Smith and Robersons Business Law 17Th Edition Mann Solutions Manual Full Chapter PDF

Smith and Robersons Business Law
17th Edition Mann Solutions Manual

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CHAPTER 6 CRIMINAL LAW 1
Chapter 6
CRIMINAL LAW
Nature of Crimes [6-1] Burglary [6-3e]
Essential Elements [6-1a] Extortion and Bribery [6-3f]
Classification [6-1b] Forgery [6-3g]
Vicarious Liability [6-1c] Bad Checks [6-3h]
Liability of a Corporation [6-1d] Defenses to Crimes [6-4]
White-Collar Crime [6-2] Defense of Person or Property [6-4a]
Computer Crime [6-2a] Duress [6-4b]
Racketeer Influenced & Corrupt Organizations Act [6-2b] Mistake of Fact [6-4c]
Crimes Against Business [6-3] Entrapment [6-4d]
Larceny [6-3a] Criminal Procedure [6-5]
Embezzlement [6-3b] Steps in Criminal Prosecution [6-5a]
False Pretenses [6-3c] Fourth Amendment [6-5b]
Robbery [6-3d] Fifth Amendment [6-5c]
Sixth Amendment [6-5d]
Cases in This Chapter

People v. Farell State of South Dakota v. Morse Louisiana v. Hamed
Chapter Outcomes
After reading and studying this chapter, the student should be able to:
• Describe criminal intent and the various degrees of mental fault.
• Identify the significant features of white-collar crimes, corporate crimes, and Racketeer
Influenced and Corrupt Organizations Act (RICO).
• List and define the crimes against business.
• Describe the defenses of person or property, duress, mistake of fact, and entrapment.
• List and explain the constitutional amendments affecting criminal procedure.
TEACHING NOTES
Criminal law is designed to punish the wrongdoer, in contrast to civil law, which compensates the victim.
In a criminal case, the defendant is prosecuted by the government, who must prove the defendant’s guilt
beyond a reasonable doubt. The defendant is presumed innocent until proven guilty.
Criminal law is relevant to business law both because businesses can receive criminal sanctions for
wrongdoings and because businesses sustain considerable losses as the victims of crimes.
6-1 NATURE OF CRIMES

A crime is any act or omission forbidden by public law designed to protect society. Punishment includes
fines, imprisonment, probation, or death.
Crimes are prohibited in order to protect and safeguard the government (as in treason), human life (as in
murder), and property (as in larceny). Criminal law today is almost exclusively defined by legal statute.
© 2018 Cengage Learning. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or
in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-
protected website or school-approved learning management system for classroom use.
*** Chapter Outcome ***

Describe criminal intent and the various degrees of mental fault.
6-1a Essential Elements

