforded an
opportunity to violate the law. State v Hochman, 2 Wis 2d 410, 86 NW2d 446, 77 ALR2d 784.
Page 253 of 575
For later cases involving the defense of entrapment in a narcotics prosecution, see 25 Am Jur 2d,
Drugs, Narcotics, and Poisons § 43.
Footnote 41. See 45 Am Jur 2d, Intoxicating Liquors §§ 349-350.
Footnote 42. See 25 Am Jur 2d, Drugs, Narcotics, and Poisons § 43.
Footnote 43. See 38 Am Jur 2d Gambling § 168.
Footnote 44. In prosecution for mailing obscene films, entrapment as a matter of law was not
shown and, thus, entrapment issue was for jury which rejected it, where government agents
purchased films in response to unsolicited advertisements. United States v Walker (CA5 Tex)
559 F2d 365.
Footnote 45. See § 206 supra.
Footnote 46. Grossman v State (Alaska) 457 P2d 226 (selling morphine).
D. Immunity Resulting From Being Compelled to Testify;
Agreements Not to Prosecute [210-222]
1. In General [210, 211]
§ 210 Generally; historical background; types of immunity [21 Am Jur 2d CRIMINAL
LAW]
From the earliest period the policy of the English courts seems to have been to encourage
accomplices to become witnesses for the Crown by holding out to them the hope of pardon on a
free and full disclosure of their guilt and that of their associates in crime. The first method of
attaining this result was by what was known as "the practice of approvement." The course in
pursuing this old form was for the culprit, indicted for treason or felony, to confess the truth of
the charge and, on being sworn to reveal all the treasons or felonies within his knowledge, to
enter before a coroner his appeal against all his partners in crime who were within the realm.
The criminal thus confessing was called the "approver," or, in Latin, "probator," and the person
implicated was styled the "appellee." By this confession and appeal the approver put it in the
discretion of the court either to give judgment and award execution against him or to respite him
until the conviction of his partners in guilt. If it was deemed advisable to admit him as an
approver, and then if, upon being sworn, he made a full and true disclosure and also convicted
the appellee either by his oath or on wager of battle, the King, ex merito justitiae, pardoned him
"as to his life." This practice, with its conditions that the appellee could claim a trial by battle
and that grace to the approver should be dependent on his conviction of his associate in crime,
Page 254 of 575
was plainly at variance with modern sentiments and habits, and consequently it passed out of use.
47
Yet, since the practice of approvement served a valuable purpose in judicial administration, it
was inevitable that some equivalent should take its place, and the English practice on such
occasions seems to have long since, assumed, a settled form. Under the modern practice there
are pardons grantable as of common right, without any exercise of the King's discretion, as where
a statute creating an offense or enacting penalties for its future punishment holds out a promise of
immunity to accomplices to aid in the conviction of their associates. When accomplices do so
voluntarily, they have a right absolutely to a pardon. The same is also true when, by the King's
proclamation, they are promised immunity on discovering their associates and are the means of
convicting them. Except in these cases, however, accomplices, though admitted to testify
according to the usual phrase as "King's evidence," have no absolute claim or legal right to a
pardon. 48 They have an equitable claim to pardon if, on the trial, a full and fair disclosure of
the joint guilt of one of them and his associates is made. They cannot plead it in bar of an
indictment for the offense, but they may use it to put off the trial in order to have time to apply
for a pardon. 49 If the accomplice acts in bad faith or fails to testify fully and fairly, he may
still be prosecuted as if he had never been admitted as a witness. 50
Modern immunity statutes, having historical roots deep in Anglo-American jurisprudence, have
been enacted by Congress and every state, as well as the District of Columbia and Puerto Rico.
Such statutes have been considered as essential to the effective enforcement of various criminal
statutes and have "become part of our constitutional fabric." 51 A grant of immunity represents
an accomodation between the government's right to compel testimony, on the one hand, and the
witness' constitutional privilege against self-incrimination. If adequate immunity is granted,
incriminating testimony may be compelled. The theory on which a grant of immunity is based is
that, in return for the witness' surrender of his Fifth Amendment right to remain silent lest he
incriminate himself, the witness is promised that he will not be prosecuted on the basis of the
inculpatory evidence he gives in exchange. Thus, for example, the prosecution may compel
testimony from one of several suspects to be used against the others by granting him immunity.
The prosecution, in effect, allows one person to go free in order to obtain convictions against the
others. Nevertheless, although immunity is earned only after the witness actually testifies, it is
effective even where no convictions result from the testimony. 52
In order to be effective in compelling testimony from a witness, a grant of immunity must be
coextensive with the constitutional privilege against self-incrimination. 53 Under a statute
extending a witness immunity coextensive with his constitutional privilege from giving
self-incriminating evidence, the witness is in the same position, as to prosecutions for the crimes
to which his evidence relates, as though his acts did not constitute a crime. 54
There are three recognized types of immunity: (1) "transactional," (2) "use and derivative use,"
and, (3) "use." "Transactional" immunity protects the witness from prosecution for offenses to
which the compelled testimony relates. This type of immunity is broader than the constitutional
Page 255 of 575
privilege against self-incrimination and need not always be granted, although it does, of course,
constitute adequate immunity. "Use and derivative use" immunity protects the witness from the
use of compelled testimony and evidence derived therefrom. It is coextensive with the
constitutional privilege against self-incrimination and is therefore a sufficient grant of immunity
to compel self-incriminatory testimony. On the other hand, mere "use" immunity, which only
prevents the prosecution from using the compelled testimony in any criminal proceeding, is not
constitutionally adequate since it does not prevent prosecuting authorities from making derivative
use of the fruits of a witness' compelled testimony by obtaining investigatory leads from it. 55
Where a witness testifies under a statute granting "use and derivative use" immunity, the
government may still prosecute him by using evidence from a legitimate independent source.
Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters
related to a federal prosecution, the federal authorities have the burden of showing that their
evidence is not tainted and must establish that they had an independent, legitimate source for the
disputed evidence. This burden of proof imposes on the prosecution the affirmative duty to
prove that the evidence is derived from a legitimate source wholly independent of the compelled
testimony. 56
§ 210 – Generally; history background; types of immunity [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Practice Aids: Van Cleve and Tiefer, Navigating the Shores of "Use" Immunity and Secret
International Enterprises in Major Congressional Investigations: Lessons of the Iran-Contra
Affair. 55 Mo LR 43, Winter, 1990.
Judicial use immunity and the privilege against self-incrimination in court mandated therapy
programs, 17 Nova LR 1441 (1993).
Propriety, under state constitutional provisions, of granting use or transactional immunity for
compelled incriminating testimony–post-Kastigar cases 29 ALR5th 1.
Right of defendant in criminal proceeding to have immunity from prosecution granted to defense
witness; 617 ALR4th 617. superseding 13 ALR2d 1439.
Case authorities:
Trial court properly denied motion to dismiss grounded on defense of qualified immunity in
action by nine-year-old plaintiff who alleged that defendant police officer held gun to child's
head and threatened to shoot during search of apartment in which he was resident; because he
was not under arrest and did not otherwise pose threat to officers, threat of deadly force was
objectively unreasonable and violated clearly established constitutional rights. McDonald v
Haskins (1992, CA7 Ill) 966 F2d 292.
Page 256 of 575
Use immunity protects a witness only against the actual use of his compelled testimony, as well
as the use of evidence derived therefrom. Transactional immunity protects the witness against
later prosecutions related to matters about which he testifies. People v Hunter (1989) 49 Cal 3d
957, 264 Cal Rptr 367, 782 P2d 608, mod (1990) 50 Cal 3d 133a, reh den.
Footnotes
Footnote 47. Whiskey Cases, 99 US 594, 25 L Ed 399; State v Graham, 41 NJL 15;
Commonwealth v Dabney, 40 Va 696.
Footnote 48. Commonwealth v Dabney, 40 Va 696.
Footnote 49. Whiskey Cases, 99 US 594, 25 L Ed 399; State v Graham, 41 NJL 15.
Footnote 50. Whiskey Cases, 99 US 594, 25 L Ed 399.
Footnote 51. 81 Am Jur 2d, Witnesses § 56.
Footnote 52. 81 Am Jur 2d, Witnesses § 54.
Practice Aids: –Immunity from prosecution. 1 Wharton's Criminal Law (14th ed) § 78.
Footnote 53. 81 Am Jur 2d, Witnesses § 58.
Footnote 54. 81 Am Jur 2d, Witnesses § 56.
Footnote 55. 81 Am Jur 2d, Witnesses § 59.
Transactional immunity statute applies to matter about which a witness is subpoenaed to testify;
however, if such witness discloses a fact during his testimony, innocent in and of itself, which
links him to an independent and separate criminal transaction, he may be prosecuted for such
other criminal transaction, but his subpoenaed testimony may not be used. State ex rel. Hough v
Popper (Fla) 287 So 2d 282.
Where a witness in an investigation of a charge against a third person for breaking and entering
with intent to commit arson informed the prosecutor that he would not testify unless given
transactional immunity, and where he prefaced his testimony by declaring that he was answering
only because he had immunity, a subsequent information charging the witness with solicitation to
commit arson pertained to the same "transaction, matter or thing" for which the immunity had
been granted, and a writ of prohibition would issue to prevent the prosecution. State ex rel. Key
v Fogle (Fla App D2) 347 So 2d 1067, cert den (Fla) 353 So 2d 675.
Page 257 of 575
A manslaughter indictment would be dismissed where the defendant received full transactional
immunity from prosecution as a result of her appearance before a grand jury, and where her
waiver of immunity was invalid under the state statute. People v Gerald, 91 Misc 2d 509, 398
NYS2d 244.
Footnote 56. 81 Am Jur 2d, Witnesses § 61.
§ 211 Right to immunity in absence of statutory authority [21 Am Jur 2d CRIMINAL
LAW]
No one has a general immunity from prosecution for his alleged criminal acts. 57
The mere
fact that a participant or an accomplice in the commission of a crime has given testimony of an
incriminating nature does not, in the absence of a statute so providing, entitle him to claim
immunity from prosecution as a matter of right. 58 Absent appropriate statutory authorization,
immunity cannot be granted by a prosecuting attorney, trial judge, grand jury, legislative
investigating committee, or some other person. 59 To justify refusal of a claim of privilege
against self-incrimination, immunity from prosecution must have its source and sanction in the
law. A witness may insist that his immunity have a basis more substantial than the grace or favor
of the prosecutor. 60 However, even in the absence of specific statutory authority, there is an
established practice in American courts not to prosecute an accomplice who has testified for the
government in the expectation of immunity from prosecution, 61 and such a witness is said to
have an equitable claim to immunity from prosecution. 62 Where the case is not within any
statute, the general rule is that if an accomplice, when examined as a witness by the public
prosecutor, discloses fully and fairly the guilt of himself and his associates, he will not be
prosecuted for the offense disclosed, 63 but he cannot plead such fact in bar of any indictment
against him or avail himself of it on his trial, since it is merely an equitable right to the mercy of
the executive and can only come before the court by way of application to put off the trial in
order to give the prisoner time to apply to the executive for that purpose. 64
If the testimony of an accomplice is corrupt or his disclosure is only partial, he gains nothing and
forfeits whatever right to exemption he may have had. 65
In addition to this equitable right of an accomplice to a pardon or clemency upon testifying fully
and freely, it has been held to be competent for the court to order the accomplice to be acquitted
at the trial, for the purpose of qualifying him as a witness for the state, or to accept from the
defendant a plea admitting guilt to such a degree as in the opinion of the court is requisite, or for
the court to assent to, or advise the entering of, a nolle prosequi by the prosecuting attorney. 66
In sentencing an accomplice, the practice of taking into consideration his aid to the state in
turning state's evidence has been held to be no denial of due process to a convicted confederate.
67
Page 258 of 575
The doctrine of common-law approvement, 68 if it ever existed in the federal court system, has
for all practical purposes been abolished by statute. 69
§ 211 – Right to immunity in absence of statutory authority [SUPPLEMENT] [21 Am Jur
2d CRIMINAL LAW]
Practice Aids: Right of defendant in criminal proceeding to have immunity from prosecution
granted to defense witness; 4 ALR4th 617. superseding 13 ALR2d 1439.
Footnotes
Footnote 57. Beal v Missouri P. R. Corp., 312 US 45, 85 L Ed 577, 61 S Ct 418; Miami v
Sutton (CA5 Fla) 181 F2d 644.
Whether a crime against society is committed by a man or a woman is immaterial. State v
Brown (App) 84 Ohio L Abs 258, 170 NE2d 858.
Footnote 58. Mulloney v United States (CA1 Mass) 79 F2d 566, cert den 296 US 658, 80 L Ed
468, 56 S Ct 383; People v Grossman, 145 Misc 781, 262 NYS 66; Bruno v State, 192 Tenn
244, 240 SW2d 528, cert den 342 US 840, 96 L Ed 635, 72 S Ct 68; Bills v State, 166 Tex
Crim 28, 305 SW2d 614, cert den 355 US 955, 2 L Ed 2d 532, 78 S Ct 542 and cert den 358
US 933, 3 L Ed 2d 306, 79 S Ct 323.
Telling in court of a crime previously committed does not exempt the witness from prosecution.
Commonwealth v Chaitt, 176 Pa Super 318, 107 A2d 214.
Footnote 59. 81 Am Jur 2d, Witnesses § 57.
Footnote 60. 81 Am Jur 2d, Witnesses § 55.
Footnote 61. Frady v People, 96 Colo 43, 40 P2d 606; Commonwealth v Knapp, 27 Mass 477;
State v Graham, 41 NJL 15; State v Johnson, 77 Wash 2d 423, 462 P2d 933.
Footnote 62. State v Crow (Mo) 367 SW2d 601.
In the United States the courts have held that only an equitable right to immunity exists unless a
statute expressly authorizes a grant of immunity in the particular situation. United States v Levy
(CA3 Pa) 153 F2d 995.
An accomplice who, under an agreement or understanding with the prosecuting attorney,
approved by, or known to, the court, that he shall be immune from further prosecution, testifies
Page 259 of 575
fully and truthfully as to the whole matter has an equitable right to such immunity, which the
court has not discretion to take away; in case he has pleaded guilty, he should be permitted to
withdraw the plea to permit the entry of a nol-pros, or the case should be continued to permit him
to apply for a pardon. Lowe v State, 111 Md 1, 73 A 637.
Footnote 63. Whiskey Cases, 99 US 594, 25 L Ed 399.
Footnote 64. Whiskey Cases, 99 US 594, 25 L Ed 399; State v Graham, 41 NJL 15; State v
Lyon, 81 NC 600.
But see Camron v State, 32 Tex Crim 180, 22 SW 682, apparently holding that where an
accomplice has carried out his compact with the state for exemption from prosecution on making
an honest and full disclosure, he is entitled to his remedy of pardon as a matter of right.
Footnote 65. Whiskey Cases, 99 US 594, 25 L Ed 399; Alderman v People, 4 Mich 414;
Camron v State, 32 Tex Crim 180, 22 SW 682.
Footnote 66. State v Graham, 41 NJL 15.
Footnote 67. Lisenba v California, 314 US 219, 86 L Ed 166, 62 S Ct 280, reh den 315 US
826, 86 L Ed 1222, 62 S Ct 620.
Footnote 68. § 210, supra.
Footnote 69. United States v Marzec (CA7 Ill) 249 F2d 941, cert den 356 US 913, 2 L Ed 2d
586, 78 S Ct 670.
2. State Constitutional and Statutory Provisions for Immunity [212-216]
§ 212 Generally [21 Am Jur 2d CRIMINAL LAW]
State statutory and constitutional provisions often expressly provide for immunity from
prosecution to a witness who is compelled to testify in a manner likely to incriminate him. 70
It is not requisite to the effectiveness of the immunity granted a witness by such a provision that
he be the only source of information touching the facts or acts about which he is to be
interrogated, nor that his answers constitute a confession; it is sufficient if he is required to
disclose substantial information as to the material elements necessary in the drafting of the
indictment and indispensable to a conviction. 71
The purpose of immunity provisions is to aid prosecuting officers by inducing criminals or their
confederates to turn state's evidence and tell on each other, 72 to enable prosecuting officers to
procure evidence which would otherwise be denied to them because of the constitutional right
Page 260 of 575
against self-incrimination, 73 and at the same time to protect every person from giving
testimony that directly or indirectly would be helpful to the prosecution in securing an indictment
or a conviction. 74 The provisions for immunity are or should be as broad as or coextensive
with the constitutional provisions granting the privilege against self-incrimination. 75 In order
to be granted immunity, however, the witness must be compelled to give incriminating
testimony. If his claim of privilege is respected and he is excused from testifying, no immunity
arises. 76 Furthermore, a witness who is compelled to give self-incriminating testimony may
waive his immunity. For example, an accused who voluntarily contacted police and signed a
waiver of his rights against self-incrimination may be subpoenaed to the state attorney's office
because of his representation that he had information concerning the crime and may be
subsequently charged as a codefendant without statutory immunity, since his testimony was
voluntary and constituted a waiver of immunity. 77
Some cases state that an immunity statute is remedial in nature 78 and should be liberally
construed in order to give complete immunity from prosecution to a person whose constitutional
rights may be affected. 79 A statutory provision granting immunity from prosecution has been
held to extend to a witness compelled to testify in a civil action. 80 But there is also authority to
the effect that such a statute should be strictly construed, 81 and it is said that courts are not
inclined to extend the coverage of immunity statutes pertaining to certain situations. 82
Thus, it has been held that where the statute limits the right to immunity to persons who as
witnesses give testimony or produce evidence, the protection does not extend to a corporation 83
or to a person verifying a pleading. 84
Under immunity statutes limiting their protection to testimony involving only particular offenses
or categories of crime, it has been held that a defendant obtained no immunity where his previous
testimony did not fall within the precise terms of the statute. Thus, a murder indictment has been
upheld, despite a defendant's contention that he received immunity for testifying before a grand
jury and at trial, since the statute empowering the grand jury to confer immunity for certain
crimes did not include murder. 85 And, under a statute permitting the state to make a binding
promise of immunity in cases of abortion, anarchy, bribery, dueling, and gambling, the power
does not extend to cases of forgery, attempted murder and felonious assaults; and the prosecuting
attorney cannot compel a witness to give evidence in such cases. 86 Nevertheless, even under a
statute conferring immunity only if the testimony concerns one or more of five categories of
crimes specifically enumerated, it has been held that the immunity is not confined to those
crimes, but extends to any transaction, matter, or thing about which the witness may testify or
produce evidence. 87
Since a statute promising a witness that no testimony given by him shall be offered in evidence
against him in any criminal proceeding generally relates to prosecution for past crimes that he
admits in his testimony or of which his testimony might assist in convicting him, the immunity
granted to a witness required to testify with reference to certain specified crimes is no defense to
a subsequent prosecution for perjury if he testifies falsely. 88 Likewise, a witness protected by
Page 261 of 575
an immunity statute may be held in contempt if he fails to answer questions as ordered, but
cannot be held guilty of contempt for refusing to testify on the ground of self-incrimination
where he declines to accept an immunity that the district attorney and the court are powerless to
extend. 89
§ 212 – Generally [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: The Due Process Need for Postponement or Use Immunity in Probation
Revocation Hearings Based on Criminal Charges. 68 Minn LR 1077, May, 1984.
Propriety, under state constitutional provisions, of granting use or transactional immunity for
compelled incriminating testimony–post-Kastigar cases 29 ALR5th 1.
Right of defendant in criminal proceeding to have immunity from prosecution granted to defense
witness; 4 ALR4th 617. superseding 13 ALR2d 1439.
Case authorities:
In prosecution of defendant for armed robbery, trial court properly refused to grant immunity to
defense witness who, defense counsel claimed, was responsible for robbery for which defendant
was on trial since immunity statute was designed to enable prosecution to secure testimony and
other evidence from persons implicated in criminal activities. People v Williams, (1970) 11 Cal
App 3d 1156, 90 Cal Rptr 409.
The grant of transactional immunity to defendant pursuant to Pen. Code, § 1324, to compel his
testimony in a murder prosecution of an associate, with whom defendant was involved in an
unrelated robbery, did not immunize defendant from prosecution on the robbery charge even
though he testified concerning the robbery on cross-examination, where the district attorney
made it clear that the only transaction the offer of immunity covered was the murder, and that any
evidence regarding the robbery was not within the scope of the transactional immunity, where the
court made an order accordingly, and where defendant and his counsel knew that the
transactional immunity was limited to prosecution for the murder and did not include any other
crime. An order for transactional immunity under Pen. Code, § 1324, is not a blanket order that
immunizes a person from prosecution for any offense committed at any time and about which the
witness may have testified when limited by the district attorney. People v Thompson (1983, 2d
Dist) 145 Cal App 3d 918, 193 Cal Rptr 782.
In a criminal prosecution for murder, in which the trial court admitted statements of a witness
who had told police that defendant had admitted the killing to him, but who denied at trial any
recollection of having made inculpatory statements against defendant and claimed he was lying
in his prior statements, despite the trial court's grant of use immunity to the witness, defendant
had no standing to challenge the trial court's grant of use immunity to the witness. There was no
claim or showing that the grant of immunity adversely affected the veracity of the witness'
Page 262 of 575
testimony "against" defendant. The privilege against self-incrimination is personal to the person
who invokes it and immunity affects only that person. Unless the immunity amounts to an
improper coercion of the witness' testimony or demonstrably affects the nature of that testimony,
a defendant has no interest in complaining. People v Wisely (1990, 4th Dist) 224 Cal App 3d
939, 274 Cal Rptr 291.
In prosecution for first-degree murder, trial court did not err in denying defendant's request to
grant immunity to one of two men charged with being accessory after fact who had not been
granted immunity and who was called as defense witness, and there was no denial of equal
protection in that State could grant immunity but defendant could not since state alone has
responsibility of prosecuting crimes and therefore state, not defendant, must have authority to
grant immunity. Walters v State, (1979, Ind) 394 NE2d 154, 4 ALR4th 609.
Police officer's statement made during internal police department investigation of officer was
involuntary as matter of law, and was automatically immunized from use in criminal proceedings
against officer, where statement was taken during compulsory interview under threat of
dismissal. People v Corrigan (1992) 80 NY2d 326, 590 NYS2d 174, 604 NE2d 723.
Claim of statutory immunity can be waived by failing to assert it in timely manner; thus,
defendant could not assert claim of ineffective waiver of immunity at grand jury proceedings
where he failed to move to dismiss indictment before trial or before sentencing. People v
Haggins (1989, 4th Dept) 148 App Div 2d 987, 538 NYS2d 1020, app den 74 NY2d 664, 543
NYS2d 407, 541 NE2d 436.
Written waiver of immunity signed by defendant before grand jury, which bore printed legend
"Subscribed and sworn to" in presence of grand jury, was valid waiver, notwithstanding that
defendant did not formally raise his right hand and recite that he swore to waiver in grand jury
chamber; requirement that waiver be sworn to before grand jury is met, whatever form of oath
adopted, if oath is taken in presence of officer authorized to administer it and constitutes
unequivocal and present act by which affiant consciously takes upon himself obligation of oath.
People v McMillen (1992, Co Ct) 152 Misc 2d 918, 579 NYS2d 321.
In prosecution of defendants for second-degree murder, failure of prosecution to grant immunity
to prospective defense witness who had been present at crime scene for purpose of countering
testimony by immunized government witnesses did not constitute policy of unfair and unequal
law enforcement since decision to grant immunity is legislative function vested in district
attorney. People v Beyea (1974, 1st Dist) 38 Cal App 3d, 176, 113 Cal Rptr 254.
Footnotes
Footnote 70. Ex parte Bullen, 236 Ala 56, 181 So 498; People v Fryer, 175 Cal 785, 167 P 382;
Lorenzo v Blackburn (Fla) 74 So 2d 289; Halpin v Scotti, 415 Ill 104, 112 NE2d 91; Metz v
Page 263 of 575
State, 217 Ind 293, 27 NE2d 761; Freeman v Commonwealth, 305 Ky 221, 203 SW2d 16; State
v Gensmer, 235 Minn 72, 51 NW2d 680, cert den 344 US 824, 97 L Ed 642, 73 S Ct 24;
Zambroni v State, 217 Miss 418, 64 So 2d 335; State v Caprio, 98 NJL 13, 119 A 81, affd 99
NJL 292, 130 A 377; People v Steuding, 6 NY2d 214, 189 NYS2d 166, 160 NE2d 468; Temple
v State, 15 Okla Crim 146, 175 P 555; State v Stone, 161 Tenn 74, 29 SW2d 250; Fine v State,
112 Tex Crim 652, 18 SW2d 156; State v Abdella, 139 W Va 428, 82 SE2d 913.
Footnote 71. Wheat v State, 201 Miss 890, 30 So 2d 84.
Footnote 72. State ex rel. Raines v Grayson (Fla) 55 So 2d 554.
Footnote 73. Lewis v State (Fla App D2) 155 So 2d 841; State v Abdella, 139 W Va 428, 82
SE2d 913; State v Carchidi, 187 Wis 438, 204 NW 473.
Footnote 74. Lewis v State (Fla App D2) 155 So 2d 841; Koonck v Cooney, 244 Iowa 153, 55
NW2d 269; Commonwealth v Barnett, 196 Ky 731, 245 SW 874; People v Florentine, 276 App
Div 730, 97 NYS2d 553; People v Fine, 173 Misc 1010, 19 NYS2d 275; State v Abdella, 139 W
Va 428, 82 SE2d 913; State v Davidson, 242 Wis 406, 8 NW2d 275.
Footnote 75. 81 Am Jur 2d, Witnesses §§ 58-59.
Footnote 76. 81 Am Jur 2d, Witnesses § 54.
As to witnesses' privilege against self-incrimination, see 81 Am Jur 2d, Witnesses §§ 30 et seq.
Footnote 77. 81 Am Jur 2d, Witnesses § 56.
Footnote 78. State v Bates, 187 Miss 172, 192 So 832.
Footnote 79. State ex rel. Reynolds v Newell (Fla) 102 So 2d 613; People v Rockola, 346 Ill 27,
178 NE 384; State v Bates, 187 Miss 172, 192 So 832.
The protection of immunity from prosecution given by a statute should be denied a witness only
where the evidence is clear and convincing that he is not entitled to it. Wheat v State, 201 Miss
890, 30 So 2d 84.
Under a statute granting immunity from prosecution to any person who is subpoenaed or
compelled to produce his own personal records, a subpoena duces tecum for the production of
corporate records, addressed to and served personally on a corporate president, immunized the
president from prosecution following production of the documents, where the subpoena was
ambiguous as to whether it was directed to the president individually or as custodian of the
corporate records and where the subpoena failed to reflect the nature of the matter pending before
the trial court for which the records were required. State v Deems (Fla App D3) 334 So 2d 829.
Page 264 of 575
Footnote 80. Smith v Superior Court, Pima County, 17 Ariz App 79, 495 P2d 519 (disapproved
on other grounds State v Buchanan, 110 Ariz 285, 518 P2d 108).
Footnote 81. People v Grossman, 145 Misc 781, 262 NYS 66.
Footnote 82. State v Crow (Mo) 367 SW2d 601.
Footnote 83. United States v Armour & Co. (DC Ill) 142 F 808.
Footnote 84. Simon v American Tobacco Co. (CC NY) 192 F 662.
Footnote 85. United States ex rel. Garparino v Butler (SD NY) 398 F Supp 127 (applying New
York law prohibiting granting of transactional immunity during investigation or trial for murder);
People v Gasparino, 61 Misc 2d 1076, 307 NYS2d 928.
Footnote 86. State v Johnson, 77 Wash 2d 423, 462 P2d 933.
Footnote 87. State ex rel. Johnson v Macmillan (Fla App D2) 194 So 2d 627, cert quashed (Fla)
204 So 2d 514.
Annotation: 38 ALR2d 225, §§ 32[c]-[d].
Footnote 88. 60 Am Jur 2d, Perjury § 50.
Footnote 89. 17 Am Jur 2d, Contempt § 32.
Where complete immunity was granted as to the matter being investigated and testified to, the
constitutional privilege against self-incrimination did not preclude prosecutions for perjury and
contempt. People v Feinberg, 19 Misc 2d 433, 193 NYS2d 937.
§ 213 Manner of raising defense [21 Am Jur 2d CRIMINAL LAW]
Where a witness claims that an applicable immunity statute prevents a prosecution against him,
he normally asserts his claim by a motion to quash or dismiss the indictment, 90 or by a plea in
abatement, 91 which, in effect at least, attacks the validity of the indictment. It has been
recognized that an immunity statute is a proper basis for quashing an indictment, since a statutory
grant of immunity enjoins the prosecution of a criminal action and thus deprives the court of
jurisdiction to proceed. 92 Statutory immunity, as a complete defense to a present prosecution,
has also been raised by means of a plea in bar. 93 A writ of prohibition has been issued to
prevent the prosecution of an immunized witness. 94 It has been held, however, that a claim of
immunity cannot be presented by demurrer and should not be submitted to a jury under a plea of
not guilty, but should be raised alone by a plea in bar, which should be decided by the court
Page 265 of 575
without the intervention of the jury. 95 It has also been held that statutory immunity, although
available when properly set up in a court to which an indictment has been returned, cannot be
raised in a habeas corpus proceeding prior to the appearance of the parties to answer for the
indictment. 96
A defendant in a criminal case has no standing to question the propriety of a grant of immunity to
a witness. 97
§ 213 – Manner of raising defense [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Where defendants raised their immunity defense to indictment at trial along with their
evidentiary challenge to admission of immunized evidence at trial, they properly preserved
challenge to indictment. United States v Pelletier (1990, CA2 NY) 898 F2d 297.
Defendant who contends that his prosecution is precluded by grant of immunity may properly
make motion to dismiss indictment as method of raising issue; time for making motion is
unclear, but failure to make motion before trial does not waive defense. United States v
Brimberry (1984, CA7 Ill) 744 F2d 580.
Footnotes
Footnote 90. Sandwich v State, 137 Ala 85, 34 So 620; People v Riley, 129 Misc 373, 222 NYS
228.
Footnote 91. Metz v State, 217 Ind 293, 27 NE2d 761; Bentler v Commonwealth, 143 Ky 503,
136 SW 896.
Footnote 92. People v King, 66 Cal 2d 633, 58 Cal Rptr 571, 427 P2d 171.
Footnote 93. Burt v State, 20 Ala App 296, 101 So 768, cert den 212 Ala 96, 101 So 770; Lucas
v State, 130 Miss 8, 93 So 437; Hosey v State, 136 Miss 5, 100 So 577; State v Sterne, 96 W Va
360, 123 SE 235 (plea in bar to the indictment).
Annotation: 38 ALR2d 225, § 41.
Footnote 94. State ex rel. Key v Fogle (Fla App D2) 347 So 2d 1067, cert den (Fla) 353 So 2d
675.
Footnote 95. See § 449, infra.
Page 266 of 575
As to existence of immunity as question for judge or jury, see 75 Am Jur 2d, Trial § 425.
Footnote 96. Moreland v State, 168 Tenn 145, 76 SW2d 319.
Footnote 97. 81 Am Jur 2d, Witnesses § 54.
§ 214 – Jurisdictional extent [21 Am Jur 2d CRIMINAL LAW]
A state constitutional or statutory immunity from prosecution granted a witness who was
compelled to testify against himself has been held to confer immunity to the limits of the state's
power; 98 It has been held not to operate as a shield from prosecution by another state or by the
federal government, 99 and not to grant immunity from prosecution in the federal courts for a
violation of federal laws. 1 The United States Supreme Court has held, however, that to be
constitutionally adequate, a state grant of immunity must afford protection extending to federal
criminal proceedings as well as criminal proceedings by other states. 2 If a witness is
compelled, under a state immunity provision, to give testimony which may be incriminating
under state law, the compelled testimony and its fruits cannot be used in any manner by federal
officials in connection with a criminal prosecution against him. 3
Footnotes
Footnote 98. State v Dominguez, 228 La 284, 82 So 2d 12.
Footnote 99. Smith v United States (CA5 Tex) 58 F2d 735, cert den 287 US 631, 77 L Ed 547,
53 S Ct 82; Re Greenleaf, 176 Misc 566, 28 NYS2d 28, affd 291 NY 690, 52 NE2d 588.
Footnote 1. State v Dominguez, 228 La 284, 82 So 2d 12; State ex rel. Jackson v Coffey, 18 Wis
2d 529, 118 NW2d 939.
Footnote 2. 81 Am Jur 2d, Witnesses § 60.
Footnote 3. The federal constitutional provision against self-incrimination protects a state witness
against incrimination under federal as well as state law and a federal witness against
incrimination under state as well as federal law. Murphy v Waterfront Com. of New York
Harbor, 378 US 52, 12 L Ed 2d 678, 84 S Ct 1594.
See Adams v Maryland, 347 US 179, 98 L Ed 608, 74 S Ct 442, holding that a federal statute
prohibiting the use of testimony compelled to be given before a congressional committee in any
criminal proceeding against the witness in any court bars use of committee testimony in state
courts as well as in United States courts.
Page 267 of 575
§ 215 – Who may grant immunity [21 Am Jur 2d CRIMINAL LAW]
Generally, a prosecuting attorney is not empowered, solely by virtue of his office, to grant
immunity to a witness against self-incrimination, 4 the grant of immunity being deemed a
legislative function. 5 Under a statute expressly denoting the officials empowered to extend
immunity, a prosecuting attorney has been held not authorized to extend immunity since such
authority is expressly given only to another. And, under a general statutory provision that the
prosecuting attorney, with the approval of the trial judge, may extend immunity to witnesses
against self-incrimination, such approval is a prerequisite to the exercise of the prosecuting
attorney's power in this respect. 6 Thus, under a statute providing that full transactional
immunity must be authorized by vote of the grand jury, a prosecuting attorney acting alone is
without authority to grant immunity to a witness in exchange for his testimony before the grand
jury. 7
It has been held that a justice of the peace acting as a coroner is without power to grant immunity
to any witness for answering self-incriminating questions. 8 Likewise, in the absence of specific
authority conferred by law, a grand jury has no power to grant any witness immunity on account
of any testimony given before that body. 9 It has been held, however, that a one-person grand
jury could grant immunity from prosecution and require a witness to answer, such immunity
being coextensive with the witness' claim of privilege. 10
Where the constitution has expressly defined the immunity to which a witness is entitled in
certain cases and under specified circumstances, even the legislature has no power to extend that
immunity beyond that which the constitution itself has provided. 11
§ 215 – Who may grant immunity [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Gershman, The Prosecutor's Obligation to Grant Defense Witness Immunity. 24
Crim L Bul 14, January-February, 1988.
Natali, Does a Criminal Defendant have a Constitutional Right to Compel the Production of
Privileged Testimony Through Use Immunity? 30 Vill LR 1501, November, 1985.
Prosecutor's power to grant prosecution witness immunity from prosecution; 4 ALR4th 1221.
superseding 13 ALR2d 1439.
Case authorities:
The prosecutor's duty is to administer the immunity power evenhandedly, with a view to
ascertaining the truth, and not as a partisan engaged in a legal game. People v Hunter (1989) 49
Cal 3d 957, 264 Cal Rptr 367, 782 P2d 608, mod (1990) 50 Cal 3d 133a, reh den.
Page 268 of 575
In a prosecution for grand theft, resisting arrest with violence, obstruction by false information,
and battery on a law enforcement officer the trial court's order compelling a defense witness to
testify and granting him use and derivative use immunity on defendant's motion and over the
state's objection was in error; statutory immunity was not applicable absent a finding of
prosecutorial abuse or constitutional violation to be cured, and the trial court would be acting in
excess of its jurisdiction in granting judicial immunity under the court's inherent powers to
effectuate a defendant's rights, since the compulsory process clause does not carry with it the
additional right to displace a proper claim of privilege, including the privilege against
self-incrimination. State v Montgomery (1985, Fla App D3) 467 So 2d 387, 10 FLW 853.
Footnotes
Footnote 4. 81 Am Jur 2d, Witnesses § 57.
Practice Aids: –Immunity from prosecution. 1 Wharton's Criminal Law (14th ed) § 78.
Footnote 5. 81 Am Jur 2d, Witnesses § 56.
Footnote 6. 81 Am Jur 2d, Witnesses § 57.
Footnote 7. United States ex rel. Gasparino v Butler (SD NY) 398 F Supp 127 (applying New
York law).
Footnote 8. Faucett v State, 10 Okla Crim 111, 134 P 839 (wherein it was said that in Oklahoma
immunity is a judicial question which must be passed on and decided alone by a court having
jurisdiction finally to try the matters involved in the immunity claimed).
Footnote 9. Scribner v State, 9 Okla Crim 465, 132 P 933.
Footnote 10. Re Colacasides, 379 Mich 69, 150 NW2d 1.
Footnote 11. People v Anhut, 162 App Div 517, 148 NYS 7, affd without op 213 NY 643, 107
NE 1082.
§ 216 – Assertion of right not to testify as prerequisite to claim of immunity [21 Am Jur 2d
CRIMINAL LAW]
The question whether a witness must claim exemption from self-incrimination to be entitled to
immunity from subsequent prosecution must in each case be determined in the light of
constitutional and statutory provisions in the jurisdiction where the question arises. Under
statutes providing in substance that no person shall be excused from testifying or furnishing
Page 269 of 575
evidence on the ground that the testimony or evidence may tend to incriminate him, but that no
person shall be subject to indictment or prosecution for anything concerning which he may testify
or furnish evidence, it has been held that one who testifies concerning criminal offenses when
required to do so is entitled to immunity from prosecution even though he fails to claim his
privilege against self-incrimination before giving the incriminating testimony. 12
It has been said that where a person is compelled to testify, immunity attaches without the
assertion of the privilege against self-incrimination unless the statute requires such an assertion.
13 Thus, under this view, a witness before a grand jury does not have to claim his privilege
against self-incrimination to make operative an otherwise applicable immunity statute. 14
But
it has been held under similar statutory or constitutional provisions that the witness must claim
his privilege against self-incrimination in order to be entitled to immunity. 15
Under a statute granting immunity to persons who have been compelled to testify, it has been
held that one who has appeared voluntarily and testified without claiming his privilege against
self-incrimination, 16 or one who has appeared and testified pursuant to a void subpoena or one
addressed to another person, without claiming the privilege, 17 cannot say he has been
compelled to testify, and therefore he is not entitled to immunity. Under a state statute dealing
with immunity from prosecution upon compliance with a subpoena, it has been held that the
mere issuance of the subpoena does not confer immunity and that a witness must assert his
privilege against self-incrimination, thereby giving the state the choice of conferring immunity
and compelling him to testify or not conferring immunity and relieving him of the obligation to
testify. 18
§ 216 – Assertion of fight not to testify as prerequisite to claim of immunity
[SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Right of defendant in criminal proceeding to have immunity from prosecution
granted to defense witness; 4 ALR4th 617. superseding 13 ALR2d 1439.
Prosecutor's power to grant prosecution witness immunity from prosecution; 4 ALR4th 1221.
superseding 13 ALR2d 1439.
Footnotes
Footnote 12. People v Schwarz, 78 Cal App 561, 248 P 990; State ex rel. Marshall v Petteway,
121 Fla 822, 164 So 872; People v Buffalo Gravel Corp. (Sup) 195 NYS 940.
Under a public bribery statute providing that a person making or receiving a bribe may be
compelled to testify in behalf of the state and receive immunity thereby, it was not necessary that
a witness claim his privilege against self-incrimination in order to obtain the exemption afforded
by the statute. State v Panagoulis, 3 Md App 330, 239 A2d 145, affd 253 Md 699, 253 A2d 877.
Page 270 of 575
Footnote 13. 81 Am Jur 2d, Witnesses § 56.
Footnote 14. State v Chitwood, 73 Ariz 314, 240 P2d 1202; People v Yonkers Contracting Co.
(2d Dept) 24 App Div 2d 641, 262 NYS2d 298, mod on other grounds 17 NY2d 322, 270
NYS2d 745, 217 NE2d 829; People v Werkes, 46 Misc 2d 1020, 261 NYS2d 726; State v
Logsdon, 196 Or 542, 250 P2d 377.
Annotation: 38 ALR2d 225, § 34[a].
A doctor who was compelled to testify before a grand jury within the meaning of a state statute
was improperly indicted under the Controlled Dangerous Substances Act where the immunity
granted by the statute was not waived expressly or by conduct; nor was the witness required to
assert his privilege against self-incrimination to preserve immunity where the privilege was taken
away by the statute. State v Fearing, 30 Md App 134, 351 A2d 896.
The immunities conferred by the statute were self-executing by the testimony of the witness; his
appearance and testimony before the grand jury invoked the immunities conferred as to all facts
tending to incriminate him and no other procedure was necessary. State v Prato, 2 Ohio App 2d
115, 31 Ohio Ops 2d 197, 206 NE2d 917.
Under a statute removing the privilege against self-incrimination in criminal proceedings
involving bribery and corruption and substituting transactional immunity, a witness subpoenaed
to testify before a grand jury under such circumstances was left with no alternative but to testify,
and was not required to claim his privilege. State v Carroll, 83 Wash 2d 109, 515 P2d 1299.
Footnote 15. People ex rel. Roach v Carter, 297 Mich 577, 298 NW 288; Scribner v State, 9 Okla
Crim 465, 132 P 933; Wolke v Fleming, 24 Wis 2d 606, 129 NW2d 841, cert den 380 US 912,
13 L Ed 2d 798, 85 S Ct 897; State v Davidson, 242 Wis 406, 8 NW2d 275.
To obtain full immunity under the statute, the witness must refuse to answer a particular question
on grounds of privilege, and then answer it when ordered to do so by the grand jury. People v
Laino, 10 NY2d 161, 218 NYS2d 647, 176 NE2d 571, cert den and app dismd 374 US 104, 10
L Ed 2d 1027, 83 S Ct 1687.
Although a witness before a grand jury never literally refused to answer a specific question on the
ground of privilege at any one time, the requirements of the immunity statute were met where he
made it patent that he would not be sworn or answer questions unless he was given immunity,
where he purported to answer questions put to him after he was told that he would have full
immunity, and where he refused to answer some questions, even though he did not literally
mouth the traditional words in claiming the privilege against self-incrimination. People v
Ianniello, 21 NY2d 418, 288 NYS2d 462, 235 NE2d 439, cert den 393 US 827, 21 L Ed 2d 98,
89 S Ct 90.
Page 271 of 575
Footnote 16. State v Backstrom, 117 Kan 111, 230 P 306.
Footnote 17. People v Eiseman, 78 Cal App 223, 248 P 716, error dismd for lack of jurisdiction
273 US 663, 71 L Ed 828, 47 S Ct 454 (disapproved People v King 66 Cal 2d 633, 58 Cal Rptr
571, 427 P2d 171).
Footnote 18. Melanson v Nelson (Fla App D1) 366 So 2d 1191.
