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45.4 Concurrence Of Act And Intent

    45.4.1 Concurrence Of Act And Intent Or Mental State Is An Element Of The Charge
    45.4.2 Concurrence Of Act And Intent: Each Physical Element Of The Crime Must Have A Corresponding Mens Rea
    45.4.3 Concurrence Of Act And Intent: Improper To Split Act And Intent Between Codefendants

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    45.4.1    Concurrence Of Act And Intent Or Mental State Is An Element Of The Charge

RATIONALE: Because concurrence of act and mens rea is an element of every crime, a specific instruction on this point should be required in every case.

POINTS AND AUTHORITIES: It is a "basic premise" which underlies the whole of Anglo-American criminal law that "the actus reus and the mens rea must concur." (LaFave & Scott, Substantive Criminal Law (West, 1986) § 1.2(b), pp. 10-11.) Hence, it is a "fundamental doctrine of criminal law" that in every crime there must be a concurrence of act and intent. (See e.g., People v. Green (CA 1980) 27 C3d 1, 53 [164 CR 1].) "The scienter for any crime is inextricably linked to the proscribed act or omission." (People v. Sargent (CA 1999) 19 C4th 1206, 1222 [81 CR2d 835].) "So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication. [fn. omitted]." (People v. Vogel (CA 1956) 46 C2d 798, 801 [299 P2d 850]; see also Green, 27 C3d at 53.) The element of joint operation of act and intent requires that any specific intent or mental state required by a penal statute concur with the actus reus of the crime. (See People v. Hernandez (CA 1964) 61 C2d 529, 532 [39 CR 361].) Moreover, the defendant's intent or mental state must "actuate the physical conduct." (LaFave, supra, § 3.11(a) at pp. 377-78.) "That is, mere coincidence in point of time is not necessarily sufficient, while the lack of such unity is not necessarily a bar to conviction." Hence, if the defendant abandons the criminal intent prior to commission of the act the result is imposition of criminal liability for bad thoughts alone. (Id. at pp. 378; see also People v. Martinez (CA 1984) 150 CA3d 579, 602 [198 CR 565].) For example, conviction for larceny based on false pretenses requires that the defendant had a fraudulent intent at the time the false pretenses were made. (See Orr v. Commonwealth (VA 1985) 329 SE2d 30.) Similarly, the elements of the crime of solicitation must all occur, or exist in the mind of the defendant, simultaneously for the crime to be committed. (State v. Rivers (ME 1993) 634 A2d 1261.)

    Hence, "...the instruction[s] must make clear that the defendant had the required mental state at the time he committed the prohibited acts or achieved the prohibited results, not afterwards." [Original emphasis.]  (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.02 [Definition Of The Crime] p. 41, commentary (1991).) For example, in People v. Jeffers (CA 1996) 41 CA4th 917 [49 CR2d 86], the failure to instruct on the concurrence of act and general intent was prejudicial where the defendant's theory was that the prosecution failed to prove joint union of possession and intent, i.e., a knowing, intentional exercise of control over the gun.

    See also FORECITE National™ 45.4.2 [Concurrence Of Act And Intent: Each Physical Element Of The Crime Must Have A Corresponding Mens Rea].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.7; 4.1].

RESEARCH NOTES:

See  Marston, Contemporaneity of Act and Intention, 86 L.Q.Rev. 208 (1970).

See generally, FORECITE National™ 305.9.9 [Intent].

    Even if the defendant formed malice in the past, (he/she) has not committed murder unless that malice existed at the time of the killing.

[See generally LaFave & Scott, Substantive Criminal Law (West, 1986) § 1.2(b), pp. 10-11; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(A)(1)(3) [Time Of Malice] inst. 6, ¶ 2, p. 72 (South Carolina CLE, 1994).]

    The defendant must have had the required intent to ___________ (insert intent) at the time of the alleged __________ (act) was committed.

[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1010 [First Degree Intentional Homicide] ¶ 7 (University of Wisconsin Law School, 2000).]

    The defendant must have had the required mental state of _________ at the time the act of __________ was committed.

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PRACTICE NOTE: There are two inter-related variables that make up any element of an offense. These variables are the physical aspects of the crime (the "actus reus") and the mental state (the "mens rea"). (See e.g., Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (C)(1) [The Basic Framework Of All Crimes] p.19 (South Carolina CLE, 1994); see also FORECITE National™ 45.4.1 [Concurrence Of Act And Intent Or Mental State Is An Element Of The Charge].)

    Examples of physical components of a crime: (1) the act or conduct by the defendant (the "actus reus" in traditional terminology); (2) the circumstances which are relevant, if any – for example, the age of the victim in a "statutory rape" case; (3) the consequences or results that may be necessary for the commission of the crime – for example, the consequence of a homicide is an element of murder." (Ibid.)

    Examples of mental components of a crime: (1) purpose; (2) knowledge; (3) recklessness; (4) negligence; and (5) strict liability (i.e., no mental element is required). (Ibid.)

    Interrelationship between physical and mental components: Each physical aspect will have a specific corresponding mental state. Given this one-to-one correspondence for each physical aspect, it is misleading to think that a crime has a single mental state."  Each physical element of the charge should be matched up with the corresponding mental element that applies to that physical element.  (See Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Introduction (C)(1) [The Basic Framework Of All Crimes] p.19 (South Carolina CLE, 1994).)

See generally, FORECITE National™ 305.9.9 [Intent].

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PRACTICE NOTE:  In Shumway v. Payne (9th Cir. 2000) 223 F3d 982, 985 the following instruction was given:

    "(1) That on or about the 18th day of November, 1990, the defendant or her accomplice caused the death of Suzine Van Sickle;

    (2) That the defendant or her accomplice acted with intent to cause the death of Suzine Van Sickle;

    (3) That the intent to cause the death was premeditated;

    (4) That Suzine Van Sickle died as a result of defendant's or her accomplice's acts; and

    (5) That the acts occurred in King County, Washington."

    The Washington Court of Appeal stated:

    "We do not approve of the wording of this instruction because, as the defendants argue, under some circumstances it could allow a jury to assign the mental state to one defendant and the act to another, thereby avoiding the requirement that the jury find that the principal both performed the act and had the requisite mental state." (Shumway v. Payne (9th Cir. 2000) 223 F3d 982, 986.)

See generally, FORECITE National™ 305.9.9 [Intent].