Two elements must be present to define an act as a crime: (1) the wrongful, or overt, act (known as actus
reus), and (2) the criminal, or mental, intent (known as mens rea).
Actus reus refers to all elements of a crime that are not mental, including the physical act that must be
performed, the circumstances under which it must be performed, and the consequences of the act.
Mens rea, or mental fault, refers to all mental elements of a crime, either subjective or objective. Most
common law and some statutory crimes require subjective fault. Some crimes only require objective fault,
whereas other statutory crimes require no fault at all.
Types of subjective fault: purposeful, knowing, and reckless.
• A person acts purposely, or intentionally, if his conscious goal is to engage in a prohibited conduct
or to cause a prohibited result.
• A person acts knowingly if he is aware that his conduct is prohibited, and he realizes that a
prohibited result is almost certain to occur.
• A person acts recklessly if he consciously disregards a substantial and unjustifiable risk that his
conduct is prohibited or that it will cause the prohibited result.
For objective fault to occur, a person must deviate substantially from the standard of care that a reasonable
person would be expected to observe under the given circumstances. In criminal statutes, objective fault is
defined by such terms as carelessness or negligence.
Today, many regulatory statutes that affect society’s health or safety have totally dispensed with a crime’s
mental element and impose criminal liability without fault. Under the statutes, despite any care that a
person might exercise, it is a crime to perform a specified act or to bring about a certain result.
NOTE: See Figure 6-1: Degrees of Mental Fault
CASE 6-1
PEOPLE v. FARELL
Supreme Court of California, 2002
48 P.3d 1155, 28 Cal.4th 381, 121 Cal.Rptr.2d 603
http://scholar.google.com/scholar_case?case=12312804905483823177&q=28,+Cal.4th+381&hl=en&as_sdt=2,34
George, C. J.
In this case we determine whether [California] Penal Code section 1203.044, which requires
the imposition of a minimum county jail sentence as a condition of probation upon
conviction of certain theft offenses, applies to the theft of property other than money,
including trade secrets. We conclude that it does.
I
On April 18, 1997, [a] * * complaint was filed charging defendant with the theft of a trade
secret * * *. It was further alleged as a sentence enhancement that the loss exceeded $2.5
© 2018 Cengage Learning.. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or
protected website or school-approved learning management system for classroom use
million * * *, and as a restriction on the granting of probation that the theft was of an
amount exceeding $100,000 within the meaning of sections 1203.044 * * *. Defendant
pleaded no contest to the theft charge, * * *. He objected, however, to the potential
application of section 1203.044 to his sentence. * * *
A hearing was held in the superior court on the limited question of whether section
1203.044 applies to the theft of property other than money, including trade secrets. The court
concluded that the provision applies to the theft of all property of a certain value, including
trade secrets. * * *
The Court of Appeal reversed, concluding that section 1203.044 applies only to the theft
of what it termed “monetary property.” We granted the Attorney General’s petition for
review.
II
Defendant stands convicted of theft, specifically a violation of [California statute] which
provides:
“(b) Every person is guilty of theft who, with intent to deprive or withhold the control of
a trade secret from its owner, or with an intent to appropriate a trade secret to his or her
own use or to the use of another, does any of the following:
1. Steals, takes, carries away, or uses without authorization, a “trade secret.” The statute
defines the term “trade secret” as follows: “information, including a formula, pattern,
compilation, program, device, method, technique, or process, that:
A. Derives independent economic value, actual or potential, from not being
generally known to the public or to other persons who can obtain economic value
from its disclosure or use; and
B. Is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.”
[Citation.]
The trial court determined that section 1203.044 applies to such a theft. This statute,
entitled The Economic Crime Law of 1992, requires that a defendant who is convicted of
certain theft offenses and is granted probation shall be sentenced to at least 90 days in the
county jail as a condition of probation. * * *
As relevant to the present case, the statute provides: “This section shall apply only to a
defendant convicted of a felony for theft of an amount exceeding fifty thousand dollars
($50,000) in a single transaction or occurrence. This section shall not apply unless the fact
that the crime involved the theft of an amount exceeding fifty thousand dollars ($50,000) in
a single transaction or occurrence is charged in the accusatory pleading and either admitted
by the defendant in open court or found to be true by the trier of fact. * * *
The Court of Appeal determined that section 1203.044 may not be applied to persons
convicted of the theft of trade secrets. It examined the words of the statute and the legislative
history of the enactment and, concluding that the statute is at best ambiguous, applied the so-
called rule of lenity to give defendant the benefit of the doubt.
***
Our task is one of statutory interpretation and, “as with any statute, [it] is to ascertain and
effectuate legislative intent. [Citations.] We turn first to the words of the statute themselves,
recognizing that ‘they generally provide the most reliable indicator of legislative intent.”’
[Citation.] We examine the meaning of the phrase “convicted of a felony for theft of an
amount exceeding fifty thousand dollars,” keeping in mind that the words must be
interpreted in context. [Citation.] In outlining the circumstances under which a person given
a probationary term for a theft offense must be sentenced to a minimum period in custody *
* * does not specify that the theft must involve cash—or that it must involve what is referred
to by the Court of Appeal as “monetary property” and by defendant as a “cash equivalent.”
The crime of theft, of course, is not limited to an unlawful taking of money. * * * The
crime of theft may involve the theft of trade secrets; indeed, * * * the Legislature specified
that the theft of trade secrets is akin to the theft of any other property. * * * In the absence of
evidence to the contrary, we may infer that when the Legislature referred in section 1203.044
to persons “convicted of a felony for theft,” it had in mind the general definition of theft,
including the broad categories of property that may be the subject of theft. * * *
***
To interpret section 1203.044 as limited to the theft of cash or cash equivalents also
would be inconsistent with express legislative intent. The Legislature addressed problems of
certain white collar crimes, specifically theft, in enacting section 1203.044. As the
Legislature’s own statement of intent discloses, that body intended to remedy the perceived
relative unfairness arising from the light probationary sentences meted out to white collar
criminals, as well as to provide reliable tools to ensure that victims of white collar criminals
receive restitution, and to provide financial support for investigation and prosecution of
white collar crime.
The Legislature declared in enacting section 1203.044: “[M]ajor economic or ‘white
collar’ crime is an increasing threat to California’s economy and the well-being of its
citizens. The Legislature intends to deter that crime by ensuring that every offender, without
exception, serves at least some time in jail and by requiring the offenders to divert a portion
of their future resources to the payment of restitution to their victims.”
White collar criminals granted probation too often complete their probation without
having compensated their victims or society.
Probation accompanied by a restitution order is often ineffective because county
financial officers are often unaware of the income and assets enjoyed by white collar
offenders. * * * Thus, it is the Legislature’s intent that the financial reporting requirements
of this act be utilized to achieve satisfactory disclosure to permit an appropriate restitution
order.
White collar criminal investigations and prosecutions are unusually expensive. These
high costs sometimes discourage vigorous enforcement of white collar crime laws by local
agencies. Thus, it is necessary to require white collar offenders to assist in funding this
enforcement activity.
***
We observe that the term “white collar crime” is a relatively broad one and is not limited
to losses involving cash or cash equivalents. It generally is defined as “[a] nonviolent crime
usu[ally] involving cheating or dishonesty in commercial matters. Examples include fraud,
embezzlement, bribery, and insider trading.” [Citation.] The Legislature has applied the term
“white collar crime” to fraud and embezzlement * * *, a statute that provides for enhanced
prison terms for recidivists committing these offenses when the offense involves a pattern of
“taking of more than one hundred thousand dollars.” Like the crime of theft, fraud and
embezzlement are not limited to the unlawful acquisition of cash or cash equivalents.
[Citations.] Indeed, frequently fraud and embezzlement simply are methods by which a
charged theft is accomplished. [Citations.] Because the crime of theft includes a wide range
of property and the term “white collar crime” has a broad meaning, we find it improbable
that the Legislature intended to address only the theft of cash or cash equivalents * * *. It is
far more reasonable to conclude that the Legislature intended the provision to apply to all
thefts of property of a particular value. Any other interpretation would permit many white
collar thieves to continue to receive light probationary sentences and to evade strict
restitution requirements. From the usual meaning of the terms used in section 1202.044, the
purpose of the enactment, and the Legislature’s parallel use of the same terms in other
statutes, one must conclude that section 1203.044 is not limited to thefts of cash or cash
equivalents.
***
For the foregoing reasons, the judgment of the Court of Appeal is reversed.
6-1b Classification
Mala in se — wrongs in themselves or morally wrong, such as murder.
Mala prohibita — not morally wrong but declared wrongful by law, such as the failure to drive on the
right side of the road.
From the standpoint of an offense’s seriousness:
Felony — a serious crime (punishable by death or imprisonment in the penitentiary).
Misdemeanor — a less serious crime (punishable by a fine or imprisonment in a local jail).
6-1c Vicarious Liability