Where an alibi witness voluntarily and without objection testified as to the whereabouts of a
defendant in an armed robbery case, he was not entitled to transactional immunity even though
his presence at the offices of the state attorney, where the testimony was given, had been
compelled by a subpoena. State v Kitchen (Fla App D3) 353 So 2d 897, cert den (Fla) 359 So 2d
1216.
The transactional immunity statute is not self-operating and required some objection or
invocation of the privilege against self-incrimination; hence, a defense witness who was
subjected to a deposition under subpoena requiring attendance respecting a firearms charge
against another individual was not entitled to transactional immunity respecting a subsequent
robbery charge against both him and the other individual, since the subpoena only required
attendance not testimony and the actual testimony elicited from the defense witness related
primarily to the firearms charge as opposed to the robbery matter. Orosz v State (Fla App D1)
334 So 2d 26, dismd without op (Fla) 341 So 2d 292.
3. Federal Statutory Provisions for Immunity [217-220]
§ 217 Generally [21 Am Jur 2d CRIMINAL LAW]
Federal statutes provide for immunity of witnesses testifying or providing other information
before federal courts, federal executive agencies, or Congressional committees. 19 According
to the statute, whenever a witness refuses, on the basis of his privilege against self-incrimination,
to testify or provide other information 20 in a proceeding before or ancillary to (1) a court or
grant jury of the United States, 21 (2) an agency of the United States, 22 or (3) either House of
Congress, a joint committee of the two Houses, or a committee or subcommittee of either House,
the person presiding over the proceeding may communicate to the witness an order requiring him
to testify, provided that no testimony or other information compelled under the order (or any
information directly or indirectly derived from such testimony or other information) may be used
against the witness in any criminal case, except a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the order. 23
the federal immunity statute represents an accommodation between the government's right to
compel testimony on the one hand, and the witness' constitutional privilege to remain silent on
the other. The purposes of the grant of immunity are to reach the truth 24 and to facilitate
Page 272 of 575
prosecution of otherwise undiscoverable offenses. 25
Rather than affording a witness transactional immunity, which affords full immunity from
prosecution for any offense to which the compelled testimony relates, the federal statute only
provides use and derivative use immunity. 26 The use and derivative use immunity provided by
federal statute to witnesses compelled to testify before federal courts, federal executive agencies,
or Congress or its committees has thus been held coextensive with the scope of the Fifth
Amendment privilege agaist self-incrimination and therefore constitutionally sufficient. 27
Furthermore, in upholding the validity of the federal immunity statute, courts have rejected
contentions that it is unconstitutional on the ground that witnesses and defendants are not
authorized to grant immunity and to compel testimony from other witnesses on the same basis as
the government, 28 that it violates the separation of powers doctrine, 29 or that it violates due
process of law and the witness' right of privacy by allowing a nonjudicial functionary, such as the
United States Attorney, to gain immunity for the witness without probable cause. 30 A
defendant may, however, show that due process has been violated in a particular case. 31
Since the federal immunity statute does not provide transactional immunity, it does not create a
defense to specific criminal charges, but instead provides a ground for suppressing direct or
indirect use of compelled evidence in a subsequent criminal prosecution. 32 Because the federal
immunity statute grants only use and derivative use immunity, it does not bar completely a
subsequent prosecution of the immunized witness through the use of evidence from legitimate
independent sources. However, once a defendant demonstrates that he has testified under a use
and derivative use grant of immunity, the government has a heavy burden of showing that its
evidence was derived from sources other than the defendant's prior testimony. 33 Thus, even
though an indictment against a defendant is obtained through the use of his immunized
testimony, the federal immunity statutes do not require immediate dismissal of the indictment.
Instead, the defendant must plead and demonstrate that he has testified under a grant of immunity
to matters related to the present prosecution, and the prosecuting authorities then have the burden
of showing that their evidence is not tainted, but rather derives from an independent, legitimate
source. 34
§ 217 – Generally [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Phelan, Legislative investigations: The scope of use immunity under 18 U.S.C. §
6002. 27 Am Crim LR 209, Summer, 1989.
Van Cleve and Tiefer, Navigating the Shores of "Use" Immunity and Secret International
Enterprises in Major Congressional Investigations: Lessons of the Iran-Contra Affair. 55 Mo LR
43, Winter, 1990.
Prosecution or conviction of one conspirator as affected by disposition of case against
coconspirators; 19 ALR4th 192. superseding 91 ALR2d 700. (See also 16 AJ2d, Conspiracy §§
24-26.)
Page 273 of 575
Right of defendant in criminal proceeding to have immunity from prosecution granted to defense
witness; 4 ALR4th 617. superseding 13 ALR2d 1439.
Case authorities:
Government's ordinary remedy in situation where defendant breached immunity agreement is
prosecution for false statement, not abrogation of immunity agreement and use of defendant's
statements to prosecute him for other offenses. United States v Williams (1987, CA5 Tex) 809
F2d 1072.
To trigger shifting of burden of proof to government so that government has obligation to show
that it did not use any information against defendant, defendant has to meet initial burden of
showing that he did offer such information under grant of immunity, and court did not err in
finding that defendant did not make showing, where defendant claimed that several persons
received information from him about case, but they denied that they had discussed case with him.
United States v Mendoza (1996, CA9 Cal) 78 F3d 460, 96 CDOS 1660, 96 Daily Journal DAR
2801.
Private investigator was not protected from administrative discipline by immunity granted
against criminal prosecution, where investigator was granted immunity from prosecution in
return for his testimony before a grand jury and in a criminal trial that he had provided forged or
falsified documents to help client change her identity and take her children out of the country, but
the state licensing division subsequently revoked investigator's license for supplying the false
documents, because the statute provides immunity only against criminal prosecution. Intelligence
Group, Inc. v Department of State, Div. of Licensing (1992, Fla App D2) 610 So 2d 589, 17
FLW D 2774.
Government did not misuse defendant's immunized grand jury testimony by focusing on
defendant's accountant, since government was aware of accountant and his possible involvement
in fraudulent scheme before defendant testified, and thus accountant's testimony was derived
from independent sources; to extent that government's thought process may have been
influenced, such use was merely tangential. United States v Rivieccio (1990, CA2 NY) 919 F2d
812; cert den (US) 115 L Ed 2d 1020, 111 S Ct 2852.
Footnotes
Footnote 19. 18 USCS §§ 6001-6005.
Footnote 20. 18 USCS § 6001(2) defines "other information" as including any book, paper,
document, record, recording, or other material.
Footnote 21. 18 USCS § 6001(4) defines "court of the United States" as any of the following
Page 274 of 575
courts: the Supreme Court of the United States, a United States court of appeals, a United States
district court established under 28 USCS §§ 81 et seq., a United States bankruptcy court, the
District of Columbia court of appeals, the superior court of the District of Columbia, the district
court of Guam, the district court of the Virgin Islands, the United States court of claims, the
United States court of customs and patent appeals, the tax court of the United States, the customs
court, and the court of military appeals.
Footnote 22. 18 USCS § 6001(1) defines "agency of the United States" as any executive
department as defined in 5 USCS § 101, a military department as defined in 5 USCS § 102, and
certain other enumerated federal commissions and boards.
A "proceeding before an agency of the United States" is defined in 18 USCS § 6001(3) as any
proceeding before such an agency with respect to which it is authorized to issue subpoenas and to
take testimony or receive other information from witnesses under oath.
Footnote 23. 18 USCS § 6002.
Footnote 24. United States v Trammel (CA10 Colo) 583 F2d 1166, affd 445 US 40, 63 L Ed 2d
186, 100 S Ct 906 and (disagreed with on other grounds Appeal of (Malfitano) (CA3 NJ) 633
F2d 276).
18 USCS § 6002 represents a compromise between a witness' constitutional privilege to remain
silent and the government's right to compel testimony. United States v Tramunti (CA2 NY) 500
F2d 1334, cert den 419 US 1079, 42 L Ed 2d 673, 95 S Ct 667.
Footnote 25. United States v Henderson (DC Del) 406 F Supp 417.
Footnote 26. Tierney v United States, 409 US 1232, 34 L Ed 2d 37, 93 S Ct 17; Kastigar v
United States, 406 US 441, 32 L Ed 2d 212, 92 S Ct 1653, reh den 408 US 931, 33 L Ed 2d
345, 92 S Ct 2478.
Immunity granted a witness before a New York state grand jury is "transactional," as opposed to
the "use" immunity established by 18 USCS § 6003. People v Lopez, 91 Misc 2d 157, 397
NYS2d 1010.
Footnote 27. 81 Am Jur 2d, Witnesses § 59.
Footnote 28. Re Kilgo (CA4 Md) 484 F2d 1215.
Footnote 29. Ullmann v United States, 350 US 422, 100 L Ed 511, 76 S Ct 497, 53 ALR2d
1008, reh den 351 US 928, 100 L Ed 1457, 76 S Ct 777 (predecessor to 18 USCS § 6002).
Footnote 30. Re Grand Jury Investigation (MD Pa) 362 F Supp 870 (compelling the United
Page 275 of 575
States Attorney to have probable cause before gaining immunity for a witness before a grand jury
would be an indirect method of requiring probable cause for a grand jury investigation).
The predecessor to 18 USCS § 6003, which granted immunity to witnesses appearing before a
grand jury, was not unconstitutional. December 1968 Grand Jury v United States (CA7 Ill) 420
F2d 1201, cert den 397 US 1021, 25 L Ed 2d 571, 90 S Ct 1260.
Footnote 31. United States v Herman (CA3 Pa) 589 F2d 1191, cert den 441 US 913, 60 L Ed 2d
386, 99 S Ct 2014.
Footnote 32. Re Kilgo (CA4 Md) 484 F2d 1215.
Footnote 33. 81 Am Jur 2d, Witnesses § 61.
Footnote 34. United States v Henderson (DC Del) 406 F Supp 417.
Where testimony of grand jury witness provided use immunity pursuant to 18 USCS § 6002 led
to indictment of defendant and defendant's testimony in turn led to indictment of immunized
witness, district court erred in dismissing indictment against immunized witness on grounds that
it derived from immunized testimony without receiving testimony proffered by defendant to
show that immunized witness's testimony against him was not inducement for his testimony
against immunized witness. United States v Kurzer (CA2 NY) 534 F2d 511, later op (SD NY)
422 F Supp 487 and (disapproved on other grounds United States v Apfelbaum 445 US 115, 63
L Ed 2d 250, 100 S Ct 948, on remand (CA3 Pa) 621 F2d 62).
§ 218 Jurisdictional extent [21 Am Jur 2d CRIMINAL LAW]
The United States Supreme Court has expressed the opinion that the Fifth Amendment does not
permit the federal government to compel a witness to testify under a grant of immunity unless the
immunity affords protection extending to state criminal proceedings. 35 Thus, the requirement
that every sovereign, state or federal, recognize immunity granted by another sovereign precludes
the use of a witness' federal grand jury testimony in any state prosecution. 36 Furthermore,
immunity granted under the federal statute is sufficient to protect Indians from use of their
testimony in tribal prosecutions. 37 In a decision dealing with the predecessor to the current
federal immunity statute, it was held that state courts were bound by the federal statute and that
no testimony given by a witness in a Congressional inquiry could be used as evidence in a
criminal proceeding, even though, as so applied, the federal statute affected state rules of
practice, since Congress in the legitimate exercise of its powers enacts "supreme law of the land."
38 Significantly, however, since the federal immunity statute permits the United States Attorney
to grant only use or testimonial immunity, not transactional immunity, he does not have the
power to grant a defendant complete immunity from state prosecution. 39 Although the
requirement that every sovereign, state or federal, recognize immunity granted by another
Page 276 of 575
sovereign precludes the use of a witness' federal grand jury testimony in any state prosecution,
the federal government is not required to grant the same type of immunity the state would grant if
it were seeking the same testimony, even if the state immunity would be broader. 40
Because immunity flows to a witness and not to the government, the United States may not bring
an action in federal court to enjoin or stay a state proceeding that interferes with a grant of
immunity under the federal immunity statute. 41 The remedy for a witness who refuses to testify
in a federal grand jury proceeding despite a grant of immunity because of fear that his testimony
may be used in a state proceeding against him is not to refuse to testify before the grand jury, but
to raise the issue of his immunity in the state proceeding. Thus, an immunized witness who is
prosecuted in a state court should raise the issue of immunity with respect to the introduction of
his testimony as evidence. 42 If prosecuting officials attempt to use the evidence obtained
directly or indirectly from testimony of a witness who has received federal statutory immunity,
the courts must exclude that evidence or set aside any conviction obtained thereby. 43 It has
also been held that the proper remedy for a threatened violation of an earlier federal immunity
statute prohibiting use of testimony given before Congress as evidence in a criminal proceeding
is not to enjoin use of the testimony but rather to inspect the grand jury minutes and make a
motion in a criminal proceeding to quash the information or indictment if it is grounded mainly
upon the protected testimony. 44
Since the immunity granted under the federal statute can only be invoked by a defendant against
criminal proceedings, 45 it extends to proceedings in juvenile court 46 and proceedings to
impose fines, penalties or forfeitures that are criminal in nature for Fifth Amendment purposes;
47 but it does not extend to disciplinary hearings before a state administrative agency
empowered to suspend or revoke an individual's license to practice his profession, 48 or state bar
disciplinary proceedings. 49
Furthermore, testimony immunized under the federal statute cannot be used for purposes of
impeachment in a subsequent proceeding. 50 It has been held that neither the Fifth Amendment
nor immunity under the federal statute offers a witness protection against prosecution for perjury,
giving a false statement, or otherwise failing to comply with the order compelling him to testify.
51
Footnotes
Footnote 35. 81 Am Jur 2d, Witnesses § 60.
Footnote 36. Re Bianchi (CA1 Mass) 542 F2d 98.
Footnote 37. Re Long Visitor (CA8 SD) 523 F2d 443.
Footnote 38. Adams v Maryland, 347 US 179, 98 L Ed 608, 74 S Ct 442.
Page 277 of 575
Under a federal statute prohibiting use of intercepted wire or oral communications as evidence in
any trial before any court of the United States, a State, or a political subdivision thereof if such
communications were intercepted in violation of federal law, the immunity from prosecution
granted thereby extends to state criminal proceedings. Congress has the constitutional power to
foreclose state criminal proceedings, even though a lesser degree of immunity would have been
constitutionally sufficient to compel testimony. Commonwealth v Fattizzo, 223 Pa Super 378,
299 A2d 22 (18 USCS § 2514).
Footnote 39. People v Phillips, 97 Misc 2d 665, 412 NYS2d 94.
Footnote 40. Re Bianchi (CA1 Mass) 542 F2d 98.
Footnote 41. United States v Kuehn (CA7 Ill) 562 F2d 427.
Footnote 42. Re Inzirillo (CA1 Mass) 542 F2d 90.
Footnote 43. Re Cardassi (DC Conn) 351 F Supp 1080.
Footnote 44. Erickson v Hogan, 198 Misc 491, 98 NYS2d 858.
Footnote 45. Ullmann v United States, 350 US 422, 100 L Ed 511, 76 S Ct 497, 53 ALR3d
1008, reh den 351 US 928, 100 L Ed 1457, 76 S Ct 777.
The use immunity granted under 18 USCS §§ 6002 and 6003 can only be invoked by a
defendant against criminal proceedings, and not in civil proceedings under the Organized Crime
Control Act of 1970 (18 USCS § 1964). United States v Cappetto (CA7 Ill) 502 F2d 1351, cert
den 420 US 925, 43 L Ed 2d 395, 95 S Ct 1121.
Since the immunity granted by 18 USCS § 6002 is coextensive with the privilege against
self-incrimination, which may only be invoked against criminal proceedings, a witness'
immunized testimony at a criminal trial may be used in a civil fraud proceeding. United States v
Kates (ED Pa) 419 F Supp 846.
Footnote 46. Re Grand Jury Proceedings, 160 App DC 249, 491 F2d 42.
Footnote 47. Re Korman (CA7 Ill) 449 F2d 32, revd on other grounds 406 US 952, 32 L Ed 2d
340, 92 S Ct 2055, reh den 409 US 897, 34 L Ed 2d 156, 93 S Ct 93.
Footnote 48. Childs v McCord (DC Md) 420 F Supp 428, affd (CA4 Md) 556 F2d 1178.
Footnote 49. Re Daley (CA7 Ill) 549 F2d 469, cert den 434 US 829, 54 L Ed 2d 89, 98 S Ct
110; Segretti v State Bar of California, 15 Cal 3d 878, 126 Cal Rptr 793, 544 P2d 929; Maryland
State Bar Asso. v Sugarman, 273 Md 306, 329 A2d 1, cert den 420 US 974, 43 L Ed 2d 654, 95
Page 278 of 575
S Ct 1397.
Annotation: 62 ALR3d 1145.
Footnote 50. United States v Moss (CA2 NY) 562 F2d 155, cert den 435 US 914, 55 L Ed 2d
505, 98 S Ct 1467 and (disapproved on other grounds United States v Apfelbaum 445 US 115,
63 L Ed 2d 250, 100 S Ct 948, on remand (CA3 Pa) 621 F2d 62); United States v Hockenberry
(CA3 Pa) 474 F2d 247.
Footnote 51. 81 Am Jur 2d, Witnesses § 56.
Annotation: 28 ALR Fed 938.
§ 219 Who may grant immunity [21 Am Jur 2d CRIMINAL LAW]
Under the provision of the federal immunity statute dealing with court and grand jury
proceedings, a United States attorney may, with the approval of the Attorney General, the Deputy
Attorney General, or any designated Assistant Attorney General, request an order requiring a
witness or prospective witness to give testimony or provide other information that he refuses to
give or provide on the basis of his privilege against self-incrimination when, in the judgment of
the government attorney, the testimony or other information from the witness may be necessary
to the public interest and the witness has refused or is likely to refuse to testify or provide other
information on the basis of his privilege against self-incrimination. 52 Under this provision, the
power to grant immunity is the sole prerogative of the United States Attorney and his superior
officers. 53 Provided that the request for immunity is in proper form, the district judge has no
discretion to deny it. 54 It has been held, however, that a court may exercise discretion to decline
to issue an immunity order in the face of violation of a witness' constitutional rights, despite the
wording of the federal immunity statute that the court "shall issue" the order when the
government requests it in accordance with the specified procedures. 55 On the other hand, the
district court is not authorized to review the United States Attorney's judgment that the witness'
testimony may be necessary to the public interest. 56
Although the statute requires that
the United States Attorney must make the request for an order compelling the witness' testimony,
a motion for a grant of immunity brought and signed in the name of the United States Attorney
has been held to be in substantial compliance with the statute, 57 as has an application signed
by an assistant United States Attorney acting in place of his superior during his absence. 58
Although the federal statute sets forth a specific procedure for the granting of immunity, it has
been held that a prosecutor's express promise of immunity in return for testimony is enforceable
to the same extent as a formal grant of immunity under the statute. 59 And, even where the
statutory procedure has not been followed, it has been recognized that there might be a grant of
equitable immunity in view of a defendant's cooperation. 60
Page 279 of 575
Under the provisions of the federal immunity statute dealing with administrative proceedings, the
particular agency involved may, with the approval of the Attorney General, issue an order
requiring an individual to give testimony or provide other information in the administrative
proceeding where the testimony or other information may be necessary to the public interest and
where the individual has refused or is likely to refuse to testify or provide the information on the
basis of his privilege against self-incrimination. 61
It has been held that the "approval of the attorney general" referred to in the statute does not
require that the attorney general personally give approval; he may delegate such power. 62 It has
also been held that the statute does not endow the district judge with any discretion to deny an
order for a grant of immunity on the ground that the public interest does not warrant it. 63
Concerning individuals who have been or may be called to testify or provide other information at
Congressional proceedings, the federal immunity statute provides that upon the request of a duly
authorized representative of the House of Congress or the committee concerned, the district court
shall issue an order requiring such individuals to give testimony or provide other information that
he refuses to furnish on the basis of his privilege against self-incrimination where the district
court finds that the request for the order has been approved by the members of the House or the
committee or subcommittee concerned, as set forth in the statute, and that the Attorney General
has been properly served with notice of the intention to request the order. 64 The function of the
notice to the Attorney General required by the statute is to minimize any prejudicial impact on
present and future law enforcement plans. The Attorney General has no veto power or authority
other than permission to apply to the court for an extension before the court issues the order
compelling the testimony. 65 Since it is the prerogative of the legislative branch of the
government to request immunity under this statute, the court cannot review the propriety of the
congressional authorization of immunity, 66 and the judiciary cannot institute a grant of
immunity on its own motion, 67 although the court can assure that there has been proper
compliance with established procedures. 68
§ 219 – Who may grant immunity [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Prosecutor's power to grant prosecution witness immunity from prosecution; 4
ALR4th 1221. superseding 13 ALR2d 1439.
When is federal prosecutor bound by promises of immunity or plea bargains made by another
federal agent. Statutes: 55 ALR Fed 402.
Statutes:
18 USCS § 6003(b) was amended in 1988 by PL 100-690 to designate additional high-level
officials of the Department of Justice who may request a judicial grant of immunity.
Page 280 of 575
Case authorities:
Where United States Attorney received authorization from Justice Department in Washington to
grant defendant statutory use immunity, as authorized by 18 USCS § 6002, and where United
States Attorney moved District Court that defendant be ordered to testify pursuant to immunity
statute, and where only statutory requirement lacking was court order, informal use immunity
bestowed upon defendant shielded defendant to same extent as would court order had one issued.
United States v Williams (1987, CA5 Tex) 809 F2d 1072.
Statement by FBI agent to defendant that if defendant tells truth and fully cooperates with
investigation he will not get into any trouble is not promise of immunity where same agent has
told defendant that none but United States Attorney could promise immunity and that neither FBI
nor its agents have authority to determine who will be subject to prosecution and United States
Attorney tells defendant that, although no promises or commitments would be made, court would
be informed of defendant's co-operation at time of sentencing. United States v Schmidt (1985,
CA7 Ill) 760 F2d 828.
District court is in no way hound by agreement between probationer and United States attorney
whereby attorney agreed to neither seek to indict probationer nor to participate in probation
revocation proceeding, where type of immunity granted to probationer was informal immunity,
meaning that no court order (as required by 18 USCS § 6002) granting her immunity was either
requested or obtained, with result that agreement was simply contract. United States v Hembree
(1985, CA10 Okla) 754 F2d 314.
Footnotes
Footnote 52. 18 USCS § 6003.
Footnote 53. United States v Graham (CA8 Iowa) 548 F2d 1302; Thompson v Garrison (CA4
NC) 516 F2d 986, cert den 423 US 933, 46 L Ed 2d 263, 96 S Ct 287; United States v Allstate
Mortg. Corp. (CA7 Ill) 507 F2d 492, cert den 421 US 999, 44 L Ed 2d 666, 95 S Ct 2396.
Grant of immunity pursuant to 18 USCS §§ 6001 et seq. is within the sole discretion of the
prosecutor. United States v Wright (CA2 NY) 588 F2d 31, cert den 440 US 917, 59 L Ed 2d
467, 99 S Ct 1236.
18 USCS § 6003 imposes no obligation upon a prosecutor to grant immunity to witnesses
required by defense; the proper issue is whether the failure to grant immunity denied defendant a
fair trial. United States v Wright (CA2 NY) 588 F2d 31, cert den 440 US 917, 59 L Ed 2d 467,
99 S Ct 1236.
Footnote 54. Appeal of Starkey (CA8 Ark) 600 F2d 1043, 1979-2 CCH Trade Cas ¶ 62810
Page 281 of 575
(disagreed with on other grounds Re Corrugated Container Anti-Trust Litigation (CA5 Tex) 620
F2d 1086, 1980-2 CCH Trade Cas ¶ 63435, reh den (CA5 Tex) 625 F2d 1016); Re Perlin (CA7
Ill) 589 F2d 260; Ryan v Commissioner (CA7) 568 F2d 531, cert den 439 US 820, 58 L Ed 2d
111, 99 S Ct 84; United States v Hollinger (CA7 Ill) 553 F2d 535; Re Daley (CA7 Ill) 549 F2d
469, cert den 434 US 829, 54 L Ed 2d 89, 98 S Ct 110; United States v Leyva (CA5 Tex) 513
F2d 774; Urasaki v United States Dist. Court, Cent. Dist. (CA9) 504 F2d 513; Grand Jury
Proceedings (DC SD) 443 F Supp 1273.
Courts should not infringe upon prosecutor's discretion to grant immunity under 18 USCS §
6003. Appeal of Starkey (CA8 Ark) 600 F2d 1043, 1979-2 CCH Trade Cas ¶ 62810 (disagreed
with on other grounds Re Corrugated Container Anti-Trust Litigation (CA5 Tex) 620 F2d 1086,
1980-2 CCH Trade Cas ¶ 63435, reh den (CA5 Tex) 625 F2d 1016 and cert den (US) 66 L Ed
2d 827, 101 S Ct 897).
Footnote 55. Re Baldinger (CD Cal) 356 F Supp 153, 28 ALR Fed 911.
Footnote 56. Ullmann v United States, 350 US 422, 100 L Ed 511, 76 S Ct 497, 53 ALR2d
1008, reh den 351 US 928, 100 L Ed 1457, 76 S Ct 777; United States v Herman (CA3 Pa) 589
F2d 1191, cert den 441 US 913, 60 L Ed 2d 386, 99 S Ct 2014; Re Maury Santiago (CA1
Puerto Rico) 533 F2d 727; Re Lochiatto (CA1 Mass) 497 F2d 803; Re Kilgo (CA4 Md) 484 F2d
1215; Re Russo (CA9 Cal) 448 F2d 369 (disapproved on other grounds Gelbard v United States
408 US 41, 33 L Ed 2d 179, 92 S Ct 2357).
Footnote 57. Ryan v Commissioner (CA7) 568 F2d 531, cert den 439 US 820, 58 L Ed 2d 111,
99 S Ct 84.
Footnote 58. Re Grand Jury Proceedings (CA5 Fla) 554 F2d 712, reh den (CA5 Fla) 558 F2d 605
and cert den 434 US 892, 54 L Ed 2d 178, 98 S Ct 269; United States v Smith (CA10 Colo)
532 F2d 158.
Although the wiser course in the future would be to involve the United States Attorney directly in
the applications of the district court for an immunity order, rather than permitting a strike-force
attorney to seek the order, the requirements of 18 USCS § 6003 were met where the United
States Attorney appeared and filed the necessary papers at the nunc pro tunc proceeding initiated
by the district court judge. Re Di Bella (CA2 NY) 499 F2d 1175, cert den 419 US 1032, 42 L
Ed 2d 306, 95 S Ct 513.
A special attorney appointed by an assistant attorney general had authority to petition the court
for a grant of immunity. Re Special September 1978 Grand Jury (II) (CA7 Ill) 590 F2d 245, cert
den 441 US 944, 60 L Ed 2d 1045, 99 S Ct 2162.
Although the assistant attorney general who signed an application for immunity pursuant to 18
USCS § 6003(b) had not been specifically designated as the assistant attorney general in charge
Page 282 of 575
of the criminal division, where a person who applied for grant of immunity was in fact
designated the person in charge of such division, the requirements of § 6003 were satisfied. Re
Grand Jury Proceedings (CA9 Or) 586 F2d 724.
Footnote 59. United States v Pellon (SD NY) 475 F Supp 467, affd without op (CA2 NY) 620
F2d 286, cert den 446 US 983, 64 L Ed 2d 839, 100 S Ct 2963.
Footnote 60. United States v Weiss (CA5 Ga) 599 F2d 730, reh den (CA5 Ga) 603 F2d 860.
Footnote 61. 18 USCS § 6004.
Footnote 62. Federal Trade Com. v Foucha (ND Ala) 356 F Supp 21.
Footnote 63. Re Lochiatto (CA1 Mass) 497 F2d 803.
Since the defendant had failed to invoke the privilege against self-incrimination at a Federal
Trade Commission hearing at which he testified concerning details of an incident that had lead to
an earlier contempt conviction, he could not properly claim that immunity granted to him during
the Hearing invalidated the prior contempt conviction. Federal Trade Com. v Gladstone (CA5)
450 F2d 913, 1971 CCH Trade Cas ¶ 73740.
Footnote 64. 18 USCS § 6005.
Footnote 65. Application of United States Sentate Select Committee on Presidential Campaign
Activities (DC Dist Col) 361 F Supp 1270.
Footnote 66. Re Kilgo (CA4 Md) 484 F2d 1215.
Footnote 67. United States v Garcia (CA3 NJ) 544 F2d 681.
Footnote 68. Applicaton of United States Sentate Select Committee on Presidential Campaign
Activities (DC Dist Col) 361 F Supp 1270.
§ 220 Persons protected; waiver; standing to invoke statute [21 Am Jur 2d CRIMINAL
LAW]
It has been held that the provisions of the federal immunity statute are not limited to witnesses
who already are the targets of criminal complaints, since the wording of the statute contains no
suggestion of any limitation of that type. 69 Thus, immunity under the federal statute may be
granted to an acquitted defendant testifying before a grand jury, 70 witnesses not testifying on
behalf of the government, 71 and minor witnesses who were merely innocent bystanders of the
crime. 72
Page 283 of 575
Under a federal immunity statute, the United States Supreme Court has held that it is not
necessary for a witness giving testimony in obedience to a subpoena to claim his privilege against
self-incrimination under the Fifth Amendment in order to be entitled to the statutory immunity
from prosecution. 73
Nevertheless, a witness does not acquire immunity under the federal
statute if he is not compelled to answer any question and does not exercise his privilege against
self-incrimination or refuse to answer. 74
It has been said that a witness claiming
immunity should make his claim of privilege known and is considered as waiving it if he fails to
do so since it is only reasonable that the government, in its prosecution of crime, receive express
notice of a claim of privilege so that it may then determine whether it will continue with the
prosecution, grant immunity to the witness, or proceed otherwise. 75 Furthermore, under the
predecessor to the current federal immunity statute, it has been held that a defendant could not
claim immunity where the questions propounded and answers elicited from him previously in no
sense tended to incriminate him or prove him guilty of alleged crimes then under investigation or
subsequently charged against him in an indictment. 76
A defendant has no standing to contest the propriety of a grant of immunity to another person
under the statute. 77
Since a grant or denial of immunity under the federal statute is
within the sole discretion of the executive branch of the government, the defendant may not force
the prosecutor to compel testimony of a defense witness by granting him immunity. 78
Thus, a defendant may not insist that the district court guarantee his alleged accomplice
immunity and compel him to testify by invoking the federal immunity statute, since the district
judge is not authorized to initiate immunity and the statute places this responsibility on the
United States Attorney acting with approval from the Attorney General or his deputy or assistant.
79
A defendant has no Sixth Amendment right to demand that any witness he chooses be
immunized. 80 The government's refusal to grant immunity to a defense witness who possibly
would offer exculpatory testimony does not constitute a denial of due process or violation of the
defendant's Sixth Amendment rights. 81
Although the federal immunity statute imposes no obligation on the prosecutor to grant immunity
to witnesses required by the defense, the proper issue is whether the failure to grant immunity
denied the defendant a fair trial. 82
A defendant may prove that his due process rights
have been violated by showing that the government's decision not to grant immunity was made
with the deliberate intent of distorting the judicial process. 83
It has been held that the
government was required to request immunity under the federal statute for a defendant's principal
witness who, because of prosecutorial misconduct, withheld, out of fear of self-incrimination,
testimony valuable to the defense. 84
Although the government must provide a defendant with a list of witnesses granted immunity
under the federal statute, 85
the defendant has no right right to be present at immunity
hearings or to obtain copies of immunity orders. 86
§ 220 – Persons protected; waiver; standing to invoke statute [SUPPLEMENT] [21 Am Jur
2d CRIMINAL LAW]
Page 284 of 575
Practice Aids: Karolczyk, Defense Witness Immunity Grants: Independent Judicial Authority to
Effectuate the Rights of Criminal Defendants. 1981 Ariz St LJ 771.
Boone, Defense Witness Immunity. 9 Hast Const LQ 199, Fall, 1981.
Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions. 56 Notre D
Law 447, February, 1981.
Right of defendant in criminal proceeding to have immunity from prosecution granted to defense
witness; 4 ALR4th 617. superseding 13 ALR2d 1439.
Case authorities:
Trial courts should summarily reject claims for defense witness immunity whenever witness for
whom immunity is sought is actual or potential target of prosecution, and no hearing need be
held to establish such status; in prosecution for evading income taxes, filing false income tax
returns and conspiracy to defraud, trial court did not err in refusing to compel prosecution to
grant immunity to defense witnesses where defense demand for immunity was initially made in
middle of trial and was, thus, untimely, and where testimony of witnesses would merely have
been cumulative, immaterial or impeaching only on collateral matters. United States v Turkish
(1980, CA2 NY) 623 F2d 769, cert den (US) 66 L Ed 2d 800, 101 S Ct 856.
Due process requires testimony of defense witnesses to be immunized either (1) when court finds
prosecutorial misconduct by government's deliberate intent to disrupt factfinding process, or (2)
when, even if there is no evidence of such misconduct, it is found that potential defense witness
can offer testimony that is clearly exculpatory and essential to defense case, and government has
no strong interest in withholding use immunity. Thus, in prosecution for robbery, sentences of
defendants would be vacated and case remanded to district court for determination of whether
judicial immunity would be required to vindicate defendants' rights to fair trial where record
showed that issue of defense witness immunity was properly raised in district court and where
record clearly suggested that either theory compelling immunization of defense witness
testimony could be used by defendants in that it was probable that defendants could offer proof
that certain witnesses' testimony would be exculpatory, government had little claim to any
interest in opposing grant of immunity to witnesses, and it appeared that government had refused
to consent to immunity offered by juvenile authorities in attempt to deliberately keep highly
relevant and possibly exculpatory evidence from jury. Government of Virgin Islands v Smith
(1980, CA3 VI) 615 F2d 964.
Defendant has no right to have his witnesses given use immunity; decision of government not to
grant use immunity for one of defendant's witnesses who exercised self-incrimination privilege
did not infringe defendant's compulsory process right to present defense. United States v Lenz
(1980, CA6 Mich) 616 F2d 960.
Page 285 of 575
Defendant was not deprived of fair trial because of government's selective grant of immunity to
its own witnesses while denying immunity to his witnesses where selective grant did not produce
egregiously lopsided access to evidence. United States v Mohney (1991, CA6 Mich) 949 F2d
1397, 68 AFTR 2d 91-5938, 92-1 USTC ¶ 50081, 35 Fed Rules Evid Serv 106, cert den (US)
118 L Ed 2d 546, 112 S Ct 1940.
Defendant is not entitled to compel government witness to assert Fifth Amendment privilege and
has no complaint when witness decides to testify in exchange for less formal protection from
prosecution than would be available if witness were granted immunity. United States v Murphy
(1985, CA7 Ill) 768 F2d 1518.
Although government's authority to decide if and when to seek immunity for witness must be
exercised in manner consistent with due process guarantees of Fifth Amendment, defendant is
denied fair trial where government seeks and obtains immunity for its own eye witnesses while
refusing to request immunity for defendant's eye witnesses in cases where 2 sets of eye witnesses
have conflicting stories to tell; failure to grant immunity for defense witness does not violate due
process where jury has before it all of facts and claims intended to be elicited from defense
witness. United States v Brutzman (1984, CA9 Cal) 731 F2d 1449.
Footnotes
Footnote 69. Goldberg v United States (CA2 NY) 472 F2d 513.
Footnote 70. Re Bonk (CA7 Ill) 527 F2d 120.
Footnote 71. United States v La Duca (DC NJ) 447 F Supp 779, affd (CA3 NJ) 587 F2d 144, cert
den 440 US 972, 59 L Ed 2d 789, 99 S Ct 1537.
Footnote 72. Re J. (Dist Col App) 348 A2d 301.
Footnote 73. United States v Monia, 317 US 424 87 L Ed 376, 63 S Ct 409.
A subpoenaed congressional witness' failure to claim the privilege against self-incrimination did
not constitute a waiver of his rights under the predecessor to 18 USCS § 6005 where his
testimony was brought out by repeated committee questions and the record did not show any
spontaneous outpouring of testimony from him. Adams v Maryland, 347 US 179, 98 L Ed 608,
74 S Ct 442.
Footnote 74. United States v Seewald (CA2 NY) 450 F2d 1159, cert den 405 US 978, 31 L Ed
2d 253, 92 S Ct 1206; May v United States, 84 App DC 233, 175 F2d 994, cert den 338 US
830, 94 L Ed 505, 70 S Ct 58, reh den 338 US 882, 94 L Ed 542, 70 S Ct 154.
Page 286 of 575
Since handwriting exemplars are not protected under the Fifth Amendment, a person providing
exemplars to a grand jury is not entitled to be given immunity under 18 USCS §§ 6001 et seq.
United States v Hawkins (1974, CA9 Wash) 501 F2d 1029, cert den 419 US 1079, 42 L Ed 2d
674, 95 S Ct 668.
Footnote 75. United States v B. Goedde & Co. (DC Ill) 40 F Supp 523.
Footnote 76. Untied States v Greater New York Live Poultry Chamber of Commerce (DC NY)
34 F2d 967.
Individual defendants could not claim immunity from prosecution under the predecessor to 18
USCS § 6003 where there was no showing made that their testimony was in any respect to any
personal matters substantially connecting them with transactions set forth in the indictment and
the testimony elicited from them before the grand jury was solely in regard to their official
capacity as corporate officers and their identification of corporate documents. United States v
Greater Kansas City Retail Coal Merchants' Asso. (DC Mo) 85 F Supp 503.
A witness could not invoke the privilege against self-incrimination where there was no
reasonable fear of prosecution and that no apparent effort had been made by an enforcement
agency to undertake subsequent criminal prosecutions. Re Folding Carton Antitrust Litigation
(ND Ill) 465 F Supp 618, 1979-1 CCH Trade Cas ¶ 62478.
Footnote 77. United States v Hathaway (CA1 Mass) 534 F2d 386, cert den 429 US 819, 50 L
Ed 2d 79, 97 S Ct 64; United States v Rauhoff (CA7 Ill) 525 F2d 1170; United States v Braasch
(CA7 Ill) 505 F2d 139, cert den 421 US 910, 43 L Ed 2d 775, 95 S Ct 1561, 95 S Ct 1562;
United States v Lewis (CA3 VI) 456 F2d 404.
Challenge to grant of use immunity under 18 USCS § 6003, like assertion of privilege against
self-incrimination, is personal; defendants are without standing to contest legal sufficiency of
grant of immunity by government to witnesses. United States v Hathaway (CA1 Mass) 534 F2d
386, cert den 429 US 819, 50 L Ed 2d 79, 97 S Ct 64.
Footnote 78. United States v Rocco (CA3 NJ) 587 F2d 144, cert den 440 US 972, 59 L Ed 2d
789, 99 S Ct 1537; United States v Beasley (CA5 La) 550 F2d 261, reh den (CA5 La) 553 F2d
100 and reh den (CA5 La) 553 F2d 101 and cert den 434 US 863, 54 L Ed 2d 138, 98 S Ct 195,
reh den 434 US 961, 54 L Ed 2d 323, 98 S Ct 496 and cert den 434 US 938, 54 L Ed 2d 297,
98 S Ct 427; United States v Smith (CA7 Ill) 542 F2d 711.
Footnote 79. Thompson v Garrison (CA4 NC) 516 F2d 986, cert den 423 US 933, 46 L Ed 2d
263, 96 S Ct 287.
Footnote 80. United States v Herman (CA3 Pa) 589 F2d 1191, cert den 441 US 913, 60 L Ed 2d
386, 99 S Ct 2014.
Page 287 of 575
Footnote 81. Re Y. (Dist Col App) 363 A2d 674.
Footnote 82. United States v Wright (CA2 NY) 588 F2d 31, cert den 440 US 917, 59 L Ed 2d
467, 99 S Ct 1236.
The government's refusal to seek immunity for defense witnesses where the government obtained
immunity for one prosecution witness did not deny the defendant a fair trial in contravention of
due process where the testimony sought by him was cumulative of the testimony of other
witnesses, and the jury had before it all facts and claims the defendant intended to elicit from
witnesses for whom he sought immunity. United States v Alessio (CA9 Cal) 528 F2d 1079, cert
den 426 US 948, 49 L Ed 2d 1184, 96 S Ct 3167, reh den 429 US 873, 50 L Ed 2d 156, 97 S
Ct 193.
Footnote 83. United States v Herman (CA3 Pa) 589 F2d 1191, cert den 441 US 913, 60 L Ed 2d
386, 99 S Ct 2014.
Footnote 84. United States v Morrison (CA3 Pa) 535 F2d 223.
Footnote 85. United States v Brighton Bldg. & Maintenance Co. (ND Ill) 435 F Supp 222,
1977-2 CCH Trade Cas ¶ 61764, affd (CA7 Ill) 598 F2d 1101, 1979-1 CCH Trade Cas ¶ 62637,
cert den 444 US 840, 62 L Ed 2d 52, 100 S Ct 79, 100 S Ct 80.
Footnote 86. United States v Braasch (CA7 Ill) 505 F2d 139, cert den 421 US 910, 43 L Ed 2d
775, 95 S Ct 1561, 95 S Ct 1562.
4. Agreements Not to Prosecute [221, 222]
§ 221 Generally; agreement contingent on passing polygraph test [21 Am Jur 2d
CRIMINAL LAW]
Generally, it is improper for a prosecutor to promise an accused, in return for a confession of
guilt regarding a particular crime, immunity from prosecution for other crimes that he may have
committed, 87 and it has been said that a court should not be party to an agreement with persons
charged with murder that they will themselves escape capital punishment if they will testify for
the state against a codefendant, 88 but the state may contract with an accused for his exemption
from prosecution in return for his honestly and fairly making a full disclosure of the crime on the
trial of a confederate whether or not the confederate is convicted. 89 When agreements of this
character have been made by the prosecuting officer with the consent of the court, as is usually
the case, 90 the court will see that the public faith which has thus been pledged is duly kept, 91
although sometimes the courts have refused to enforce such agreements. 92 The witness must
keep his part of the contract strictly if he hopes to receive the promised immunity; if his
testimony is corrupt or his disclosure is only partial, he gains nothing, but forfeits his right under
Page 288 of 575
the contract. 93
Agreements not to prosecute may be subject to jurisdictional limitations. Thus, under a statute
limiting the duties and authority of the state attorney to the judicial circuit wherein he was duly
elected and qualified, a contract between a defendant and a state attorney of one county granting
immunity from prosecution for any crimes that the defendant had committed in the past up to the
date of the contract does not preclude prosecution in another county. 94 And, it has been held
that a county attorney did not break his promise not to prosecute a defendant under changes
pending in another county where a subsequent prosecution there was the result of the other
county's state attorney's unwillingness to drop the charges. 95 Furthermore, a plea bargaining
agreement by prosecuting attorneys in one federal district court not to prosecute a defendant for
certain crimes is not violated by an indictment of him by other prosecutors in another federal
district court where there was no evidence of an intention to bind anyone outside the office of the
prosecutors participating in the agreement. 96
Although the question has not been raised frequently, there is authority for the view that an
agreement to dismiss a pending prosecution if the defendant successfully passes a polygraph test
is enforceable. 97 One court has stated that such an agreement on the part of the state is a
pledge of public faith, a promise made by state officials, that should not be lightly disregarded.
