Criminal Law and Business

A. GENERAL PRINCIPLES

3:1 CLASIFICATION OF CRIMES

(a) Source of criminal law. Crimes are classified in terms of their origin as common-law and statutory crimes. Some offenses that are defined by statute are merely declaratory of the common law. Each state has its own criminal law, although a general pattern among the states may be observed.

(b) Seriousness of offense. Crimes are classified in terms of their seriousness as treason, felonies and misdemeanors. Treason is defined by the Constitution of the United States, which states that “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort”.

Felonies include the other more serious crimes, such as arson, homicide, and robbery, which are punishable by confinement in prison or by death.

Crimes not classified as treason or felonies are misdemeanors. Reckless driving, weighing and measuring goods with scales and measuring devices that have not been inspected and disturbing the peace by illegal picketing are generally classified as misdemeanors. An act may be a felony in one state and a misdemeanor in another.

(c) Nature of crimes. Crimes are also classified in terms of the nature of the misconduct. Crimes mala in se include acts that are inherently vicious or, in other words, that are naturally evil as measured by the standards of a civilized community. Crimes mala prohibita include those acts that are wrong merely because they are declared wrong by some statute.

3:2 BASIS OF CRIMINAL LIABILITY. A crime generally consists of two elements: (a) an act or omission and (b) a mental state. In the case of some crimes, such as the illegal operation of a business without a license, it is immaterial whether the act causes harm to others. In other cases the defendant’s act must be the sufficiently direct cause of harm to another in order to impose criminal liability, as in the case of unlawful homicide.

Mental state does not require an awareness or knowledge of guilt. In most crimes it is sufficient that the defendant voluntary did the act that is criminal, regardless of motive or evil intent. In some instances a particular mental state is required, such as the necessity that a homicide be with malice aforethought to constitute murder. In some cases it is the existence of a specific intent that differentiates the crime committed from other offenses, as an assault with intent to kill is distinguished by that intent from an ordinary assault or an assault with intent to rob.

3:3 PARTIES TO A CRIME. Two ore more parties may directly or indirectly contribute to the commission of a crime. At common law participants in the commission of a felony are sometimes know as principals and accessories.

(a) Principals. Principals may be divided into two classes: (1) principals in the first degree, who actually engage in the perpetration of the crime and (2) principals in the second degree who are actually or constructively present and aid and abet in the commission of the act. For example, a person is a principal in the second degree if he assists by words of encouragement, stands ready to assist or to give information, or keeps watch to prevent surprise or capture.

The distinction as to degree is frequently by statute so that all persons participating in a crime are principals.

(b) Accessories. Accessories to a crime are also divided into two classes, accessories before the fact and accessories after the fact. An accessory before the fact differs from a principal in the second degree only by reason of this absence from the scene of the fact. An accessory after the fact is a person who knowingly assists one who has committed a felony. Thus, a person is an accessory after the fact if, after the commission of the crime and with intent to assist a felon, he gives warning to prevent arrest or shelters or aids an escape from imprisonment.

3:4 RESPONSABILITY FOR CRIMINAL ACTS. In some cases certain classes of persons are not fully responsible for their criminal acts.

(a) Minors. Some states have legislation fixing the age of criminal responsibility of minors. At common law, when a child is under the age of seven years, the law presumes him to be incapable of committing a crime; after the age of fourteen he is presumed to have capacity as though he were an adult; and between the ages of seven and fourteen, no presumption of law arises and it must be shown that the minor has such capacity. The existence of capacity cannot be presumed from the mere commission of the act.

(b) Insane persons. An insane person is not criminally responsible for his acts. There is a conflict of opinion over what constitutes such insanity as to excuse a person legally from the normal consequence of his acts. All courts, however, agree that intellectual weakness alone is not such insanity.

A test commonly applied is the right-and-wrong test. The responsibility of the defendant is determined in terms of his ability to understand the nature of his act and to distinguish right from wrong in relation to it.