The term vicarious liability refers to liability imposed upon one person for another person’s acts.
Employers are vicariously liable for their employees’ criminal acts if they have participated in or otherwise
authorized the act.
Employers are not ordinarily liable for employees’ unauthorized criminal acts, but may be subject to a
criminal penalty for unauthorized acts of managers or advisers acting within the scope of their employment.
In some cases, an employer can be held criminally liable for even unauthorized acts of an employee.
6-1d Liability of a Corporation

Historically, corporations were not held criminally liable because of the corporation’s inability to possess
criminal intent. Today, corporate liability may exist for the violation of a statute that imposes liability
without fault or when a high corporate officer or the board of directors perpetrates the offense.
Of course, corporations are punished for crimes by fines rather than imprisonment. Nonetheless,
individuals affiliated with the corporation who bear responsibility for a criminal act may face either fines or
imprisonment, or both.
NOTE: See textbook for a description of an adequate compliance program.
*** Chapter Outcome***

Identify the significant features of white-collar crimes, corporate crimes, and Racketeer Influenced
and Corrupt Organizations Act (RICO).
6-2 WHITE-COLLAR CRIME

The U.S. Justice Department defines white-collar crime as any nonviolent crime that involves deceit,
corruption, or a breach of trust — includes acts committed by individuals, such as embezzlement and
forgery, as well as crimes committed on behalf of a corporation, such as commercial bribery, false
advertising, antitrust violations, and safety and health crimes related to consumer and business products.
In response to the business scandals involving companies such as Enron, WorldCom, Global Crossing,
Adelphia, and Arthur Andersen, in 2002 Congress passed the Sarbanes-Oxley Act.
The Act establishes new criminal penalties including: (1) making it a crime to defraud any person or to
obtain any money or property fraudulently in connection with any security of a public company with
penalties of a fine and/or up to 25 years imprisonment, and (2) imposing fines and/or imprisonment of up
to 20 years for knowingly altering, destroying, mutilating, or falsifying any document with the intent of
impeding a federal investigation. In addition, the Act substantially increases the penalties for existing crimes
including: (1) mail and wire fraud (five year maximum increased to twenty-five year maximum) and (2)
violation of Securities and Exchange Act (ten year maximum increased to twenty year maximum).
6-2a Computer Crime

A special type of white-collar crime that involves the use of a computer to steal money or services, to
remove personal or business information, or to tamper with such information.
Computer crime, or cybercrime, is best categorized based on whether the computer was the
instrument or the target of the crime. Examples of cybercrimes using computers as the instrument of the
crime include the distribution of child pornography, money laundering, illegal gambling, copyright
infringement, illegal communication of trade secret, and fraud involving credit cards, e-commerce, and
securities. Cybercrime with a computer as a target of the crime attacks a computer’s confidentiality,
integrity, or availability; examples include theft or destruction of proprietary information, vandalism,
denial of service, website defacing and interference, and implanting malicious code.
Every state now has laws targeting cybercriminals. Originally passed in 1984, and amended in 1986, 1994,
and 1996, the Computer Fraud and Abuse Act protects a broad range of computers that facilitate
interstate and international commerce and communications. The Act makes it a crime with respect any
computer that is used in interstate commerce or communications (1) to access or damage it, without
authorization; (2) to access it with the intent to commit fraud; (3) to traffic in passwords for it; and (4) to
threaten to cause damage to it with the intent to extort money or anything of value.
Spam — unsolicited commercial electronic mail—has become the most prevalent method used for
distributing pornography, perpetrating fraudulent schemes, and introducing viruses, worms, and Trojan
horses into personal and business computer systems. In response, Congress enacted the Controlling the
Assault of Non-Solicited Pornography and Marketing Act of 2003 or the CAN-SPAM Act of 2003, which
went into effect on January 1, 2004. In enacting the statute Congress determined that senders of spam
should not mislead recipients as to the source or content of such mail and that recipients of spam have a
right to decline to receive additional spam from the same source
6-2b Racketeer Influenced and Corrupt Organizations Act (RICO)