98 Although questioning the wisdom of such contracts, which tend to remove the decision to
prosecute and the determination of guilt from the hands of traditional authorities and delegate
them to a scientific device, another court has upheld the agreement where the stipulation between
the state and the defendant was presented before a trial judge who examined the defendant
closely on his understanding of the conditions of the agreement. 99 It has been held, however,
that a defendant who passed a polygraph test was not entitled to a dismissal of the indictment,
absent the court's approval of the agreement or of a dismissal requested by the prosecutor
pursuant to it. 1
Where a trial court did approve a nolle prosequi, however, a defendant has
been held entitled to rely upon an agreement with the prosecutor, notwithstanding the prosecutor
subsequently learned that the polygraph results forming the basis of the agreement and the
dismissal could have been distorted by a schizophrenic nature. 2
§ 221 – Generally; agreement contingent on passing polygraph test [SUPPLEMENT] [21
Am Jur 2d CRIMINAL LAW]
Practice Aids: Defense access to police polygraph tests, 65 NY St BJ 4:36 (1993).
Enforceability of agreement by law enforcement officials not to prosecute if accused would help
in criminal investigation or would become witness against others. 32 ALR4th 990.
Right of prosecutor to withdraw from plea bargain prior to entry of plea. (See also infra, § 481,
482.) 16 ALR4th 1089.
Page 289 of 575
Prosecutor's power to grant prosecution witness immunity from prosecution; 4 ALR4th 1221.
superseding 13 ALR2d 1439.
Case authorities:
Government's failure to reveal that prosecution witness would not be granted immunity until after
he testified in defendant's murder trial did not violate due process standards of Brady where
defendant was advised of witness' immunity and extensive cross-examination disclosed details of
plea agreement since additional fact was not material. Brewer v Nix (1992, CA8 Iowa) 963 F2d
1111.
Prosecution of racketeering defendant was not barred by nonprosecution agreement between
government and defendant, where agreement was voided by defendant's failure to disclose
knowledge of drug scheme, even though episode may not have been under investigation and
government may not have made specific inquiry about it. United States v Wood (1986, CA11
Fla) 780 F2d 929, cert den (US) 93 L Ed 2d 48, 107 S Ct 97.
Where parties to plea agreement have conditioned government promise of immunity on
continued truthful cooperation of defendant, government cannot act to prevent occurrence of
condition. Where government does act to prevent occurrence of condition, government violates
its duty of good faith and fair dealing and excuses condition of truthful cooperation. Essentially,
government's promise of immunity becomes unconditional. United States v San Pedro (1991, SD
Fla) 781 F Supp 761.
Although a plea bargain that requires a witness to testify in a particular fashion renders the
testimony inadmissible because of the taint of self-interest, a bargain that required only that an
accomplice tell the truth complied with due process and the testimony was admissible against a
defendant in the penalty phase of a capital case. People v Andrews (1989) 49 Cal 3d 200, 260
Cal Rptr 583, 776 P2d 285, and reh den, cert den (US) 108 L Ed 2d 775, 110 S Ct 1536 and stay
gr (Cal) 1990 Cal LEXIS 4507.
A defendant is not denied the right to a fair trial by virtue of admission of the immunized
testimony of a codefendant, so long as the grant of immunity is made on condition that he testify
fully and fairly as to his knowledge of the facts out of which the charge arose. People v Douglas
(1990) 50 Cal 3d 468, 268 Cal Rptr 126, 788 P2d 640 stay gr (Cal) 1990 Cal LEXIS 4038 and
cert den (US) 112 L Ed 2d 1105, 111 S Ct 1023.
A plea agreement that requires only that the witness testify fully and truthfully is valid. Although
the witness is under some compulsion to testify in accordance with earlier statements given to
police or the prosecutors, due process is satisfied if the agreement permits the witness to testify
freely at trial and to respond to any claim that he breached the agreement by showing that the
testimony he gave was a full and truthful account. People v Sully (1991) 53 Cal 3d 1195, 283 Cal
Rptr 144, 812 P2d 163, 91 CDOS 5489, reh den, mod 54 Cal 3d 545a, 91 CDOS 8009, 91 Daily
Page 290 of 575
Journal DAR 12057.
A defendant convicted of voluntary manslaughter was not denied a fair trial, even though his
cellmate testified for the prosecution in exchange for a 50-50 chance of getting a relatively
lenient sentence on armed robbery charges pending against him, and even assuming that the
cellmate was to receive the benefit of his bargain only if his testimony was beneficial or valuable
to the prosecution, where there was no requirement that the testimony be confined to a
predetermined formulation and where the testimony was not rendered acceptable only if it
produced a conviction. People v Meza (1981) 116 Cal App 3d 988, 172 Cal Rptr, 531.
Agreement which defendant had made with law enforcement officers, and which had been
apparently affirmed by county prosecutor, to effect that if defendant gave information concerning
unrelated crime and agreed to testify, then charges would be dismissed, did not entitle defendant
to dismissal of charges; moreover, defendant had not been compelled to incriminate himself
since offense concerning which he provided police with information was completely unrelated to
subsequent prosecution. People v Marquez (1981, Colo App) 644 P2d 59, 32 ALR4th 982.
Even though murder defendant entered into agreement with prosecution to give state's evidence
in return for immunity from prosecution, and even though prosecution generally benefited from
her testimony, agreement not to prosecute was unenforceable where defendant later admitted that
some of her testimony had been untrue or incomplete. Abner v State (1985, Ind) 479 NE2d 1254.
A plea agreement between the State and a codefendant did not violate public policy or
defendant's due process rights because the codefendant agreed to testify truthfully in defendant's
trial in accordance with the codefendant's earlier statements to the police. It is clear from the
context of the plea agreement that it was conditioned only on the codefendant's truthful testimony
at defendant's trial and did not unconstitutionally bind the codefendant to testify consistent with
his earlier statements even if they were not truthful. G.S. § 15A-1054. State v Gregory (1995)
340 NC 365, 459 SE2d 638.
Witness who invoked self-incrimination privilege before grand jury investigating oilfield thefts
after she had been granted immunity could be held in contempt, but granted immunity would bar
prosecution on charges other than contempt in connection with thefts. Clem v State (1985, Okla
Crim) 701 P2d 770.
Trial court did not abuse its discretion in dismissing criminal complaints brought against
defendants by county police department, charging them with possession of cocaine residue and
pharmaceuticals seized during search of their home, where city police officer had entered into
agreement with defendants' attorney that if defendant would answer all questions concerning
source of controlled substances and paraphernalia seized during search, no charges would be
filed and defendant had fulfilled his part of agreement by answering all questions asked of him
by city police officers. Whether or not "the police," as an entity, had authority to enter into
nonprosecution agreement, trial court did not abuse its discretion in enforcing it. Formal
Page 291 of 575
agreement was entered into by police officer in charge of case and defendants, in reliance,
divulged all information that police requested, thereby giving up valued constitutional guarantee
against self-incrimination. Defendants and their attorney were induced to believe that police
officer had full negotiating authority and they detrimentally relied on that belief. Commonwealth
v Stipetich (1993, Pa Super) 621 A2d 606 (opinion by one justice with two justices concurring
and two concurring in result).
The initial burden is on the defendant to show the existence of an immunity agreement by a
preponderance of the evidence, but once the initial burden is met and the existence of an
immunity agreement is shown by a preponderance of the evidence, procedurally immunity should
be treated just like a defense under the Code of Criminal Procedure, such that the burden then
shifts to the state to show beyond a reasonable doubt why the agreement is invalid or why
prosecution should be allowed despite the agreement; the determination of whether the
agreement is valid cannot be left for the trial itself, but must be conclusively decided prior to
trial. Zani v State (1985, Tex Crim) 701 SW2d 249.
Footnotes
Footnote 87. People v Groves, 63Cal App 709, 219 P 1033 (neither prosecutor nor court is bound
by bargain).
Footnote 88. Henderson v State, 135 Fla 548, 185 So 625.
Footnote 89. People v Green, 102 Cal App 2d 831, 228 P2d 867; Turnage v State, 134 Miss 431,
99 So 9; Ex parte Jackson, 95 Tex Crim 200, 253 SW 287; State v Ward, 112 W Va 552, 165 SE
803.
Footnote 90. § 222, infra.
Footnote 91. Lowe v State, 111 Md 1, 73 A 637; Commonwealth v St. John, 173 Mass 566, 54
NE 254; Camron v State, 32 Tex Crim 180, 22 SW 682; State v Ward, 112 W Va 552, 165 SE
803.
Where an agent with authority from the state attorney to make agreements suggested to the
defendants that no charge would be made for delivery of a sample of cocaine if they would
disclose the source of it, the assigned state attorney was not barred from prosecuting the
defendants for conspiracy to deliver cocaine and possession of cocaine in connection with the
delivery of the sample. State v Hargis (Fla App D1) 328 So 2d 479.
Footnote 92. State v Guild, 149 Mo 370, 50 SW 909 (ovrld on other grounds State v Richmond
186 Mo 71, 84 SW 880).
Page 292 of 575
Footnote 93. Lowe v State, 111 Md 1, 73 A 637; Camron v State, 32 Tex Crim 180, 22 SW 682.
Footnote 94. Stancel v Schultz (Fla App D2) 226 So 2d 456.
Footnote 95. People v Gardner, 8 Ill App 3d 588, 289 NE2d 638.
Footnote 96. United States v Alaessi (CA2 NY) 544 F2d 1139, cert den 429 US 960, 50 L Ed
2d 327, 97 S Ct 384.
Where a defendant's initial plea bargain encountered problems because it involved dismissal of
an indictment pending in a second court and the approval of that court was not obtained, the
defendant could not have specific performance of the initial agreement where the defendant then
made a new plea bargain to limit the sentence to be imposed by the second court. People v
Wilkinson, 57 Mich App 106, 225 NW2d 702.
Footnote 97. Butler v State (Fla App D4) 228 So 2d 421, 36 ALR3d 1274; State v Davis (Fla
App D2) 188 So 2d 24, cert den (Fla) 194 So 2d 621.
Annotation: 36 ALR3d 1280.
Footnote 98. State v Davis (Fla App D2) 188 So 2d 24, cert den (Fla) 194 So 2d 621.
Footnote 99. Butler v State (Fla App D4) 228 So 2d 421, 36 ALR3d 1274.
As to admissibility of evidence of results of lie detector tests for purpose of proving guilt or
innocence, see 29 Am Jur 2d, Evidence § 831.
Footnote 1. State v Sanchell, 191 Neb 505, 216 NW2d 504, on reh 192 Neb 380, 220 NW2d 562,
cert den 420 US 909, 42 L Ed 2d 839, 95 S Ct 829.
Footnote 2. People v Reagan, 395 Mich 306, 235 NW2d 581.
§ 222 – Who may make [21 Am Jur 2d CRIMINAL LAW]
In states in which a prosecuting attorney may enter a nolle prosequi without the consent of the
court, 3 he may grant a witness immunity from prosecution by contract without approval of the
court. 4 It has been recognized, however, that it is not in the public interest for a prosecuting
attorney to have unlimited authority to promise immunity from prosecution in exchange for
promises from an accused; it is only when the promise to grant immunity is given in exchange
for a promise to "turn state's evidence" that the agreement is legal and enforceable. 5 Generally,
a district or prosecuting attorney has no authority without the court's advice or consent to make a
binding agreement or contract that if a person charged with an offense will testify against others,
Page 293 of 575
he shall be exempt from all criminal liability. 6 In some jurisdictions the district or prosecuting
attorney does not have such authority, even though the agreement or understanding with him has
been approved by or known to the court. 7
An agreement by the prosecuting officer to grant immunity as to a particular charge if defendant
will plead guilty to another charge has been approved by the court and its validity upheld where
the accused has fulfilled his part of the agreement. 8 It has been held that a district attorney
could no longer prosecute the defendants on a charge that, with another, had been dropped in
exchange for a defendant's agreeing to plead guilty to two other charges, even though one of the
latter charges was declared unconstitutionally vague and the defendant's conviction on that
charge had been reversed. 9 In upholding such agreements relied on by the defendant, the courts
have recognized the prosecuting officer's duty to fulfill his pledge of the public faith by abiding
by his promise. 10 On the other hand, it has been held that two charges earlier dropped by a
prosecutor through plea bargaining could properly be reinstituted where the conviction for the
offense to which the defendant had pleaded guilty was set aside by the state supreme court on the
ground that it was not covered by statute. 11 Furthermore, a court approved plea agreement has
been held unenforceable against the prosecuting attorney's successor in office. 12 Where the
court has not sanctioned an agreement of this kind, authority of the prosecuting attorney to enter
into it has been denied and the agreement has been regarded as of no effect. 13
It has been ruled that a committing magistrate, even with the assent and concurrence of the
prosecuting attorney, cannot validly promise immunity from prosecution and conviction to a
person under arrest, if he will testify against the others accused, especially where the proceedings
for the granting of immunity to witnesses are regulated by statute and no provision is made for
the granting thereof by a committing magistrate. 14 Nor, in the absence of specific statutory
authority, can police officers 15 or a sheriff 16 grant immunity from prosecution to one of two
or more persons accused of a crime on condition of confession and readiness to become a witness
against the others accused, at least where the promise is made without the authority of the
prosecuting attorney; such a promise cannot be pleaded in bar of an indictment for the crime. 17
§ 222 – Who may make [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: A Prosecutor's Duty to Disclose Promises of Favorable Treatment Made to
Witnesses for the Prosecution. 94 Harv LR 887, February, 1981.
Prosecutor's power to grant prosecution witness immunity from prosecution; 4 ALR4th 1221.
superseding 13 ALR2d 1439.
When is federal prosecutor bound by promises of immunity or plea bargains made by another
federal agent. 55 ALR Fed 402.
Case authorities:
Page 294 of 575
In prosecution for possession of narcotic drug with intent to sell, defendant's contention that
refusal of prosecution to grant informant immunity denied defendant opportunity to present
effective defense was without merit since prosecution's refusal to grant immunity could not be
reversible error in that any decision to grant immunity is within discretion of prosecution;
additionally, prosecution's refusal to grant informant immunity did not give rise to situation in
which grant of judicial immunity was proper where defendant's motion to compel testimony did
not constitute explicit request for judicial immunity, did not specify particulars of informant's
testimony, and did not make showing of exculpatory or essential nature of such testimony to his
case. People v Macias (1980, Colo App) 616 P2d 150.
A finding of not guilty by reason of insanity is not a final judgment or order from which an
appeal may be taken under state statute; the appropriate remedy is a petition for writ of habeas
corpus. State v Janney, 55 Ohio App 2d 257, 9 Ohio Ops 3d 393, 380 NE2d 753, motion overr.
Footnotes
Footnote 3. § 514, infra.
Footnote 4. State v Hingle, 242 La 844, 139 So 2d 205; Faucett v State, 10 Okla Crim 111, 134 P
839.
See Commonwealth v Knapp, 27 Mass 477, where it is said that in Massachusetts the attorney
general, "of his own authority and upon his own responsibility, gives the pledge of the
government" that the witness shall not be prosecuted.
Footnote 5. Application of Parham, 6 Ariz App 191, 431 P2d 86.
Footnote 6. Whiskey Cases, 99 US 594, 25 L Ed 399; State v Guild, 149 Mo 370, 50 SW 909
(ovrld on other grounds State v Richmond 186 Mo 71, 84 SW 880); Whitney v State, 53 Neb
287, 73 NW 696; State v Moody, 69 NC 529 (holding that matter is within "control" of court, but
that it is usually and properly left to discretion of prosecuting attorney); Scribner v State, 9 Okla
Crim 465, 132 P 933; Wight v Rindskopf, 43 Wis 344.
Footnote 7. Lowe v State, 111 Md 1, 73 A 637.
See Muller v State, 79 Tenn 18, wherein it was held that a statement by the attorney general in
open court, that he would not prefer an indictment against the witness on any evidence given by
him, was not such a protection as the witness was entitled to.
Footnote 8. State v Ashby, 43 NJ 273, 204 A2d 1; People v Siciliano, 185 Misc 149, 56 NYS2d
80; State v Ward, 112 W Va 552, 165 SE 803.
Page 295 of 575
Annotation: 43 ALR3d 281, § 6[a].
Footnote 9. Stewart v Cupp, 12 Or App 167, 506 P2d 503.
Footnote 10. State v Hingle, 242 La 844, 139 So 2d 205; People v Siciliano, 185 Misc 149, 56
NYS2d 80; State v Ward, 112 W Va 552, 165 SE 803.
Where defendant paid a fine pursuant to a plea bargain providing that he would plead guilty to
possession of marijuana if traffic charges agaist him were dismissed, the state could not later
obtain civil forfeiture of the defendant's automobile, which constituted punishment for criminal
offense, even though at the time of striking the plea bargain neither party had contemplated that
such a forfeiture might ensue. Re 1972 Dodge Van, 24 Ariz App 337, 538 P2d 766.
Footnote 11. People v Clark, 43 Mich App 476, 204 NW2d 332.
Footnote 12. Commonwealth v Smith (Ky) 244 SW2d 724.
Annotation: 43 ALR3d 281, § 6[b].
Footnote 13. People v Groves, 63 Cal App 709, 219 P 1033; State v Miller, 100 Mo 606, 13 SW
832; Hughes v James, 86 Okla Crim 231, 190 P2d 824; State v Keep, 85 Or 265, 166 P 936;
Powell v State, 209 Tenn 194, 352 SW2d 224.
Annotation: 43 ALR3d 281, § 7.
Footnote 14. People v Indian Peter, 48 Cal 250.
Footnote 15. Commonwealth v St. John, 173 Mass 566, 54 NE 254; State v Crow (Mo) 367
SW2d 601.
A police officer's promises made to an accused that if he would help in a criminal investigation,
all charges, including the one for which he was sentenced, would be dropped are unenforceable.
Re Parham, 6 Ariz App 191, 431 P2d 86.
An agreement between officers and defendants who made a sale of narcotics, that defendants
would not be prosecuted if they revealed the source of their narcotics, which was made without
the knowledge or concurrence of a court, would not bar prosecution even though defendants did
reveal the source of their narcotics, where the agreement was made without knowledge or
concurrence of a court. State v Hargis (Fla App D1) 328 So 2d 479.
Footnote 16. State v Crow, (Mo) 367 SW2d 601.
Footnote 17. As to defendant's right to specific performance and other remedies in connection
Page 296 of 575
with plea bargain, see § 485, infra.
E. Statute of Limitations [223-242]
1. Under State Law [223-233]
a. In General [223-229]
§ 223 Generally [21 Am Jur 2d CRIMINAL LAW]
At common law there was no limitation of time for prosecuting a criminal offense. 18 It is said
that limitations are for the legislature. 19 Thus, in the absence of statutes of limitation specially
applicable to criminal cases, a prosecution may be instituted at any time, however long after
commission of the criminal act. 20 In other words, unless a period of limitation is fixed by
statute for a particular offense, 21 or unless there exist unusual circumstances that bring high
prejudice or other equitable considerations into play, 22 a prosecution for the offense is not
barred by lapse of time. However, statutes of limitation have been enacted to limit the time for
commencement of most criminal proceedings. 23
Statutes of limitation necessarily vary in their form and terms. Among various distinctions that
appear may be mentioned the custom of having limitation periods for felonies different from
those for lesser crimes. 24 As a general rule, the limitations are made applicable to all or most
misdemeanors 25 and to some felonies, 26 whereas murder is generally excepted; 27 but
sometimes all felonies, unless otherwise specially provided for, 28 are excepted. Where a crime
may be punished either as a felony or as a misdemeanor in the discretion of the court, the statute
of limitation applicable to a felony governs, though the punishment imposed is as for a
misdemeanor. 29
Statutes of limitation in criminal cases are considered acts of grace, 30 or a surrendering by the
sovereign of its right to prosecute. 31 They create a bar to prosecution and are therefore not
merely statutes of repose as they are in civil cases. 32 A criminal statute of limitations is not a
mere limitation upon the remedy, but one upon the power of the sovereign to act against the
accused. 33 Although technically a plea of the statute does not go to the question of defendant's
guilt or innocence, it raises a question that, legally speaking, goes to the merits of the case, 34
and a judgment for defendant on a plea of the statute is necessarily an acquittal of the charge, not
a mere abatement of the action. 35
Protection from prosecution under a statute of limitations is a substantive right, 36 not a mere
procedural one; 37 in all cases subject to limitation the period prescribed by the statute is
jurisdictional, 38 the time within which an offense is committed is a jurisdictional fact, 39
and it is incumbent on the state to prove that the offense was committed within the time fixed by
the statute. 40
Page 297 of 575
§ 223 – Generally [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: The case against statutes of limitations for stolen art, 103 Yale LJ 2437 (1994).
Case authorities:
The superior court properly issued a writ of mandate and/or prohibition directing the municipal
court to take no further action in a case in which defendant was charged in a four count
complaint with one felony count of possession of cocaine, a misdemeanor of using and being
under the influence of cocaine, another misdemeanor of driving under the influence of a drug,
and an infraction of driving at an excessive speed, unless and until defendant's demurrer to the
misdemeanor and infraction counts had been sustained. The complaint was filed 16 days after the
1-year statute of limitations had run and it could not be said to relate back to a prior complaint
filed well within the statutory period, which had been dismissed at the preliminary hearing after
the granting of defendant's motion under Pen. Code, § 1538.5. Though the People were entitled
under § 1538.5, subd. (j), to file a new complaint after the first case was dismissed, they were
required to do so within the 14 days that then remained of the 1-year limitation period. Much of
the delay in holding the preliminary examination was caused by an unsuccessful proceeding by
the People in the superior court and the Court of Appeal over an attempt by defendant to rely on
a defense of discriminatory prosecution, and, in any event, the delay did not prevent the People
from filing the second complaint within the statutory period. Maytag v Municipal Court (1982,
2d Dist) 133 Cal App 3d 828, 184 Cal Rptr 365.
Conspiracy to keep a place of prostitution is a misdemeanor for the simple reason that the statute
the possibility of punishment as either a felony of a misdemeanor. Accordingly, the applicable
limitations period for determining the timeliness of the charges for this offense is that applicable
to misdemeanors. People v Laws (1993) 155 Ill 2d 208, 184 Ill Dec 430, 613 NE2d 747.
The fact that a crime is punishable as either a felony or a misdemeanor has no bearing on the
classification of that crime for purposes of which limitations period is applicable. People v Laws
(1993) 155 Ill 2d 208, 184 Ill Dec 430, 613 NE2d 747.
An indictment for a misdemeanor committed more than two years prior to the indictment is not
outside the two-year statute of limitations period when the grand jury has, within two years of the
crime, returned a presentment. GS §§ 15-1, 15A-641(c). State v Whittle (1995) 118 NC App 130,
454 SE2d 688.
Complaint accusing defendant of felony delivery of controlled substance was filed in district
court within applicable limitations period, but indictment was not returned until after limitations
period had expired. Held, because district court has felony jurisdiction, filing of complaint in
district court tolled statute of limitations, even though court could not try case without
indictment. Bonner v State (1992, Tex App Amarillo) 832 SW2d 134, reh overr (Tex App
Amarillo) 1992 Tex App LEXIS 1714, petition for discretionary review ref (Sep 30, 1992).
Page 298 of 575
Footnotes
Footnote 18. Bush v International Alliance of Theatrical Stage Employes & Moving Picture
Machine Operators, 55 Cal App 2d 357, 130 P2d 788.
Footnote 19. United States v Ganaposki (DC Pa) 72 F Supp 982; People ex rel. Reibman v
Warden of County Jail, 242 App Div 282, 275 NYS 59; Bennett v District Court of Tulsa
County, 81 Okla Crim 351, 162 P2d 561 (not for courts).
Footnote 20. United States v Fraidin (DC Md) 63 F Supp 271; State v McCloud (Fla) 67 So 2d
242; Synnott v State, 38 Okla Crim 281, 260 P 517.
Footnote 21. Dean v State, 240 Ala 8, 197 So 53 (arson); Bush v International Alliance of
Theatrical Stage Employes & Moving Picture Machine Operators, 55 Cal App 2d 357, 130 P2d
788 (stating rule); People v Dougherty, 266 Ill 420, 107 NE 695 (forgery); State v Mallett, 125
NC 718, 34 SE 651, affd 181 US 589, 45 L Ed 1015, 21 S Ct 730 (conspiracy to cheat and
defraud); State v Gregory, 191 SC 212, 4 SE2d 1 (embezzlement).
Footnote 22. Weems v State, 210 Miss 824, 50 So 2d 398.
Footnote 23. McIlwain v State, 226 Ark 818, 294 SW2d 350; State v Kempner, 51 Del 109, 138
A2d 504; State v Latil, 231 La 551, 92 So 2d 63; Purviance v State, 185 Md 189, 44 A2d 474;
Jacox v State, 154 Neb 416, 48 NW2d 390; State v Rhodes, 11 NJ 515, 95 A2d 383; Synnott v
State, 38 Okla Crim 281, 260 P 517; Dinklage v State, 135 Tex Crim 10, 117 SW2d 111; State v
Levesque, 5 Wash 2d 631, 106 P2d 309.
Practice Aids: –Comment, Criminal Law: Limitation of Prosecution–Time. 5 Land & Water L
Rev 179.
Note, The Statute of Limitations in Criminal Law: A Penetrable Barrier to Prosecution. 102 U
Pa L Rev 630.
Statute of limitations. 1 Wharton's Criminal Law (14th ed) § 90.
As to burden of proof concerning statutes of limitations, see 29 Am Jur 2d, Evidence § 155.
Footnote 24. State ex rel. Melson v Peeler, 107 Fla 615, 146 So 188 (offenses not punishable
with death required to be prosecuted within two years after commission); State v Reeves, 97 Mo
668, 10 SW 841.
Footnote 25. People ex rel. Solomon v Mead, 186 Misc 372, 60 NYS2d 563; State v Baker, 101
W Va 617, 133 SE 333.
Page 299 of 575
Footnote 26. State v Weiler (Mo) 338 SW2d 878; People ex rel. Solomon v Mead, 186 Misc 372,
60 NYS2d 563.
Footnote 27. General American Life Ins. Co. v Cole (ED Mo) 195 F Supp 867; McVeigh v State,
205 Ga 326, 53 SE2d 462; Joseph v State, 236 Ind 529, 141 NE2d 109, 69 ALR2d 824, cert
dismd 359 US 117, 3 L Ed 2d 673, 79 S Ct 720; Jackson v Olson, 146 Neb 885, 22 NW2d 124;
Galbraith v Lackey (Okla Crim) 340 P2d 497; State v Patriarca, 71 RI 151, 43 A2d 54; Ex parte
Conway, 118 Tex Crim 148, 37 SW2d 1017.
Footnote 28. Stratton v Commonwealth (Ky) 263 SW2d 99.
Footnote 29. State v Atlas, 75 Mont 547, 244 P 477.
Footnote 30. United States v Udell (DC Del) 109 F Supp 96; People v Ross, 325 Ill 417, 156 NE
303; State v Latil, 231 La 551, 92 So 2d 63; Hogoboom v State, 120 Neb 525, 234 NW 422;
People v Guariglia, 187 Misc 843, 65 NYS2d 96, affd 272 App Div 784, 69 NYS2d 759;
Davenport v State, 20 Okla Crim 253, 202 P 18; Commonwealth v Foster, 111 Pa Super 451,
170 A 691.
Footnote 31. People v Ross, 325 Ill 417, 156 NE 303; State v Latil, 231 La 551, 92 So 2d 63;
Hogoboom v State, 12 Neb 525, 234 NW 422.
Footnote 32. State v Steensland, 33 Idaho 529, 195 P 1080; People v Ross, 325 Ill 417, 156 NE
303; State v Latil, 231 La 551, 92 So 2d 63; State v Civella (Mo App) 364 SW2d 624; Moore v
State, 43 NJL 203; People v Hines, 284 NY 93, 29 NE2d 483 (ovrld on other grounds People v
Kohut 30 NY2d 183, 331 NYS2d 416, 282 NE2d 312, 52 ALR3d 910); State v Tennyson, 73
ND 259, 14 NW2d 171.
Footnote 33. State v Fogel, 16 Ariz App 246, 492 P2d 742.
Footnote 34. State v Rook, 61 Kan 382, 59 P 653.
Footnote 35. United States v Oppenheimer, 242 US 85, 61 L Ed 161, 37 S Ct 68.
Footnote 36. United States v Auto Rental Co. (WD Pa) 187 F Supp 603, 46 BNA LRRM 3018,
41 CCH LC ¶ 16561.
Footnote 37. United States ex rel. Hassell v Mathues (DC Pa) 27 F2d 137.
Footnote 38. Taylor v O'Grady (CA8) 113 F2d 798; McIlwain v State, 226 Ark 818, 294 SW2d
350; People v Rehman, 62 Cal 2d 135, 41 Cal Rptr 457, 396 P2d 913, cert den 379 US 930, 13
L Ed 2d 342, 85 S Ct 326 (manslaughter); People v McGee, 1 Cal 2d 611, 36 P2d 378.
Page 300 of 575
Footnote 39. Mitchell v State, 157 Fla 121, 25 So 2d 73; State v Morris, 81 Idaho 267, 340 P2d
447; People v Hines, 284 NY 93, 29 NE2d 483 (ovrld on other grounds People v Kohut 30
NY2d 183, 331 NYS2d 416, 282 NE2d 312, 52 ALR3d 910); State v Tennyson, 73 ND 259, 14
NW2d 171.
Footnote 40. See 29 Am Jur 2d, Evidence § 155.
As to necessity that indictment or information set forth date of commission of offense as within
period of limitations, see 41 Am Jur 2d, Indictments and Informations, § 117.
§ 224 Construction; effect of extension or reduction of statutory period [21 Am Jur 2d
CRIMINAL LAW]
Although statutes of limitation on criminal prosecutions are to be accorded a rational meaning in
harmony with the obvious intent and purpose of the law, 41 such statutes are to be liberally
construed in favor of the accused, 42 and exceptions from the benefits of such statutes are to be
construed narrowly 43 or strictly against the state. 44
Under a statute exempting capital
crimes from any limitation of action, it has been held that the exemption, together with all other
procedural and substantive incidents of capital crimes, did not apply after the death penalty was
abolished. 45
A prosecution under a special statute that fixes the time within which a prosecution thereunder
must be commenced is governed by such provision, not by a general statute of limitations
relating to crimes of that class. 46
Where a statute extends the period of limitation, the extension applies to offenses not barred at
the time of the passage of the act, so that a prosecution may be commenced at any time within the
newly established period. 47 Such a statute, however, cannot operate to revive offenses that
were barred at the time of its enactment, since that would make the statute ex post facto. 48
§ 224 – Construction; effect of extension or reduction of statutory period [SUPPLEMENT]
[21 Am Jur 2d CRIMINAL LAW]
Case authorities:
If statutory period of statute has fully run and bar to prosecution has once attached, law cannot be
changed by future legislation so as to extend period of limitation as to past offenses already
barred. Tyson v Johns-Manville Sales Corp. (1981, Ala) 399 So 2d 263.
Page 301 of 575
Where defendant was arrested more than four years after he had shot and killed a man in a bar,
and charged with murder (Pen. Code, § 187) but convicted of the lesser included offense of
involuntary manslaughter (Pen. Code, § 192), the application of former Pen. Code, § 802.5
(tolling of limitation statute through issuance of arrest warrant), to defendant's case in order to
render the prosecution timely under the limitations statute for manslaughter (former Pen. Code, §
800) did not constitute a violation of the constitutional prohibition against ex post facto laws.
Although § 802.5 was not enacted until more than one year after defendant's crime, it became
effective before the expiration of the three-year limitations period, and a law that increases a
limitations period or provides a new method of tolling it may be applied immediately to all
crimes as to which the period has not yet run under the prior law. People v Lewis (1986, 4th Dist)
180 Cal App 3d 816, 225 Cal Rptr 782.
A prosecution for conspiracy and grand larceny was governed by the two-year statute of
limitations in effect at the time of the crimes, rather than the three-year period which did not
come into effect until after commission of the crimes charged, since the statute of limitations in
criminal prosecutions is a substantive right rather than merely a procedural one. Rubin v State
(1980, Fla) 390 So 2d 322.
A finding of not guilty by reason of insanity is not a final judgment or order from which an
appeal may be taken under state statute; the appropriate remedy is a petition for writ of habeas
corpus. State v Janney, 55 Ohio App 2d 257, 9 Ohio Ops 3d 393, 380 NE2d 753, motion overr.
Where defendant was not indicted for the offense of rape of a child until after the effective date
of the repeal of the five year statute of limitations for rape of a child, the applicable limitation
period was found in CCP Art 12.01 (4), the catch-all three year limitation period applicable to all
other felonies, and defendant's prosecution was thus barred. Beaird v State (1989, Tex Crim) 772
SW2d 116.
Footnotes
Footnote 41. State v Morey, 103 NH 529, 176 A2d 328; State v Brown, 22 NJ 405, 126 A2d 161.
Footnote 42. United States v Mendoza (DC Cal) 122 F Supp 367; State v Fogel, 16 Ariz App
246, 492 P2d 742; Mead v State (Fla) 101 So 2d 373; People v Ross, 325 Ill 417, 156 NE 303;
State v Colvin, 284 Mo 195, 223 SW 585; Jacox v State, 154 Neb 416, 48 NW2d 390; State v
Morey, 103 NH 529, 176 A2d 328; People v Guariglia, 187 Misc 843, 65 NYS2d 96, affd 272
App Div 784, 69 NYS2d 759; Synnott v State, 38 Okla Crim 281, 260 P 517.
Where a felony and being accessory before the fact to the felony are regarded as distinct offenses,
a statute excepting murder from a limitation of the time for instituting criminal prosecutions
cannot be regarded as also excepting a prosecution on the charge of being accessory before the
fact to the crime of murder, even though another statute provides that an accessory before the fact
Page 302 of 575
to a felony shall suffer the like punishment as the principal offender. State v Patriarca, 71 RI
151, 43 A2d 54.
Footnote 43. State v Brown, 22 NJ 405, 126 A2d 161.
Footnote 44. State v Patriarca, 71 RI 151, 43 A2d 54.
In a prosecution for false pretenses, the trial court properly refused to quash the indictment,
despite defendant's contention that the indictment charged only conspiracy, a crime not excepted
from the 2-year statute of limitations, and that the prosecution was thus barred; conspiracy is a
complete offense in itself and does not merge with the underlying crime, and the fact that a
conspiracy is committed along with the crime does not change the nature of the offense nor
lessen exposure to punishment. Furthermore, the prosecution was not time barred even though
defendant was charged with being an accessory only, which is a separate crime not excepted from
the statute, since an accessory before the fact to an excepted felony is treated as a principal.
Harrigill v State (Miss) 381 So 2d 619, cert den 446 US 939, 64 L Ed 2d 792, 100 S Ct 2159.
Footnote 45. Reino v State (Fla) 352 So 2d 853.
Footnote 46. Quillin v Commonwealth, 105 Va 874, 54 SE 333.
Footnote 47. People v Buckner, 281 Ill 340, 117 NE 1023; Commonwealth v Duffy, 96 Pa 506;
State v Wolfe, 61 SD 195, 247 NW 407.
In a prosecution for conspiracy to commit larceny in which a second information was filed more
than two years after the alleged offenses, the trial court properly denied the defendant's motion to
dismiss, even though with two year limitation period had been in effect at the time of the
commission of the crime, where the statute of limitations had been extended to three years by the
time the second information was filed. Rubin v State (Fla App D3) 368 So 2d 69, approved (Fla)
390 So 2d 322.
Footnote 48. People v Buckner, 281 Ill 340, 117 NE 1023; Moore v State, 43 NJL 203; People ex
rel. Reibman v Warden of County Jail, 242 App Div 282, 275 NYS 59.
§ 225 Effect where included offense is barred [21 Am Jur 2d CRIMINAL LAW]
It frequently happens that a charge of felony includes an offense of a lower grade with a different
period of limitation, so that while the felony is not barred, the statute has run as to the lesser
offense. In this situation, the general rule is that if the statute has not run against the felony, but
the lesser offense is barred, the bar cannot be evaded by indicting defendant for the felony and
convicting him of the lesser offense. 49 It has been held that failure to comply with the
limitation statute for the lesser-included offense, despite the indictment for the greater crime
Page 303 of 575
upon which no statute has run, is a defect going to the very jurisdiction of the court. 50 In short,
one cannot be convicted of a lesser offense on a prosecution for a greater crime that includes the
lesser offense, commenced after the statute has run on the lesser offense. 51
This general
rule is not changed by statutes providing that on indictment for certain offenses the accused may
be found guilty of certain lesser offenses. 52 In holding that there can be no conviction for the
lesser offense, the courts have applied to the limitation statutes a rule of liberal construction in
favor of the accused. 53
Although in at least one jurisdiction it has been held that a conviction for a lesser offense may be
had under an indictment for the greater crime which includes it, notwithstanding the fact that the
ordinary limitation statute has run on the lesser offense before the commencement of
prosecution, 54 in another jurisdiction a statute expressly providing that the accused, on an
indictment for the greater crime, could be convicted of the lesser offense after the running of the
statute ordinarily applicable thereto, has been held unconstitutional. 55
Where a person is indicted for a greater offense than that for which he is convicted, and the
indictment is returned within the statutory period applicable to a prosecution for the lesser
offense, the indictment operates to suspend the statute, and a conviction may be had for the lesser
offense after the statutory period has elapsed. 56 And, it has been held that a defendant could be
convicted of a lesser included offense for which the statute of limitations had run where he was
timely indicted for the greater offense and waived the statute of limitations for the lesser offense
by failing to challenge its inclusion in the charge to the jury. 57
§ 225 – Effect where included offense is barred [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation
period; 18 ALR4th 1202. superseding 90 ALR 452.
Case authorities:
In prosecution for criminal homicide, although jury returned verdict of guilty of criminal
homicide in fourth-degree and prosecution was not begun within statute of limitations for
criminal homicide in fourth-degree, evidence was sufficient to sustain finding beyond reasonable
doubt that defendant committed criminal homicide in second-degree, as charged; therefore,
defendant's conviction was not barred by statute of limitations for fourth-degree charge. State v
Hicks (1985, Me) 495 A2d 765.
Statute of limitations did not bar conviction of lesser included offense although period had
expired as to included offense where period had not expired as to offense charged. State v
Borucki (1986, Me) 505 A2d 89.
Although, as general rule, defendant may not be convicted of lesser included offense when
Page 304 of 575
statute of limitations has run on that offense but not on larger offense charged, defendant waived
right to raise on appeal issue of error in trial court's reduction of felony theft charge, on which
statute had not run, to misdemeanor theft charge, on which statute had run, where he failed to
raise issue in trial court or to show that claim was one statutorily excepted from requirement that
it be raised in trial court. State v Larson (1989, Mont) 783 P2d 416.
Footnotes
Footnote 49. Letcher v State, 159 Ala 59, 48 So 805; State v Atlas, 75 Mont 547, 244 P 477;
People ex rel. Reibman v Warden of County Jail, 242 App Div 282, 275 NYS 59.
Footnote 50. Spears v State, 26 Ala App 376, 160 So 727; People v Morgan (3d Dist) 75 Cal
App 3d 32, 141 Cal Rptr 863.
Annotation: 47 ALR2d 887, § 5.
Footnote 51. Chaifetz v United States, 109 App DC 349, 288 F2d 133, revd in part on other
grounds 366 US 209, 6 L Ed 2d 233, 81 S Ct 1051, reh den 366 US 955, 6 L Ed 2d 1247, 81
S Ct 1901; Padie v State (Alaska) 557 P2d 1138; People v Morgan (3d Dist) 75 Cal App 3d 32,
141 Cal Rptr 863; People v Rose (2d Dist) 28 Cal App 3d 415, 104 Cal Rptr 702; Drott v People,
71 Colo 383, 206 P 797; Mitchell v State, 157 Fla 121, 25 So 2d 73; Holloway v State (Fla App
D3) 362 So 2d 333, cert den (Fla) 379 So 2d 953 and cert den (US) 66 L Ed 2d 137, 101 S Ct
281; State v Brossette, 163 La 1035, 113 So 366; People v Burt, 51 Mich 199, 16 NW 378 (not
followed on other grounds People v Eisenberg 72 Mich App 106, 249 NW2d 313); State v
Chevlin (Mo) 284 SW2d 563; State v Civella (Mo App) 364 SW2d 624; State v Aircraft
Supplies, Inc., 45 NJ Super 110, 131 A2d 571; People v Soto, 76 Misc 2d 491, 352 NYS2d 144;
Hickey v State, 131 Tenn 112, 174 SW 269; McKinney v State, 96 Tex Crim 342, 257 SW 258;
State v Crank, 105 Utah 332, 142 P2d 178; State v King, 140 W Va 362, 84 SE2d 313, 47
ALR2d 878.
Annotation: 47 ALR2d 887, § 3.
Defendant charged with murder, in a case in which all lesser offenses were time-barred, would
not be entitled to have the jury instructed regarding manslaughter, but would be entitled to
instruction on the mitigating effect of passion and provocation, requiring the jury to acquit him if
he presented such evidence in mitigation and the state did not negate it. Padie v State (Alaska)
557 P2d 1138.
Footnote 52. People v Di Pasquale, 161 App Div 196, 146 NYS 523; Wilson v State, 15 Tenn
516; State v King, 140 W Va 362, 84 SE2d 313, 47 ALR2d 878.
Annotation: 47 ALR2d 887, § 7.
Page 305 of 575
Footnote 53. People v Picetti, 124 Cal 361, 57 P 156.
Footnote 54. Jinks v State, 114 Ga 430, 40 SE 320.
Annotation: 47 ALR2d 887, § 4.
Footnote 55. Mitchell v State, 157 Fla 121, 25 So 2d 73.
Annotation: 47 ALR2d 887, § 8.
Footnote 56. State v McGee, 167 La 277, 119 So 48.
Footnote 57. People v Lohnes, 76 Misc 2d 507, 351 NYS2d 279.
