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Practice Bar Eam Essay

2570 words - 11 pages

2/4/2013 Exam
Question #1
Dan’s Justification
a)Dan’s Pursuit of Al
Use of non-deadly force to reclaim one’s property
Use of non-deadly force to reclaim one’s property is allowed under the Model Penal Code if the following three conditions are met 1)the third party’s inference is unlawful 2)the intrusion was on property in defendant’s possession or property for which he served as a bailee and 3)use of non-deadly force is immediately necessary.
Under common law non-deadly force may be used to protect personal property in one’s lawful possession if this force appears reasonable to prevent or terminate an immediate unlawful intrusion with that property.
In this case, Dan would ...view middle of the document...

b)Dan’s Threat of Deadly Force
The threat of use of deadly force
The Model Penal Code allows the defending party to use a threat to use deadly force, as long as it is intended to create apprehension of use of deadly force in the trespassing party. Common law allows for threats of deadly force in some jurisdictions and proscribes it in others.
In this case, Dan’s threat of deadly force against Al would be allowed under the Model Penal Code if Dan could prove it was made with only the intent to cause apprehension, and not as a final warning before the use of deadly force. A prosecution against Dan may argue that he was making the threat against Al with a loaded pistol, however, Dan may use the fact that the property he was trying to reclaim cumulatively amounted to a deadly weapon.
People vs. Al
Al’s Crimes
At common law, larceny is the trespassory taking of the property of another, and carrying it away with the intent to permanently deprive. The Model Penal Code defines the elements of larceny as exercising unlawful control over the property of another with the intent to deprive.
Al may be charged with common law larceny. He did take the property, which had not yet passed title, with the intent to permanently deprive Dan of his rightful possession of it. However, because asportation of the gun was attempted by passing counterfeit currency, it is more likely that Al will be charged with False Pretenses Larceny or Theft by Deception.
Al’s Defenses to Larceny
Al may argue a mistaken claim of right, claiming that he assumed that once he had paid for the property it was his. He may also explain his flight from the gun shop as a natural reaction to a confrontation with a man with clear access to many deadly weapons.
False Pretenses Larceny/Theft By Deception
At common law, a person who knowingly sought to obtain title to property by making representations of false facts was guilty of larceny by false pretenses. The Model Penal Code defines theft by deception as creating or reinforcing a false impression about the property he is attempting to use to gain other property. In this case, Al attempted to create the impression that the currency he was using was genuine tender in an effort to obtain the gun and ammunition. Possession of the property was converted upon Al’s departure of the gun store with the property, satisfying the carrying away requirement of the crime under common law. Al will likely be found guilty of false pretenses larceny.
Al’s Defenses to False Pretenses Larceny
Al may defend himself from this charge by claiming that he did not know the currency was counterfeit and consequently was lacking the intent to gain the property by false pretenses. Al’s flight from the gun shop will likely mitigate the strength of this defense.

Common law defines uttering as the use of a forged instrument with knowledge of its forged nature. Under the Model Penal Code, forgery is the intent to...

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