RICO was enacted in 1970 with the stated purpose of terminating organized crime’s infiltration of
legitimate businesses. The act imposes severe civil and criminal penalties for enterprises that engage in a
pattern of racketeering, which is defined as the commission of two or more predicate acts within a ten-year
period. A predicate act is any of several criminal offenses listed in RICO.
Nine major categories of state crimes and 26 federal crimes are defined, including murder, kidnapping,
arson, extortion, drug dealing, securities fraud, mail fraud, and bribery. RICO is controversial because
businesses that are not involved in organized crime may still meet the “pattern of racketeering” test and be
subject to fines, prison terms and treble damages in civil suits.
Criminal conviction under the law may result in (1) fines of up to $250,000 ($500,000 for an organization)
or twice the amount of gross profits or other proceeds from the offense and/or (2) a prison term of up to
twenty years or for life if the violation is based on a racketeering activity for which the maximum penalty
includes life imprisonment.

List and define the offenses against business.
6-3 CRIMES AGAINST BUSINESS

In the United States, crimes against business property amount to losses in the hundreds of billions of dollars
each year. In this section, you will learn about several serious property crimes: (1) larceny, (2)
embezzlement, (3) false pretenses, (4) robbery, (5) burglary, (6) extortion and bribery, (7) forgery, and
(8) bad checks.
6-3a Larceny
Elements: (1) trespassory (2) taking and (3) carrying away of (4) personal property (5) of another (6) with
the intent to deprive the victim permanently of the goods (not necessarily by force).
6-3b Embezzlement
Defined as the (a) fraudulent (b) conversion of (c) the property (d) of another (e) by one who is in lawful
possession of it. Conversion is any act that seriously interferes with the owner’s rights in the property.
The key distinction between larceny and embezzlement is that with embezzlement, the thief is in lawful
possession of the property at the time of the theft.
6-3c False Pretenses