§ 226 Commencement of statutory period [21 Am Jur 2d CRIMINAL LAW]
Generally, the statute of limitations begins to run from the time of the commission of an offense,
58 or when the crime is complete, 59 not from the date the crime is discovered. 60 Thus, for
example, the crime of false pretenses is complete for the purpose of beginning the period of
limitations when the property is obtained by the false pretense with an intent to defraud. The
victim's knowledge is not required as an element of the crime and, therefore, the date the crime is
discovered is irrelevant. 61 It has been held, however, in a prosecution for the unlawful taking
of personal property, that the statute of limitations begins to run at the time the victim knew or by
the exercise of reasonable diligence should have known of the crime, not from the time he makes
demand upon the defendant to pay over. 62
Ordinarily there is no difficulty in fixing the date when the crime is complete, since nearly every
crime consists of a definite act or a definite result of such act. However, there are crimes that are
continuous in character, and it is not always easy to determine precisely at what time they are
completed. Generally, in crimes of this nature, the statute does not begin to run from the
occurrence of the initial act, which may in itself embody all the elements of the crime, but from
the occurrence of the most recent act. 63 Where the offense is a continuing one and is continued
to a date within the statute of limitations, it is immaterial that the crime began on a date not
within the statute. 64
For certain crimes, special statutory elements are added to the definition of the crime itself so that
the offense is not complete for the purposes of the running of the statute of limitations until such
requirements have been fulfilled. For example, in prosecutions for embezzlement, limitation
periods have been held to commence upon the discovery of the defalcation, upon the accused's
receipt of a benefit from the defalcation, or upon the making of an unsatisfied demand by the
victim on the accused. Nevertheless, a sufficiently definite misappropriation may begin the
running of a statute of limitations, notwithstanding the absence of a demand, refusal to pay, or
Page 306 of 575
any other manner of discovery of the misappropriation. 65 In prosecutions for conspiracy, it is
generally held that the statute of limitations runs from the time the last overt act in furtherance of
the conspiracy was committed, although the duration of the conspiracy cannot be indefinitely
lengthened by keeping the conspiracy a secret in an effort to avoid detection and punishment
after the central purpose has been accomplished. Hence, a prosecution for conspiracy is not
barred by the statute of limitations where at least one overt act is alleged to fall within the
applicable period of limitations. 66
Generally, the day on which the crime was committed is excluded in the computation of time
under a statute of limitations. 67 And, in a number of jurisdictions, the courts have applied
general computation statutes providing that the first day is to be excluded and the last day
included. 68
§ 226 – Commencement of statutory period [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Practice Aids: Possession of stolen property as continuing offense 24 ALR5th 132.
Case authorities:
Defendant's oral false statement was made within statute of limitations period, even though he
had made identical false statement earlier in writing, since he was not charged with first
statement. United States v Roshko (1992, CA2 NY) 969 F2d 5.
Under Pen. Code, § 803, subd. (c) (statute of limitations does not run until discovery of offense),
it is the burden of the prosecution to prove by a preponderance of the evidence that the "legal
discoverer" knew no facts constituting constructive notice of the crime, exercised reasonable
diligence, and did not negligently perform his duties so as to allow the crime to remain
undiscovered. The statute commences to run after one has knowledge of facts sufficient to make
a reasonably prudent person suspicious of fraud, thus putting him on inquiry. The identity of the
perpetrator of the crime is not an element of the discovery issue. The question is whether there is
sufficient knowledge that a crime has been committed. People v Crossman (1989, 6th Dist) 210
Cal App 3d 476, 258 Cal Rptr 370.
Footnotes
Footnote 58. Sautter v Contractors' State License Board, 124 Cal App 2d 149, 268 P2d 139; State
v Bithorn (Mo) 278 SW 685 (obtaining money by false pretenses).
Footnote 59. Pendergast v United States, 317 US 412, 87 L Ed 368, 63 S Ct 268 (criminal
contempt).
Page 307 of 575
Footnote 60. Sautter v Contractors' State License Board, 124 Cal App 2d 149, 268 P2d 139; State
v King (Fla) 282 So 2d 162, 77 ALR3d 681; State v Weiler (Mo) 338 SW2d 878 (false
pretenses).
A prosecution for fraud in obtaining a home mortgage loan was barred by the limitation period of
three years from the time the crime was committed, where the last disbursement under the loan
was made on a certain date, where the defendant's subsequent conduct, even if fraudulent, did not
involve obtaining the loan, and where the crime of fraud was not a continuing offense but was
statutorily defined as being completed once the taking occurred. State v Thoreen (App) 91 NM
624, 578 P2d 325, cert den 91 NM 610, 577 P2d 1256 and cert den 91 NM 610, 577 P2d 1256.
Footnote 61. 32 Am Jur 2d, False Pretenses § 55.
Footnote 62. State v King (Fla App D3) 275 So 2d 274, affd (Fla) 282 So 2d 162, 77 ALR3d
681.
Footnote 63. Pioneer Packing Co. v United States (CA9 Alaska) 99 F2d 547 (engaging in
salmon-packing business without a license); People v Rehman, 62 Cal 2d 135, 41 Cal Rptr 457,
396 P2d 913, cert den 379 US 930, 13 L Ed 2d 342, 85 S Ct 326 (in prosecution for involuntary
manslaughter, statute of limitations began to run on date patient died as a result of allegedly
negligent operation performed 20 days earlier); State v Kemp, 126 Conn 60, 9 A2d 63
(conspiracy); State v Cordrey, 49 Del 281, 114 A2d 805 (nonsupport of illegitimate child);
Commonwealth v Ross, 248 Mass 15, 142 NE 791 (polygamy); People v Gold Key Club, Inc., 2
Misc 2d 380, 152 NYS2d 669, app dismd (1st Dept) 3 App Div 2d 740, 163 NYS2d 361 (selling
and storing alcoholic beverages without a license).
Footnote 64. State v Wiseman, 141 W Va 726, 92 SE2d 910 (nonsupport of wife and minor
children).
Footnote 65. 26 Am Jur 2d, Embezzlement § 46.
Annotation: 77 ALR3d 689, § 2[a].
As to when statute of limitation begins to run on charge of obstructing justice or conspiring to do
so, see 58 Am Jur 2d, Obstructing Justice § 28.5.
Footnote 66. 16 Am Jur 2d (Rev) Conspiracy § 22.
As to running of statute of limitations against withdrawing conspirator, see 16 Am Jur 2d (Rev)
Conspiracy § 23.
Footnote 67. Wiggins v United States (CA9 Cal) 64 F2d 950, cert den 290 US 657, 78 L Ed
569, 54 S Ct 72 (prosecution for income tax evasion); United States v Mathis (DC NJ) 28 F
Page 308 of 575
Supp 582 (income tax evasion); United States v Horwitz (ND Ill) 247 F Supp 412; People v
Twedt, 1 Cal 2d 392, 35 P2d 324; Savage v State, 18 Fla 970; State v Rhodes, 11 NJ 515, 95
A2d 383 (conspiracy to defraud; exclusion of day on which last overt act was committed); People
v New York Cent. R. Co., 28 Barb 284 (recovery of penalties); Commonwealth v Wood, 5 Pa
Dist 179, 17 Pa Co 133.
Annotation: 20 ALR2d 1249, § 2.
Footnote 68. State v Levesque, 5 Wash 2d 631, 106 P2d 309; State v Beasley, 21 W Va 777.
Annotation: 20 ALR2d 1249, § 5.
§ 227 Circumstances tolling statute [21 Am Jur 2d CRIMINAL LAW]
Unless the statute of limitations contains an exception or condition that will toll its operation, the
running of the statute is not interrupted. 69 Hence, the fact that one accused of a crime conceals
himself will not prevent the statute from running so long as it is not specifically provided therein
that the statute shall not be in operation during such concealment. 70 Under statutes so
providing, there may be deducted from the period of limitation the time during which the accused
is absent from the state, 71 or during which he so conceals himself that process cannot be
served on him, 72 or during which he conceals the fact of the crime. 73 However, to suspend
the operation of the statute the concealment of the fact of a crime must be the result of positive
acts done by the accused and calculated to prevent discovery; mere silence, inaction, or
nondisclosure is not concealment. 74 Thus, for example, a loan officer's failure to inform an
investor in the lending business of a principal payment on a mortgage loan was more than mere
silence and inaction, and his instruction to the company secretary to pay the regular amount of
interest to the investor to cause him to believe the principal was still loaned out constituted an
active step toward the concealment of the crime of embezzlement where the investor has
previously expressed his desire not to leave any more money with the loan company. 75
Under a statute providing that there may be deducted from the period of limitation the time
during which the accused is not an inhabitant of or usually resident within the state, absence from
the state beyond occasional absences of temporary duration should not be reckoned in the
running of the prescribed period. 76 The period of a person's imprisonment in another state
should be excluded in determining whether his indictment was barred by such a statute, 77
though his departure was not voluntary. 78 A statute providing for the tolling of limitations
during the time an accused is out of state does not deny him equal protection of the laws or
violate his right to travel, even though he was not in flight from prosecution when he left the
state, no warrant had been issued either before or after his departure, and state law enforcement
officials knew his whereabouts or should have been able to discover it with reasonable diligence.
Apart from the tolling statute's function in assuring that the accused is available for prosecution
at any time before lapse of the period of limitations, it is said that a legislature could reasonably
Page 309 of 575
determine that an accused's departure from the state renders discovery of the crime or the
criminal more difficult. 79
The absence of an offender in the military service of the United States does not prevent the
running of the statute of limitations; a soldier in military service remains an inhabitant of the
state, and is not within a statutory provision meant for persons escaping and absenting
themselves to avoid punishment until the lapse of time might enable them to return with
impunity. 80
§ 227 – Circumstances tolling statute [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
The record in a prosecution for kidnap with intent to commit robbery, robbery, false
imprisonment, and unlawful driving and taking of a vehicle, did not establish reversible error,
even though the information on which defendant was tried showed on its face that the statute of
limitations had run on the charges of robbery, false imprisonment and auto theft and contained
nothing to indicate tolling of the statutes, where defendant conceded that during the time in
question he was out of the state incarcerated in a Virginia prison. A state statute excludes from
the limitation period time during which the defendant is not within the state, and reversal or
retrial for jurisdictional defects in the accusatory pleading is not required when those defects are
as a matter of law cured on the undisputed record. People v Posten (1980) 108 Cal App 3d 633,
166 Cal Rptr 661.
State statute did not bar a prosecution arising out of the defendant's sexual molestation of his
stepdaughter where the victim was living with the defendant and her mother, the defendant was
in a position of parental authority over the victim, and the defendant threatened to kill the
victim's father if she told anyone, since it was the defendant's conduct that kept the crime from
being reported; furthermore, the defendant's conduct in sexually abusing his stepdaughter could
be considered to have been a continuing course of conduct which would delay the
commencement of the running of the statute of limitations until such course of conduct
terminated; additionally, where a small child is threatened with harm to himself or herself or a
family member if he or she tells, statute was tolled until the child is removed from the
threatening environment. Morris v State (1991, Miss) 595 So 2d 840.
Statute of limitations pursuant to RC §§ 2901.13(A) and (B) had expired against defendant
alleged to have received food stamps when she was not eligible for them, where the indictment
was filed more than 2 years after the fraud was discovered and nearly 8 years after the acts of
defendant that constituted the first count of the indictment, and more than 6 years after the acts of
defendant that constituted the second and third counts, because: (1) as to the first count, the
indictment had to be returned within one year after discovery of the offense since the discovery
occurred in the fifth year of the 6-year statute of limitations in RC § 2901.13(A); (2) as to the
Page 310 of 575
second and third counts, the indictment had to be returned within the original 6-year period since
the fraud was discovered sooner than 5 years from the date of the offense; and (3) RC §
2901.13(F) does not toll the start of the 6-year statute of limitations contained in RC §
2901.13(A)(1) until the date of discovery. State v Mitchell (1992, Cuyahoga Co) 78 Ohio App 3d
613, 605 NE2d 978, dismd, motion overr 64 Ohio St 3d 1428, 594 NE2d 970.
A child abuse victim who was 14 years of age at the time of the sexual contact but who was 21
when she reported the contact to the prosecutor's office, is presumed to have understood and
acknowledged the act and the criminal nature of the act upon attaining the age of majority; and
absent a showing to the contrary rebutting such presumption, the tolling of the statute of
limitations with regard to that act ceased upon the victim attaining the age of 18. State v Pfouts
(1992) 62 Ohio Misc 2d 587, 609 NE2d 249, 1992 Ohio Misc 61.
Footnotes
Footnote 69. Synnott v State, 38 Okla Crim 281, 260 P 517.
As to tolling of period of limitations by each overt act done pursuant to conspiracy, see 16 Am
Jur 2d (Rev) Conspiracy § 22.
As to whether facts tolling the statute must be alleged in the indictment when the offense is
prima facie barred, see 41 Am Jur 2d, Indictments and Informations, § 117.
Footnote 70. Rouse v State, 44 Fla 148, 32 So 784; Synnott v State, 38 Okla Crim 281, 260 P
517.
Footnote 71. People v Snowden (2d Dist) 149 Cal App 2d 552, 308 P2d 815, cert den 355 US
841, 2 L Ed 2d 49, 78 S Ct 62; Thompson v State, 96 Okla Crim 8, 247 P2d 535.
Footnote 72. State v Rook, 61 Kan 382, 59 P 653.
Footnote 73. State v Watson, 145 Kan 792, 67 P2d 515.
Practice Aids: –Tolling of period of limitation. 1 Wharton's Criminal Law (14th ed) § 94.
Footnote 74. State v Watson, 145 Kan 792, 67 P2d 515.
Footnote 75. 26 Am Jur 2d, Embezzlement § 46.
Annotation: 77 ALR3d 689, §§ 12-13.
Footnote 76. State v Williams, 92 NH 377, 31 A2d 369.
Page 311 of 575
Footnote 77. People v Carman, 385 Ill 23, 52 NE2d 197; Traxler v State, 96 Okla Crim 231, 251
P2d 815.
One is not a "resident" in the state while incarcerated in another state. Grayer v State, 234 Ark
548, 353 SW2d 148.
Footnote 78. Couture v Commonwealth, 338 Mass 31, 153 NE2d 625.
Footnote 79. Scherling v Superior Court of Santa Clara County, 22 Cal 3d 493, 149 Cal Rptr
597, 585 P2d 219.
Footnote 80. Commonwealth v Shimpeno, 160 Pa Super 104, 50 A2d 39.
§ 228 – Fleeing from justice [21 Am Jur 2d CRIMINAL LAW]
In a number of states, statutes somewhat similar to a federal one have been enacted, making an
exception to the limitation statute in cases where the alleged offender has fled from justice or
absconded. 81 With respect to one such statute it has been held that the phrase "fleeing from
justice" applies to a person who, having committed a crime, has removed from or secreted
himself within the jurisdiction wherein the offense was committed with intent to avoid detection
or prosecution. 82 With respect to another it has been said that the phrase implies a departure by
one from his usual place of abode, or from the place where he has committed an offense, with the
intent to avoid detection or prosecution for a public offense. 83 Generally, therefore, it appears
that it is not essential that one should leave the state before he can be regarded as a fugitive from
justice within the meaning of the state proviso excepting fugitives from justice from the benefits
of the limitation statutes. 84 Furthermore, it has been held that one who successfully hides or
conceals himself even on his own premises so as to avoid punishment for his crime is as much a
fugitive as if he had escaped to some other state or country. 85
Footnotes
Footnote 81. State v Woolworth, 148 Kan 180, 81 P2d 43; State v Berryhill, 188 La 549, 177 So
663; State v Washburn, 48 Mo 240.
Footnote 82. Renner v Renner, 13 NJ Misc 749, 181 A 191.
Footnote 83. Colling v State, 116 Neb 308, 217 NW 87.
Footnote 84. Lay v State, 42 Ark 105; Renner v Renner, 13 NJ Misc 749, 181 A 191.
Page 312 of 575
Footnote 85. State v Miller, 188 Mo 370, 87 SW 484.
§ 229 Manner of raising and determining question [21 Am Jur 2d CRIMINAL LAW]
A plea of the statute of limitations is a plea in bar and should be presented to and passed on by
the trial court. 86 Although in some cases special pleas of the statute of limitations have been
held necessary, 87 or at least have been countenanced or approved, 88 it is generally held that
the statute need not be specially pleaded 89 and may be raised under the general issue or a plea
of not guilty. 90
It has also been said that the bar of the statute of limitations may be raised by
a motion to dismiss for lack of jurisdiction. 91 The statute may not, however, be set up by a
demurrer to the indictment or information, 92 or on a motion in arrest of judgment. 93 Even
under a statute without any exception or proviso, it has been said that the demurrer is not
available since time is not of the essence of the offense charged and since sustaining the demurrer
would preclude the prosecutor from giving evidence, pursuant to his right under the general
issue, to show that the offense was committed within the time prescribed for prosecution. 94
A special plea of the statute is not good where the indictment alleges the continuance of the
offense to the date of its presentment. 95
Footnotes
Footnote 86. United States v Franklin (CA7 Ill) 188 F2d 182.
Practice Aids: –Nock, Pleading the Statute of Limitations in Criminal Cases. 1977 BYU L Rev
75.
Footnote 87. People v Murphy, 296 Ill 532, 129 NE 868.
Footnote 88. State v Rook, 61 Kan 382, 59 P 653.
In a prosecution for armed robbery, the trial court erred in denying the defendant's motion for a
judgment of acquittal where the state neither adduced evidence during the trial that the
prosecution of the crime had been commenced within the two-year statute of limitations nor
amended its information to allege the timely issuance of an arrest warrant. Akers v State (Fla
App) 370 So 2d 81.
Footnote 89. Calvert v State, 26 Ala App 189, 155 So 389; Dill v People, 94 Colo 230, 29 P2d
1035, cert den and app dismd 292 US 609, 78 L Ed 1470, 54 S Ct 781; Mead v State (Fla) 101
So 2d 373; Jacox v State, 154 Neb 416, 48 NW2d 390; State v Landis, 177 Tenn 304, 145 SW2d
1032.
Page 313 of 575
Footnote 90. United States v Barber, 219 US 72, 55 L Ed 99, 31 S Ct 209; State v Streensland,
33 Idaho 529, 195 P 1080; State v Rook, 61 Kan 382, 59 P 653; McCullar v State (Miss) 183 So
487; State v Porter, 130 Mont 299, 300 P2d 952; Jacox v State, 154 Neb 416, 48 NW2d 390;
State v Rodman, 44 NM 162, 99 P2d 711; People v Rapoport, 261 App Div 484, 26 NYS2d 110;
State v Johnson, 52 SD 273, 217 NW 205; State v Landis, 177 Tenn 304, 145 SW2d 1032.
Footnote 91. Bustamante v District Court of Third Judicial Dist., 138 Colo 97, 329 P2d 1013
(ovrld on other grounds County Court of County of El Paso v Ruth 194 Colo 352, 575 P2d 1,
later app (Colo) 595 P2d 237).
Footnote 92. Capone v Aderhold (CA5 Ga) 65 F2d 130.
Footnote 93. Capone v Aderhold (CA5 Ga) 65 F2d 130.
Footnote 94. United States v Cook, 84 US 168, 21 L Ed 538.
Footnote 95. United States v Barber, 219 US 72, 55 L Ed 99, 31 S Ct 209.
b. Stage of Proceedings That Must Be Reached to Avoid Bar of
Statute [230, 231]
§ 230 Generally [21 Am Jur 2d CRIMINAL LAW]
The statute of limitations runs from the time the offense is committed until the prosecution is
commenced, unless some intervening act occurs to interrupt it. 96 If the finding of an
indictment or the filing of an information is the first step in a criminal case, the prosecution is
commenced by the finding and return of the indictment or the filing of the information, and the
running of the statute is thereby stopped. 97 But when, as is usually the case, there are
preliminary proceedings, the prosecution is commenced and the statute is tolled at the time a
complaint is laid before a magistrate and a warrant of arrest is issued; 98 a defective warrant is
sufficient for this purpose, especially where no objection is made to it until defendant has been
convicted. 99
Under statutes that merely require an indictment or information to be found or filed within a
specified time after the commission of an offense, the finding of an indictment and its return by
the grand jury or the filing of an information within the specified time prevents a bar of the
prosecution, 1 without regard to the time of trial, 2 and though the cause may be continued from
time to time indefinitely. 3
§ 230 – Generally [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation
Page 314 of 575
period; 18 ALR4th 1202. superseding 90 ALR 452.
Case authorities:
In prosecution for aiding the preparation of false tax returns and making false statements to the
IRS, violations that were subject to six-year statute of limitations, statute was tolled by original
indictment where counts of superseding indictment were duplicative of counts in original
indictment. United States v Pacheco (1990, CA9 Cal) 912 F2d 297, 90-2 USTC ¶ 50458, 66
AFTR 2d 90-5429.
Prosecution commenced when indictment was found and therefore further running of statute of
limitations was tolled. Anthony v Superior Court of Orange County (1980, 4th Dist) 109 Cal App
3d 346, 167 Cal Rptr 246.
Trial court erred in dismissing second superseding indictment after dismissal of first superseding
indictment for failure to state facts tolling statute of limitations, where it was undisputed that
statute of limitations had in fact been tolled during pendency of earlier indictment, and failure to
include required statement in first superseding indictment was technical error, which did not
prejudice defendants; state was not required to appeal dismissal of first superseding indictment in
order to file second superseding indictment. People v Cray (1991, 4th Dist) 209 Ill App 3d 60,
153 Ill Dec 640, 567 NE2d 598.
Under state statutes requiring commencement of prosecution within three years but without
unreasonable delay, and defining commencement of prosecution as issuance of a warrant, failure
of district attorney to issue warrant until two years and nine months after indictment and three
years and four months from date of alleged offense, without excuse, required dismissal of
indictment for felony welfare fraud. State v Barnes (1984) 66 Or App 896, 676 P2d 344.
Footnotes
Footnote 96. Jarrett v State, 49 Okla Crim 162, 292 P 888 (robbery with firearms).
Failure to call a grand jury does not toll the statute of limitations. State v Haverstick (Mo) 326
SW2d 92, 75 ALR2d 1422.
Footnote 97. Guise v State, 198 Ark 767, 131 SW2d 631 (overdrafting); Lowe v State, 154 Fla
730, 19 So 2d 106 (having carnal intercourse with unmarried female of previous chaste character
under 18 years of age); Gardner v State, 161 Ind 262, 68 NE 163 (rape); State v Ling, 91 Kan
647, 138 P 582 (adultery); Brown v Commonwealth, 255 Ky 486, 74 SW2d 939 (assault and
battery and involuntary manslaughter); Davenport v State, 20 Okla Crim 253, 202 P 18
(embezzlement); Commonwealth v O'Gorman, 146 Pa Super 553, 22 A2d 596 (failure to support
child born out of wedlock); State v Johnson, 52 SD 273, 217 NW 205 (embezzlement and
Page 315 of 575
misapplication of bank funds).
Footnote 98. State v White, 76 Kan 654, 92 P 829 (cattle stealing); Jarrett v State, 49 Okla Crim
162, 292 P 888 (robbery with firearms).
As to commencement of prosecution for larceny by issuance of warrant, see 50 Am Jur 2d,
Larceny § 112.
Footnote 99. State v White, 76 Kan 654, 92 P 829 (cattle stealing).
Footnote 1. State v Tinney, 26 La Ann 460; State v Rank, 162 Minn 393, 203 NW 49 (holding
that information must be filed and presented to court within statutory period); State v Williams,
151 NC 660, 65 SE 908 (maintaining nuisance); Commonwealth v Haas, 57 Pa 443 (construing
term "prosecutions" as used in statute as synonymous with "indictments"); Matthews v State, 57
Tex Crim 328, 122 SW 544 (violating local option law).
Footnote 2. People v Paisley, 220 Ill App 460, affd 299 Ill 576, 132 NE 822 (receiving bank
deposits while insolvent).
Footnote 3. Carr v State, 36 Tex Crim 390, 37 SW 426 (rape).
§ 231 Loss or theft of indictment; amendment of information [21 Am Jur 2d CRIMINAL
LAW]
It has been held that where an indictment returned against the accused has been lost and a copy of
the original substituted after the statutory period had expired, the statute of limitations does not
bar the prosecution, since it is a continuance of the proceeding begun by the return of the
indictment. 4 However, where an indictment pending against a defendant was stolen and a new
indictment returned by the grand jury, it has been held that the second indictment was the
beginning of a new prosecution and that the first indictment did not operate to suspend the
running of the statute. 5
Unsubstantial changes in certain counts of an information, together with reverification without
refiling after the expiration of the limitation period, do not bring into operation the statute of
limitations as to another count left unchanged and on which alone conviction was had. 6 And it
appears that in some jurisdictions an information duly filed, though insufficient to charge a
crime, prevents the running of the statute of limitations pending the filing of an amendment. 7
Under a statute that does not limit or prevent the subsequent amendment of a timely filed
information, a proper amendment relates back to the filing date of the original information. 8
Where a prosecution commences by the timely filing of an information, the filing of a
superseding information after the expiration of the statutory period does not divest the court of
jurisdiction. 9
Page 316 of 575
Where a defendant, under a mistaken legal understanding of a statute, had pleaded guilty to a
crime under a plea negotiation in exchange for the striking of another allegation and the dismissal
of another count, but the state supreme court, in habeas corpus proceedings, authorized
withdrawal of the plea, it has been held that the statute of limitations did not prevent amendment
of the complaint to reinstate the previously dismissed count. 10
§ 231 - Loss or theft of indictment; amendment of information [SUPPLEMENT] [21 Am
Jur 2d CRIMINAL LAW]
Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation
period; 18 ALR4th 1202. superseding 90 ALR 452.
Case authorities:
The statute of limitations did not require dismissal of an information charging defendant with
grand theft by fraud, notwithstanding the fact that the information had been filed beyond the
statutory period of limitations established by FS § 775.15(2)(b), where the information bore the
same number as an earlier information filed within the statutory period, and was identical in all
its allegations except for the name of the alleged victim. State v Garofalo (1984, Fla App D4)
453 So 2d 905, 9 FLW 1752.
Footnotes
Footnote 4. Brown v State, 57 Tex Crim 570, 124 SW 101 (theft).
Footnote 5. Commonwealth v Keger, 62 Ky (1 Duv) 240.
Footnote 6. State v Ling, 91 Kan 647, 138 P 582 (adultery).
Footnote 7. People v Ross, 243 Ill App 427; State v Plotner, 283 Mo 83, 222 SW 767 (forgery).
Footnote 8. State v Sciortino, 245 La 587, 159 So 2d 685.
Footnote 9. People v Schildhaus, 15 Misc 2d 377, 180 NYS2d 377 (violations of municipal
sanitary code and multiple dwelling law).
Footnote 10. Re Crumpton, 9 Cal 3d 463, 106 Cal Rptr 770, 507 P2d 74.
c. New Proceeding After Failure of Original Prosecution [232, 233]
Page 317 of 575
§ 232 Generally; in absence of statute suspending running of statute [21 Am Jur 2d
CRIMINAL LAW]
Generally, the return of an indictment or the filing of an information on which no valid
conviction or judgment can be had will not, in the absence of a statute expressly so providing,
operate to stop the running of the statute of limitations pending the return or filing of another
indictment or information. 11
In some jurisdictions it has been held that a prosecution under an indictment returned or an
information filed after the statutory limitation period has elapsed will not be barred where a
previous indictment or information charging the same offense had been returned or filed within
the statutory period but was quashed, set aside, or dismissed, and the case directed to be
resubmitted. The theory of these cases is that the first indictment or information suspended the
operation of the statute and that a proceeding under a subsequent indictment or information was a
mere continuation of the first. 12 However, for the second indictment to be considered a
continuation of the prosecution so as to avoid the running of the statute of limitations, the second
indictment must allege the facts as to the former indictment and its dismissal, thus showing that
the prosecution was intended to be a continuous one. 13
§ 232 – Generally; in absence of statute suspending running of statute [SUPPLEMENT]
[21 Am Jur 2d CRIMINAL LAW]
Case authorities:
In prosecution for obtaining funds over $100 by false pretenses and state securities law violation,
begun by filing complaint, warrant and information more than six years after date of last act
charged therein, circuit court erred in finding that limitations period was tolled by prosecution's
previously having filed, within six-year statute of limitations, indictment charging same offenses
since that indictment had been quashed; where state had no statute specifically providing for
tolling while improper indictment was pending, statute continued to run. People v Dalton (1979)
91 Mich App 246, 283 NW2d 710, 18 ALR4th 1196.
Information charging defendant with false material statements under oath and filed in August
tolled statute of limitations until it was dismissed even though it lacked signature of prosecuting
attorney; information making same charge and filed in February two days after dismissal of
August information and after statute of limitations would have run if not tolled could be amended
to indicate that statute of limitations had been tolled. State v Strand (1983, Utah) 674 P2d 109.
Footnotes
Footnote 11. State v Fogel, 16 Ariz App 246, 492 P2d 742, State v Bilboa, 38 Idaho 98, 222 P
785, reaching contrary conclusions on reh of 38 Idaho 92, 213 P 1025 (possession of intoxicating
Page 318 of 575
liquor); State v Disbrow, 130 Iowa 19, 106 NW 263 (embezzlement); State v Morris, 104 NC
837, 10 SE 454; State v Silver, 239 Or 459, 398 P2d 178; Redfield v State, 24 Tex 133.
Footnote 12. Wells v Commonwealth, 200 Ky 241, 254 SW 743 (carrying concealed deadly
weapon); Davenport v State, 20 Okla Crim 253, 202 P 18 (embezzlement); Hickey v State, 131
Tenn 112, 174 SW 269 (assault).
Footnote 13. R. M. Hughes & Co. v Commonwealth, 31 Ky LR 179, 101 SW 1194 (selling
adulterated food).
As to alleging commission of offense within statutory period generally, see 41 Am Jur 2d,
Indictments and Informations § 117.
§ 233 Under statute suspending running of statute [21 Am Jur 2d CRIMINAL LAW]
Under some statutes, when a nolle prosequi is entered against an indictment or information, or a
demurrer sustained thereto, or the accusatory pleading is quashed or set aside, the time elapsing
between its return or filing and the preferment of a new indictment or filing of a new information
is not computed as part of the limitation prescribed for the offense. 14 Under such a statute, it
has been held that a prosecution under an indictment returned or information filed after the
limitation period had expired was not barred where a previous indictment or information
charging the same offense had been returned or filed within the period, though the earlier
indictment or information was defective or was such that a conviction could not be had on it. 15
It is essential that the reindictment be filed within the time prescribed therefor after the quashing
of the prior indictment. 16
In order for an indictment that has been quashed, set aside, or otherwise disposed of, to have the
effect of suspending the running of the statute against the offense during the time elapsing until a
new indictment is preferred, the new indictment must charge the same defendant and
substantially the same offense. 17 Thus, an initial indictment that was ultimately dismissed for
failure to allege a certain required intent in performing the criminal act is considered as tolling
the statute of limitations where a second indictment is later brought under the same penal statute
as the first. 18 And to have the effect of suspending the running of the statute against the
prosecution of the same offense under a subsequent indictment, the judgment entry of the court
disposing of the first indictment must show how the indictment was disposed of and on what
grounds. 19
§ 233 – Under statute suspending running of statute [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation
period; 18 ALR4th 1202. superseding 90 ALR 452.
Page 319 of 575
Footnotes
Footnote 14. Mitchell v State, 248 Ala 169, 27 So 2d 36; People v Switalski, 394 Ill 530, 69
NE2d 315 (diagnosing ailment without license to practice medicine); State v Murray, 222 La
950, 64 So 2d 230 (theft); State v Norton (Mo) 347 SW2d 849 (violation of traffic laws); State v
Comstock, 205 Tenn 389, 326 SW2d 669.
Footnote 15. Grimsley v United States (CA5 Fla) 50 F2d 509 (sale of stolen automobile); Davis
v State, 145 Ala 69, 40 So 663 (sale of intoxicating liquor in violation of statute); Heaton v State,
40 Ga App 87, 149 SE 62 (dealing with statute providing that if indictment is quashed or nolle
prosequi entered, new indictment may be found in six months); People v Hobbs, 361 Ill 469, 198
NE 224 (larceny by embezzlement); State v Cashman, 174 Kan 272, 255 P2d 660 (unlawful sale
of mortgaged personal property); State v Plotner, 283 Mo 83, 222 SW 767 (defective
information); State v Hailey, 51 NC 42 (statute providing that second indictment must be
returned within one year after first shall have been abandoned by state).
Where a prosecution is apparently barred by limitation, it is incumbent on the state to prove that
the offense was committed within the period of the statutory bar or that the running of the statute
has been suspended, as by the finding of a previous indictment for the same offense which had
been quashed or set aside. State v Harvey, 169 Ark 1074, 277 SW 869 (malicious mischief).
Racial discrimination in selection of the grand jury that indicted the accused did not render such
indictment void or toll the statute of limitations in a prosecution for rape. Hill v State, 146 Tex
Crim 333, 171 SW2d 880, 174 SW2d 733, cert dismd 320 US 806, 88 L Ed 487, 64 S Ct 72.
Footnote 16. United States v Durkee Famous Foods, Inc., 306 US 68, 83 L Ed 492, 59 S Ct
456; Alewine v State, 103 Ga App 120, 118 SE2d 499.
Practice Aids: –Extension of period of limitation. 1 Wharton's Criminal Law (14th ed) § 93.
Footnote 17. Buckalew v State, 62 Ala 334 (running a lottery); Jester v State, 14 Ark 552
(gambling); Ross v People, 62 Colo 193, 162 P 152 (seduction under promise of marriage); State
v Hailey, 51 NC 42.
Footnote 18. Ex parte Slavin (Tex Crim) 554 SW2d 691.
Footnote 19. Coleman v State, 71 Ala 312 (embezzlement).
2. Under Federal Law [234-242]
a. In General [234-239]
Page 320 of 575
§ 234 Generally; capital and noncapital crimes [21 Am Jur 2d CRIMINAL LAW]
Like those state statutes of limitation that make exception for certain felonies, such as murder, 20
the federal criminal statutes of limitation distinguish between capital and noncapital offenses.
Federal law provides that capital offenses are exempt from limitations and that an indictment for
any offense punishable by death may be found at any time without limitation, except for offenses
barred by the provisions of law existing on August 4, 1939. 21 It has been held that this
exemption encompasses any offense for which the death penalty may be imposed 22 and that
the term "capital offense" as used in the statute is a shorthand reference to the category of
offenses of a particularly serious nature. 23
A separate federal statute of limitations dealing with non-capital offenses provides that, except as
otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any
offense, not capital, unless the indictment is found or the information is instituted within five
years after such offense shall have been committed. 24
Protection from prosecution under the federal statute of limitations is a substantive right 25 that
creates a bar to the right of prosecution, unlike that afforded by civil statutes of limitation, which
are statutes of repose going to remedy only. 26
Absent a showing of prejudice, a prosecution brought several years after the offense was
committed but within the period of limitations prescribed by the federal statute does not
constitute a denial of a defendant's rights to due process and a speedy trial. 27 Neither mere
passage of time nor a general allegation concerning loss of witnesses and failure of memories is
sufficient to demonstrate actual prejudice necessary to set aside an indictment returned within the
appropriate statute of limitations. 28
Pursuant to the express wording of the statute, the general limitations period is inapplicable
where special limitation periods are otherwise expressly provided for by statute. 29 The
predecessor to the current federal statute of limitations, being general in its language and not
restricted by any other statute, applied to all misdemeanors constituting offenses against the
United States, whenever added by Congress to the list of statutory crimes. 30
§ 234 – Generally; capital and noncapital crimes [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Statutes:
18 USCS § 3286, enacted in 1994, extends the statute of limitation for certain terrorism offenses
to eight years.
Page 321 of 575
18 USCS § 3286, pertaining to seduction on a vessel of the United States, has been repealed.
Case authorities:
Four-year delay in filing indictment, which is within prescribed time period for offense, does not
warrant dismissal of indictment where government did not consider defendant suspect during
initial phase of investigation and when they did start suspecting, his indictment was procured
promptly thereafter. United States v Farinacci-Garcia (1982, DC Puerto Rico) 547 F Supp 759.
RICO convictions involving mail fraud were not barred by 5 year statute of limitations under 18
USCS § 3282 since one of proven mailings and racketeering acts of which defendant was found
guilty occurred within 5 years of original indictment. United States v Eisen (1992, CA2 NY) 974
F2d 246, petition for certiorari filed (Nov 27, 1992) and petition for certiorari filed (Dec 7,
1992).
Defendant's wire fraud affected "financial institution" within meaning of 18 USCS § 3293(2),
notwithstanding fact that wholly owned subsidiary of financial institution was party to loan
agreement, and thus 10 year limitations period was applicable. United States v Pelullo (1992,
CA3 Pa) 964 F2d 193, reh den (CA3) 1992 US App LEXIS 17370.
Limitations period shall extend to person where it is clear that person delayed departure for
several months to allow investigation to be completed and in applying for non-residence
classification with government, person gives government address to which he plans to and does
in fact move to. Caplan v Vokes (1981, CA9 Cal) 649 F2d 1336.
Defendant was entitled to jury instruction as to whether earlier offenses occurred more than 5
years before indictment was issued, since conflicting accounts of when importation and
possession with intent to distribute cocaine occurred raised issue of prosecution in timely manner
under 18 USCS § 3282. United States v Edwards (1992, CA11 Fla) 968 F2d 1148.
Rape in District of Columbia with statutory maximum sentence of life imprisonment is
noncapital offense subject to statute of limitations of 18 USCS § 3282. United States v Brown
(1980, Dist Col App) 422 A2d 1281.
Footnotes
Footnote 20. See § 223, supra.
Footnote 21. 18 USCS § 3281.
Footnote 22. Coon v United States (CA8 Iowa) 360 F2d 550, cert den 385 US 873, 17 L Ed 2d
100, 87 S Ct 145.
Page 322 of 575
Footnote 23. United States v Provenzano (SD NY) 423 F Supp 662, affd without op (CA2 NY)
556 F2d 562.
The decision of Furman v Georgia, 408 US 238, 33 L Ed 2d 346, 92 S Ct 2726, reh den 409
US 902, 34 L Ed 2d 163, 93 S Ct 89, holding the death penalty to be unconstitutional, did not
repeal statutes imposing the death penalty or repeal such statutes, such as 18 USCS § 3281
which depend for their operation on the defendant's being charged with a capital crime. United
States v Watson (CA4 Va) 496 F2d 1125 (disagreed with on other grounds, United States v
Shepherd (CA7 Ind) 576 F2d 719, cert den (US) 58 L Ed 2d 155, 99 S Ct 158).
Where the defendant was convicted of violating 18 USCS § 2113(e), proscribing robbery
wherein an individual is forced to accompany the robber, prior to the Supreme Court decision
holding the death penalty invalid as punishment for a similar offense of kidnapping, 18 USCS §
3281 governed with regard to the issue of limitations. Coon v United States (CA8 Iowa) 411 F2d
422.
Where the Supreme Court held unenforceable the death penalty provision of the kidnapping
statute and Congress subsequently amended the statute to remove the death penalty provision, the
five year statute of limitations under 18 USCS § 3282 would apply to bar indictment of the
defendants 15 years after the alleged commission in the offense, notwithstanding that at the time
of the alleged act, kidnapping was a "capital offense" and therefore, under the terms of 18 USCS
§ 3281, not subject to the statute of limitations. United States v Provenzano (SD NY) 423 F
Supp 662, affd without op (CA2 NY) 556 F2d 562.
Footnote 24. 18 USCS § 3282.
Under 18 USCS § 3282, a sentence imposed for second degree murder, which was not a "capital
offense," upon an indictment timely for first-degree murder, but found more than three years
[now five years] after the offense, was a sentence not authorized by law. Askins v United States,
102 App DC 198, 251 F2d 909.
As to federal statute of limitations for offense of concealment of bankrupt's assets (18 USCS §
3284), see 9 Am Jur 2d (Rev) Bankruptcy § 1724.
As to federal statute of limitations for criminal contempt (18 USCS § 3285), see 17 Am Jur 2d,
Contempt § 66.
As to federal statute of limitations for seduction on vessel of United States (18 USCS § 3286),
see 70 Am Jur 2d, Seduction § 23.
As to federal statute of limitations for violation of federal laws relating to nationality, citizenship
and passports, see 3 Am Jur 2d, Aliens and Citizens §§ 170-171 and 60 Am Jur 2d, Passports §
14.
Page 323 of 575
Footnote 25. United States v Haramic (DC Pa) 125 F Supp 128.
Footnote 26. Chaifetz v United States, 109 App DC 349, 288 F2d 133, revd on other grounds
366 US 209, 6 L Ed 2d 233, 81 S Ct 1051, reh den 366 US 955, 6 L Ed 2d 1247, 81 S Ct
1901; Benes v United States (CA6 Ohio) 276 F2d 99, 12 Ohio Ops 2d 392, 84 Ohio L Abs 226
(disagreed with on other grounds United States v Wild 179 App DC 232, 551 F2d 418, cert den
431 US 916, 53 L Ed 2d 226, 97 S Ct 2178).
Footnote 27. United States v Radmall (CA10 Utah) 591 F2d 548; United States v Edwards (CA5
Ala) 458 F2d 875, cert den 409 US 891, 34 L Ed 2d 148, 93 S Ct 118, reh den 409 US 1029,
34 L Ed 2d 323, 93 S Ct 459; United States v Hephner (CA7 Wis) 410 F2d 930; United States v
Kane (SD NY) 243 F Supp 746.
As to effect of crime barred by limitations on witness' right against self-incrimination, see 81 Am
Jur 2d, Witnesses § 39.
Footnote 28. United States v Butts (CA5 Ga) 524 F2d 975 (disapproved on other grounds United
States v Lovasco 431 US 783, 52 L Ed 2d 752, 97 S Ct 2044, reh den 434 US 881, 54 L Ed 2d
164, 98 S Ct 242) as stated in United States v Brand (CA5 Fla) 556 F2d 1312, reh den (CA5 Fla)
561 F2d 831 and cert den 434 US 1063, 55 L Ed 2d 763, 98 S Ct 1237, reh den 435 US 961,
55 L Ed 2d 811, 98 S Ct 1593.
Footnote 29. United States v Heinze (DC Del) 361 F Supp 46.
The six-month limitation period contained in 29 USCS § 658(c) is limited to citation procedure
and does not extend to criminal prosecution, which is controlled by the period of limitations
contained in 18 USCS § 3282. United States v Dye Constr. Co. (CA10 Colo) 510 F2d 78.
Footnote 30. United States v Central Vermont R. R. Co. (CC NY) 157 F 291.
§ 235 Construction; effect of extending period of limitation [21 Am Jur 2d CRIMINAL
LAW]
The purpose of the statute of limitations is to limit exposure to prosecution to a certain fixed
period of time following the occurrence of those acts that the legislature has decided to punish by
criminal sanctions. Such limitation protects individuals from having to defend themselves against
charges when the basic facts have become obscured by the passage of time, minimizes the danger
of official punishment because of facts in the far-distant past, and encourages law enforcement
officials to promptly investigate suspected criminal activity. 31
It is said that statutes of
limitation are founded upon the liberal theory that a prosecution should not be allowed to ferment
endlessly in the files of government only to explode after witnesses and proofs necessary to
protection of the accused have, by sheer lapse of time, passed beyond availability. 32 Thus,
Page 324 of 575
criminal statutes of limitation are matters of grace to be liberally construed in favor of the
defendant 33 and interpreted in favor of repose. 34
It has been held that Congress may extend the limitations period for a crime already committed,
provided that crime is not already barred by the prior statute. 35 The accused does not acquire
any vested right in the statute of limitations until it has operated to bar prosecution of the offense
charged; and he may not complain if the limitations period is extended by the legislature so long
as the period of time originally provided therein has not run at the time of such extension. 36
Under such circumstances, a legislative enactment extending the statute of limitations beyond the
period described in the original statute is not an ex post facto law. 37
Statutes of limitation apply to offenses created after the enactment of the period of limitation. 38
§ 235 – Construction; effect of extending period of limitation [SUPPLEMENT] [21 Am Jur
2d CRIMINAL LAW]
Case authorities:
Although courts have permitted sealing of indictment beyond limitations period where
Government feared that disclosure of indictment and arrest of one defendant would cause
codefendants whose whereabouts were unknown to flee, if Government cannot demonstrate such
prosecutorial need, expiration of statute of limitations prior to unsealing would invalidate
indictment as in any case where indictment is untimely filed; if there is legitimate prosecutorial
need for sealing, defendants, to be entitled to dismissal, must be able to demonstrate actual
prejudice occurring between date of sealing and date of unsealing. United States v Slochowsky
(1983, ED NY) 575 F Supp 1562.
Expiration of statute of limitations does not bar prosecution where indictment is sealed prior to
end of limitations period to advance legitimate prosecutorial need; legitimate prosecutorial need
is demonstrated where government demonstrates that indictment was sealed so that defendant
would not remain in foreign country. United States v Davis (1984, SD NY) 598 F Supp 453.
Footnotes
Footnote 31. Toussie v United States, 397 US 112, 25 L Ed 2d 156, 90 S Ct 858.
Footnote 32. United States v Eliopoulos (DC NJ) 45 F Supp 777.
Footnote 33. United States v Satz (DC NY) 109 F Supp 94.
Footnote 34. United States v Marion, 404 US 307, 30 L Ed 2d 468, 92 S Ct 455; Toussie v
Page 325 of 575
United States, 397 US 112, 25 L Ed 2d 156, 90 S Ct 858; United States v Habig, 390 US 222,
19 L Ed 2d 1055, 88 S Ct 926; United States v Scharton, 285 US 518, 76 L Ed 917, 52 S Ct
416.
Footnote 35. United States v Richardson (CA3 Pa) 512 F2d 105.
Footnote 36. United States v Haug (DC Ohio) 21 FRD 22, 40 BNA LRRM 2307.
Footnote 37. Falter v United States (CA2 NY) 23 F2d 420, cert den 277 US 590, 72 L Ed 1003,
48 S Ct 528; United States v Haug (DC Ohio) 21 FRD 22, 40 BNA LRRM 2307.
Since the amendment to 18 USCS § 3282 extending the three-year period of limitation to five
years was passed on September 1, 1954, a prosecution for any crime governed by § 3282 that was
committed before September 1, 1951, would be barred by the statute of limitations. United
States v Reina (CA2 NY) 242 F2d 302, cert den 354 US 913, 1 L Ed 2d 1427, 77 S Ct 1294,
reh den 355 US 852, 2 L Ed 2d 61, 78 S Ct 9.
Where, at the time the crime was committed, 18 USCS § 3282 provided for a three-year
limitation period, and such period had not run at the time the 1954 amendment of § 3282,
increasing the periods of five years was enacted, an indictment filed within five years of the
commission of the crime was not barred. Clements v United States (CA9 Cal) 266 F2d 397, cert
den 359 US 985, 3 L Ed 2d 934, 79 S Ct 943.
Footnote 38. Adams v Woods, 6 US 336, 2 L Ed 297; United States v White (CC Dist Col) F
Cas No 16676; United States v Ballard (CC Mich) F Cas No 14507; Johnson v United States
(CC Mich) F Cas No 7418
§ 236 Commencement of statutory period [21 Am Jur 2d CRIMINAL LAW]
By its express terms, the federal statute of limitations for noncapital offenses specifies that the
indictment must be found or the information instituted within the specified period "next after
such offense shall have been committed." 39 Thus, the limitations period runs from the
commission of the offense. 40
The United States Supreme Court has stated that several considerations guide its decision in
determining when the statute of limitations begins to run in a given case. These considerations
include the principles that criminal limitation statutes are to be given liberal interpretation in
favor of repose, 41 that statutes of limitations normally begin to run when the crime is
complete, 42 and that the federal limitations statute should not be extended "except as otherwise
Page 326 of 575
expressly provided by law." 43
Significantly, the determination of the timeliness of a prosecution hinges on the nature of the
particular offense involved. Some offenses are complete upon the commission of certain acts,
whereas other so-called continuing offenses are not. 44 Typically, the statute of limitations
begins to run as soon as every element of the crime occurs and the offense is complete. For a
continuing offense, however, the crime is not exhausted for purposes of the statute of limitations
as long as the proscribed course of conduct continues. 45 Thus, for example, the crime of
conspiracy has been held to continue as long as the conspirators engage in overt acts in
furtherance of their plot, and the statute of limitation for a conspiracy prosecution generally
commences to run from the time the last overt act in furtherance of the conspiracy was
committed. 46 The determination whether a given crime is a continuous offense is a matter of
statutory interpretation. 47 It has been held that the doctrine of continuing offenses should be
applied only in limited circumstances, since the doctrine effectively extends the statute of
limitations beyond its stated term. A particular offense should not be deemed continuous unless
the explicit language of the substantive criminal statute compels such a conclusion or the nature
of the crime involved is such that Congress must have intended that it be treated as a continuing
one. 48
§ 236 – Commencement of statutory period [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Practice Aids: Possession of stolen property as continuing offense 24 ALR5th 132.
Case authorities:
180-day time period in Article III(a) for bringing prisoner to trial does not commence until
prisoner's request for final disposition of charges against him has actually been delivered to court
and prosecuting officer of jurisdiction that lodged detainer against him. Fex v Michigan (1993,
US) 122 L Ed 2d 406, 113 S Ct 1085, 93 CDOS 1214, 7 FLW Fed S 10.
Time spent in state custody did not count toward six-hour limitation of 18 USCS § 3501(c),
where there was no evidence of any working relationship between state and federal authorities as
of day defendant made statement. United States v White (1992, CA7 Wis) 979 F2d 539
(disagreed with by United States v Bayles (CA4) 1993 US App LEXIS 2877).
Where a defendant was prosecuted under customs law for making false statements in connection
with importation of goods and applicable statute of limitation provided that no action could be
commenced more than five years after discovery of alleged violation, knowledge of falsity of
import documents caused statute of limitation to begin to run, and once plaintiff knew of falsity
of import documents it could not sleep on information until it became aware that false
documentation was part of the fraudulent intent. United States v R. I. T. A. Organics, Inc. (1980,
ND Ill) 487 F Supp 75.
Page 327 of 575
Footnotes
Footnote 39. 18 USCS § 3282.
Footnote 40. Lewis v United States, 216 US 611, 54 L Ed 637, 30 S Ct 438.
The statute of limitations runs against an offense even though the government does not know
who the offender is. United States v White (CC Dist Col) F Cas Nos 16675 and 16676.
Footnote 41. See § 224, supra.
Footnote 42. Pendergast v United States, 317 US 412, 87 L Ed 368, 63 S Ct 268; United States
v Irvine, 98 US 450, 25 L Ed 193.
Footnote 43. 18 USCS § 3282; Toussie v United States, 397 US 112, 25 L Ed 2d 156, 90 S Ct
858.
Footnote 44. § 226, supra.
Footnote 45. Toussie v United States, 397 US 112, 25 L Ed 2d 156, 90 S Ct 858 (dissenting
opinion); United States v Cores, 356 US 405, 2 L Ed 2d 873, 78 S Ct 875; United States v
Kissel, 218 US 601, 54 L Ed 1168, 31 S Ct 124.
Footnote 46. 16 Am Jur 2d (Rev) Conspiracy § 22.
Footnote 47. Toussie v United States, 397 US 112, 25 L Ed 2d 156, 90 S Ct 858; United States
v Cores, 356 US 405, 2 L Ed 2d 873, 78 S Ct 875; Pendergast v United States, 317 US 412,
87 L Ed 368, 63 S Ct 268; Bramblett v United States, 97 US App DC 330, 231 F2d 489, cert den
350 US 1015, 100 L Ed 874, 76 S Ct 658.
Footnote 48. Toussie v United States, 397 US 112, 25 L Ed 2d 156, 90 S Ct 858 (crime of
failing to register for the draft was complete upon accused's failure to register within specified
period and did not continue each day he remained unregistered).
§ 237 Circumstances tolling statute–wartime suspension of limitations [21 Am Jur 2d
CRIMINAL LAW]
When the United States is at war, a federal statute provides for the suspension until three years
after the termination of hostilities, as proclaimed by the President or by a concurrent resolution of
Congress, of any statute of limitations applicable to any offense (1) involving fraud or attempted
fraud against the United States or any of its agencies in any manner, whether by conspiracy or
Page 328 of 575
not, or (2) committed in connection with the acquisition, care, handling, custody, control, or
disposition of any real or personal property of the United States, or (3) committed in connection
with the negotiation, procurement, award, performance, payment for, interim financing,
cancellation, or other termination or settlement of any contract, subcontract, or purchase order
that is connected with or related to the prosecution of the war, or with any disposition of
termination inventory by any war contractor or government agency. 49 It has been said that this
statutory provision creates an exception to the long-standing congressional policy of repose, but,
as indicated by its legislative history, suspends the general statute of limitations only as to war
frauds of a pecuniary nature or of a nature concerning property. 50 It has also been said that the
purpose of the War Suspension Act is to give government law enforcement officials additional
time to discover and punish offenses related to the commercial aspect of war programs where
extensive war efforts render them unable to deal with those offenses within the normal period of
limitation. 51 Although it has been recognized that the legislative history of the statute
emphasizes conservative interpretation, 52 there is authority for the view that, unlike the general
statute of limitations, which is strictly construed, the War Suspension Act is to be liberally
construed in favor of the public. 53
The wartime suspension provision has been strictly limited in its application, however, to
offenses having as an essential ingredient the defrauding or attempted defrauding of the United
States. 54
Thus, the statute has been applied to suspend the statute of limitations for
conspiracy to defraud the United States in liquidation of surplus war property, 55 for violations
of the false claims clause of the False Claims Act (19 USCS § 287), 56 and for furnishing false
financial statements to the war contracts price adjustment board in connection with renegotiation,
57 but it is not applicable to indictments for fraud in procuring a passport, 58 for making a
false statement under oath in a naturalization proceeding, 59 for passing worthless checks
payable to the treasurer of the United States, 60 for perjury or false swearing, even when the
United States is directly interested, 61 or for income tax evasion. 62 Furthermore, where the
wartime suspension provision does not apply to a given substantive offense, it is not applicable to
a charge of conspiracy to commit that offense. 63
§ 237 – Circumstances tolling statute–wartime suspension of limitation [SUPPLEMENT]
[21 Am Jur 2d CRIMINAL LAW]
Statutes:
19 USCS § 287 was repealed in 1993 as an obsolete provision.
Case authorities:
Five-year statute of limitation applicable to crimes of conspiracy to commit offenses against the
United States involving bribery and misapplication of federal funds with which defendant was
charged is not extended by 3 years pursuant to 18 USCS § 3287, where, although military court
Page 329 of 575
of appeals declared that conflict in Middle East with Iraq constituted war, Congress never
formally recognized conflict as war; 18 USCS § 3287 is not applicable since judicial branch has
no constitutional power to declare war. United States v Shelton (1993, WD Tex) 816 F Supp
1132.
Stay of commitment entered at defendant's request tolls running of statute of limitations for
purposes of 18 USCS § 3282. Re Assarsson (1982, CA7 Ill) 670 F2d 722.
Indictment is "found" within meaning of 18 USCS § 3291 when it is filed, and it tolls the statute
of limitations for reasonable period; however, unreasonable delay does not establish presumption
to justify dismissal of indictment, and indictment therefore should not have been dismissed
where there was no resulting prejudice, even though 2-year delay beyond limitations period was
unreasonable. United States v Shell (1992, CA9 Wash) 961 F2d 138, 92 CDOS 2863, 92 Daily
Journal DAR 4528.
In a prosecution for first-degree murder, defendant did not demonstrate ineffective assistance of
counsel, notwithstanding his assertion that his lawyers performed no investigation about the
crime or defendant's background, where the record of the proceeding showed that against the
advice of counsel defendant pled guilty and decided not to make any kind of presentation to the
court on the matter of sentencing. Agan v State (1987, Fla) 503 So 2d 1254, 12 FLW 99, habeas
corpus proceeding (Fla) 508 So 2d 11, 12 FLW 285.
Footnotes
Footnote 49. 18 USCS § 3287 (War Suspension Act).
Suspension of Limitations Act (18 USCS § 3287) suspended the running of the general statute of
limitations until three years after the termination of hostilities as declared by the President.
United States v Grainger, 346 US 235, 97 L Ed 1575, 73 S Ct 1069, reh den 346 US 843, 98 L
Ed 363, 74 S Ct 14; United States v Covollo (DC Pa) 136 F Supp 107.
18 USCS § 3287 applies to civil offenses as well as to criminal offenses. United States v Kolsky
(DC Pa) 137 F Supp 359.
Crimes committed after the termination of hostilities are not affected by the predecessor to 18
USCS § 3287. United States v Smith, 342 US 225, 96 L Ed 252, 72 S Ct 260; United States v
Minkow (DC Ill) 108 F Supp 509.
The suspension of the statute of limitations on offenses against the United States involving fraud
applied only to offenses committed prior to the Presidential Proclamation of December 31, 1946,
declaring an end to hostilities and did not apply to offenses committed in 1947. United States v
Riley (DC RI) 102 F Supp 440; United States v Peoples Sav. Bank (DC RI) 102 F Supp 439.
Page 330 of 575
Footnote 50. Bridges v United States, 346 US 209, 97 L Ed 1557, 73 S Ct 1055.
The predecessor to 18 USCS § 3287 was not limited to frauds involving pecuniary or property
loss to the government. United States v Choy Kum (DC Cal) 91 F Supp 769; United States v
Marzani (DC Dist Col) 71 F Supp 615, affd 83 App DC 78, 168 F2d 133, affd 335 US 895, 93
L Ed 431, 69 S Ct 299, adhered to 336 US 922, 93 L Ed 1084, 69 S Ct 653.
Footnote 51. United States v Sack (DC NY) 125 F Supp 633.
Footnote 52. Bridges v United States, 346 US 209, 97 L Ed 1557, 73 S Ct 1055.
Footnote 53. United States v Choy Kum (DC Cal) 91 F Supp 769.
Footnote 54. Bridges v United States, 346 US 209, 97 L Ed 1557, 73 S Ct 1055.
Footnote 55. United States v Lurie (CA7 Ill) 222 F2d 11, reh den 350 US 898, 100 L Ed 789,
76 S Ct 149 and cert den 350 US 835, 100 L Ed 745, 76 S Ct 71.
As to the obtaining of surplus property by fraudulent means prior to December 31, 1946, the
predecessor to 18 USCS § 3287 tolled the running of the statute of limitations for a period of
three years after the proclamation of the president terminating hostilities as of that date. United
States v Witherspoon (CA6 Tenn) 211 F2d 858.
Footnote 56. United States v Grainger, 346 US 235, 97 L Ed 1575, 73 S Ct 1069, reh den 346
US 843, 98 L Ed 363, 74 S Ct 14; United States v Salvatore (DC Pa) 140 F Supp 470; United
States v Strange Bros. Hide Co. (DC Iowa) 123 F Supp 177; United States v Epstein (DC Pa) 119
F Supp 946.
Footnote 57. United States v Sack (DC NY) 125 F Supp 633.
Footnote 58. United States v Shoso Nii (DC Hawaii) 96 F Supp 971, app dismd 342 US 912, 96
L Ed 683, 72 S Ct 358.
But see United States v Choy Kum (DC Cal) 91 F Supp 769 holding that an indictment charging
a violation of passport and false claims laws was not barred by the statute of limitations since the
Wartime Suspension of Limitations Act is not limited to offenses involving monetary laws to the
government.
Footnote 59. Bridges v United States, 346 US 209, 97 L Ed 1557, 73 S Ct 1055.
Footnote 60. McGuinness v United States (Mun Ct App Dist Col) 77 A2d 22.
Footnote 61. United States v Obermeier (CA2 NY) 186 F2d 243, cert den 340 US 951, 95 L Ed
Page 331 of 575
685, 71 S Ct 569.
Footnote 62. United States v Beard (DC Md) 118 F Supp 297.
Footnote 63. Bridges v United States, 346 US 209, 97 L Ed 1557, 73 S Ct 1055.
§ 238 – Fleeing from justice [21 Am Jur 2d CRIMINAL LAW]
A federal statute provides that no federal criminal statute of limitations shall extend to any
person "fleeing from justice." 64 This provision reflects the Congressional determination that
defendants should not gain the advantages of statutory limitations by means of flight. 65
A fugitive from justice has been defined, for purposes of the federal statute, as a person who,
having committed a crime in violation of the laws of the United States, flees from the jurisdiction
of the court where the crime was committed or departs from his usual place of abode and
conceals himself within the district. The term applies to anyone fleeing from the justice of the
United States, not the justice of any particular district. 66 Under a predecessor to the current
federal statute, it has been held that flight to avoid prosecution in a state court is sufficient to toll
the federal criminal statute of limitations. 67 Where a corporation subject to prosecution exists
merely as a shell and can only be reached through an individual defendant, its status as a fugitive
under the federal statute depends on whether the individual is a fugitive. 68
Authorities are divided on the meaning of the phrase "fleeing from justice." One line of cases
holds that in order for the tolling statute to apply, the government must show an intent on the part
of the accused to flee from prosecution or arrest, since the statutory phrase carries a
common-sense connotation that only those persons who have absented themselves from the
jurisdiction of the alleged crime with the intent of escaping prosecution shall be denied the
benefit of the statute of limitations. 69 Under this view, the defendant's intent and the purpose
of his absence are important matters of inquiry for the jury. 70 In holding that the prosecution
must meet the burden of proving that the accused concealed himself with an intent to avoid arrest
or prosecution, one court has said that the word "fleeing" commonly connotes the performance of
some volitional act, and that it would not further the purposes of the statute to toll the statute of
limitations in the absence of such an intent to avoid arrest or prosecution. 71 Another court
following this rule has held, however, that the statute of limitations may be tolled even if the
prosecution has not actually begun at the time of the suspect's flight. The government need not
prove that the accused concealed himself with an intent to avoid arrest or prosecution, but only
that he knew he was wanted by the police and that he failed to submit to arrest. 72
Thus, whether a person was, during any given period, "fleeing from justice" for purposes of the
federal statute, is held by some courts to be a question of fact determined from his acts and
intent. 73 Courts have found evidence sufficient to establish flight from justice within the
meaning of the statute or its predecessor where, after committing the offense, the accused went to
Page 332 of 575
a place remote from the scene of the crime; 74 made a striking and unexplained change in his
habits as to his customary places of resort; 75 was aware of a pending criminal investigation of
his activities, yet sold his belongings and left the country; 76 or was aware of an outstanding
warrant against him, yet continued to conceal himself. 77 The government's failure to find the
accused despite a diligent attempt to do so is an additional factor persuasive to some courts in
establishing flight from justice. 78
On the other hand, several cases support the view that under the terms of the current statute or its
predecessors, the defendant's leaving of the jurisdiction in which the offense occurred is enough
to constitute "fleeing from justice," regardless of his intent or motive in leaving. 79 In so
holding, one court has said that it is not necessary that the accused leave the state for the purpose
of avoiding a prosecution anticipated or begun; it suffices that he committed a crime within a
state and left its jurisdiction when he was sought to be subjected to its criminal process to answer
for his offense. 80
It has been held for purposes of the meaning of the phrase "fleeing from justice", that it is not
necessary that the course of justice have been put in operation by the presentment of an
indictment, the filing of an information, or the making of a complaint before the accused's flight
or concealment. 81 It has also been held unnecessary for the alleged offender to be found in a
jurisdiction other than that in which the crime was committed. 82 Physical absence from the
jurisdiction where the offense was committed is not essential to toll the statute of limitations. 83
Thus, an accused's departure from his usual place of abode and the concealment of himself
within the district is within the meaning of the statute. 84 By way of explanation, one court has
stated that in large and heavily populated districts it is almost as easy to avoid arrest or
prosecution by concealing oneself within the district as by fleeing it. 85 A fortiori, it is
unnecessary for the alleged fugitive to leave the United States in order to be charged with
"fleeing from justice" within the meaning of the statute. 86 On the other hand, the "fleeing from
justice" exception does not apply where the accused innocently and openly moves to a new
residence while remaining easily accessible to any careful law enforcement officer who has a
warrant to serve, 87 or where the accused openly returns, resumes his accustomed activities,
and continues them for the full period of limitation fixed for the crime. Thus, it appears that the
return of the accused, after his flight, to the jurisdiction in which the crime was committed will
operate so as to entitle him to the benefit of the limitation statute from the time of his return. 88
Nevertheless, a person continues to be "fleeing from justice" even though he has been seen
somewhere in public, or government officers have conversed with him but have failed to take
action to secure his arrest. 89 Where the accused remains some time in the jurisdiction in which
the crime is committed, flees, and then returns, the period prior to flight and that subsequent to
return cannot be added to complete the limitation period. 90
Where the accused's absence from the jurisdiction wherein the crime was committed is
involuntary, the courts have reached differing results. It has been held that an accused felon was
"fleeing from justice" within the meaning of the predecessor to the current federal statute,
notwithstanding his confinement in prison in another jurisdiction after committing the crime. 91
Page 333 of 575
On the other hand, where an accused was confined to prison in a foreign country during the
whole statutory period of limitations he has been held not to be a person "fleeing from justice."
92 Furthermore, it has been held that a seaman who committed an offense while on the high seas
and remained at sea during the whole of the statutory period of limitations did not fall within the
intendment of the predecessor to the current federal statute. 93
It is immaterial that the statute of limitations may have begun to run before the accused fled. 94
An accused who, while under indictment, escapes from those charged with his custody and
eludes recapture for several years, however, is a person "fleeing from justice." 95 The tolling
requirements of the statute may be met by an accused's "constructive flight" in not returning to
his homeland out of fear of a pending criminal investigation against him. In recognizing this
doctrine, a court has stated that it is fully supported by the language and logic of the federal
statute, since there is no meaningful distinction between those who leave their native country and
those who, already outside, decline to return 96 Nevertheless, although persons accused of mail
fraud have been found to be "fleeing from justice" within the meaning of the statute, even though
they were not present in the district at the time the crime was allegedly committed, 97 it has
also been held that a person alleged to have made criminal misrepresentations to a federal agency
was not "fleeing from justice" where he was outside the United States when the crime was
allegedly committed and had no notice of the charge until after the statutory period. 98
It is unnecessary to plead specially the defendant's flight from justice; evidence of that fact may
be introduced under the general issue. 99 The prosecution has the burden of proving that the
accused was "fleeing from justice" within the meaning of the statute. 1 It has been held that the
question may properly be submitted to the jury. 2
A defendant cannot avail himself of a limitations defense by demurrer unless the indictment
shows on its face that he is not a person fleeing from justice. Absent such case, the proper
practice is for him to interpose a special plea in the nature of a plea in abatement, or to present
the question by evidence given under a plea of not guilty. 3 One court has held that the question
whether the predecessor to the current federal statute dealing with flight from justice applied to
toll the statute of limitations was reviewable only on appeal from a judgment of conviction, and
could not be tried on the defendant's motion to vacate the sentence. 4
§ 238 – Fleeing from justice [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
Person can be "fleeing from justice" in one jurisdiction even though imprisoned in another;
defendant's active resistance of extradition request, coupled with letter expressing desire to resist
all future extradition requests, constitutes constructive flight from justice, tolling limitation
period, since imprisonment does not relieve defendant of duty to do all he can to return, and since
it is not unconstitutional to require defendant to choose between exercise of right to oppose
extradition and gaining benefit of statute of limitations. United States v Catino (1984, CA2 NY)
Page 334 of 575
735 F2d 718.
Appellant is fugitive for purposes of 18 USCS § 3290 where he is absent from jurisdiction with
intent to avoid arrest or prosecution. Re Assarsson (1982, CA8 Minn) 687 F2d 1157.
Defendant's term of supervised release was tolled under 18 USCS § 3565(c) and § 3624(e) while
defendant was in fugitive status and state custody, and thus magistrate judge had jurisdiction to
revoke supervised release. United States v Crane (1992, CA9 Cal) 979 F2d 687, 92 CDOS 8217,
92 Daily Journal DAR 13552.
Footnotes
Footnote 64. 18 USCS § 3290.
As to who is fugitive from justice for purposes of extradition laws, see 31 Am Jur 2d,
Extradition § 15.
As to tolling prosecution periods for tax crimes, see 34 Am Jur 2d, Federal Taxation § 9390.
Footnote 65. United States v Mullins (CA5 Ga) 562 F2d 999, cert den 435 US 906, 55 L Ed 2d
496, 98 S Ct 1452.
Footnote 66. United States ex rel. Demarois v Farrell (CA8 Minn) 87 F2d 957, cert den 302 US
683, 82 L Ed 527, 58 S Ct 31, reh den 302 US 775, 82 L Ed 600, 58 S Ct 135.
Footnote 67. Streep v United States, 160 US 128, 40 L Ed 365, 16 S Ct 244.
Annotation: 33 ALR Fed 716, § 10.
Footnote 68. United States v Belimex Corp. (SD NY) 340 F Supp 466.
Footnote 69. Jhirad v Ferrandina (CA2 NY) 536 F2d 478, cert den 429 US 833, 50 L Ed 2d 98,
97 S Ct 97, reh den 429 US 988, 50 L Ed 2d 600, 97 S Ct 511 (fleeing from justice was shown
by preponderance of evidence that at some point within period of limitations accused made
decision to avoid prosecution by not returning to India, notwithstanding travel from India was not
motivated by desire to avoid apprehension and prosecution); Donnell v United States (CA5 Tex)
229 F2d 560.
Annotation: 33 ALR Fed 716, § 3.
Footnote 70. Donnell v United States (CA5 Tex) 229 F2d 560.
Page 335 of 575
Practice Aids: –Whether an Accused in "Fleeing from Justice" so as to Toll the Statute of
Limitations Depends upon His Intent and is a Question of Fact for the Jury. 104 U Pa L Rev
1111.
If the defendants committed a crime in the Southern District of Georgia, and, when sought to be
tried by the court having jurisdiction, had left the district and were found in another state and
district not their home, under circumstances indicating a purpose to evade the authority and
jurisdiction of the local courts, they may be justly considered persons "fleeing from justice"
under a predecessor to 18 USCS § 3290. Greene v United States (CA5 Ga) 154 F 401, cert den
207 US 596, 52 L Ed 357, 28 S Ct 261.
Footnote 71. United States v Wazney (CA9 Cal) 529 F2d 1287, 33 ALR Fed 710.
Footnote 72. United States v Ballesteros-Cordova (CA9 Ariz) 586 F2d 1321.
Footnote 73. Brouse v United States (CA1 Mass) 68 F2d 294.
Annotation: 33 ALR Fed 716, § 2[b].
Footnote 74. Brouse v United States (CA1 Mass) 68 F2d 294 (accused went from the eastern part
of the United States to the West and Southwest); Greene v United States (CA5 Ga) 154 F 401,
cert den 207 US 596, 52 L Ed 357, 28 S Ct 261 (accused fled to Canada); Martin v United
States (1972, SD NY) 339 F Supp 1187 (accused left the country).
Footnote 75. Brouse v United States (CA1 Mass) 68 F2d 294.
Footnote 76. Jhirad v Ferrandina (CA2 NY) 536 F2d 478, cert den 429 US 833, 50 L Ed 2d 98,
97 S Ct 97, reh den 429 US 988, 50 L Ed 2d 600, 97 S Ct 511.
Footnote 77. United States v Wazney (CA9 Cal) 529 F2d 1287, 33 ALR Fed 710.
The defendant was "fleeing from justice" for purposes of 18 USCS § 3290 where, after a warrant
was issued for his arrest for parole violations, he left the country and remained a fugitive before
returning and voluntarily surrendering himself three years later to federal authorities. Martin v
United States (SD NY) 339 F Supp 1187.
Footnote 78. United States v Wazney (CA9 Cal) 529 F2d 1287, 33 ALR Fed 710; Ferebee v
United States (CA4 Va) 295 F 850.
Footnote 79. Green v United States, 88 App DC 249, 188 F2d 48, cert den 341 US 955, 95 L Ed
1376, 71 S Ct 1008, reh den 342 US 842, 96 L Ed 636, 72 S Ct 24; King v United States (CA8
Ark) 144 F2d 729, cert den 324 US 854, 89 L Ed 1413, 65 S Ct 711; McGowen v United
States, 70 App DC 268, 105 F2d 791, 124 ALR 1047, cert den 308 US 552, 84 L Ed 464, 60 S
Page 336 of 575
Ct 98; Howgate v United States, 7 App DC 217; Re Bruce (CC Md) 132 F 390, affd (CA4 Md)
136 F 1022.
Footnote 80. McGowen v United States, 70 App DC 268, 105 F2d 791, 124 ALR 1047, cert den
308 US 552, 84 L Ed 464, 60 S Ct 98.
Annotation: 33 ALR Fed 716, § 4.
Footnote 81. Streep v United States, 160 US 128, 40 L Ed 365, 16 S Ct 244; King v United
States (CA8 Ark) 144 F2d 729, cert den 324 US 854, 89 L Ed 1413, 65 S Ct 711; Howgate v
United States, 7 App DC 217; United States v White (CC Dist Col) F Cas No 16675; United
States v Smith (CC Conn) F Cas No 16332.
Footnote 82. United States v Wazney (CA9 Cal) 529 F2d 1287, 33 ALR Fed 710; Forthoffer v
Swope (CA9 Wash) 103 F2d 707; Ferebee v United States (CA4 Va) 295 F 850; Porter v United
States (CA5 Tex) 91 F 494; United States v O'Brian (CC Kan) F Cas No 15908.
Footnote 83. United States v Wazney (CA9 Cal) 529 F2d 1287, 33 ALR Fed 710.
Footnote 84. United States v Wazney (CA9 Cal) 529 F2d 1287, 33 ALR Fed 710; Ferebee v
United States (CA4 Va) 295 F 850.
An offender may flee from justice within the meaning of the statute, though he never left the
limits of the state, as, for example, by secretly concealing himself or by not being usually and
publicly known as being within it. United States v O'Brian (CC Kan) F Cas No 15908.
Footnote 85. United States v Wazney (CA9 Cal) 529 F2d 1287, 33 ALR Fed 710.
Annotation: 33 ALR Fed 716, § 6.
Footnote 86. Greene v United States (CA5 Ga) 154 F 401, cert den 207 US 596, 52 L Ed 357,
28 S Ct 261; Howgate v United States, 7 App DC 217; United States v White (CC Dist Col) F
Cas No 16677.
Annotation: 33 ALR Fed 716, § 7.
Footnote 87. United States v Wazney (CA9 Cal) 529 F2d 1287, 33 ALR Fed 710; Jhirad v
Ferrandina (CA2) 486 F2d 442, on remand (SD NY) 377 F Supp 34 and on remand (SD NY) 401
F Supp 1215, affd (CA2 NY) 536 F2d 478, cert den 429 US 833, 50 L Ed 2d 98, 97 S Ct 97,
reh den 429 US 988, 50 L Ed 2d 600, 97 S Ct 511; Donnell v United States (CA5 Tex) 229 F2d
560; United States v O'Brian (CC Kan) F Cas No 15908; Donnell v United States (CA5 Tex) 229
F2d 560.
Page 337 of 575
Annotation: 33 ALR Fed 716, § 8.
Footnote 88. United States v Parrino (CA2 NY) 180 F2d 613.
Footnote 89. Howgate v United States, 7 App DC 217.
Footnote 90. Howgate v United States, 7 App DC 217, United States v White (CC Dist Col) F
Cas No 16677.
Footnote 91. McGowen v United States, 70 App DC 268, 105 F2d 791, 124 ALR 1047, cert den
308 US 552, 84 L Ed 464, 60 S Ct 98.
Annotation: 33 ALR Fed 716, § 9[a].
Although a person accused of housebreaking and robbery in the District of Columbia in
February, 1950, was not indicted until February, 1954 and not brought to trial until February,
1956, and had been in prison in New York State from November, 1950 until February, 1956 was
denied his right to speedy trial, he was not, under 18 USCS § 3290 and § 3282, entitled to the
protection of the statute of limitations. Taylor v United States, 99 App DC 183, 238 F2d 259.
Footnote 92. United States v Hewecker (CC NY) 79 F 59.
Footnote 93. United States v Brown (DC Mass) F Cas No 14665.
Annotation: 33 ALR Fed 716, § 9[b].
Footnote 94. Howgate v United States, 7 App DC 217.
Annotation: 33 ALR Fed 716, § 11.
Footnote 95. Howgate v United States, 7 App DC 217.
Annotation: 33 ALR Fed 716, § 12.
A court's refusal, pursuant to 18 USCS § 3290, to apply the statute of limitations (18 USCS §
3282) to bail jumpers does not deny them due process. United States v Lyon (CA8 Mo) 567 F2d
777, cert den 435 US 918, 55 L Ed 2d 510, 98 S Ct 1476.
Footnote 96. Jhirad v Ferrandina (CA2 NY) 536 F2d 478, cert den 429 US 833, 50 L Ed 2d 98,
97 S Ct 97, reh den 429 US 988, 50 L Ed 2d 600, 97 S Ct 511.
Annotation: 33 ALR Fed 716, § 13.
Page 338 of 575
Footnote 97. King v United States (CA8 Ark) 144 F2d 729, cert den 324 US 854, 89 L Ed 1413,
65 S Ct 711; Brouse v United States (CA1 Mass) 68 F2d 294.
Footnote 98. United States v Belimex Corp. (SD NY) 340 F Supp 466.
Alleged narcotic offenders who were never in the United States during the commission of the
offenses charged and who lived in Europe until their arrival in the United States did not fall
within the statute. United States v Eliopoulous (DC NJ) 45 F Supp 777.
Annotation: 33 ALR Fed 716, § 14.
Footnote 99. United States v White (CC Dist Col) F Cas No 16677.
Footnote 1. United States v Wazney (CA9 Cal) 529 F2d 1287, 33 ALR Fed 710; Brouse v
United States (CA1 Mass) 68 F2d 294.
Footnote 2. Greene v United States (CA5 Ga) 154 F 401, cert den 207 US 596, 52 L Ed 357, 28
S Ct 261.
Footnote 3. United States v Brace (DC Cal) 143 F 703.
Footnote 4. Wallace v United States (CA8 SD) 174 F2d 112, cert den 337 US 947, 93 L Ed
1749, 69 S Ct 1505, reh den 338 US 842, 94 L Ed 515, 70 S Ct 30.
§ 239 Manner of raising and determining question; waiver [21 Am Jur 2d CRIMINAL
LAW]
Where the statute of limitations applies to an indictment, the defense must be raised at trial or
before trial on motion; if it is not so raised and a guilty verdict is rendered, sentence may lawfully
be imposed. 5 It is said that the statute of limitations does not constitute a jurisdictional bar to
prosecution, but rather is the equivalent of an affirmative defense, which must be raised by the
defendant. 6 Although the plea of limitation may be raised by a special plea, it is not necessary
in criminal cases. 7 An accused may avail himself of the statute of limitations by special plea or
by evidence under the general issue on a plea of not guilty. 8 It is available on appeal if so
urged in trial court. 9 It has been held, however, that an indictment charging conspiracy in
restraining trade and alleging continuation of the conspiracy must be denied under the general
issue and not by a special plea of the statute of limitations. 10
A defendant cannot raise the statute of limitations as a defense by demurrer, 11 unless the
offense itself contains an exception or proviso. 12 Nor can a defendant avail himself of the
defense by a motion for judgment of acquittal at the close of the evidence offered by the
prosecution. 13
Page 339 of 575
The trial court has discretion to determine the validity of the defense of the statute of limitations
before trial or at trial of the general issue. 14 It has been said, however, that a defendant may not
by affidavit contradict allegations of the information where the introduction of proof concerning
the statute of limitations would necessarily open central issues before the court and result in a
trial by affidavit prior to the trial itself. 15
The government has the burden of proving that the alleged offense occurred within the limitation
period provided by the statute. 16 It must present evidence justifying a jury's finding, beyond a
reasonable doubt, that the particular offense charged is not barred by the statute of limitations. 17
A trial court does not err in refusing to submit to the jury the question whether the defendant's
acts were committed within the period of limitations under the federal statute where the face of
the indictment shows a timely filing and the defendant does not request an instruction of this
issue in the trial court. 18
As a general rule, an accused does not waive the statute of limitations by procuring continuances
of a preliminary hearing from time to time until the period of limitations expires or by making an
agreement with the government to withhold prosecution. 19 A defendant may, however, make
an intentional and deliberate waiver of the federal statute of limitations with effective assistance
of counsel. 20 Such waiver may be made in conjuction with a plea of guilty, 21
or in
writing prior to indictment. 22 Thus, the federal statute of limitations does not run in favor of
an accused who, by his own initiative, persuades the government to agree to his waiver of the
statute while he pursues the possibility of a plea arrangement. Even though the particular waiver
contained no time restriction on how long the government could wait before seeking an
indictment, it was not void as against public policy where the accused was prosecuted within a
reasonable length of time after an unsuccessful attempt at plea bargaining and where no prejudice
was shown. 23
§ 239 – Manner of raising and determining question; waiver [SUPPLEMENT] [21 Am Jur
2d CRIMINAL LAW]
Practice Aids: Waivability of bar of limitations against criminal prosecution. 78 ALR4th 693.
Case authorities:
Although waiver of statute of limitations may prove to have unfavorable consequences,
defendant cannot subsequently repudiate his bargain simply because hindsight indicates that
different strategy might have occasioned more desirable results. United States v Levine (1981,
CA3 Pa) 658 F2d 113.
Footnotes
Footnote 5. United States v Wild, 179 App DC 232, 551 F2d 418, cert den 431 US 916, 53 L Ed
Page 340 of 575
2d 226, 98 S Ct 2178; Askins v United States, 102 App DC 198, 251 F2d 909 (dictum).
Footnote 6. United States v Wild, 179 App DC 232, 551 F2d 418, cert den 431 US 916, 53 L Ed
2d 226, 98 S Ct 2178.
Footnote 7. United States v J. L. Hopkins & Co. (DC NY) 228 F 173; United States v Brown
(DC Mass) F Cas No 14665.
Footnote 8. United States v Cook, 84 US 168, 21 L Ed 538; Forthoffer v Swope (CA9 Wash)
103 F2d 707.
Footnote 9. Forthoffer v Swope (CA9 Wash) 103 F2d 707.
Footnote 10. United States v Barber, 219 US 72, 55 L Ed 99, 31 S Ct 209; United States v
Kissel, 218 US 601, 54 L Ed 1168, 31 S Ct 124.
Footnote 11. United States v Cook, 84 US 168, 21 L Ed 538; Hedderly v United States (CA9
Or) 193 F 561; United States v Andem (DC NJ) 158 F 996; Greene v United States (CA5 Ga)
154 F 401, cert den 207 US 596, 52 L Ed 357, 28 S Ct 261; United States v Brace (DC Cal)
143 F 703; United States v Johnson (DC Pa) 76 F Supp 542, affd (CA3 Pa) 165 F2d 42, cert den
332 US 852, 92 L Ed 421, 68 S Ct 355, reh den 333 US 834, 92 L Ed 1118, 68 S Ct 457.
Footnote 12. United States v Cook, 84 US 168, 21 L Ed 538; United States v Brace (DC Cal)
143 F 703.
Footnote 13. United States v Johnson (DC Pa) 76 F Supp 542, affd (CA3 Pa) 165 F2d 42, cert
den 332 US 852, 93 L Ed 421, 68 S Ct 355, reh den 333 US 834, 92 L Ed 1118, 68 S Ct 457.
Footnote 14. United States v Auto Rental Co. (WD Pa) 187 F Supp 603, 46 BNA LRRM 3018,
41 CCH LC ¶ 16561.
Footnote 15. United States v Andreas (DC Minn) 374 F Supp 402.
Footnote 16. Az Din v United States (CA9 Cal) 232 F2d 283, cert den 352 US 827, 1 L Ed 2d
49, 77 S Ct 39; United States v McCord (DC Wis) 72 F 159.
The government, in a prosecution under 18 USCS § 1202(a)(1), has the burden of showing that
the defendant was charged within the five-year period after his receipt of the firearm; when the
evidence shows that the firearm had been stolen more than five years before the indictment was
filed, it must also show where the firearm in question was received by the defendant. United
States v Wolf (ED Mo) 405 F Supp 731, affd (CA8 Mo) 535 F2d 476, cert den 429 US 920, 50
L Ed 2d 287, 97 S Ct 315.
Page 341 of 575
Footnote 17. United States v Borelli (CA2 NY) 336 F2d 376, cert den 379 US 960, 13 L Ed 2d
555, 85 S Ct 647.
Footnote 18. United States v Cianchetti (CA2 Conn) 315 F2d 584.
Footnote 19. Benes v United States (CA6 Ohio) 276 F2d 99, 12 Ohio Ops 2d 392, 84 Ohio L Abs
226 (disagreed with on other grounds United States v Wild 179 App DC 232, 551 F2d 418, cert
den 431 US 916, 53 L Ed 2d 226, 97 S Ct 2178).
Footnote 20. United States v Wild, 179 App DC 232, 551 F2d 418, cert den 431 US 916, 53 L
Ed 2d 226, 97 S Ct 2178; United States v Sindona (SD NY) 473 F Supp 764.
Footnote 21. United States v Doyle (CA2 Conn) 348 F2d 715, cert den 382 US 843, 15 L Ed 2d
84, 86 S Ct 89; United States v Parrino (CA2 NY) 212 F2d 919, cert den 348 US 840, 99 L Ed
663, 75 S Ct 46 and (disagreed with on other grounds Strader v Garrison (CA4 NC) 611 F2d
61).
Footnote 22. United States v Wild, 179 App DC 232, 551 F2d 418, cert den 431 US 916, 53 L
Ed 2d 226, 97 S Ct 2178; United States v Sindona (SD NY) 473 F Supp 764.