Elements: a) a materially false representation of an existing fact b) which causes the victim c) to pass title
to d) his property to the wrongdoer e) who knows his representation to be false and intends thereby to
defraud the victim. Note use of subjective reasonableness test: if the victim is actually deceived, the test is
satisfied. Gullibility or lack of due care on the part of the victim is no defense.
CASE 6-2
STATE OF SOUTH DAKOTA v. MORSE
Supreme Court of South Dakota, 2008
753 N.W.2d 915, 2008 SD 66
http://scholar.google.com/scholar_case?case=4959207354232635251&q=753+N.W.2d+915&hl=en&as_sdt=2,34
Konenkamp, J.
[Janice Heffron orally contracted with her neighbor, Wyatt Morse, to convert her second-
floor bedroom into a bathroom in five weeks for $5,000. According to Janice, Morse
repeatedly stated that he could do it “easy, quick, cheap.” Janice told her mother, Maxine
Heffron, who would finance the project, about Morse’s offer. Maxine and Janice then went
to Morse’s home, where he showed them the bathroom he had restored. Janice and Maxine
were impressed. Morse also told them that he had plumbing experience, that his work would
be above and beyond code, and that the local inspector did not inspect his work because he
was so good. Maxine wanted to pay using personal checks to assure a paper trail, but Morse
convinced her to pay him with cash. According to Janice, he wanted to be paid in cash to
avoid the Internal Revenue Service. They agreed that Morse would convert the room into a
bathroom, install an antique claw-foot tub (one that he would provide personally), put
wainscoting on the walls, install an old tin ceiling like the one in his bathroom, and install
crown molding.
Morse began work in January 2006. His efforts continued until the second week of
March. He installed plumbing fixtures and he removed the old water heater and installed a
new one. He ran a freeze-proof spigot outside the house. He put in a bathroom vent with an
antique vent cover. He custom built a bathroom cabinet at no extra cost to the Heffrons. He
mounted wainscoting and crafted a surrounding shelf with rope lighting. He put in a faux tin
ceiling, with crown molding and trim. He installed water pipes and a new drain stack. The
project took longer and cost more than originally agreed. Morse ran into difficulties when he
attempted to install a tankless water heater. He was never able to install the tankless heater
and ended up installing a traditional tanked water heater. Morse also experienced problems
with some of the pipes he installed. Janice told him that they were leaking. He repaired them
and blamed the leaks on bad batches of solder.
Maxine paid Morse somewhere between $6,000 and $6,500 cash. In March 2006, Morse
fell and aggravated his already bad back. Before Janice and Maxine hired him, Morse had
told them that he had a back condition. After his fall in March, he came to the job site less
and less. Then, after the second week in March he stopped coming entirely. The Heffrons
tried contacting him through phone calls, personal visits, and certified mail. He never
responded. After Morse abandoned the project, Janice contacted a licensed plumber, who
examined Morse’s work and gave Janice an estimate on the cost of completing the project.
The plumber pointed out several deficiencies in Morse’s work. In particular, Morse
incorrectly installed the water heater, the pipes for the sink, lavatory, and bathtub. He used
S-traps, illegal in South Dakota, and improperly vented the floor drains. Because he installed
the water heater incorrectly, carbon monoxide was leaking into Janice’s home. In sum,
Morse’s work on the bathroom, in the opinion of the licensed plumber, had no value to the
home.
On October 12, 2006, Morse was indicted for grand theft by deception in violation of
South Dakota law. A jury returned a guilty verdict. Morse was sentenced to five years in
prison. He appealed asserting that the evidence was insufficient to sustain the verdict.
Morse argues that the State failed to prove he had the requisite intent to defraud the
Heffrons. He does not dispute that the work he did on Janice’s home was faulty and resulted
in the Heffrons having to pay considerably more in repairs. Nonetheless, he claims that his
faulty work created a classic breach of contract claim, because when he entered into the
agreement to remodel the bathroom, he believed he was capable of doing quality work and
fully intended on completing the project. The State, on the other hand, argues that Morse
“created and reinforced the false impression in the minds of Jan and Maxine Heffron that he
was licensed to, and capable of, installing a second floor bathroom.” More particularly, the
State contends that Morse “deceived” the Heffrons on his ability to do the work, “misled”
them with his statements that his work would be above code, and “took actions to further
reinforce the false impression that he was able to properly install the bathroom.”
Theft by deception is a specific intent crime. [Citation.] Intent to defraud “‘means to act
willfully and with the specific intent to deceive or cheat, ordinarily for the purpose of either
causing some financial loss to another or bringing about some financial gain to one’s self.’”
[Citation.] Therefore, Morse must have had the “purpose to deceive.” [Citation.] “‘It is only
where [actors do] not believe what [they] purposely caused [their victims] to believe, and
where this can be proved beyond a reasonable doubt, that [these actors] can be convicted of
theft.’” [Citation.]
***
There are a number of cases involving construction contracts where courts have found
the evidence sufficient to prove deceptive theft, or related criminal conduct. In those cases,
however, there was either circumstantial or direct evidence to establish the requisite intent.
For example, in [citation], an appeals court held that the jury could infer intent when at the
time Cash obtained the money he had no intention to complete the work because he took the
money and never performed. In State v. Rivers, the Iowa Supreme Court upheld the
defendant’s conviction for theft by deception because he had a pattern of deceptive conduct.
[Citation.] Rivers was a self-employed contractor, who obtained multiple remodeling jobs,
took money as a down payment, persuaded his customers to give him more money, and then
never completed the work. * * *
Here, Morse was convicted of theft by deception, defined in SDCL 22-30A-3. It states in
part:
[a]ny person who obtains property of another by deception is guilty of theft. A person
deceives if, with intent to defraud, that person:
(1) Creates or reinforces a false impression, including false impressions as to law,
value, intention, or other state of mind. However, as to a person’s intention to perform a
promise, deception may not be inferred from the fact alone that that person did not
subsequently perform the promise; …
(3) Fails to correct a false impression which the deceiver previously created or
reinforced, or which the deceiver knows to be influencing another to whom the deceiver
stands in a fiduciary or confidential relationship; …
The term, deceive, does not, however, include falsity as to matters having no pecuniary
significance or puffing by statements unlikely to deceive reasonable persons.
Based on our review of the record, in a light most favorable to the verdict, Morse: (1)
failed to complete the project in five weeks for $5,000 as promised; (2) performed work that
was not “above and beyond code” as promised; (3) lied about obtaining a building permit;
(4) lied about the reasons he could not get the tankless water heater installed and why the
pipes were leaking; (5) returned the water heater and did not give the $186 refund to
Maxine; (6) never provided Janice or Maxine receipts for materials purchased; (7) quit
working on the project prematurely and without explanation; and (8) never responded to the
Heffrons’ attempts to contact him.
These facts do not prove the elements of theft by deception. There is no evidence that
Morse had a purpose to deceive or intended to defraud the Heffrons when he agreed to
remodel Janice’s bathroom. Although his work was not above and beyond code, the State
never argued that Morse knew he would do faulty work. Janice and Maxine both testified
that Morse took them up to his house and showed him the remodeling that he did to his own
bathroom. They both said they were impressed. It cannot be inferred that Morse intended to
defraud the Heffrons because his work product was not up to code.
Moreover, the State never argued or presented evidence that Morse took Maxine’s
money with the intention of never performing under their agreement. * * * The parties made
their agreement in December 2005, and no one disputes that Morse worked regularly on the
project from January 2006 until the second week of March. While Morse failed to complete
the project in five weeks for $5,000 as promised, the State never claimed that he knew it
would take longer and charge more, and tricked the Heffrons into believing him. Neither
Janice nor Maxine claimed that Morse deceived them into paying him more money when the
project took longer than anticipated. * * *
To sustain a conviction, each element of an offense must be supported by evidence.