Footnote 23. United States v Wild, 179 App DC 232, 551 F2d 418, cert den 431 US 916, 53 L
Ed 2d 226, 97 S Ct 2178.
b. Stage of Proceedings That Must be Reached to Avoid Bar of Statute [240]
§ 240 Generally [21 Am Jur 2d CRIMINAL LAW]
The general federal statute of limitations concerning noncapital offenses provides for a bar to
prosecution "unless the indictment is found or the information is instituted" within the specified
period following the committing of the offense. 24 Thus, arrest does not toll the statute of
limitations; it is the return of the indictment or the filing of the information that must occur
before expiration of the statutory period, although such event may occur either before or after the
arrest itself. 25 An indictment is "found" within the meaning of the statute when it is returned
by the grand jury and filed, 26 even though it remains sealed. 27 When a sealed indictment has
tolled the statute, the government must unseal the indictment as soon as its legitimate need for
delay has been satisfied. Where the defendant can show substantial, actual prejudice, the
government must show that the delay was justified by a legitimate interest. 28
The fact that a federal indictment was not timely filed in the federal district division in which the
offense was committed is of no importance where the indictment was returned in another
division of the district within the statutory period. 29
Page 342 of 575
a superseding indictment containing substantially the same charge as the initial indictment has no
effect on the initial tolling of the statute of limitations, so long as the defendant is not
significantly prejudiced by the delay. 30 Since the statute of limitations stops running with the
bringing of the first indictment, a superseding indictment brought at any time while the first is
still pending cannot be barred by the statute of limitations, if and only if it does not broaden the
previous charges. Amendments of form and those that are trivial or innocuous, as opposed to
those of substance, are acceptable within the rule that a superseding indictment that does not
broaden charges made in the initial indictment may be returned after the running of the statute of
limitations. 31
§ 240 – Generally [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation
period; 18 ALR4th 1202. superseding 90 ALR 452.
Case authorities:
If prosecution has delayed beyond limitations period in unsealing timely indictment, prosecution
should be barred only if defendant can show substantial, actual prejudice arising at any time prior
to post-limitations unsealing of indictment and in such situation, as in ordinary case of untimely
indictment, even strong prosecutorial interest should not toll statute. United States v Watson
(1979, CA2 NY) 690 F2d 15.
When sealed indictment is not opened until after expiration of time allowed by statute of
limitations for prosecution of offense, statute is not ordinarily bar to prosecution if indictment
was timely; however, if defendant can demonstrate substantial actual prejudice occurring
between date of sealing and date of unsealing, then indictment is not considered "found" until it
is unsealed and expiration of limitations period before latter event warrants dismissal of
indictment; but where prosecution can demonstrate that decision to keep indictment secret is
informed by exercise of sound discretion in public interest, date of return, rather than unsealing,
will establish time indictment is "found"; District Court's refusal to review reasons for sealing
advanced by prosecutor was improper because it was based on erroneous assumption that
contemporaneous record of application for sealing was required. United States v Srulowitz
(1987, CA2 NY) 819 F2d 37.
Two-count indictment charging aiding and abetting receipt, sale, and disposition of stolen beef
and aiding and abetting receipt and disposition of stolen motor vehicle, which was returned 20
months after two counts charging receipt of stolen beef were dismissed on ground of improper
venue and two other counts, charging conspiracy and concealment of felony, were dismissed by
United States attorney with leave of court, was timely since once original charges were dismissed
"speedy indictment" clock returned to zero and there was no subsequent arrest, which would have
required that new indictment be filed within 30 days, but second prosecution began with
indictment. United States v Samples (1983, CA7 Ill) 713 F2d 298, 13 Fed Rules Evid Serv 1457.
Page 343 of 575
Indictment was properly sealed so as to toll statute of limitations where District Court found
government's reason for requesting sealing legitimate, on-the-record showing of legitimate
prosecutorial need need not be shown prior to sealing, and defendants did not show substantial,
irreparable, and actual prejudice arising from decision to seal. United States v Lakin (1989, CA8
Ark) 875 F2d 168.
Superseding' indictment did not broaden original indictment, and thus was not barred by
five-year statute of limitations, where substitution of general false statement provision in one
federal statute for more specific provision in another did not expand charges against defendant,
and addition of reference to dumping duties was not substantial change. United States v Sears,
Roebuck & Co. (1986, CA9 Cal) 785 F2d 777, cert den (US) 93 L Ed 2d 583, 107 S Ct 580.
In prosecution for numerous banking-related fraud offenses, wire fraud counts in superseding
indictment were not time barred as having impermissibly broadened or substantially amemded
charges under original timely indictment where, for purposes of scheme or artifice to defraud
incorporated into wire fraud counts, conspiracy count in original indictment covered defendant's
activities. Thus, defendant had prior notice of conspiracy charged in superseding indictment.
Practical reading of counts in question lead to conclusion that essentially same fact were used to
charge almost identical offenses. Wire fraud counts remained the same, and conspiracy charge,
which contained description of fraudulent scheme alleged in wire fraud counts was not materially
different. United States v Davis (1992, CA10 Wyo) 953 F2d 1482, cert den (US) 119 L Ed 2d
210, 112 S Ct 2286.
Reasons other than taking defendant into custody validly support sealing of indictment;
indictment may be sealed where government's only reason for filing indictment is to toll running
of statute of limitations. United States v Edwards (1985, CA11 Fla) 777 F2d 644, 86-1 USTC ¶
9110.
Trial judge did not err in ordering that defense witness be shackled to waist type device he was
wearing with one hand attached to witness underneath table where there was no showing that
jury was aware of shackling and no showing of actual prejudice. People v Myers (1989, 4th Dist)
185 Ill App 3d 118, 133 Ill Dec 184, 540 NE2d 1050.
Although general rule prohibited physical restraints on defendants except under exceptional
circumstances, trial court did not err in allowing armed-robbery defendant to be brought into
courtroom in ankle restraints and seated in jury box while prospective jurors were milling about,
where defendant was dressed in civilian clothes and judge refused to call attention to restraints,
where it was not shown that any jurors even noticed defendant or that he otherwise had been
prejudiced, and where all impaneled jurors swore that they could give defendant fair trial. State v
Stephens (1982, La) 412 So 2d 1057.
Footnotes
Page 344 of 575
Footnote 24. 18 USCS § 3282.
Footnote 25. Powell v United States, 122 App DC 229, 352 F2d 705.
Footnote 26. United States v Villa (ND NY) 470 F Supp 315.
Though federal indictments charging fraudulent income tax returns were returned more than six
years after the alleged offense was committed, where the complaints were filed within the
six-year period and the indictments were returned prior to the discharge of the grand jury at its
session next to the time of filing of the complaints, the statute of limitations was tolled. Ashe v
United States (CA6 Tenn) 288 F2d 725.
Footnote 27. United States v Onassis (DC Dist Col) 125 F Supp 190.
Footnote 28. United States v Watson (CA2 NY) 599 F2d 1149, mod on other grounds (CA2 NY)
633 F2d 1041.
Where the United States kept an indictment sealed for 11 months, due more to a commitment not
to prosecute a defendant rather than to his absence from the country, and where the defendant did
not consent to or instigate a 13-month delay in bringing the prosecution, he was entitled to a
dismissal of all counts in view of the fact that the statute of limitations (18 USCS § 3282) had
been about to run out when the indictment was finally filed. United States v Sherwood (DC
Conn) 38 FRD 14.
Footnote 29. Collins v United States (CA8 Iowa) 20 F2d 574 (theft of mailbag).
Footnote 30. Unites States v Panebianco (CA2 NY) 543 F2d 447, cert den 429 US 1103, 51 L
Ed 2d 553, 97 S Ct 1128, 97 S Ct 1129.
Where a 1969 proceeding was not a new prosecution but rather a continuation of one begun in
1963, which had been vacated by the appellate court and remanded to the district court for further
proceedings, the statute of limitations was tolled in 1963 when the government first had secured
an order to show cause. The 1969 show cause order served only notice purposes and was mere
surplusage because the contempt prosecution had been commenced in 1963 by issuance of the
show cause order. United States v Randazzo (CA5 Tex) 457 F2d 1058, cert den 409 US 858,
34 L Ed 2d 104, 93 S Ct 142.
Footnote 31. United States v Grady (CA2 NY) 544 F2d 598, 37 ALR Fed 819.
c. New Proceeding After Failure of Original Prosecution [241, 242]
Page 345 of 575
§ 241 Indictment where defect found after period of limitation [21 Am Jur 2d CRIMINAL
LAW]
Whenever (1) an indictment is dismissed for any error, defect, or irregularity with respect to the
grand jury, or (2) an indictment or information filed after the defendant's waiver in open court of
a prosecution by indictment is found otherwise defective or insufficient for any cause, after the
period prescribed by the applicable statute of limitations has expired, a federal statute provides
that a new indictment, which shall not be barred by any statute of limitations, may be returned in
the appropriate jurisdiction within six calendar months of the date of the dismissal of the
indictment or information, or, if no grand jury is in session in the appropriate jurisdiction when
the indictment or information is dismissed, within six calendar months of the date when the next
regular grand jury is convened. 32 The purpose of the provision is to extend the statute of
limitations so that a person who was charged under a defective indictment should not escape
because the fault was dicovered too late to indict him again. 33 In cases where the statute
applies, it has been held that the six-month period begins to run when a district court dismisses
the indictment after an appellate court had held that it was defective. 34
It has been held that the statute is meant to apply whenever the first charging paper has been
vacated, for any reason whatsoever, including a lack of jurisdiction. 35 It has been applied to
dismissal of the indictment for a legal defect, such as failure to state the offense. 36 On the other
hand, it has also been held that the six-month extension of time is available only if the dismissal
was for technical defects or an irregularity in the grand jury. 37 Thus, where the grand jury that
returned the original indictment was a nullity, its term having expired, a defendant can be
reindicted within six months of the date of dismissal of the first indictment even though the
statute of limitations has since run. 38 Similarly, where a judgment of conviction is reversed for
defects in the selection process of the grand jury, neither the statute of limitations nor the
prohibition against double jeopardy bars reindictment and prosecution of the accused within six
months after the actual dismissal by the district court. 39
Dismissal is necessary to trigger operation of the statute; and the government cannot rely on a
superseding indictment to activate it. 40 Furthermore, the statute does not control discretionary
dismissals of indictments, which matters are controlled by a federal rule of criminal procedure.
41 Thus, the six-month extension does not apply to reindictment of an accused after the first
indictment was dismissed for want of prosecution 42 or where the sole ground given by the
government for its request for dismissal of the indictment was that the "interest of justice"
required it. 43 Although the statute does apply to criminal indictments brought under the
Internal Revenue Code, 44 it does not apply to courts-martial practice. 45
The phrase "new indictment" as used in the statute does not mean one indictment only. Thus,
any number of new indictments on the same subject matter and charging the same defendants can
be brought within the "next succeeding term" following that in which the original indictment was
dismissed for some deficiency. 46 Furthermore, it has been held that the statute applies whether
the defendant is reindicted before or after a trial has taken place. 47 To fall within the statute
Page 346 of 575
and not be barred, however, a prosecution brought after the running of the statute of limitations
must be instituted only by a new indictment, not by a new information. 48
§ 241 – Indictment where defect found after period of limitation [SUPPLEMENT] [21 Am
Jur 2d CRIMINAL LAW]
Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation
period; 18 ALR4th 1202. superseding 90 ALR 452.
Statutes:
18 USCS § 3288, as amended in 1988 by PL 100-690, now additionally covers informations as
well as indictments, provides for a reduced time for refiling an indictment or information
following dismissal on appeal and prohibits the filing of a new indictment or information where
the reason for the dismissal was the failure to file the indictment or information within the period
of time prescribed by the applicable statute of limitations, or some other reason that would bar
new prosecutions.
Footnotes
Footnote 32. 18 USCS § 3288.
Where the first and second counts of a present indictment are substantially the same as the counts
of a former indictment that had been quashed, the legal effect was to create reindictment for
purposes of former 18 USC §§ 587 and 588 (predecessors to 18 USCS §§ 3288 and 3289).
Hughes v United States (CA6 Tenn) 114 F2d 285.
Where the first indictment charging violations of securities laws was dismissed for failure to state
an offense after the five-year statute of limitations period had elapsed, the government was
permitted to reindict the defendant on essentially the same set of facts within six months of the
first dismissal under 18 USCS § 3288, and a second indictment would not be dismissed on
grounds that the offenses charged therein differed than those charged in the first indictment.
United States v Charnay (CA9 Nev) 537 F2d 341, cert den 429 US 1000, 50 L Ed 2d 610, 97 S
Ct 527, and later app (CA9 Nev) 577 F2d 81.
Once an indictment is brought, the statute of limitations is tolled as to charges contained in that
indictment and, under 18 USCS § 3288, the statute begins to run again on those charges only if
the indictment is dismissed. The government must then reindict before the statute runs out or
within six months, which ever is later, to avoid the time-bar. United States v Grady (CA2 NY)
544 F2d 598, 37 ALR3d 819.
Where the original indictment charging violations of the mail fraud statute in sending out letters
Page 347 of 575
dated June, 1935, was returned in March, 1938, and quashed on February 20, 1939, after having
been found defective, a second indictment returned on March 1, 1939, during the next succeeding
term of court, met the requirements of former 18 USC § 587 (predecessor to 18 USCS § 3288).
United States v Main (DC Tex) 28 F Supp 550.
Where the original indictment had been dismissed for failure to comply with provisions of
FRCrP, Rule 7, and the defendant had been reindicted for the same offense, but the five-year
limitations period since the date alleged in both indictments had expired during the time that the
first indictment was dimissed and the second indictment returned, the second indictment would
be barred by 18 USCS § 3282 and § 3288. United States v Civic Plaza Nat. Bank (WD Mo) 390
F Supp 1342.
Footnote 33. United States v Strewl (CA2) 162 F2d 819, cert den 332 US 801, 92 L Ed 381, 68
S Ct 92 (construing predecessor to current statute).
Former 18 USCS § 587 (the predecessor to 18 USCS § 3288) was enacted to provide that in any
case in which an indictment is found defective or insufficient after the period prescribed by the
statute of limitations has run, or where such period has not run but will expire before the end of
the next regular session of court, a new indictment may be returned at any time during the first
succeeding term of court at which the grand jury is in session. United States v Durkee Famous
Foods, Inc. 306 US 68, 83 L Ed 492, 59 S Ct 456.
The predecessor to 18 USCS § 3288 was intended to place a fixed time limit where previously
an element of discretion had in some measure obtained. Medley v United States, 81 App DC 85,
155 F2d 857, cert den 328 US 873, 90 L Ed 1642, 66 S Ct 1377, reh den 329 US 822, 91 L Ed
699, 67 S Ct 35.
Footnote 34. United States v Zirpolo (DC NJ) 334 F Supp 756.
Footnote 35. United States v Macklin (CA2 NY) 535 F2d 191.
Footnote 36. United States v Charnay (CA9 Nev) 537 F2d 341, cert den 429 US 1000, 50 L Ed
2d 610, 97 S Ct 527, 97 S Ct 528 and later app (CA9 Nev) 577 F2d 81.
By virtue of 18 USCS § 3288, dismissal of counts relating to aiding and abetting obstruction of
correspondence, in a multi-count indictment, did not preclude the government from again
presenting those charges to the grand jury within six months from the decision of the court,
despite expiration of the statute of limitations, where the counts, as supplemented by a bill of
particulars, wholly failed to set forth, fully, correctly, expressly, certainly, and unambiguously, all
elements necessary to constitute the offense intended to be punished. United States v Kerney
(SD NY) 444 F Supp 1290.
Footnote 37. United States v Grady (CA2 NY) 544 F2d 598, 37 ALR Fed 819; United States v
Page 348 of 575
Porth (CA10 Kan) 426 F2d 519, cert den 400 US 824, 27 L Ed 2d 53, 91 S Ct 47.
Footnote 38. United States v Macklin (CA2 NY) 535 F2d 191.
The predecessor to 18 USCS § 3288 was restricted to irregularities in the drawing or impaneling
of the grand jury or upon the ground of disqualification of a grand juror, and it referred to the
constitution of the grand jury at its inception. United States v McKay (DC Mich) 45 F Supp
1007.
Footnote 39. United States v Zirpolo (DC NJ) 334 F Supp 756.
Footnote 40. United States v Moskowitz (ED NY) 356 F Supp 331.
Where the government filed a superseding indictment while the original indictment was still
pending, 18 USCS § 3288 did not apply to toll the statute of limitations; however, the mere fact
that the original indictment has not been dismissed does not make a superseding indictment
invalid where the original indictment tolled the statute of limitations. The superseding
indictment was timely since the original indictment was still pending when the superseding one
was filed. United States v Drucker (SD NY) 453 F Supp 741, affd without op (CA2 NY) 591
F2d 1332, cert den 440 US 963, 59 L Ed 2d 778, 99 S Ct 1510.
Footnote 41. DeMarrias v United States (CA8 SD) 487 F2d 19, cert den 415 US 980, 39 L Ed
2d 877, 94 S Ct 1570.
Where an indictment for conspiracy was good against one defendant was lacking only in that it
did not include other conspirators who were as guilty as the named defendant, such indictment
was not "insufficient" for purposes of former 18 USC § 587 (predecessor to 18 USCS § 3288).
United States v Strewl (CA2) 162 F2d 819, cert den 332 US 801, 92 L Ed 381, 68 S Ct 92.
Footnote 42. United States v Di Stefano (SD NY) 347 F Supp 442.
Footnote 43. United States v Moriarty (ED Wis) 327 F Supp 1045.
Footnote 44. United States v Bair (ED Wis) 221 F Supp 171.
Footnote 45. United States v Rodgers, 8 USCMA 226, 24 CMR 36.
In 18 USCS § 3288, the term "indictment" connotes a traditional, formal, written charge returned
by a grand jury. Hattaway v United States (CA5 La) 304 F2d 5 (superseded by statute as stated
in United States v Macklin (CA2 NY) 535 F2d 191).
Footnote 46. Mende v United States (CA9 Cal) 282 F2d 881, cert den 364 US 933, 5 L Ed 2d
365, 81 S Ct 379, reh den 365 US 825, 5 L Ed 2d 704, 81 S Ct 689.
Page 349 of 575
Footnote 47. United States v Zirpolo (DC NJ) 334 F Supp 756.
Footnote 48. United States v Civic Plaza Nat. Bank (WD Mo) 390 F Supp 1342.
§ 242 Indictment where defect found before period of limitation [21 Am Jur 2d CRIMINAL
LAW]
Whenever an indictment is dismissed for any error, defect, or irregularity with respect to the
grand jury, or an indictment or information that is filed after the defendant in open court has
waived prosecution by indictment is found otherwise defective or insufficient for any cause,
before the period prescribed by the applicable statute of limitations has expired, and such period
will expire within six calendar months of the date of the dismissal of the indictment or
information, a federal statute provides that a new indictment, which shall not be barred by any
statute of limitations, may be returned in the appropriate jurisdiction within six calendar months
of the expiration of the applicable period of limitations, or, if no regular grand jury is in session
in the appropriate jurisdiction at the expiration of the applicable statute of limitations, within six
calendar months of the date within the next regular grand jury is convened. 49
§ 242 - Indictment where defect found before period of limitation [SUPPLEMENT] [21 Am
Jur 2d CRIMINAL LAW]
Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation
period; 18 ALR4th 1202. superseding 90 ALR 452.
Statutes:
18 USCS § 3289, as amended in 1988 by PL 100-690, now additionally covers informations as
well as indictments, provides for a reduced time for refiling an indictment or information,
following a dismissal on appeal, and prohibits the filing of a new indictment or information
where the reason for the dismissal was the failure to file an indictment or information within the
period prescribed by the applicable statute of limitations, or some other reason that would bar a
new prosecution.
Footnotes
Footnote 49. 18 USCS § 3289.
Where two counts of a second indictment were substantially the same as those in a former
indictment that had been quashed, the legal effect was to create reindictment for purposes of
former 18 USC §§ 587 and 588(predecessors to 18 USCS §§ 3288 and 3289). Hughes v
Page 350 of 575
United States (CA6 Tenn) 114 F2d 285.
F. Former Jeopardy [243-320]
1. In General [243-248]
§ 243 Generally; historical background [21 Am Jur 2d CRIMINAL LAW]
The prohibition against double jeopardy has an extensive history. With origins in ancient Greek
and Roman law, it became established in early English common law and entered American
common law through Blackstone's commentaries. 50 The common-law principle that a man
shall not be brought into danger of his life or limb for one and the same offense more than once
51 is now embodied in the Fifth Amendment of the United States Constitution in language that
tracks Blackstone's statement of the principles of autrefois acquit and autrefois convict, 52
which, together with the concept of pardon, respectively prevented the retrial of a person who
had previously been acquitted, convicted, or pardoned for the same offense. 53 Every state now
incorporates some form of the double jeopardy prohibition in its constitution or common law, 54
and the legislature cannot deprive citizens of it. 55
§ 243 – Generally; historical background [SUPPLEMENT] [21 Am Jur 2d CRIMINAL
LAW]
Practice Aids: Double jeopardy after United States v. Dixon, 30 Crim L Bull 4:346 (1994).
The Burden of Proof in Double Jeopardy Claims. 82 Mich LR 365, November, 1983.
Cantrell, Double Jeopardy and Multiple Punishment: An Historical and Constitutional Analysis.
24 So Tex LJ 735, 1983.
Thomas, A Modest Proposal to Save the Double Jeopardy Clause. 69 Wash ULQ 195, Spring,
1991.
Case authorities:
The constitutional guarantee against double jeopardy consists of three separate constitutional
protections–protecting against a second prosecution for the same offense after acquittal, against a
second prosecution for the same offense after conviction, and against multiple punishments for
the same offense; for purposes of double jeopardy, an acquittal is accorded special weight and the
public interest in the finality of criminal judgments is so strong that an acquitted defendant may
not be retried even if the acquittal was based on an egregiously erroneous foundation, absolute
Page 351 of 575
finality being accorded to a jury's verdict of acquittal no matter how erroneous its decision.
United States v Di Francesco (1980, US) 66 L Ed 2d 328, 101 S Ct 426.
Multiple punishment prong of double jeopardy clause precluded defendant from being
prosecuted in different district court for fraudulent conduct that was already used in prior
proceeding as relevant conduct under § 1B1.3(a)(2) to increase defendant's offense level. United
States v McCormick (1993, CA2 Vt) 992 F2d 437.
Double Jeopardy Clause applies in Virgin Islands. Government of the Virgin Islands v
Christensen (1982, CA3 VI) 673 F2d 713.
Government's introduction of certain evidence in order to obtain defendant's conviction in first
trial did not preclude, on double jeopardy grounds, introduction of same evidence in second trial
involving different offense, since Fifth Amendment does not bar omission of same evidence.
United States v Morris (1995, CA5 Tex) 46 F3d 410.
Double jeopardy was not violated by convictions and sentences on both conspiracy to distribute
cocaine count under 2l USCS § 846 and conspiracy to use or carry firearms in relation to drug
trafficking crime count under 18 USCS § 924(c), since Congress intended § 924(c) to act as
enhancement to other offenses. United States v Gibbons (1993, CA6 Mich) 994 F2d 299, petition
for certiorari filed (Jun 30, 1993).
Double jeopardy clause precluded district courts from disturbing defendant's sentence order of
imprisonment and fine which omitted cost of incarceration and supervision on government's
motion to amend where defendant had completed serving his incarceration and had paid all fines
and restitutions since he had acquired legitimate expectation of finality in his sentence. United
States v Daddino (1993, CA7 Ill) 5 F3d 262.
Defendant's sentencing for armed assault on federal officer in violation of 18 USCS § 111 and of
using firearm in commission of violent felony in violation of 18 USCS § 924 did not violate
double jeopardy, since Congess intended separate punishment under § 924. Bear Heels v United
States (1993, CA8 SD) 993 F2d 1325.
Double jeopardy clause was violated by trial court's erroneous citation of applicable parole
eligibility section in written judgment even though court corrected its mistake in oral
pronouncement of sentence. United States v Garcia (1994, CA9 Cal) 37 F3d 1359, 94 CDOS
7615, 94 Daily Journal DAR 13968, cert den (1995, US) 131 L Ed 2d 562, 115 S Ct 1699.
Defendant, convicted of drug and tax offenses, lacked reasonable expectation in original sentence
of 13 years imprisonment, and thus resentencing did not implicate double jeopardy concerns,
even though sentence was increased to include additional three-year parole term as required by
law. United States v Rourke (1992, CA10 Okla) 984 F2d 1063.
Page 352 of 575
The guarantee against double jeopardy consists of 3 separate constitutional protections: It
protects against a second prosecution for the same offense after acquittal; it protects against a
second prosecution for the same offense after conviction; and it protects against multiple
punishments for the same offense. Lippman v State (1994, Fla) 633 So 2d 1061, 19 FLW S 129.
Where defendant's conviction for aggravated criminal sexual assault could be supported without
relying on the acts which caused the victim's death, there was no impermissible double
enhancement. People v Scott (1992) 148 Ill 2d 479, 171 Ill Dec 365, 594 NE2d 217, cert den
(US) 123 L Ed 2d 156.
In a criminal prosecution, the issue of double jeopardy is subject to appellate review even though
not preserved properly for review by a contemporaneous objection. Tyler v Commonwealth
(1991, Ky) 805 SW2d 126.
The protection afforded by the double jeopardy clause is not waived by the failure of the
defendant to object at trial to a violation of his constitutional protection against double jeopardy.
Hall v Commonwealth (1991, Ky App) 819 SW2d 39.
Double jeopardy clause is not violated by state's capital punishment scheme, under which same
felony may form basis of essential element of crime and aggravating circumstance for
consideration by jury in recommending death sentence. State v Flowers (1983, La) 441 So 2d
707.
One convicted of carrying a concealed weapon was not entitled to reversal on the basis of double
jeopardy where a companion at the incident had earlier been tried and convicted separately of the
same charge with respect to the same weapon; accused was not tried, therefore not in jeopardy in
the initial prosecution of the companion. Shearman v Van Camp (1992) 64 Ohio St 3d 468, 597
NE2d 90.
Although revocation of parole hearing can result in incarceration and thereby loss of
probationer's or parolee's conditional liberty status, incarceration comes about through
reimposition of original criminal sanction after it has been determined that defendant is not fit to
continue on probational parole status and hearing is not itself new criminal adjudication, does not
require proof of criminal offense, does not impose punishment for any new offense, and is act in
performance of duty of judicial supervision of probationary liberty; therefore, Double Jeopardy
Clause does not attach. State v Dawson (1981, W Va) 282 SE2d 284.
Footnotes
Footnote 50. United States v Wilson, 420 US 332, 43 L Ed 2d 232, 95 S Ct 1013; Benton v
Maryland, 395 US 784, 23 L Ed 2d 707, 89 S Ct 2056, on remand 8 Md App 388, 260 A2d 86.
Page 353 of 575
Footnote 51. Ex parte Lange, 85 US 163, 21 L Ed 872; Davidson v People, 64 Colo 281, 170 P
962; Bennett v State, 229 Md 208, 182 A2d 815, 4 ALR3d 862; Commonwealth v Di Stasio,
297 Mass 347, 8 NE2d 923, 113 ALR 1133, cert den 302 US 683, 82 L Ed 527, 58 S Ct 50
and cert den 302 US 759, 82 L Ed 587, 58 S Ct 370; State v Linton, 283 Mo 1, 222 SW 847;
State v Williams, 30 NJ 105, 152 A2d 9; State v Watson, 209 NC 229, 183 SE 286.
Footnote 52. United States v Wilson, 420 US 332, 43 L Ed 2d 232, 95 S Ct 1013.
Footnote 53. United States v Scott, 437 US 82, 57 L Ed 2d 65, 98 S Ct 2187, on remand (CA6)
579 F2d 1013, cert den 440 US 929, 59 L Ed 2d 486, 99 S Ct 1266 and reh den 439 US 883,
58 L Ed 2d 197, 99 S Ct 226; United States v Wilson, 420 US 332, 43 L Ed 2d 232, 95 S Ct
1013; Ex parte Lange, 85 US 163, 21 L Ed 872.
Footnote 54. Benton v Maryland, 395 US 784, 23 L Ed 2d 707, 89 S Ct 2056, on remand 8 Md
App 388, 260 A2d 86.
Practice Aids: –The Meaning of Double Jeopardy. 74 Harvard L Rev 3.
–Jeopardy. 3 Wharton's Criminal Evidence (13th ed) §§ 655-661.
Footnote 55. United States v Aurandt, 15 NM 292, 107 P 1064; Ex parte Bornee, 76 W Va 360,
85 SE 529.
As to accused's waiver of right to plead former jeopardy, see § 461, infra.
As to accused's failure to object to court's declaration of mistrial as waiver of defense of double
jeopardy, see § 287, infra.
As to waiver of claim of double jeopardy by attack on earlier proceeding, see §§ 309, 314, infra.
As to weight and sufficiency of evidence and burden of proof concerning defense of double
jeopardy, see 30 Am Jur 2d, Evidence § 1160.
As to double jeopardy as defense to particular crimes see: 1 Am Jur 2d, Abduction and
Kidnapping § 28; 2 Am Jur 2d, Adultery and Fornication § 16; 5 Am Jur 2d, Arson § 31; 6 Am
Jur 2d, Assault and Battery § 64; 7A Am Jur 2d (Rev) Automobiles and Highway Traffic §§
388-391; 10 Am Jur 2d, Bigamy § 37; 12 Am Jur 2d, Breach of Peace and Disorderly Conduct
§§ 27, 39, 46; 13 Am Jur 2d, Burglary § 65; 16 Am Jur 2d (Rev) Conspiracy § 37; 17 Am Jur
2d, Contempt §§ 15, 29, 127; 23 Am Jur 2d, Desertion and Nonsupport §§ 26, 77, 78; 25 Am
Jur 2d, Drugs, Narcotics, and Poisons § 27; 25 Am Jur 2d, Elections § 377; 26 Am Jur 2d,
Embezzlement §§ 36, 39, 45; 27 Am Jur 2d, Escape § 17; 36 Am Jur 2d, Forgery §§ 30, 43;
38 Am Jur 2d, Gambling §§ 33, 167; 40 Am Jur 2d, Homicide §§ 183, et seq.; 41 Am Jur 2d,
Incest § 12; 45 Am Jur 2d, Intoxicating Liquors §§ 352-356, 447, 611; 50 Am Jur 2d, Larceny
Page 354 of 575
§§ 116, 138; 50 Am Jur 2d, Lewdeness, Indecency, and Obscenity § 30; 50 Am Jur 2d, Libel
and Slander § 508; 54 Am Jur 2d, Mobs and Riots § 56; 58 Am Jur 2d, Nuisances § 143; 60 Am
Jur 2d, Perjury §§ 51-52; 63 Am Jur 2d, Rape § 32; 67 Am Jur 2d, Robbery §§ 48, 89, 97; 70
Am Jur 2d, Sedition § 21; 70 Am Jur 2d, Seduction § 22; 70 Am Jur 2d, Sodomy § 19.
As to former jeopardy as ground for discharge on habeas corpus, see 39 Am Jur 2d, Habeas
Corpus § 61.
As to double jeopardy and juvenile court proceedings, see 47 Am Jur 2d, Juvenile Courts and
Delinquent and Dependent Children § 45.
As to res judicata and former jeopardy as grounds for prohibition, see 63 Am Jur 2d, Prohibition
§ 33.
§ 244 Constitutional provisions; scope of protection [21 Am Jur 2d CRIMINAL LAW]
The Fifth Amendment provides, in part, that no person shall "be subject for the same offense to
be twice put in jeopardy of life or limb." Recognizing that the prohibition against double
jeopardy represents a "fundamental ideal in our constitutional heritage," the United States
Supreme Court has held that the Fifth Amendment's double jeopardy clause applies to the states
through the Fourteenth Amendment. The same constitutional standards concerning double
jeopardy pertain to both the state and federal governments; 56 and the federal constitutional
prohibition is considered as fully applicable to state criminal proceedings. 57
As in the case of the common-law rule, 58 the constitutional provisions against double jeopardy
protect an accused not only against the peril of a second punishment, 59 but also against being
tried again for the same offense, 60 whether he was acquitted or convicted on the former trial. 61
The "twice put in jeopardy" language relates to a potential–the risk that an accused for a second
time will be convicted for the "same offense" for which he was initially tried. 62
Since the constitutional prohibition against double jeopardy is designed to protect an individual
from being subjected to the hazards of trial and possible conviction more than once for an alleged
offense, it does not allow a state to make repeated attempts to convict him. 63 At the heart of
the prohibition is a concern that permitting the sovereign freely to subject a citizen to a second
trial for the same offense would arm the government with a potent instrument of oppression. 64
It forbids a second trial for the purpose of affording the prosecution another opportunity to supply
evidence that it failed to muster in the first proceeding. 65 The double jeopardy clause of the
Fifth Amendment therefore provides three related protections. It protects against: (1) a second
prosecution for the same offense after acquittal, (2) a second prosecution for the same offense
after conviction, and (3) multiple punishments for the same offense. The interests underlying
these three protections are quite similar. Where a defendant has been once convicted and
punished for a particular crime, principles of fairness and finality require that he not be subjected
Page 355 of 575
to the possibility of futher punishment by being again tried or sentenced for the same offense.
When a defendant has been acquitted of an offense the clause guarantees that the state shall not
be permitted to make repeated attempts to convict him, thereby subjecting him to embarrassment,
expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that, even though innocent, he may be found guilty. 66
Furthermore, although English common law follows the relatively simple rule that a defendant
has been put in jeopardy only when there has been a conviction or an acquittal after a complete
trial, the United States constitutional guarantee against double jeopardy may be invoked by a
defendant who was subjected to a prosecution that was discontinued without a verdict and did
not culminate in a conviction or an acquittal. 67 For example, the double jeopardy clause
prohibits retrial of a defendant whose first trial ended in an improperly declared mistrial. 68
Since the double jeopardy clause prohibits a second trial for the same offense after a final
judgment is reached in the first prosecution, not merely conviction or punishment, a defendant
may appeal from a trial court's denial of his motion to dismiss an indictment on double jeopardy
grounds before the second trial takes place. 69
§ 244 – Constitutional provisions; scope of protection [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Practice Aids: Cantrell, Double Jeopardy and Multiple Punishment: An Historical and
Constitutional Analysis. 24 So Tex LJ 735, 1983.
U.S. v Dixon –Finally a bright line rule in double jeopardy analysis? 58 Tex BJ 5:453 (1995).
The Double Jeopardy Clause as a Bar to Reintroducing Evidence. 89 Yale LJ 962, April, 1980.
22 Fed Proc, L Ed §§ 22:204-22:239Doctrine of former jeopardy in federal criminal
proceedings.
Case authorities:
While the prohibition against multiple trials is the controlling constitutional principle involved in
the double jeopardy clause of the Fifth Amendment, the protection against retrial is not absolute
and it is acquittal that prevents retrial even if legal error was committed at the trial. United States
v Di Francesco (1980, US) 66 L Ed 2d 328, 101 S Ct 426.
The double jeopardy clause of the Fifth Amendment is enforceable against the states through the
Fourteenth Amendment. Arizona v Manypenny (1981, US) 68 L Ed 2d 58, 101 S Ct 1657.
The double jeopardy clause of the Fifth Amendment forbids the retrial of a defendant who has
been acquitted of the crime charged. Bullington v Missouri (1981, US) 68 L Ed 2d 270, 101 S
Page 356 of 575
Ct 1852.
Although a civil sanction may, under some circumstances, be so disproportionate to the damages
caused by the defendant that it constitutes "punishment" for purposes of analysis under the
double jeopardy clause of the Federal Constitution's Fifth Amendment, this does not preclude the
government from seeking the full civil penalty against a defendant who previously has not been
punished for the same conduct, even if the civil sanction imposed is punitive; in such a case, the
double jeopardy clause is not implicated. United States v Halper (1989, US) 104 L Ed 2d 487,
109 S Ct 1892.
The conviction and sentencing of a defendant in a state court to consecutive terms of
imprisonment for both felony-murder and the underlying felony violates that aspect of the double
jeopardy clause of the Federal Constitution's Fifth Amendment which protects against multiple
punishments for the same offense being imposed in a single proceeding, where the state
legislature, in enacting the felony-murder statute, (1) does not intend to allow conviction and
punishment for both offenses, but (2) rather intends that persons who commit murder in the
commission of a felony are either to be convicted of felony-murder or to be convicted separately
of the felony and of non-felony-murder. Jones v Thomas (1989, US) 105 L Ed 2d 322, 109 S Ct
2522, reh den (US) 106 L Ed 2d 627, 110 S Ct 12.
The double jeopardy clause of the Federal Constitution's Fifth Amendment bars a subsequent
prosecution if, to establish an essential element of an offense charged in that prosecution, the
prosecutors will prove conduct that constitutes an offense for which the defendant has already
been prosecuted; thus, the double jeopardy clause bars a motorist from being tried in state courts
on charges of reckless or negligent homicide and reckless assault arising out era traffic accident,
and the state's highest court properly grants a writ of prohibition against such a prosecution,
where (1) the motorist has previously pleaded guilty to traffic tickets arising out of the same
accident, which tickets charged the motorist with (a) driving while intoxicated, and (b) failing to
keep right of the median, and (2) the prosecutors in the homicide and assault case have filed a bill
of particulars which states that they will show recklessness or negligence by proving that the
motorist, among other misconduct, (a) operated a motor vehicle on a public highway while
intoxicated, and (b) failed to keep right of the median–thereby proposing to prove the entirety of
the conduct for which the motorist has already been convicted; a subsequent prosecution on the
homicide and assault charges would not be barred under the above rule if the bill of particulars
indicated that the prosecutors would not rely on proving the conduct for which the motorist has
already been convicted to establish recklessness or negligence, but would rely solely on his
conduct in driving too fast in a heavy rain; although an exception to the above rule may exist
where the prosecution is unable to proceed on the more serious charge at the outset because the
additional facts necessary to sustain the charge have not occurred or have not yet been
discovered, such an exception is inapplicable to the case at hand, because one assistant district
attorney was informed of the fatality on the night of the accident, although neither the court
hearing the traffic charges nor the assistant district attorney covering that court was informed of
the fatality or of the pending homicide investigation. Grady v Corbin (1990, US) 109 L Ed 2d
Page 357 of 575
548, 110 S Ct 2084.
Prosecution of a defendant for conspiracy, where certain of the overt acts relied on by the
government are based on substantive offenses for which the defendant has been previously
convicted, does not violate the double jeopardy clause of the Federal Constitution's Fifth
Amendment, because a substantive crime and a conspiracy to commit that crime are not the same
offense for double jeopardy purposes; thus, double jeopardy does not bar the prosecution of a
defendant in a federal court in Oklahoma on charges of conspiracy to manufacture, possess, and
distribute methamphetamine, even though (1) the defendant previously has been convicted in a
federal court in Missouri of the offense, committed subsequent to the alleged Oklahoma offenses,
of attempting to manufacture methamphetamine, based on his accepting delivery in Missouri of
chemicals and equipment required for that activity, and (2) two of the nine overt acts charged in
the Oklahoma indictment and naming the defendant are based on conduct that was the subject of
the Missouri prosecution, namely, the defendant's (a) making a downpayment in Oklahoma on
the chemicals and equipment later delivered in Missouri, and (b) receiving those materials in
Missouri. United States v Felix (1992, US) 118 L Ed 2d 25, 112 S Ct 1377, 92 CDOS 2539, 92
Daily journal DAR 4007, 34 Fed Rules Evid Serv 315.
Double jeopardy clause of Fifth Amendment applies to both successive punishments and
successive prosecutions for same criminal offense. United States v Dixon (1993, US) 125 L Ed
2d 556, 113 S Ct 2849, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.
The double jeopardy clause of the Federal Constitution's Fifth Amendment, which provides that
no person may be twice put in jeopardy for the same offense, applies to both successive
punishments and successive prosecutions for the same criminal offense. United States v Dixon
(US) 125 L Ed 2d 556, 93 CDOS 4852, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.
The double jeopardy clause of the Federal Constitution's Fifth Amendment, which provides that
no person may be twice put in jeopardy for the same offense, applies to nonsummary criminal
contempt prosecutions, as criminal contempt–at least the sort enforced through nonsummary
proceedings–is a crime in the ordinary sense. United State v Dixon (US) 125 L Ed 2d 556, 93
CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.
The question whether subsequent criminal prosecutions are barred by the double jeopardy clause
of the Federal Constitution's Fifth Amendment, where defendants were tried for criminal
contempt of court for violating court orders prohibiting them from engaging in conduct that was
the subject of the subsequent prosecutions, should be evaluated (1) under the same-elements test,
but (2) not also under an additional double jeopardy test–which prohibits a subsequent
prosecution if, to establish an essential element of an offense charged in that prosecution, the
government will prove conduct that constitutes an offense for which the accused already has been
prosecuted–announced in a prior Supreme Court decision, since the Supreme Court has decided
to overrule that prior decision. (White, Stevens, and Souter, JJ., dissented from this holding).
United States v Dixon (US) 125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7
Page 358 of 575
FLW Fed S 599.
On certiorari to review a decision of the District of Columbia Court of Appeals in a case which
the sole question presented in the petition for certiorari is whether the double jeopardy clause of
the Federal Constitution's Fifth Amendment bars prosecution of an accused on substantive
criminal charges based upon the same conduct for which the accused previously has been held in
criminal contempt of court for violating a court order, the United States Supreme Court will
consider whether particular counts–prosecution of which has been determined by the Supreme
Court not to be barred under a double jeopardy test announced later in another prior Supreme
Court case, because (1) the government, as one of the litigants in the instant case, argued in its
brief that the counts should be evaluated under the earlier test only, (2) the Supreme Court is not
aware of any principle that prevents the court from accepting a litigant's legal theory unless the
court agrees with the litigant on all the applications of the theory, (3) the standard to be applied in
determining the double jeopardy effect of criminal charges based on the same conduct is included
within the question presented, and (4) there is no abuse of prudential limitations, where the
evident factual differences between the subsequent charges and the court order is central to
proper constitutional analysis. United States v Dixon (US) 125 L Ed 2d 556, 93 CDOS 4853, 93
Daily Journal DAR 8205, 7 FLW Fed S 599.
A defendant who asserts that principles of constitutional collateral estoppel, under the double
jeopardy clause of the Federal Constitution's Fifth Amendment, require the vacation of his death
sentence bears the burden of demonstrating that the issue whose relitigation he seeks to foreclose
was actually decided in the first proceeding. Schiro v Farley (US) 127 L Ed 2d 47, 114 S Ct
783.
The protections of the double jeopardy clause of the Federal Constitution's Fifth Amendment
stem from the underlying premise that a defendant should not be twice tried or punished for the
same offense; the clause operates as a bar against repeated attempts to convict, with consequent
subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the
possibility that he may be found guilty even though innocent; the primary evil to be guarded
against is successive prosecutions. Schiro v Farley (US) 127 L Ed 2d 47, 114 S Ct 783.
When a defendant has been acquitted, the double jeopardy clause of the Federal Constitution's
Fifth Amendment guarantees that the state shall not be permitted to make repeated attempts to
convict the defendant. Schiro v Farley (US) 127 L Ed 2d 47, 114 S Ct 783.
Under the double jeopardy clause of the Federal Constitution's Fifth Amendment, a criminal
defendant convicted and punished for an offense may not have a nonremedial civil penalty
imposed upon the defendant for the same offense in a separate proceeding, but subjecting a tax
statute to the actual-costs test for civil penalties is inappropriate, as (1) tax statutes serve a
purpose different from civil penalties, and (2) the actual-costs test does not work in the case of a
tax statute. (O'Connor, Scalia, and Thomas, JJ., dissented in part from this holding.) Department
of Revenue v Kurth Ranch (US) 128 L Ed 2d 767, 114 S Ct 1937.
Page 359 of 575
Under the double jeopardy clause of the Federal Constitution's Fifth Amendment, a state may
collect a tax on an unlawful activity if the state has not previously punished the taxpayer for the
same offense, or if the state assesses the tax in the same proceeding that results in the taxpayer's
conviction; however, a tax is not immune from double jeopardy scrutiny simply because it is a
tax, a court's task is to determine whether the tax has punitive characteristics that subject the tax
to the constraints of the double jeopardy clause, and taxes imposed upon illegal activities are
fundamentally different not only from taxes with a pure revenue-raising purpose that are imposed
despite their adverse effect on the taxed activity, but also from mixed-motive taxes that are
imposed both to deter a disfavored activity and to raise money. (Rehnquist, Ch. J., and Scalia and
Thomas, JJ., dissented in part from this holding.) Department of Revenue v Kurth Ranch (US)
128 L Ed 2d 767, 114 S Ct 1937.
The double jeopardy clause of the Federal Constitution's Fifth Amendment protects against (1) a
second prosecution for the same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same offense; although the text of
the double jeopardy clause mentions only harms to "life or limb," it is well settled that the Fifth
Amendment covers imprisonment and monetary penalties. (Scalia and Thomas, JJ., dissented in
part from this holding.) Department of Revenue v Kurth Ranch (US) 128 L Ed 2d 767, 114 S Ct
1937.
A jury's arbitrary decision to acquit a defendant charged with a crime is completely
unreviewable. Honda Motor Co. v Oberg (1994, US) 129 L Ed 2d 336, 114 S Ct 2331, 94
CDOS 4761, 94 Daily Journal DAR 8844, CCH Prod Liab Rep P 13895, 8 FLW Fed S 341.
The double jeopardy clause of the Federal Constitution's Fifth Amendment prohibits successive
prosecution or multiple punishment for the same offense; the language of the double jeopardy
clause protects against more than the actual imposition of two punishments for the same offense,
and by the terms of the clause, it protects a criminal defendant from being twice put in jeopardy
for such punishment, that is, the clause prohibits merely punishing twice, or attempting a second
time to punish criminally, for the same offense; thus, under the double jeopardy clause, courts
may not impose more than one punishment for the same offense, and prosecutors ordinarily may
not attempt to secure that punishment in more than one trial. (Scalia and Thomas, JJ., dissented
in part from this holding.) Witte v United States (1995, US) 132 L Ed 2d 351, 115 S Ct 2199,
95 CDOS 4523, 95 Daily Journal DAR 7739.
There was no violation of double jeopardy clause, where court sentenced defendant separately on
continuing criminal enterprise count under 21 USCS § 848, 853, and on two convictions for
aiding and abetting distribution of narcotics in violation of 18 USCS § 2 and 21 USCS § 841,
since aiding and abetting was substantive crime, and logic supports conclusion that Congress
intended separate punishments for underlying substantive predicate and for continuing criminal
enterprise offense. United States v Rivera-Martinez (1991, CA1 Puerto Rico) 931 F2d 148, cert
den (US) 116 L Ed 2d 145 122 S Ct 184, post-conviction proceeding 785 F Supp 23, affd
without op 968 F2d 1210, reported in full slip op.
Page 360 of 575
Defendant's retrial did not violate double jeopardy where court had granted mistrial after
discovery that second individual allegedly involved with narcotics conspiracy was referred to by
same name as defendant and had previously been represented by defense counsel and court could
not devise remedy to resolve problem since mistrial was justified by manifest necessity. United
States v Simonetti (1993, CA1 Me) 998 F2d 39, summary op at (CA1 Me) 21 M.L.W. 3118, 14
R.I.L.W. 358.
Double jeopardy did not bar defendant's retrial after his conviction was reversed because of
prosecutorial misconduct through presentation of perjured testimony where there was no showing
of prosecutor's deliberate misconduct to avoid acquittal. United States v Wallach (1992, CA2
NY) 979 F2d 912.
Evidence of failure to appear in court, introduced to show consciousness of guilt in narcotics
trial, did not bar later prosecution for bail jumping in another state since defendant had not been
previously prosecuted for conduct for which he was charged in bail jumping trial. United States v
Ahmed (1992, CA2 NY) 980 F2d 161.
Defendant's prosecution on conspiracy charges arising from smaller drug conspiracy that was part
of larger drug conspiracy of which defendants were previously acquitted was barred by double
jeopardy clause. United States v Calderone (1992, CA2 NY) 982 F2d 42.
Defendants' acquittal of conspiracy to distribute heroin did not bar, on double jeopardy grounds,
later prosecution for possession of heroin with intent to distribute. United States v Calderone
(1992, CA2 NY) 982 F2d 42.
Defendant's due process rights and rights concerning double jeopardy were not violated by court's
decision to base enhancement of his sentence for possession of stolen property upon facts
contained in dismissed count of indictment. United States v Streich (1993, CA2 Vt) 987 F2d 104.
60-months sentence for carrying firearm in relation to narcotics trafficking offense consecutive to
defendant's sentences for underlying drug crimes which had been enhanced after defendant was
classified as career offender did not violate double jeopardy clause since Congress clearly
intended to impose cumulative punishments. United States v Howard (1993, CA2 Conn) 998 F2d
42.
Double jeopardy clause does not bar government from prosecuting defendant for possession of
firearm by felon despite his prior prosecution for transporting same weapon in interstate
commerce knowing it was stolen since each charge requires proof of fact not required for other.
United States v Liller (1993, CA2 NY) 999 F2d 61.
Double jeopardy did not limit government's recovery in forfeiture action relating to building
which housed narcotics defendant's clinic and pharmacy of costs in investigating and prosecuting
case since clause does not apply to civil forfeitures where forfeited property itself was instrument
Page 361 of 575
of criminal activity. United States v Cullen (1992, CA4 Va) 979 F2d 992.
Sentencing tri-furcated procedure whereby jury first assessed life imprisonment for accused's
aggravated robbery convictions and then assessed death sentence for capital murder conviction
did not violate defendant's right to be free from double jeopardy or his due process rights. Callins
v Collins (1993, CA5 Tex) 998 F2d 269.
Defendant's rights under double jeopardy clause were not violated by his multiple convictions for
use of same firearms in relation to two different drug trafficking offenses since each conviction
was based on defendant's use of such firearms in different drug offense. United States v Johnson
(1993, CA6 Mich) 986 F2d 134.
Double jeopardy principles were not violated by imposition of civil penalties on defendant
officers and directors of corporation who had been convicted of willfully violating mandatory
safety standards under Federal Mine Safety and Health Act since Congress may impose both a
criminal and civil sanction in respect to same act or omission. United States v WRW Corp.
(1993, CA6 Ky) 986 F2d 138, 23 BCD 1672, CCH Bankr L Rptr ¶ 75155, 1993 CCH OSHD ¶
29973, reh, en banc, den (CA6) 1993 US App LEXIS 10899.
Court's declaration of mistrial in bank fraud and mail fraud prosecution after jury informed trial
judge twice during 4 days of deliberation that they were deadlocked was supported by manifest
necessity and permitted retrial without violating double jeopardy. Re Ford (1993, CA6 Tenn) 987
F2d 334.
Double jeopardy clause does not prohibit convictions and sentences under 18 USCS § 924
which provides for enhanced punishment when offender used or carried firearms in connection
with commission of crimes of violence and under 18 USCS § 2113 which already provides
enhanced punishment for armed robbery while carrying dangerous weapon since double jeopardy
clause does no more than prevent sentencing court from prescribing greater punishment than
legislature intended. United States v Harris (1987, CA7 Wis) 832 F2d 88.
Collateral estoppel component of double jeopardy did not bar defendant's retrial for murder after
jury verdict convicting him for both murder and voluntary manslaughter had been reversed on
appeal, where there was no finding that defendant acted in sudden passion as required for
voluntary manslaughter conviction under Illinois law. Kennedy v Washington (1993, CA7 Ill)
986 F2d 1129, reh, en banc, den (CA7) 1993 US App LEXIS 6683.
Reconsideration by National Association of Security Dealers of matter after it had closed its
investigation of dealer did not violate double jeopardy clause since clause does not apply to civil
proceedings. Schellenbach v SEC (1993, CA7) 989 F2d 907, CCH Fed Secur L Rep ¶ 97378.
Resentencing Missouri persistent offender after reversal of his initial sentence based on
insufficient evidence violated double jeopardy clause since Missouri persistent offender
Page 362 of 575
proceeding is sufficiently similar to trial on guilt or innocence. Bohlen v Caspari (1992, CA8
Mo) 979 F2d 109, reh, en banc, den (CA8) 1992 US App LEXIS 32167 and motion gr, cert gr
(US) 125 L Ed 2d 660, 113 S Ct 2958, 93 Daily Journal DAR 7442.
Double jeopardy was not violated by punishing defendant for aiding and abetting armed bank
robbery and aiding and abetting use of firearm in commmission of violent felony since Congress
clearly intended that person liable for use of firearm be liable for both underlying felony and use
of gun charge. United States v Simpson (1992, CA8 Minn) 979 F2d 1282, petition for certiorari
filed (Jan 5, 1993).
Imposition of criminal fines for defendants' conspiracy to evade employment taxes and of civil
penalties for their failure to file returns and pay personal taxes did not violate double jeopardy
clause since penalties were not imposed for same conduct and were not multiple punishments for
same conduct. United States v Mathis (1992, CA8 SD) 980 F2d 496, 71 AFTR 2d 93-377.
Court did not violate defendant's right to due process or prohibition against double jeopardy by
using the same earlier conviction to add three criminal history points under Sentencing
Guidelines for earlier sentence of imprisonment, exceeding one year and one month, two points
for offense committed while on parole and one point for offense committed less than two years
after release for a total of six points. United States v Kirtley (1993, CA8 Iowa) 986 F2d 285.
Defendant's prosecution on 4 counts of robbery and 4 counts of use of weapon during violent
crime for same incidents did not violate double jeopardy. United States v McQuiston (1993, CA8
Ark) 998 F2d 627.
Imposition of separate consecutive sentences for violating probation and for violating supervised
release based on single violation did not violate double jeopardy since defendant was not directly
prosecuted for violation at all but punishment was for conduct underlying original convictions.
United States v Clark (1993, CA9 Cal) 984 F2d 319, 93 CDOS 448, 93 Daily Journal DAR 975.
Convicted narcotics offenders' double jeopardy rights were violated by assessing them $865,000
as "tax" under Montana Dangerous Drug Tax Act since civil sanction was disproportionate to
government's costs and was actually in nature of additional punishment. Re Kurth Ranch (1993,
CA9 Mont) 986 F2d 1308, 93 CDOS 1373.
Defendants were not placed twice in jeopardy when trial court dismissed three jurors after jury
was sworn because of unavailability and in three alternate jurors were selected since jeopardy did
not terminate during process of jury selection merely because sworn jurors were excused during
process of selecting alternates. United States v Trigg (1993, CA9 Cal) 988 F2d 1008, 93 CDOS
2110, 93 Daily Journal DAR 3741, supp op (CA9 Cal) 1993 US App LEXIS 6252.
Deportation of illegal alien convicted of drug crimes did not constitute double jeopardy as being
second punishment for single crime since deportation is civil action and not criminal punishment.
Page 363 of 575
Urbina-Mauricio v INS (1993, CA9) 989 F2d 1085, 93 CDOS 2201, 93 Daily Journal DAR
3853.
Drug conspiracy defendant's rights under double jeopardy clause were not violated when district
court relied twice on use of gun by defendant, first in refusing to give downward adjustment
under Sentencing Guidelines for "minor participant" and second in sentencing defendant
separately for possessing gun. United States v Taren-Palma (1993, CA9 Ariz) 997 F2d 525, 93
CDOS 4256, 93 Daily Journal DAR 7305.
Defendant's double jeopardy rights were not violated by imposition of consecutive sentences for
violation of 2 statutes, namely malicious destruction of building by use of explosives and use of
explosives to commit felony, since violation of each statute required proof of fact which other
did not. United States v Karlic (1993, CA9 Cal) 997 F2d 564, 93 CDOS 4637, 93 Daily Journal
DAR 7906.
Consecutive sentences for violation of 18 USCS § 844(h) and (i) did not violate double
jeopardy, where defendant was charged with felony violation of 18 USCS § 2113(a), entering
bank with intent to commit larceny, which was required for § 844(h) but not § 844(i) offense,
since there is no indication that Congress did not intend this result. United States v Karlic (1993,
CA9 Cal) 997 F2d 564, 93 CDOS 4637, 93 Daily Journal DAR 7906.
Defendant's right under double jeopardy clause was not violated when illegal sentence, in which
court failed to include statutorily mandated special parel term, was corrected in resentencing to
include such term without at same time reducing original prison term, thus resulting in increased
sentence, since defendant lacked reasonable expectation of finality in original illegal sentence.
United States v Rourke (1992, CA10 Okla) 984 F2d 1063.
Consideration for sentencing purposes of conduct alleged in count upon which defendant was
acquitted did not violate double jeopardy clause since there was no separate punishment for
acquitted crime but only enhancement of sentence of convicted crime. United States v Garcia
(1993, CA10 Okla) 987 F2d 1459.
Double jeopardy did not bar retrial of defendant after court declared sua sponte mistrial when
sick juror was unable to continue and defendant declined to continue trial with only 11 jurors and
made no objection to court's sua sponte declaration of mistrial since judge exercised sound
discretion in determining that manifest necessity existed for mistrial. United States v Holley
(1993, CA5 Tex) 986 F2d 100, reh, en banc, den (CA5) 1993 US App LEXIS 9692.
Double jeopardy clause does not provide defendant with right to know at any specific moment in
time what exact limit of his punishment will turn out to be. United States v Jones (1983, CA11
Ga) 722 F2d 632.
Prohibition of double jeopardy is not against all multiple punishments, applying only to multiple
Page 364 of 575
punishments for same offense. State v Alexander (1980, Minn) 290 NW2d 745.
Enhancement of criminal defendant's sentence from 6 months to 12 months by the court, after
defendant had already begun to serve her sentence, violated defendant's rights under the Double
Jeopardy Clause of the United States Constitution, 'where there was no statutory authority
granting the trial court the power to increase the sentence, because the Double Jeopardy Clause
prevents a trial court from modifying a completed sentence by increasing it after execution of that
sentence has commenced. State v Ballard (1991, Clermont Co) 77 Ohio App 3d 595, 602 NE2d
1234.
The double jeopardy provision of the Texas and the US Constitutions are not offended when
evidence used in a successful or unsuccessful attempt to revoke "regular" probation or deferred
adjudication probation is later used to prosecute the defendant in a different case. Chambers v
State (1985, Tex Crim) 700 SW2d 597.
Forfeiture of a disabled person's specially equipped vehicle in connection with possession of
narcotics did not implicate the multiple-punishment prong of the double jeopardy clause as the
forfeiture proceeding was an in rem proceeding which did not constitute a second punishment
prohibited by the double jeopardy clause. People v 1988 Mercury Cougar (1992) 154 Ill Dec 323,
607 NE2d 217.
Footnotes
Footnote 56. Brown v Ohio, 432 US 161, 53 L Ed 2d 187, 97 S Ct 2221; Benton v Maryland,
395 US 784, 23 L Ed 2d 707, 89 S Ct 2056, on remand 8 Md App 388, 260 A2d 86, ovrlg Palko
v Connecticut, 302 US 319, 82 L Ed 288, 58 S Ct 149.
Footnote 57. Illinois v Vitale, 447 US 410, 65 L Ed 2d 228, 100 S Ct 2260; Greene v Massey,
437 US 19, 57 L Ed 2d 15, 98 S Ct 2151, on remand (CA5) 595 F2d 221, ctfd ques ans (Fla)
384 So 2d 24.
Annotation: 25 L Ed 2d 968, § 2.
Footnote 58. § 243, supra.
Footnote 59. Whalen v United States, 445 US 684, 63 L Ed 2d 715, 100 S Ct 1432; Weeks v
State (Me) 267 A2d 641; Anderson v Commissioner of Highways, 267 Minn 308, 126 NW2d
778, 9 ALR3d 746 (suspension or revocation of driver's license is not a punishment); Rupert v
State, 9 Okla Crim 226, 131 P 713.
Page 365 of 575
Compare Louisiana ex rel. Francis v Resweber, 329 US 459, 91 L Ed 422, 67 S Ct 374, reh den
330 US 853, 91 L Ed 1295, 67 S Ct 673, holding that no double jeopardy is involved in
executing a death sentence after an accidental failure in equipment had rendered a previous
attempt at execution ineffectual.
Annotation: 25 L Ed 2d 968, § 4.
As to statutory prohibition of multiple punishment for offenses arising out of same transaction,
see § 551, infra.
As to concurrent and consecutive or cumulative sentences for more than one offense, see § 552,
infra.
As to increased punishment on retrial of defendant after successful appeal from first conviction,
see § 581, infra.
As to jeopardy effect of resentence after illegal sentence, see §§ 583, 584, infra.
Footnote 60. Stroud v United States, 251 US 15, 64 L Ed 103, 40 S Ct 50, reh den 251 US
380, 64 L Ed 317, 40 S Ct 176; Davidson v People, 64 Colo 281, 170 P 962; State v Duvall,
135 La 710, 65 So 904, error dismd 239 US 626, 60 L Ed 474, 36 S Ct 162; State v Labato, 7
NJ 137, 80 A2d 617; State v Watson, 209 NC 229, 183 SE 286; State v Ridgley, 70 Wash 2d
555, 424 P2d 632; State v Brunn, 22 Wash 2d 120, 154 P2d 826, (superseded by statute as stated
in State v Jubie 15 Wash App 881, 552 P2d 196).
Footnote 61. Abney v United States, 431 US 651, 52 L Ed 2d 651, 97 S Ct 2034; Serfass v
United States, 420 US 377, 43 L Ed 2d 265, 95 S Ct 1055; United States v Ewell, 383 US 116,
15 L Ed 2d 627, 86 S Ct 773 (ovrld on other grounds Chapman v California 386 US 18, 17 L
Ed 2d 705, 87 S Ct 824, 24 ALR3d 1065, reh den 386 US 987, 18 L Ed 2d 241, 87 S Ct 1283)
as stated in Sumpter v De Groote (CA7 Ind) 552 F2d 1206; Kepner v United States, 195 US
100, 49 L Ed 114, 24 S Ct 797; Commonwealth v Murphy, 174 Mass 369, 54 NE 860, affd 177
US 155, 44 L Ed 711, 20 S Ct 639; State v Labato, 7 NJ 137, 80 A2d 617; State v Watson, 209
NC 229, 183 SE 286; Rupert v State, 9 Okla Crim 226, 131 P 713.
Annotation: 50 L Ed 2d 830, § 4[a].
25 L Ed 2d 968, §§ 3[a], 3[c].
Footnote 62. Price v Georgia, 398 US 323, 26 L Ed 2d 300, 90 S Ct 1757, conformed to, 122
Ga App 293, 176 SE2d 671.
Footnote 63. Burks v United States, 437 US 1, 57 L Ed 2d 1, 98 S Ct 2141, on remand (CA6)
579 F2d 1013; Green v United States, 355 US 184, 2 L Ed 2d 199, 78 S Ct 221, 77 Ohio L Abs
Page 366 of 575
202, 61 ALR2d 1119.
Footnote 64. United States v Martin Linen Supply Co., 430 US 564, 51 L Ed 2d 642, 97 S Ct
1349, 1977-1 CCH Trade Cas ¶ 61354.
Annotation: 50 L Ed 2d 830, § 4(b).
Footnote 65. Swisher v Brady, 438 US 204, 57 L Ed 2d 705, 98 S Ct 2699; Burks v United
States, 437 US 1, 57 L Ed 2d 1, 98 S Ct 2141, on remand (CA6) 579 F2d 1013.
Footnote 66. United States v Wilson, 420 US 332, 43 L Ed 2d 232, 95 S Ct 1013; North
Carolina v Pearce, 395 US 711, 23 L Ed 2d 656, 89 S Ct 2072.
The constitutional prohibition of double jeopardy consists of three separate guarantees, protecting
an accused against a second criminal prosecution for the same offense after acquittal, against a
second prosecution for the same offense after conviction, and against multiple punishments for
the same offense. Illinois v Vitale, 447 US 410, 65 L Ed 2d 228, 100 S Ct 2260.
Annotation: 50 L Ed 2d 830, § 4(b).
Footnote 67. Crist v Bretz, 437 US 28, 57 L Ed 2d 24, 98 S Ct 2156, 10 Ohio Ops 3d 466.
Footnote 68. See § 264, infra.
Footnote 69. Commonwealth v Bolden, 472 Pa 602, 373 A2d 90, 98 ALR3d 958.
Practice Aids: –Former jeopardy. 1 Wharton's Criminal Law (14th ed) § 54.
§ 245 --General rules of construction [21 Am Jur 2d CRIMINAL LAW]
Although the constitutional language "jeopardy of life or limb" suggests proceedings in which
only the most serious penalties can be imposed, it has been held that the double jeopardy clause
means something far broader than its literal language. 70 Thus, fines have been treated in the
same way as prison sentences for purposes of double jeopardy. 71 Since the prohibition against
placing a defendant in jeopardy more than once for the same offense is a vital safeguard in
American society, it is not given a narrow, grudging application 72 nor is it considered a
"fragile" guarantee. 73
It is said that it must be construed with reference to the common law
from which it was taken; 74 and that it differs significantly from procedural guarantees in that
its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural
rules governing the conduct of a trial. 75 Hence, the United States Supreme Court has
eschewed rigid, mechanical rules in interpreting the double jeopardy clause. 76 Nevertheless,
since the constitutional provision of double jeopardy is rooted in history and is not an evolving
Page 367 of 575
concept like due process, a long course of adjudication in the United States Supreme Court
carries impressive authority in applying the provision. 77
In construing the double jeopardy clause, the United States Supreme Court has put limitations on
its scope. Thus, the constitutional prohibition against double jeopardy does not mean that every
time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails
to end in a final judgment. 78 Accordingly, there is no bar to retrying an accused after his
earlier trial has ended in a properly declared mistrial or discharge of the jury 79 or after he has
obtained an appellate reversal of his prior conviction based on error in the trial court. 80 The
double jeopardy clause does not guarantee a defendant that the government will be prepared, in
all circumstances, to vindicate society's interest in law enforcement through a single proceeding
for a given offense. 81
A sentence of death imposed by a trial court after a jury recommendation of life imprisonment
does not constitute double jeopardy. 82
Enhancement of a defendant's punishment pursuant to statute is not offensive to the double
jeopardy clause. 83
§ 245 – General rules of construction [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Double Jeopardy: An Illusive Expansion of a Constitutional Protection. 14 Ga LR
761, Summer, 1980.
Hicks, A Proposal For Legislative Effectuation of Double Jeopardy Protection. 41 Hast LJ 669,
March, 1990.
Case authorities:
When a defendant obtains a reversal of a prior, unsatisfied conviction, he may, consistently with
the double jeopardy clause, be retried in the normal course of events. United States v Loud Hawk
(1986, US) 88 L Ed 2d 640, 106 S Ct 648, on remand United States v Loud Hawk (1986, CA9
Or) 784 F2d 1407.
While recourse to statutory language, structure, and intent is appropriate in identifying the
inherent nature of a proceeding as civil or criminal, or in determining the constitutional
safeguards that must accompany those proceedings as a general matter, this approach is not well
suited to the context of the humane interests safeguarded by the proscription of multiple
punishments, under the double jeopardy clause of the Federal Constitution's Fifth Amendment;
the multiple-punishments proscription is intrinsically personal, and its violation can be identified
only by assessing the character of the actual sanctions imposed on the individual by the
machinery of the state; this does not mean that whether a sanction constitutes punishment for
Page 368 of 575
purposes of the double jeopardy clause must be determined from the defendant's perspective, but
rather that, in determining whether a particular civil sanction constitutes criminal punishment, it
is the purposes which the sanction in question may fairly be said to serve, and not the underlying
civil or criminal nature of the proceeding giving rise to the sanction, that must be evaluated; a
civil as well as a criminal sanction constitutes punishment for double jeopardy purposes when the
sanction as applied in the individual case serves the goals of punishment. United States v Halper
(1989, US) 104 L Ed 2d 487, 109 S Ct 1892.
Double jeopardy clause did not preclude jury's consideration of defendant's guilt under 18 USCS
§ 645 once district court determined that government had failed to prove fraud under 18 USCS §
153, since § 645 does not require proof of fraud; government may proceed under either § 153 or
§ 165, since there is no clear intention that § 165 should supplant § 153, and rule of lenity only
applies when doubt exists about scope of statute after resorting to all other methods of statutory
construction. United States v Sharpe (1993, CA6 Mich) 996 F2d 125, 24 BCD 588, petition for
certiorari filed (Sep 7, 1993).
In a prosecution for two murders, the trial court properly overrode the jury's recommendation of
life imprisonment, where the record supported the trial court's findings regarding the aggravating
and mitigating circumstances, where defense counsel's reading to the jury of an "extremely vivid
and lurid" description of an electrocution might well have been calculated to influence the jury's
recommendation of a life sentence through emotional appeal, and where the trial court had access
to the deposition of defendant's former roommate, which contained relevant evidence not given
to the jury. Furthermore, imposing a death sentence over a jury's recommendation of life
imprisonment neither puts defendant in double jeopardy, violates defendant's due process rights,
nor constitutes cruel and unusual punishment. Porter v State (1983, Fla) 429 So 2d 293.
In a criminal prosecution, the beginning point in the analysis of a double jeopardy claim appears
to be the statute or statutes under which the defendant was convicted and the determination of
whether the legislature intended to impose multiple or cumulative punishments for the same act
or course of conduct. Cooley v Commonwealth (1991, Ky) 821 SW2d 90.
A convicted criminal who had challenged his resentencing as a second felony offender, claiming,
inter alia, double jeopardy principles barred reconsideration of his second felony offender status,
inasmuch as there was a different predicate felony after a remand by the appellate division for
resentencing, was properly resentenced and the resentencing was affirmed since principles of
double jeopardy were not applicable where the defendant had been resentenced nunc pro tunc to
the same sentence originally imposed and accordingly the resentencing in no way increased the
punishment originally imposed, and where there was no issue of multiple proceedings in that the
appeal by the defendant had resulted in reversal and remand. People v Maldonado (1981, 2d
Dept) 82 App Div 2d 576, 442 NYS2d 567.
The trial court did not violate defendant's right to be free from double jeopardy where defendant
was convicted separately of burglary and first-degree murder based on premeditation and
Page 369 of 575
deliberation, but not of felony murder, and the court submitted to the jury as an aggravating
circumstance that the offense was committed while defendant was engaged in a burglary. GS §
15A-2000(e)(5). State v Upchurch (1992) 332 NC 439, 421 SE2d 577.
Where the trial court in a robbery prosecution had sentenced defendant and had committed him
to the custody of the sheriff, the court violated defendant's constitutional guarantee against being
twice placed into jeopardy by recalling defendant and resentencing him to an increased period of
incarceration on the basis of the court's earlier misapprehension as to the proper classification of
the crime of which defendant had been convicted. Pooley v State (1981, Fla App D1) 403 So 2d
593.
Footnotes
Footnote 70. Breed v Jones, 421 US 519, 44 L Ed 2d 346, 95 S Ct 1779, on remand (CA9 Cal)
519 F2d 1314.
Footnote 71. Jeffers v United States, 432 US 137, 53 L Ed 2d 168, 97 S Ct 2207, reh den 434
US 880, 54 L Ed 2d 164, 98 S Ct 241.
As to applicability of double jeopardy prohibition to civil proceedings imposing statutory
penalties, see § 251, infra.
Footnote 72. Green v United States, 355 US 184, 2 L Ed 2d 199, 78 S Ct 221, 77 Ohio L Abs
202, 61 ALR2d 1119.
Footnote 73. Brown v Ohio, 432 US 161, 53 L Ed 2d 187, 97 S Ct 2221.
Footnote 74. Kepner v United States, 195 US 100, 49 L Ed 2d 114, 24 S Ct 797.
Footnote 75. Blackledge v Perry, 417 US 21, 40 L Ed 2d 628, 94 S Ct 2098; Robinson v Neil,
409 US 505, 35 L Ed 2d 29, 93 S Ct 876, reh den 410 US 959, 35 L Ed 2d 694, 93 S Ct 1423
and on remand (ED Tenn) 366 F Supp 924.
Footnote 76. Serfass v United States, 420 US 377, 43 L Ed 2d 265, 95 S Ct 1055; Illinois v
Somerville, 410 US 458, 35 L Ed 2d 425, 93 S Ct 1066.
Footnote 77. Gore v United States, 357 US 386, 2 L Ed 2d 1405, 78 S Ct 1280, reh den 358
US 858, 3 L Ed 2d 92, 79 S Ct 13.
Footnote 78. Gori v United States, 367 US 364, 6 L Ed 2d 901, 81 S Ct 1523, reh den 368 US
870, 7 L Ed 2d 70, 82 S Ct 25; Wade v Hunter, 336 US 684, 93 L Ed 974, 69 S Ct 834, reh
den 337 US 921, 93 L Ed 1730, 69 S Ct 1152.
Page 370 of 575
Footnote 79. § 264, infra.
Footnote 80. § 309, infra.
Footnote 81. United States v Jorn, 400 US 470, 27 L Ed 2d 543, 91 S Ct 547 (plurality
opinion).
Annotation: 50 L Ed 2d 830, § 5.
Footnote 82. Douglas v State (Fla) 373 So 2d 895.
Footnote 83. A prior conviction used merely to enhance a defendant's punishment pursuant to
statute is not an "offense" within the meaning of the double jeopardy clause; thus, in a
prosecution for burglary of a vehicle in which punishment was improperly enhanced since the
state failed to introduce evidence showing when the prior offense was committed, a retrial of the
issue of enhancement was not barred by the doctrine of former jeopardy; the prior conviction was
not a question of fact determining the guilt or innocence of the defendant, but a historical fact,
proof of which could be readjudicated. Porier v State (Tex Crim) 591 SW2d 482.
State law providing that concealment of identity during perpetration of crime constitutes
aggravation of such crime and providing for enhanced punishment as a result of such
concealment is not offensive to the double jeopardy clause of the Fifth Amendment. Haldane v
State, 85 Wis 2d 182, 270 NW2d 75.
§ 246 – Applicability to corporations [21 Am Jur 2d CRIMINAL LAW]
Although the United States Supreme Court has repeatedly stated that the double jeopardy clause
protects an individual, 84 it has applied the clause for the benefit of corporations, without
discussing the question whether a corporation is a "person" within the meaning of constitutional
provision. 85 A United States court of appeal has explicitly held, however, that corporations, as
well as individuals, are entitled to protections against double jeopardy. 86
Footnotes
Footnote 84. Abney v United States, 431 US 651, 52 L Ed 2d 651, 97 S Ct 1034; Green v
United States, 355 US 184, 2 L Ed 2d 199, 78 S Ct 221, 77 Ohio L Abs 202, 61 ALR2d 1119.
Footnote 85. United States v Martin Linen Supply Co., 430 US 564, 51 L Ed 2d 642, 97 S Ct
1349, 1977-1 CCH Trade Cas ¶ 61354; Fong Foo v United States, 369 US 141, 7 L Ed 2d 629,
82 S Ct 671.
Page 371 of 575
Annotation: 50 L Ed 2d 830, § 9.
Footnote 86. United States v Hospital Monteflores, Inc. (CA1 Puerto Rico) 575 F2d 332.
Practice Aids: The Applicability of the Double Jeopardy Right to Corporations. 1977 Duke L J
726.
Schrieber, Double Jeopardy and Corporations: "Lurking in the Record" and "Ripe for Decision."
28 Stan L Rev 805.
§ 247 Prior conviction on plea of guilty [21 Am Jur 2d CRIMINAL LAW]
A former conviction on a plea of guilty is generally sufficient to sustain a defense of double
jeopardy in a subsequent prosecution for the same offense. 87 A guilty plea that is not followed
by a judgment of conviction, however, will not support a subsequent plea of former jeopardy. 88
§ 247 ----Prior conviction on plea of guilty [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Case authorities:
See Garrett v United States, 85 L Ed 2d 764, § 267.
Double jeopardy principles did not bar defendant's retrial on original first-degree murder
indictment after state court had vacated his plea-bargained conviction for third-degree murder.
Klobuchir v Pennsylvania (1981, CA3 Pa) 639 F2d 966, cert den (US) 70 L Ed 2d 474, 102 S
Ct 566.
Further prosecution of defendant was not prohibited by double jeopardy rule where defendant
waived that defense by violating earlier plea agreement. Adamson v Superior Court of Arizona
(1980) 125 Ariz 579, 611 P2d 932.
Footnotes
Footnote 87. Kring v Missouri, 107 US 221, 27 L Ed 506, 2 S Ct 443; United States v Jerry
(CA3 Pa) 487 F2d 600; Kellett v Superior Court of Sacramento County, 63 Cal 2d 822, 48 Cal
Rptr 366, 409 P2d 206; Markiewicz v Black, 138 Colo 128, 330 P2d 539, 75 ALR2d 678 (ovrld
on other grounds County Court of County of El Paso v Ruth 194 Colo 352, 575 P2d 1, later app
(Colo) 595 P2d 237); Ray v State (Fla) 231 So 2d 813; State v Hickman (Fla App D2) 189 So 2d
254, cert den (Fla) 194 So 2d 618; People v Stickler, 31 Ill App 3d 977, 334 NE2d 475; State v
Harriman (Me) 259 A2d 752, supp op (Me) 265 A2d 706; Commonwealth v Therrien, 359 Mass
500, 269 NE2d 687; State v Sailor (Minn) 257 NW2d 349; State v Smith, 101 Or 127, 199 P
Page 372 of 575
194; Benard v State (Tex Crim) 481 SW2d 427; Salters v State, 52 Wis 2d 708, 191 SW2d 19;
Hawkins v State, 30 Wis 2d 264, 140 NW2d 226.
Annotation: 75 ALR2d 683, § 3.
Footnote 88. United States v Scarlata (CA3 Pa) 214 F2d 807.
§ 248 Prior conviction or acquittal in court of concurrent jurisdiction [21 Am Jur 2d
CRIMINAL LAW]
Generally, where two courts within a given state have concurrent jurisdiction of a criminal
offense against the state, the prosecution must be in the name of the state. 89 Since courts of
concurrent jurisdiction in the same state are "creations emanating from the same sovereignty,"
the concept of "dual sovereignty" does not apply and successive prosecutions for the same
offense in different courts of the same state constitute double jeopardy. 90 Thus, a continuous
act violative of a state law committed while passing through more than one county or division of
the state constitutes a single offense against the state, and a conviction in any one county or
division of the state is a bar to the prosecution in any other county or division for the same act. 91
Nevertheless, where the respective prosecutions are not based on the same act and are not
commenced for violation of the same rule or regulation, an accused may be subjected to
successive prosecutions in two different cities within one state. 92 Furthermore, where grand
jury indictments for the same offense were handed down in two separate counties, but one
indictment was dismissed because of insufficiency of evidence remaining in the grand jury
transcript after suppressed evidence had been removed, a prosecution under the indictment in the
other county did not place the accused twice in jeopardy. 93
The double jeopardy clause of the Fifth Amendment is not violated by a state's "two-tier" court
system of criminal justice administration whereby a defendant convicted in a court of the first tier
may take a timely appeal to a court of the second tier in which he is entitled to request a trial de
novo by jury. Nothing in the double jeopardy clause prohibits a state from affording a defendant
two opportunities to avoid conviction and secure an acquittal. 94
§ 248 – Prior conviction or acquittal in court of concurrent jurisdiction [SUPPLEMENT]
[21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Double Jeopardy Problems Presented by Two-Tier Systems. 69 Geo LJ 1525,
August, 1981.
Case authorities:
The Double Jeopardy Clauses of the United States and Ohio Constitutions forbid the prosecution
of a defendant for drunk driving by a political subdivision when that defendant has already been
Page 373 of 575
placed in jeopardy by another political subdivision of the same state for the same offense,
stemming from the same underlying course of conduct. State v Anderson (1989, Medina Co) 57
Ohio App 3d 108, 566 NE2d 690.
Double Jeopardy principles do not bar retrial of defendant who was convicted at bench trial
under two-tier trial system which provides trial de novo as sole means of obtaining relief from
unsatisfactory result in bench trial. Lydon v Commonwealth (1980, Mass) 1980 Adv Sheets
1915, 409 NE2d 745.
Footnotes
Footnote 89. State v Roberts, 152 La 283, 93 So 95; State v Shimman, 122 Ohio St 522, 8 Ohio
L Abs 386, 172 NE 367.
Footnote 90. § 281, infra.
Footnote 91. State v Licari, 132 Conn 220, 43 A2d 450; State v Roberts, 152 La 283, 93 So 95;
State v Shimman, 122 Ohio St 522, 8 Ohio L Abs 386, 172 NE 367.
But see Campbell v People, 109 Ill 565, holding that an acquittal in one county of a state of a
charge of receiving stolen property was not a bar to a subsequent prosecution of the same
defendant in another county on a charge of receiving the same stolen property.
As to successive prosecutions in municipal and state courts for the same offense, see § 284,
infra.
Footnote 92. Smith v Irondale, 293 Ala 357, 303 So 2d 130, on remand 53 Ala App 742, 303 So
2d 132, cert den 420 US 935, 43 L Ed 2d 410, 95 S Ct 1143 (accused who pleaded guilty to
charge of speeding in one city was not placed in jeopardy by being tried and found guilty on
charge of reckless driving in adjoining city).
A person who operates an illegal lottery in several counties may be prosecuted therefor in each
county. Lunsford v State, 60 Ga App 537, 4 SE2d 112.
A person who speeds through several counties may be prosecuted therefor in each county. Hall v
State, 73 Ga App 616, 37 SE2d 545.
Footnote 93. McGrath v Gold, 36 NY2d 406, 369 NYS2d 62, 330 NE2d 35.
Footnote 94. Ludwig v Massachusetts, 427 US 618, 49 L Ed 2d 732, 96 S Ct 2781.
Page 374 of 575
2. Nature and Validity of Prior Proceeding [249-257]
§ 249 Generally; criminal nature of proceeding; bench and jury trials [21 Am Jur 2d
CRIMINAL LAW]
The double jeopardy clause has been held to apply only to criminal proceedings. Thus, where the
objective of a subsequent action is punishment, a former acquittal or conviction is a bar. 95
The term "jeopardy" denotes the risk that is traditionally associated with a criminal prosecution,
an action intended to authorize criminal punishment to vindicate public justice. This risk is not
present in proceedings that are not "essentially criminal." 96 Since jeopardy, in a criminal
prosecution, signifies the danger of punishment that the defendant incurs when brought to trial
before a court of competent jurisdiction, 97 the constitutional provision is not intended to apply
to a civil proceeding, even though such proceeding is in part a punishment for an offense. 98 In
this sense a criminal prosecution does not involve double jeopardy where the same act charged
was previously the basis on which an administrative agency had revoked a business license. 99
Similarly, the doctrines of res judicata and double jeopardy do not apply to judicial disciplinary
proceedings; and a public reprimand does not amount to an acquittal for purposes of any
subsequent inquiry into a judge's conduct. 1 Also, it has been held that the suspension of a
government contractor is not in purpose or in fact punishment within the scope of the double
jeopardy clause barring subsequent trial of the contractor on a charge of defrauding the
government. 2 And, prison disciplinary measures or administrative sanctions imposed upon a
prisoner for violation of a prison rule of conduct do not raise the bar of double jeopardy to his
prosecution for a statutory offense arising from the same act that was the basis of the prison
discipline. 3 The guaranty against double jeopardy does not prohibit a state from twice
subjecting a defendant to a revocation of probation proceeding based on the same alleged
probationary violation and fact situation, since the proceeding is only administrative, not
criminal, in nature and its result is neither a conviction nor acquittal. 4 Likewise, a criminal
prosecution for prison escape is not barred by a plea of former jeopardy based on disciplinary
punishment previously imposed by prison authorities for the same escape. 5 On the other hand,
violations of municipal ordinances are criminal offenses placing a defendant in "jeopardy" for
constitutional purposes because conviction subjects the person to a stigma and punishment by
incarceration or fine. 6 Also, contempt proceedings are generally criminal in nature whether
they grow out of criminal or civil actions. 7 And the double jeopardy clause of the Fifth
Amendment has been held to be applicable in adjudicative juvenile prosecutions designed to
determine whether a juvenile has committed a criminal act. 8
The double jeopardy clause of the Fifth Amendment does not distinguish between bench and jury
trials, but applies to cases tried before a judge as well as those before a jury. 9
In
so holding, the United States Supreme Court has pointed out that a general finding of guilty by a
judge may be analogized to a verdict of "guilty" returned by a jury. 10 Thus, when a criminal
prosecution is tried to a judge alone, the double jeopardy clause accords full constitutional effect
to his determination in favor of a defendant. 11
Page 375 of 575
§ 249 – Generally; criminal nature of proceeding; bench and jury trials [SUPPLEMENT]
[21 Am Jur 2d CRIMINAL LAW]
Practice Aids: Constitutional law–Second Circuit extends double jeopardy clause to prohibit
prosecution of criminal conduct used previously to enhance sentence, 67 Temp LR 4:1387-1419
(1995).
Note: Civil Sanctions and the Double Jeopardy Clause: Applying the Multiple Punishment
Doctrine to Parallel Proceedings After United States v. Halper. 76 Va LR 1251, Summer, 1990.
Popular sovereignty, double jeopardy, and the dual sovereignty doctrine, 102 Yale LJ 281 (1992).