[Citation.] Theft by deception is a specific intent crime, and therefore, the State was required
to prove beyond a reasonable doubt that Morse had the specific intent to defraud the
Heffrons when he agreed to remodel the bathroom. Here the evidence offered by the State
“is so insubstantial and insufficient, and of such slight probative value, that it is not proper to
make a finding beyond a reasonable doubt that [Morse] committed all of the acts constituting
the elements ofthe offense[.]”
Reversed.
6-3d Robbery
Larceny with the added elements that (1) the property is taken directly from the victim or in the victim's
presence and (2) is accomplished through force or threat of force. Robbery may be aggravated by (1) use
of a deadly weapon, (2) intent to kill, (3) serious bodily injury, or (4) commission of the crime by two or
more persons
6-3e Burglary
Most statutes define as (1) entry (2) into a building (3) with intent to commit a felony in the building.
6-3f Extortion and Bribery

Extortion, also called blackmail, is defined in most cases as the making of threats for the purpose of
obtaining money or property. Bribery, in contrast, is the offering of money or property to a public official
in order to influence that official’s decision.
6-3g Forgery
Intentional falsification of a document with intent to defraud.
6-3h Bad Checks

Issuing a check with insufficient funds to cover the check. Most jurisdictions require defendants to know
they do not have enough money to cover the check.
CASE 6-3
LOUISIANA v. HAMED
Court of Appeal of Louisiana, Fourth Circuit, 2014
147 So.3d 1191
Belsome, J.
The defendant, Zuhair Hamed, was charged by bill of information with one count
of issuing a worthless check in the amount of five hundred dollars or more. The bill
was later amended to indicate that the worthless check was in the amount of fifteen
hundred dollars or more.
***
On September 18, 2007, Little Castro, L.L.C. (doing business as Discount City)
entered into a credit sales agreement with fuel supplier, Ballard Petroleum, Inc.
Ballard Petroleum agreed to provide fuel and Discount City would pay the
obligation within ten days from the date of the invoice or next load. Ameer Hamed,
the defendant's son, personally guaranteed payment on behalf of his establishment,
Discount City. The defendant was listed as a contact on the credit application filed
by his son.
During October of 2007, Ballard Petroleum made six fuel deliveries in a twelve-day
period. However, the checks for those deliveries totaling approximately $126,000
were returned for nonsufficient funds (NSF). On November 1, 2007, the defendant
rode with Mr. Jim Ballard, the owner of Ballard Petroleum, to the bank, where he
issued him a cashier's check in the amount of $126,061.30 to cover the returned
checks. On the next day, another NSF check in the amount of $20,597.08 was
returned to Ballard Petroleum. The check, dated October 26, 2007, was for a fuel
delivery on October 16, 2007. The defendant was not a member of Silwady's Group
L.L.C., the listed account holder on the check. Also, he was not a member of Little
Castro, L.L.C. (Discount City). Thus, he was acting as an agent for these businesses.
In an effort to resolve the matter, Mr. Ballard made several attempts to contact the
defendant, but he was unable to reach him. On November 6, 2007, pursuant to
instruction from the Worthless Check Division of the District Attorney’s office,
Ballard Petroleum sent a certified letter notifying Discount City of the dishonored
check. In response to the letter, the defendant acknowledged the debt and advised
Mr. Ballard that he would reimburse him. By April of 2009, after the District
Attorney’s office became involved, the defendant paid $7,000.00 towards the
balance. There were no additional payments made, and charges were eventually
filed against the defendant in October of 2011.
[The defendant pled not guilty at arraignment. After a motions hearing, the trial
court found no probable cause to substantiate the charges. The defendant
subsequently waived his right to a jury trial and elected to proceed with a bench
trial. At the conclusion of trial, the trial court found the defendant guilty as charged.
The trial court denied all post-verdict motions, and the defendant was sentenced to
four years in the Department of Corrections, suspended, with four years of active
probation, as well as a $1,000.00 fine, court costs, and restitution costs. After a
hearing, the magistrate court ordered the defendant to pay $13,626.08 in restitution.
The defendant appealed.]
The defendant first argues that the evidence was insufficient for a rational trier of
fact to find that the elements of the crime of issuing worthless checks were proven
beyond a reasonable doubt.
The court in [citation] recognized the elements required to convict a defendant for
issuing a worthless check as follows:
Under [Louisiana Statute], to obtain a conviction for issuing of a worthless check
the state is required to prove beyond a reasonable doubt that: (1) defendant issued,
in exchange for anything of value, whether the exchange is contemporaneous or
not; (2) a check, draft or order for the payment of money upon any bank or other
depository; (3) knowing at the time of the issuing that the account on which drawn
has insufficient funds with the financial institution on which the check is drawn to
have the instrument paid in full on presentation; and (4) the instrument was issued
with intent to defraud.
The proper inquiry under [the Louisiana statute] is whether a defendant knew that
he had not sufficient credit with the bank, not whether his actual monetary balance
was sufficient to cover a check, draft or order for payment issued by him. [Citation.]
In this case, the knowledge element is lacking. The State points to two facts to
support its argument that the knowledge element was met: 1) the multitude of NSF
checks written to the victim before and after the date of the check at issue; and 2)
the defendant’s acknowledgment that he owed the debt and would reimburse
Ballard Petroleum.
First, there is no evidence in the record that the defendant knew there were
insufficient funds in the bank on August 26, 2007. While Mr. Ballard testified that he
went to the bank with the defendant, who issued him a cashier’s check for the
returned checks on November 1, 2007; this took place after the checks had already
been written. Thus, it does not serve to establish that the defendant had knowledge
of the insufficient funds at the time the checks were written. Likewise, the
defendant’s acknowledgement of the debt after he received the certified letter does
not prove the defendant’s knowledge at the time the check was issued.
*** this was not the defendant’s personal (or business) account. Significantly, the
account holder, here, was Silwady’s Group, a limited liability company that was not
owned by the defendant [but did involve the defendant’s son]. Thus, it is
reasonable to conclude that the defendant was merely an agent, who was directed
to write checks without knowledge of the status of the account. The fact that he
continually attempted to reimburse Ballard Petroleum supports this conclusion.

Under these circumstances, presenting account records alone is insufficient to prove
the defendant’s knowledge.
The record fails to provide sufficient evidence for a rational trier of fact to conclude
that defendant had the knowledge that Silwady Group did not have sufficient
funds with the bank for payment of the check when he signed it. [Citation.]
Accordingly, we find that the evidence was legally insufficient to convict the
defendant of issuing worthless checks. In light of this conclusion, we pretermit any
discussion of the defendant’s remaining assignments of error.
For these reasons, we reverse the defendant’s conviction and sentence.

Describe the defenses of person or property, duress, mistake of fact, and entrapment.
6-4 DEFENSES TO CRIMES

Defendants found to have committed criminal acts will not be convicted if they have a valid defense such as
the absence of an element required to make the act a crime or an excuse that bars criminal liability.
Defenses include the following:
6-4a Defense of Person or Property

Individuals may use reasonable force to protect themselves, other individuals, and their property. Does not
include deadly force in the defense of property without threat of bodily harm.
6-4b Duress
Applies when one is threatened with immediate, serious bodily harm to himself or another person unless he
engages in criminal activity; does not excuse murder.
6-4c Mistake of Fact

If a person reasonably believes the facts are such that his conduct would not be a crime, then the law will
treat the facts as he reasonably believed them to be.
6-4d Entrapment
Arises when a law enforcement official induces a person to commit a crime when that person would not
have done so without the persuasion of the official.

List and explain the constitutional amendments affecting criminal procedure.
6-5 CRIMINAL PROCEDURE

All states, as well as the federal government, have procedures for initiating and coordinating criminal
prosecutions. The first ten amendments to the U.S. Constitution (known as the Bill of Rights) also
guarantee many defenses and rights of the accused:
NOTE: See Fig. 6-2: Constitutional Protection for the Criminal Defendant.
6-5a Steps in Criminal Prosecution

Suspect is arrested, booked and charged.
Next, a preliminary hearing is held to determine probable cause.
If probable cause exists, the next stage is either indictment or information. An indictment is issued by
a grand jury if it finds evidence sufficient for a trial. An information is a formal accusation issued by a
prosecuting officer. (This sometimes precedes arrest.)
At the arraignment, the defendant is formally charged and he enters a plea. If he pleas "not guilty," he
must stand trial, either a jury trial or a bench trial (no jury).
In a criminal trial: (1) The defendant is presumed innocent.
(2) The burden of proof on the prosecution is to prove criminal guilt beyond a reasonable doubt (i.e.,
proof that is entirely convincing, satisfied to a moral certainty).
(3) The defendant cannot be required to testify.
The trial begins with the jury’s selection, if the defendant chooses a jury trial, followed by opening
statements from the prosecutor and the defense attorney. The prosecution presents evidence first; then the
defense offers its case. After the testimony, both sides present their closing statements, and then the judge
instructs the jury as to applicable law, at which time the jury retires to arrive at a verdict.
If the verdict is "not guilty," the matter ends there. Neither the state nor the federal government has the
right to appeal.
If the verdict is "guilty," the presiding judge will enter a judgment of conviction and set a court time for
sentencing. At that time, the defendant may make a motion for a new trial (due to prejudicial error) or
appeal to an appellate review court (alleging error by the trial court).
6-5b The Fourth Amendment