Case authorities:
The double jeopardy clause of the Fifth Amendment does not provide a criminal defendant with
the right to know at any specific moment in time what the exact limit of his punishment will turn
out to be, and, accordingly, there is no double jeopardy protection against revocation of probation
and the imposition of imprisonment. United States v Di Francesco (1980, US) 66 L Ed 2d 328,
101 S Ct 426.
Although a civil sanction may, under some circumstances, be so disproportionate to the damages
caused by the defendant that it constitutes "punishment" for purposes of analysis under the
double jeopardy clause of the Federal Constitution's Fifth Amendment, this does not prevent the
government from seeking and obtaining both the full civil penalty and the full range of statutorily
authorized criminal penalties in the same proceeding; that the government seeks the civil penalty
in a second proceeding is critical in triggering the protections of the double jeopardy clause; in a
single proceeding, the multiple punishment issue is limited to insuring that the total punishment
does not exceed that authorized by the legislature, since a legislature may authorize cumulative
punishment under two statutes for a single course of conduct. Although a civil sanction may,
under some circumstances, be so disproportionate to the damages caused by the defendant that it
constitutes "punishment" for purposes of analysis under the double jeopardy clause of the Federal
Constitution's Fifth Amendment, this does not preclude a private party from filing a civil suit
seeking damages for conduct that previously was the subject of criminal prosecution and
punishment; the protections of the double jeopardy clause are not triggered by litigation between
private parties. United States v Halper (1989, US) 104 L Ed 2d 487, 109 S Ct 1892.
Double jeopardy does not bar defendant's guilty plea and conviction on information charging
defendant with same offenses that had been presented at earlier sentencing hearing on unrelated
charge and which appeared to result in enhanced sentence. United States v Piteo (1984, CA2 NY)
726 F2d 53.
Double jeopardy clause did not bar indictment of defendant for conspiracy to violate federal
narcotics laws and for engaging in CCE in violation of 21 USCS § 848, where indictment
Page 376 of 575
charged defendant with conduct engaged in after earlier guilty plea to drug and conspiracy to
violate RICO charges, and there was no evidence that government had sufficient evidence at time
of earlier plea to bring prosecution on CCE charge. United States v Romero (1992, CA2 NY) 967
F2d 63.
Pretrial determination of double jeopardy issue on motion to dismiss superseding indictment
would be premature, where peculiar circumstances of claim required proportionality comparison
between value of forfeited property and amount of damage caused by defendants' alleged
criminal conduct, since, prior to adjudication of merits of defendants' claims as to seized
properties and their guilt or innocence as to criminal charges, there was no basis upon which to
determine whether civil forfeiture constituted "punishment" for purposes of double-jeopardy
analysis. United States v Amiel (1993, CA2 NY) 995 F2d 367.
Discovery after narcotic defendant's trial that government witness perjured herself did not bar his
retrial on double jeopardy grounds where there was no evidence of any prosecutorial misconduct
aimed at avoiding acquittal and evidence against defendant was strong enough for conviction
even if perjury had been fully disclosed. United States v Pavloyianis (1993, CA2 NY) 996 F2d
1467.
Double jeopardy was not violated by requirement of New Jersey statute that repetitive and
compulsive sex offenders who completed sentence for designated crimes register with local law
enforcement (Megan's law) since requirement did not constitute "punishment" but had solely
remedial purpose and was not unduly harsh. Artway v Attorney Gen. (1996, CA3 NJ) 81 F3d
1235, reh, en banc, den (1996, CA3) 1996 US App LEXIS 11363.
Prior state administrative action for unauthorized use of food stamps does not preclude
subsequent federal criminal prosecution of same defendants. United States v Ramsey (1985, CA4
NC) 774 F2d 95.
A doctor whose medical license was suspended because of his conviction for violating federal
drug laws, after he had already served a prison term for that offense, did not twice receive
criminal punishment for the same offense in violation of the Fifth Amendment. Emory v Texas
State Bd. of Medical Examiners (1984, CA5 Tex) 748 F2d 1023.
Since double jeopardy protections do not extend to appellate bond revocation proceedings, which
are not essentially criminal, and since the collateral estoppel doctrine is not cognizable as a
constitutional claim apart from those claims that are recognized under the double jeopardy
clause, double jeopardy did not bar the state from prosecuting defendant for the offense of
involuntary manslaughter allegedly committed while free on an appellate bond granted pending
defendant appeal of a previous conviction, though the state had sought revocation of the appellate
bond, alleging that by committing the manslaughter offense defendant had violated his bond
condition, and the Court of Criminal Appeals had affirmed the intermediate appellate court's
determination that the state had failed to prove by a preponderance of the evidence that defendant
Page 377 of 575
had committed the manslaughter offense. Showery v Samaniego (1987, CA5 Tex) 814 F2d 200.
Execution of promissory notes by persons arrested for possession of marijuana, in absence of
judgment or payment, did not constitute "punishment" under the Double Jeopardy Clause, either
in the ordinary nomenclature associated with the word or pursuant to analysis of caselaw, where
the execution of notes was to obtain evidence of indebtedness and other documents advised
signers of available procedural mechanism for relief from the notes, because punishment consists
in taking life, liberty, or property and execution of promissory notes involves none of these.
United States v Sanchez-Escareno (1991, CA5 Tex) 950 F2d 193, cert den (US) 121 L Ed 2d 78,
113 S Ct 123.
Indictment charging bank officer with 2 counts of unlawful participation in benefits from bank
transactions based on borrower's receipt of 2 loans which allegedly were individual steps in
overarching scheme to procure improper benefits in violation of statute was not multiplicitous so
as to charge single offense in multiple counts and, thereby, implicate double jeopardy clause,
since officer violated statute each time he benefited from extension of credit to borrower. United
States v Brechtel (1993, CA5 La) 997 F2d 1108, reh den (CA5 Miss) 1993 US App LEXIS
25892.
Double jeopardy clause is not violated by transfer proceeding from juvenile court to criminal
court, where no adjudication of delinquency is made, but only evidence taken is offered to
determine presence of probable cause to believe act had been committed which if committed by
adult would be felony. Johnson v Perini (1981, CA6 Ohio) 644 F2d 573.
Federal Government was collaterally estopped from prosecuting defendant for his corporation's
participation in fraudulent tax shelters where defendant had been exonerated in Security
Exchange Commission's prior civil suit based on same conduct, with judgment in prior suit
reaching merit of case. United States v Rogers (1992, CA10 Colo) 960 F2d 1501, petition for
certiorari filed (Sep 16, 1992).
State's seeking death penalty on retrial when only life sentence had been previously imposed did
not place defendant in double jeopardy where state had not previously presented evidence in
support of death penalty and trial court had not made any findings as to appropriateness of death
penalty, since defendant had not been "acquitted" of death penalty at his earlier proceeding.
Osborn v Shillinger (1993, CA10 Wyo) 997 F2d 1324.
Six month sentence is not excessive for violation of 21 USCS § 844 by inmate while in prison;
administrative punishment imposed by prison officials does not render subsequent judicial
proceeding, criminal in nature, violative of prohibition against double jeopardy. Orosco v United
States (1981, WD Okla) 526 F Supp 756.
A "slow plea," which is the submission of a criminal case on the evidentiary record established at
the preliminary hearing, is tantamount to a guilty plea in the context of a case in which the
Page 378 of 575
uncontested evidence is clearly sufficient to support a conviction as a matter of law. In such a
case, no submission will be effective absent the defendant's personal waiver of the constitutional
rights to plead not guilty, to have a jury trial, to confront and cross-examine witnesses, and to
present evidence on his or her own behalf. Nevertheless, a slow plea is not equivalent to a guilty
plea in all respects. Even the submission of a case in which conviction is the only logically
foreseeable outcome is considered a trial, and requires the trial court to weigh the evidence, make
evidentiary findings, and apply the relevant law to determine whether the case has been proved.
Thus, upon reversal, the verdict rendered on a slow plea is subject to double jeopardy
protections. Moreover, the defendant who makes a slow plea has the right to challenge the
conviction on the basis of lack of sufficient evidence. In re Tommy E. (1992, 4th Dist) 7 Cal App
4th 1234, 92 CDOS 6162, 92 Daily Journal DAR 9468.
The double jeopardy clause is not an absolute bar to the imposition of an increased sentence on
remand from an authorized appellate review of an issue of law concerning the original sentence.
Harris v State (1994, Fla) 645 So 2d 386, 19 FLW S 464.
Jeopardy did not attach at a burglary convict's probation revocation hearing, at which the court
concluded that the state had failed to show the defendant's involvement in the act, and thus the
information filed against defendant alleging the same crimes as alleged in the probation
revocation hearing could not be dismissed on double jeopardy grounds. State v Justice (1984, Fla
App D2) 451 So 2d 1056.
Prohibition against double jeopardy does not preclude separate civil and criminal proceedings
based on same incident and different degree of burden of proof between criminal and civil cases
also precludes application of res judicata; therefore, it is proper for state to hold civil proceeding
to determine whether party is entitled to inherit under will after that party has been acquitted of
murder of testator. Re Estate of Congdon (1981, Minn) 309 NW2d 261.
Use of burglary charge against defendant to revoke his mistaken probation resulting from an
embezzlement conviction was not a trial on the merits for burglary, and defendant's subsequent
trial on burglary charge did not place him twice in jeopardy. Lightsey v State (1986, Miss) 493
So 2d 375.
The prohibition against double jeopardy did not preclude the State at resentencing from
enhancing a defendant's life sentence for murder with the habitual offender statute where the
defendant was initially sentenced to death and therefore his status as an habitual offender was not
determined until after the sentencing trial on remand; since the defendant's status as an habitual
offender had not previously been determined, the finding of habitual offender status on
resentencing was not barred by double jeopardy. Gray v State (1992, Miss) 605 So 2d 791, reh
den (Miss) 1992 Miss LEXIS 652.
Defendant's guilty plea was not barred by reason of double jeopardy where reversal of his
conviction on jury verdict was based solely on trial errors, and defendant's claim that verdict was
Page 379 of 575
legally insufficient or against weight of evidence was considered on prior appeal and rejected.
People v Crosby (1992, 2d Dept) 182 AD2d 696, 582 NYS2d 466, app den 80 NY2d 829, 587
NYS2d 914, 600 NE2d 641.
Evidence of unrelated criminal offenses which is presented as aggravating circumstances at
sentencing stage does not establish independent crime, and thus double jeopardy clause does not
preclude subsequent prosecution for these unrelated offenses. Johnson v District Court of
Oklahoma County (1982, Okla Crim) 653 P2d 215.
Principles of res judicata and double jeopardy do not bar disciplinary proceeding which follows
disposition of criminal charges although based on substantially same conduct since different
standards of proof are required. Re Oxman (1981, Pa) 437 A2d 1169.
Since the legislature intended the forfeiture provisions of Texas Controlled Substance Act to be a
remedial civil action and since the civil forfeiture proceeding at issue was not so punitive in
effect as to negate the legislature's civil intent (the forfeiture of cash, two cars, a mobile phone, a
TV, and two safes being reasonably related to the government's injury and expenses from drug
distribution of the magnitude discovered), double jeopardy did not preclude the State from
criminally prosecuting defendant for possession of over 400 grams of cocaine with intent to
deliver after defendant had consented to the forfeiture and signed an agreed judgment of
forfeiture. Ex parte Rogers (1990, Tex App Dallas) 804 SW2d 945.
Prosecution of the accused for aggravated kidnapping after he had been administratively
disciplined by the Department of Corrections for escape and kidnapping did not expose the
accused to double jeopardy. Feltrin v State (1982, Tex App 10th Dist) 627 SW2d 813.
Footnotes
Footnote 95. Helvering v Mitchell, 303 US 391, 82 L Ed 917, 58 S Ct 630.
Practice Aids: –Former jeopardy–Nature of proceedings. 1 Wharton's Criminal Law (14th ed) §
55.
Footnote 96. Breed v Jones, 421 US 519, 44 L Ed 2d 346, 95 S Ct 1779, on remand (CA9 Cal)
519 F2d 1314.
Footnote 97. State v Watson, 209 NC 229, 183 SE 286; Holt v State, 160 Tenn 366, 24 SW2d
886.
Footnote 98. Stout v State, 36 Okla 744, 130 P 553.
Footnote 99. State v Allen, 243 La 698, 146 So 2d 407.
Page 380 of 575
Footnote 1. Re (Lee) (Fla) 336 So 2d 1175.
Footnote 2. United States v Hartley (CA5 Fla) 612 F2d 1009.
Footnote 3. People v Eggleston (1st Dist) 255 Cal App 2d 337, 63 Cal Rptr 104; State v Keller,
52 Ohio App 2d 217, 6 Ohio Ops 3d 235, 369 NE2d 798, motion overr.
The prosecution of a defendant for possessing a weapon while an inmate in a state prison did not
constitute double jeopardy, notwithstanding the fact that he had already been subjected to special
administrative confinement by prison authorities in connection with such crime. Sadler v State
(Fla App D1) 333 So 2d 69.
Administrative disciplinary proceeding in which a prisoner loses good time does not place him in
jeopardy and the subsequent conviction and sentence in a criminal prosecution for the same
offense does not therefore constitute double jeopardy which the Fifth Amendment prohibits.
State v Kerns, 201 Neb 617, 271 NW2d 48.
Prison officials' punitive action of placing a prisoner in solitary confinement as the result of an
assault on a fellow immate did not put the defendant in jeopardy so as to bar his prosecution for
the criminal offense. State v Collins, 115 NH 499, 345 A2d 162.
Footnote 4. Davenport v State (Tex Crim) 574 SW2d 73.
As to acquittal in criminal proceeding as precluding revocation of parole on same charge, see 59
Am Jur 2d, Pardon and Parole § 90.
Footnote 5. Mullican v United States (CA5 Tex) 252 F2d 398, 70 ALR2d 1217; People v
Bachman, 50 Mich App 682, 213 NW2d 800.
Footnote 6. State v Burroughs, 244 Ga 288, 260 SE2d 5, vacated on other grounds (US) 65 L Ed
2d 1134, 100 S Ct 3044, on remand 246 Ga 393, 271 SE2d 629.
Footnote 7. Ex parte Payne (Tex Civ App 6th Dist) 598 SW2d 312, holding that a contempt order
against a divorced father for failure to make child support payments violated the double jeopardy
clause of the Fifth Amendment and thus was void where the trial court had previously found the
father in contempt but stated that he could purge himself by a partial payment of $1,000, and
where the father had paid the $1,000 and did not commit any new act of contempt; an appeal of
the court's order by the father did not justify the second contempt order.
Footnote 8. Illinois v Vitale, 447 US 410, 65 L Ed 2d 228, 100 S Ct 2260.
Footnote 9. United States v Jenkins, 420 US 358, 43 L Ed 2d 250, 95 S Ct 1006 (ovrld on other
grounds United States v Scott 437 US 82, 57 L Ed 2d 65, 98 S Ct 2187, on remand (CA6) 579
Page 381 of 575
F2d 1013, cert den 440 US 929, 59 L Ed 2d 486, 99 S Ct 1266 and reh den 439 US 883, 58 L
Ed 2d 197, 99 S Ct 226); United States v Kopp, 429 US 121, 50 L Ed 2d 336, 97 S Ct 400;
United States v Rose, 429 US 5, 50 L Ed 2d 5, 97 S Ct 26; United States v Morrison, 429 US
1, 50 L Ed 2d 1, 97 S Ct 24.
Fundamental policy that judgment of acquittal may not be reviewed without putting defendant
twice in jeopardy, thereby violating the constitution, applies equally to trials by court and trials
by jury. State v Flower, 176 Conn 224, 405 A2d 655.
Annotation: 50 L Ed 2d 830, § 8.
Footnote 10. United States v Morrison, 429 US 1, 50 L Ed 2d 1, 97 S Ct 24; United States v
Jenkins, 420 US 358, 43 L Ed 2d 250, 95 S Ct 1006 (ovrld on other grounds United States v
Scott 437 US 82, 57 L Ed 2d 65, 98 S Ct 2187, on remand (CA6) 579 F2d 1013, cert den 440
US 929, 59 L Ed 2d 486, 99 S Ct 1266 and reh den 439 US 883, 58 L Ed 2d 197, 99 S Ct
226).
Footnote 11. United States v Martin Linen Supply Co., 430 US 564, 51 L Ed 2d 642, 97 S Ct
1349, 1977-1 CCH Trade Cas ¶ 61354.
§ 250 – Civil and criminal contempt [21 Am Jur 2d CRIMINAL LAW]
The rule as to former jeopardy cannot be invoked on the ground that the same act is punishable
both as a contempt of court and as a crime. 12 The two offenses are not the same. 13 Thus, a
federal trial court may impose a sentence for a witness' refusal to answer questions at a criminal
trial even though the court has previously imposed a civil contempt sentence for the witness'
refusal, at the same trial, to answer similar questions, since the civil and criminal contempt
sentences serve distinct purposes, the one coercive, and the other punitive and deterrent. 14
It
has been held, however, that the Fifth Amendment prohibition against double jeopardy is
violated when conduct previously punished as an indirect criminal contempt is again sought to be
punished as a substantive criminal offense. 15
§ 250 – Civil and criminal contempt [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Practice Aids: United States v. Dixon [ 125 LEd2d 556 (1993)]: The Supreme Court returns to
the traditional standard for double jeopardy clause analysis, 69 Notre Dame LR 575 (1994).
Double jeopardy and summary contempt prosecutions, 69 Notre Dame LR 691 (1994).
Contempt finding as precluding substantive criminal charges relating to same transaction. 26
ALR4th 950.
Page 382 of 575
Case authorities:
Under the same-elements test–which states that two offenses are not the same, for purposes of
the double jeopardy clause of the Federal Constitution's Fifth Amendment, if each offense
contains an element not contained in the other offense–the double jeopardy clause does not, in a
case where a defendant has been prosecuted for contempt for disruption of judicial business, bar
subsequent prosecution of the defendant for a criminal assault that was part of the disruption,
because (1) the contempt offense does not require the element of criminal conduct, and (2) the
criminal offense does not require the element of disrupting judicial business. United States v
Dixon (US) 125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.
Under the same-elements test, which provides that two offenses are not the same if each offense
contains an element not contained in the other, the double jeopardy clause of the Federal
Constitution's Fifth Amendment, which provides that no person may be twice put in jeopardy for
the same offense, does not bar criminal prosecutions of an accused for three counts of threatening
to injure another and one count of assault with intent to kill, where all four counts are based on
events for which the accused previously has been tried in the same jurisdiction for contempt of
court for violating a civil protection order requiring that the accused not "molest, assault, or in
any manner threaten or physically abuse" his estranged wife. [per Scalia and Kennedy, JJ.,
Rehnquist, Ch. J., and O'Connor and Thomas, JJ. Dissenting: White, Stevens, and Souter, JJ.]
United States v Dixon (US) 125 L Ed 2d 556, 93 CDOS 4852, 93 Daily Journal and DAR 8205,
7 FLW Fed S 599.
The double jeopardy clause of the Federal Constitution's Fifth Amendment, which provides that
no person may be twice put in jeopardy for the same offense, applies to nonsummary criminal
contempt prosecutions, as criminal contempt–at least the sort enforced through nonsummary
proceedings–is a crime in the ordinary sense. United States v Dixon (US) 125 L Ed 2d 556, 93
CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.
The question whether subsequent criminal prosecutions are barred by the double jeopardy clause
of the Federal Constitution's Fifth Amendment, where defendants were tried for criminal
contempt of court for violating court orders prohibiting them from engaging in conduct that was
the subject of the subsequent prosecutions, should be evaluated (1) under the same-elements test,
but (2) not also under an additional double jeopardy test–which prohibits a subsequent
prosecution if, to establish an essential element of an offense charged in that prosecution, the
government will prove conduct that constitutes an offense for which the accused already has been
prosecuted–announced in a prior Supreme Court decision, since the Supreme Court has decided
to overrule that prior decision. (White, Stevens, and Souter, JJ., dissented from this holding).
United States v Dixon (US) 125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7
FLW Fed S 599.
The double jeopardy clause of the Federal Constitution's Fifth Amendment, which provides that
no person may be twice put in jeopardy for the same offense, bars prosecution of an accused
Page 383 of 575
under substantive criminal law for possession of narcotics, where, on the basis of alleged
narcotics offense, the accused previously has been tried in the same jurisdiction for criminal
contempt of court for violating a term of the accused's pretrial release with respect to an
unrelated charge, which term subjected the accused to prosecution for contempt of court if the
accused committed "any criminal offense." [per Scalia, Kennedy, White, Stevens, and Souter, JJ.
Dissenting; Rehquist, Ch J., and O'Connor, Thomas, and Blackmun, JJ.] United States v Dixon
(US) 125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 499.
Imposition of both civil and criminal penalties for defendants' refusals to testify before grand jury
did not violate double jeopardy clause of Fifth Amendment, since civil contempt is not "offense"
within meaning of double jeopardy rule, civil contempt sanction is coercive or remedial, not
punitive, in nature, and double jeopardy clause merely prohibits punishing criminally twice for
same offense. United States v Ryan (1987, CA7 Ill) 810 F2d 650.
Defendant was not subjected to double jeopardy where unspecified contempt citation was for his
failure to comply with order of bankruptcy court to appear before it, while his conviction was for
misappropriation of funds from bankruptcy estate for which he was acting as trustee; although
the two judgments were necessarily related, elements of the two offenses differed significantly.
United States v Lingo (1984, CA8 Ark) 740 F2d 667.
The trial court violated the Double Jeopardy Clause of the US Const by finding antiabortion
protestors in contempt for trespassing at a women's health center in violation of an injunction
after they had been charged and convicted in municipal court under a criminal trespass statute;
the essential element of the charge of contempt brought against appellants required proof of
conduct which constituted the offense of criminal trespass for which they had previously been
prosecuted and convicted; the portion of their punishment that constituted a criminal penalty was
therefore barred by double jeopardy. Dayton's Women Health Center v Enix (1991, Montgomery
Co) 68 Ohio App 3d 579, 589 NE2d 121, motion gr 62 Ohio St 3d 1470, 580 NE2d 1100 and
dismd, motion overr 62 Ohio St 3d 1500, 583 NE2d 971 and cert den (US) 120 L Ed 2d 903,
112 S Ct 3033.
Party to property dispute who was held in criminal contempt for violating injunction prohibiting
him from trespassing on adjoining property could not be prosecuted for criminal trespass, since
contempt charge was equivalent of criminal prosecution and since criminal trespass charge, thus,
would amount to double jeopardy. State v Thompson (1983) 294 Or 528, 659 P2d 383.
Principles of double jeopardy and compulsory joinder did not bar prosecution of individual for
simple assault, criminal trespass and rape after that individual had been found in indirect criminal
contempt for violating court order entered pursuant to Protection from Abuse Act; because Act
had its roots in equity and was essentially civil, court's use of its inherent power to enforce its
orders under Act through contempt did not preclude later criminal prosecution to protect
Commonwealth's interest in preventing crime. Commonwealth v Allen (1984) 506 Pa 500, 486
A2d 363, cert den (US) 88 L Ed 2d 105, 106 S Ct 128.
Page 384 of 575
Where defendant ran out of courtroom and down stairs of city hall immediately after judge found
him guilty of narcotics possession, but police officers caught him, returned him to courtroom and
judge found defendant in direct criminal contempt of court and sentenced him to serve term of
six months of imprisonment, double jeopardy clause did not preclude defendant's subsequent
prosecution for escape. Although same conduct gave rise to defendant's convictions for both
contempt and escape, summary criminal contempt is by its nature different type of offense than
other crimes, that is, escape. Commonwealth v Warrick (1992) 415 Pa Super 385, 609 A2d 576,
app den (Pa) 626 A2d 1157.
Defendant's previous conviction for criminal contempt for violating a temporary restraining order
entered in a civil proceeding did not bar his subsequent prosecution for attempted capital murder
based on the same act of shooting two of his neighbors which had established his violation of the
civil order where the contempt conviction was sought by a private party, not on behalf of the
State, and the State did not seek the punishment obtained; the double jeopardy provisions protect
only against prosecutions by persons on behalf of the same sovereign, and the contempt
conviction, while criminal in nature, is not the same offense as the attempted capital murders the
State was seeking to prosecute. Ex parte Williams (1990, Tex Crim) 799 SW2d 304.
Double jeopardy did not bar defendant's indictment and prosecution for attempted capital murder
though defendant had earlier been held in contempt of court and punished for the same shooting
incident, which violated a civil injunction against physical contact or bodily injury, since the
Texas Legislature did not consider contempt of court and attempted capital murder to be the
same offense for double jeopardy purposes and did not intend that a contempt adjudication would
bar the murder case, since contempt of court is not a lesser included offense of attempted capital
murder, and since the purposes underlying the double jeopardy clause prohibition against
successive prosecutions were not implicated because the State had not yet prosecuted defendant
for anything. Williams v State (1989, Tex App San Antonio) 775 SW2d 812, petition for
discretionary review gr.
Footnotes
Footnote 12. Re Application of Morris, 194 Cal 63, 227 P 914; Pompano Horse Club, Inc. v
State, 93 Fla 415, 111 So 801; Ex parte Allison, 99 Tex 455, 90 SW 870.
Footnote 13. Re Application of Morris, 194 Cal 63, 227 P 914; State ex rel. Duensing v Roby,
142 Ind 168, 41 NE 145.
Footnote 14. Yates v United States, 355 US 66, 2 L Ed 2d 95, 78 S Ct 128.
Footnote 15. People v Gray, 36 Ill App 3d 720, 344 NE2d 683, affd 69 Ill 2d 44, 12 Ill Dec 886,
370 NE2d 797, cert den 435 US 1013, 56 L Ed 2d 395, 98 S Ct 1887.
Page 385 of 575
Annotation: 50 L Ed 2d 830, § 7[d].
§ 251 – Statutory civil penalty for criminal conduct [21 Am Jur 2d CRIMINAL LAW]
Although there has been authority to the contrary, 16 the established rule is that a former
acquittal or conviction of a defendant on a criminal charge does not bar a civil action against him
to recover a statutory penalty for the same conduct. 17 Because the double jeopardy clause is
limited to criminal actions, it does not preclude the imposition by Congress of both a criminal
and a civil sanction for the same act or omission. 18
The question whether a given sanction is civil or criminal in nature is one of statutory
construction. 19 Thus, for example, the double jeopardy clause was not applicable to bar an
assessment of an additional 50 percent of a deficiency in an income tax return "due to fraud with
intent to evade tax" as authorized under federal law, notwithstanding the taxpayer had previously
been acquitted on a criminal indictment under the same federal revenue act for wilful attempt to
evade and defeat the tax. The assessment proceeding was civil in nature, since the additional
assessment was provided for "civil incidents of the assessment and collection of the income tax."
20 And it has been held that the rule against double jeopardy does not apply to a proceeding to
collect from a prisoner the cost of maintaining him in prison, since the action is civil, not
criminal. 21
Since acquittal of a criminal offense is no bar to recovery of a civil penalty, evidence of acquittal
in a criminal prosecution is ordinarily not admissible in a civil action to prove the innocence of
the accused, even though the same material facts and circumstances are involved. 22
§ 251 – Statutory civil penalty for criminal conduct [SUPPLEMENT] [21 Am Jur 2d
CRIMINAL LAW]
Practice Aids: Taking the ammunition away from the "war on drugs": A double jeopardy bar to
21 USCS § 881 after Austin v. United States [ 125 LEd2d 488 (1993)], 44 Case W Res LR 235
(1993).
Note: Civil Sanctions and the Double Jeopardy Clause: Applying the Multiple Punishment
Doctrine to Parallel Proceedings After United States v. Halper. 76 Va LR 1251, Summer, 1990.
Case authorities:
A civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be
explained only as also serving either retributive or deterrent purposes, is punishment for purposes
of the double jeopardy clause of the Federal Constitution's Fifth Amendment, because
punishment serves the twin aims of retribution and deterrence, while retribution and deterrence
Page 386 of 575
are not legitimate nonpunitive governmental objectives; thus, a defendant who already has been
punished in a criminal prosecution may not be subjected to an additional civil sanction to the
extent that the second sanction may not fairly be characterized as remedial, but only as a
deterrent or retribution. United States v Halper (1989, US) 104 L Ed 2d 487, 109 S Ct 1892.
Assessment of civil penalties for fraud and understatement amounting to about 80 percent of lost
revenue caused by taxpayer's wrongful actions did not constitute punishment for double jeopardy
purposes where purpose of penalties was to compensate government for costs of investigation
and recovery of lost money. United States v Alt (1996, CA6 Mich) 83 F3d 779, 96-1 USTC ¶
50267.
Recovery by United States of all sums received by owner of shrimp trawlers under guaranty
agreements issued under Fishermens Protective Act on ground of fraud did not violate double
jeopardy although amount exceeded amount of fraudulent overpayment since recovery beyond
actual amount of fraud did not constitute second punishment prohibited by clause. Versaggi
Shrimp Corp. v United States (1993) 28 Fed Cl 20.
Civil action to recover amounts paid to woman as welfare payments during period in which she
knowingly failed to report income from employment, as well as statutory penalty in equal amount
for fraud, was not barred by criminal conviction and payment of fine by woman for same acts as
penalty was additional damages rather than criminal punishment. People ex rel. Department of
Public Aid v Bell (1984) 121 Ill App 3d 1017, 77 Ill Dec 422, 460 NE2d 478.
Although civil penalty for filing false claim with governmental agency which is imposed after
criminal punishment for same act can violate double jeopardy if amount of civil penalty bears no
rational relation to government's loss, statute which provides for treble damages if person makes
fraudulent statements pursuant to scheme to improperly obtain public funds, does not violate
double jeopardy principles since statute is civil in nature, per se reasonable and remedial, and
formula utilized therein (treble damages based on size of offense) does not suffer from inherent
flaw of fixed penalty based solely on number of offenses regardless of their size. Kuriansky v
Professional Care, Inc. (1990) 147 Misc 2d 782, 555 NYS2d 1, motion dismd 75 NY2d 991,
557 NYS2d 306, 556 NE2d 1113.
Footnotes
Footnote 16. United States v La Franca, 282 US 568, 75 L Ed 551, 51 S Ct 278 (conviction);
United States v Seattle Brewing & Malting Co. (DC Wash) 135 F 597 (acquittal).
Footnote 17. Helvering v Mitchell, 303 US 391, 82 L Ed 917, 58 S Ct 630 (distinguishing cases
to the contrary on the ground that they did not involve civil administrative sanctions); United
States v Burkhart (CA6 Ohio) 501 F2d 993, cert den 420 US 946, 43 L Ed 2d 424, 95 S Ct
1326 (acquittal; recognizing rule); United States v Guzzone (CA2 NY) 273 F2d 121; United
Page 387 of 575
States v Rubin (CA7 Ill) 243 F2d 900; Bambulas v United States (DC SD) 323 F Supp 1271;
United States v Ben Grunstein & Sons Co. (DC NJ) 127 F Supp 907; People v Chimbers, 91
Misc 2d 927, 398 NYS2d 222; Stout v State, 36 Okla 744, 130 P 553; Gooch v Rogers, 193 Or
158, 238 P2d 274; Commonwealth v Mackill, 120 Pa Super 408, 183 A 87.
Annotation: 42 ALR2d 634, § 2[a].
100 L Ed 156.
50 L Ed 2d 830, § 7[b].
The double jeopardy clause of the Fifth Amendment does not exonerate a person convicted of
fraudulently obtaining surplus property from liability under the Surplus Property Act of 1944,
which requires payment of $2,000 for each act of fraud. Rex Trailer Co. v United States, 350
US 148, 100 L Ed 149, 76 S Ct 219.
Liability imposed by the by the Surplus Property Act upon every person who uses or engages in
any fraudulent trick, scheme, or device for the purpose of securing property from the United
States is not barred by the double jeopardy clause, even though the liability is sought to be
enforced after conviction or acquittal in a criminal prosecution. United States v Schneider (DC
NY) 139 F Supp 826.
The double jeopardy clause did not apply where defendants convicted of criminal conspiracy to
defraud the government were subjected to forfeiture and double damage provisions of the False
Claims Act. United States v Kates (ED Pa) 419 F Supp 846; United States v Ben Grunstein &
Sons Co. (DC NJ) 127 F Supp 907.
Footnote 18. One Lot Emerald Cut Stones & One Ring v United States, 409 US 232, 34 L Ed
2d 438, 93 S Ct 489; Rex Trailer Co. v United States, 350 US 148, 100 L Ed 149, 76 S Ct 219.
Annotation: 50 L Ed 2d 830, § 7(a).
Footnote 19. One Lot Emerald Cut Stones & One Ring v United States, 409 US 232, 34 L Ed
2d 438, 93 S Ct 489; Helvering v Mitchell, 303 US 391, 82 L Ed 917, 58 S Ct 630.
Footnote 20. Helvering v Mitchell, 303 US 391, 82 L Ed 917, 58 S Ct 630.
Similarly, a public welfare agency was not barred from assessing fraudulent overpayment charges
against a welfare recipient who had previously been acquitted in a criminal proceeding for grand
larceny arising out of the same facts. Double jeopardy did not apply since the fraudulent
overpayment assessment proceeding was remedial in nature and designed primarily to safeguard
state revenues, rather than to inflict punishment. Beckett v Department of Social & Health
Services, 87 Wash 2d 184, 550 P2d 529.
Page 388 of 575
Footnote 21. Auditor General v Hall, 300 Mich 215, 1 NW2d 516, 139 ALR 1022.
Footnote 22. New York v Carolla, 48 Misc 2d 140, 264 NYS2d 408.
§ 252 – Forfeiture of property involved in former criminal proceeding [21 Am Jur 2d
CRIMINAL LAW]
When proceedings in rem are instituted by the government for the forfeiture of property involved
in former criminal proceedings, the double jeopardy clause does not apply so long as the
forfeiture proceeding is civil rather than criminal in nature and the forfeiture is no part of the
punishment for the criminal offense. 23 Thus, the prior acquittal of a defendant under
smuggling charges has been held not to bar a subsequent forfeiture action against the gems
involved since the forfeiture is intended to aid in the enforcement of tariff regulations and has a
remedial rather than a punitive purpose. 24 And, conviction of defendants on a charge of
conspiracy to violate federal revenue laws concerning taxation of distilled spirits has been held
not to bar a proceeding in rem instituted for forfeiture of the distillery property of the defendants,
since the forfeiture is no part of the punishment for the criminal offense. 25
On the other
hand, proceedings instituted for the purpose of declaring the forfeiture of a person's property by
reason of offenses committed by him may be deemed criminal in nature, even though they may
be civil in form. 26
Accordingly, proceedings for forfeiture of property allegedly the
subject of or used in a criminal transaction have been barred when brought against a claimant
who showed that in a previous criminal prosecution he was acquitted of the same criminal acts
relied upon to justify the forfeiture. 27 And, an acquittal on charges of possession of firearms
has been held to bar forfeiture where the firearms were not illegal per se. 28
Although recognizing that collateral estoppel will bar a statutory forfeiture if the elements of the
forfeiture have been resolved against the government in the earlier criminal proceeding, the
United States Supreme Court has held that an acquittal on a criminal charge does not always
operate as a collateral estoppel to a subsequent forfeiture proceeding where the prior proceeding
involved proof of criminal intent and where the acquittal may have only represented an
adjudication that the proof was not sufficient to overcome all reasonable doubt of the accused's
guilt, rather than an adjudication on the preponderance-of-the-evidence burden applicable in the
subsequent civil proceeding. 29
On the other hand, it has been held, under the combined
impact of the double jeopardy clause and the doctrine of collateral estoppel, that a prior judgment
of acquittal of a property owner forecloses a proceeding to forfeit his property when the operative
facts of both the criminal and the forfeiture proceedings are the same. 30
§ 252 --Forfeiture of property involved in former criminal proceeding [SUPPLEMENT] [21
Am Jur 2d CRIMINAL LAW]
Practice Aids: Running the gauntlet: An assessment of the double jeopardy implications of
criminally prosecuting drug offenders and pursuing civil forfeiture of related assets under 21
Page 389 of 575
USCS § 881(a)(4), (6) and (7), 70 Notre Dame LR 4:941 (1995).
Case authorities:
The double jeopardy clause of the Fifth Amendment is not applicable to a forfeiture proceeding
under 18 USCS § 924(d), since such a proceeding is a civil, not a criminal proceeding. United
States v One Assortment of 89 Firearms (1984, US) 79 L Ed 2d 361, 104 S Ct 1099.
Court will not direct U.S. to return seized rifles to their purported owner under 18 USCS §
924(d)(1), based on motion by felon, where rifles were seized as part of unsuccessful criminal
prosecution of felon under 18 USCS § 922, because felon is not proper moving party under §
924 since he was acquitted of having possession of rifles and therefore has no relevant interest in
their disposition. United States v Leader (1992, ED Pa) 809 F Supp 18.
Double jeopardy did not limit government's recovery in forfeiture action relating to building
which housed narcotics defendant's clinic and pharmacy of costs in investigating and prosecuting
case since clause does not apply to civil forfeitures where forfeited property itself was instrument
of criminal activity. United States v Cullen (1992, CA4 Va) 979 F2d 992.
Defendant's prosecution for mail fraud and for RICO violations, preceded by his involuntary
bankruptcy brought by creditors to recover money he owed then due to fraudulent investment
scheme, did not violate double jeopardy clause since bankruptcy was brought by creditors, not
the government, and did not constitute punishment, being analogous to forfeiture of proceeds of
crime. United States v Randy (1996, CA7 Ill) 81 F3d 65.
Convicted illegal gambling operator is denied postconviction relief under Double Jeopardy
Clause, even though his property was seized and in 1989 forfeited under 18 USCS §§ 1955 (a)
and (d), and he was prosecuted in 1993 for gambling conspiracy arising out of same underlying
activity, because punishments complained of here were separate since conspiracy charge did not
require proof that any property was being used, and civil forfeiture did not require proof of
conspiratorial agreement. United States v Richardson (1995, ND Ill) 914 F Supp 212.
Defendant's criminal conviction was not subject to double jeopardy attack where defendant was
sentenced to imprisonment before civil proceedings against real estate and currency were
completed. United States v Barton (1995, CA9 Wash) 46 F3d 51, 95 CDOS 1831.
City was barred by double jeopardy, Ohio Const. Art I § 10, from petitioning an order for
forfeiture of guns by gun owner under RC § 2933.41 after owner had been convicted of a felony
and was thus not permitted to own them; the propriety of the forfeiture was dependent upon gun
owner's conviction of the felony; thus the rule of the Casalicchio case applies to such a forfeiture
brought under RC § 2933.41. Re Forfeiture of Property of Dorsey (1991, Mont) 75 Ohio App 3d
526, 599 NE2d 861.
Page 390 of 575
Footnotes
Footnote 23. One Lot Emerald Cut Stones & One Ring v United States, 409 US 232, 34 L Ed
2d 438, 93 S Ct 489; Helvering v Mitchell, 303 US 391, 82 L Ed 917, 58 S Ct 630; Various
Items of Personal Property v United States, 282 US 577, 75 L Ed 558, 51 S Ct 282.
Practice Aids: –Former jeopardy–Forfeiture of property. 1 Wharton's Criminal Law (14th ed) §
70.
Footnote 24. One Lot Emerald Cut Stones & One Ring v United States, 409 US 232, 34 L Ed
2d 438, 93 S Ct 489.
Footnote 25. Various Items of Personal Property v United States, 282 US 577, 75 L Ed 558, 51
S Ct 282.
Annotation: 50 L Ed 2d 830, § 7[c].
Footnote 26. United States v United States Coin & Currency, 401 US 715, 28 L Ed 2d 434, 91
S Ct 1041; Boyd v United States, 116 US 616, 29 L Ed 746, 6 S Ct 524 (ovrld on other grounds
Warden, Maryland Penitentiary v Hayden 387 US 294, 18 L Ed 2d 782, 87 S Ct 1642) as stated
in United States v Abrams (CA1 Mass) 615 F2d 541.
Footnote 27. People v Mudd, 54 Ill App 3d 603, 12 Ill Dec 414, 370 NE2d 37.
Annotation: 27 ALR2d 1137, § 2.
As to acquittal or conviction in criminal prosecution as bar to subsequent proceeding for
forfeiture of property allegedly involved in crime, generally, see 36 Am Jur 2d, Forfeitures and
Penalties §§ 32-35.
Footnote 28. Lowther v United States (CA10 Okla) 480 F2d 1031.
Footnote 29. One Lot Emerald Cut Stones & One Ring v United States, 409 US 232, 34 L Ed
2d 438, 93 S Ct 489.
Footnote 30. Coffey v United States, 116 US 436, 29 L Ed 684, 6 S Ct 437; United States v
One 1967 Cadillac El Dorado (CA9 Cal) 453 F2d 396.
As to collateral estoppel in general, see §§ 321 et seq., infra.
§ 253 Validity [21 Am Jur 2d CRIMINAL LAW]
Page 391 of 575
When the prosecution is acquiesced in by the accused, a conviction under an unconstitutional law
has been held to be a bar to a second prosecution for the same offense. 31 And an acquittal by a
jury may form the basis of a plea of former jeopardy notwithstanding any defect in form or
substance of the indictment on which the acquittal was rendered. 32 Further, a conviction
under a statute prescribing no penalty supports a valid plea of former jeopardy and bars a
subsequent trial and conviction under a statutory amendment fixing a penalty. 33
Footnotes
Footnote 31. McGinnis v State, 28 Tenn 43.
As to effect of plea of guilty in sham or collusive proceeding, see § 257, infra.
Footnote 32. State ex rel. Zirk v Muntzing, 146 W Va 878, 122 SE2d 851, 94 ALR2d 1033.
As to declaration of mistrial on ground of defective indictment, see § 288, infra.
Footnote 33. United States v Sabella (CA2 NY) 272 F2d 206.
§ 254 Court without jurisdiction [21 Am Jur 2d CRIMINAL LAW]
It cannot be said that a person has been in jeopardy unless the court in which he was acquitted or
convicted had jurisdiction to try him for the offense charged. 34 Thus, the defense of former
jeopardy cannot be based on a plea of guilty entered before a court not having jurisdiction of the
matter. 35 If the court had no jurisdiction, any judgment that might be rendered would be void
and would be no bar to a subsequent prosecution for the same offense in a court of competent
jurisdiction. 36
This conclusion is not affected by the fact that the defendant did not object to
the jurisdiction of the court. Consent cannot confer jurisdiction. 37
A related problem arises when a defendant who has been convicted or acquitted of a lesser crime
in a court of competent jurisdiction is thereafter charged in another court for a greater crime that
the first court lacked jurisdiction to hear and determine. There is authority for the view that the
prior trial on the lesser offense bars his prosecution before the higher court for the greater
offense, notwithstanding the difference in jurisdiction had prevented him from being in jeopardy
of the greater offense in the inferior court. 38 Where the offense charged in the prior proceeding
was not identical to or included in the offense charged in the second, however, two separate and
distinct offenses have been committed by the defendant, albeit in the same transaction, and the
question of jurisdiction becomes relatively unimportant, since there can be no double jeopardy
where the offenses are not the same. 39
§ 254 – Court without jurisdiction [SUPPLEMENT] [21 Am Jur 2d CRIMINAL LAW]
Pa