Prohibits unreasonable searches and seizures to obtain incriminating evidence. Evidence obtained in
violation of the Fourth Amendment is generally prohibited from introduction in trial (by the
exclusionary rule) in order to discourage illegal police conduct.
In order to obtain a search warrant to conduct a legal search, police must demonstrate probable cause to
believe the search will reveal evidence of criminal activity.
6-5c The Fifth Amendment

Requires a grand jury for indictment in capital crimes, prevents double jeopardy (being tried for the same
offense twice), protects against self-incrimination, and prohibits deprivation of life or liberty without due
process of law.
6-5d The Sixth Amendment

Requires that the accused receive a speedy and public trial by an impartial jury, and that he be informed of
the accusation’s nature, confronted with the witnesses who testify against him, allowed to obtain witnesses
in his favor, and allowed the right to competent counsel.
ANSWERS TO QUESTIONS AND CASE PROBLEMS

1. Sam said to Carol, “Kim is going to sell me a good used car next Monday and then I’ll
deliver it to you in exchange for your computer, but I’d like to have the computer now.”
Relying on this statement, Carol delivered the computer to Sam. Sam knew Kim had no
car and would have none in the future, and he had no such arrangement with her. The
appointed time of exchange passed, and Sam failed to deliver the car to Carol. Has a
crime been committed? Discuss.
Answer: False Pretenses. Yes. Sam has committed the crime of obtaining property by false
pretenses. This crime declares it illegal for one to obtain title to property of another by
means of materially false representations made with the intent to defraud and with
knowledge of this falsity. Here Sam obtained Carol’s computer by falsely promising
Carol that he (Sam) would in return deliver to Carol a used car that Sam was to obtain
from Kim. Sam, however, never had any intention or right to obtain Kim’s car and thus
falsely represented his intentions and rights and did so with the intent to defraud Carol
and with knowledge that his statement was indeed false.
2. Sara, a lawyer, drew a deed for Robert by which Robert was to convey land to Rick. The
deed was correct in every detail. Robert examined and verbally approved it but did not
sign it. Sara then erased Rick’s name and substituted her own. Robert subsequently
signed the deed with all required legal formalities without noticing the change. Was
Sara guilty of forgery? Discuss.
Answer: Forgery. Yes. Forgery is the intentional falsification with intent to defraud, of a
legally significant instrument. In this case Sara intentionally altered Robert’s deed to
name herself as grantee in place of Rick. A deed is clearly an instrument of legal
significance and hence Sara’s intentional falsification of the document constituted the
crime of forgery.
3. Ann took Bonnie’s watch before Bonnie was aware of the theft. Bonnie discovered her
loss immediately and pursued Ann. Ann pointed a loaded pistol at Bonnie, who, in fear
of being shot, allowed Ann to escape. Was Ann guilty of robbery? Of any other crime?
Answer: Robbery, Larceny, Assault. Ann is not guilty of robbery. In order for conduct to
constitute a robbery it is necessary for the force or threat of force to accompany or
precede the taking. "Thus it is not robbery to steal property without violence of
intimidation (e.g., to obtain it by stealth or fraud or sudden snatching) although the thief
later, in order to retain the stolen property or make good his escape, uses violence or
intimidation upon the property owner." LaFave and Scott, Criminal Law 701 (citing
Thompson v. State, 24 Ala. App. 300, 130 SO 679 (1931); People v. Jones, 290 Ill. 603,
125 N.E. 256 (1919); State v. Holmes, 317 MO. 9, 295 S.W. 71 (1927); Mason v.
Commonwealth, 200 VA. 253, 105 S.E. 2d 149 (1958) ). Thus Ann did not perpetrate
the crime of robbery, but has committed the crimes of larceny and assault.
4. Jones and Wilson were on trial, separately, for larceny of a $10,000 bearer bond
(payable to the holder of the bond, not a named individual) issued by Brown, Inc. The
commonwealth’s evidence showed that the owner of the bond put it in an envelope
bearing his name and address and dropped it accidentally in the street; that Jones found
the envelope with the bond in it; that Jones could neither read nor write; that Jones
presented the envelope and bond to Wilson, an educated man, and asked Wilson what he
should do with it; that Wilson told Jones that the finder of lost property becomes the
owner of it; that Wilson told Jones that the bond was worth $1,000 but that the money
could be collected only at the issuer’s home office; that Jones then handed the bond to
Wilson, who redeemed it at the corporation’s home office and received $10,000; that
Wilson gave Jones $1,000 of the proceeds. What rulings?
Answer: Larceny. The question of Jones’s criminal liability deals with whether he has taken
the lost bond by a trespass from the owner’s possession. Although the owner of lost or
mislaid property has constructive ownership of the property, a finder is only held to have
committed a trespass within the definition of larceny if (1) he intends to steal the
property and (2) he either knew who the actual owner was or could so find out. Here,
Jones, who could not read and did not know who the owner was, did not commit a
larceny.
The question concerning Wilson, on the other hand, is not whether he committed a crime
but what crime he committed and that is dependent upon whether or not Wilson ever
obtained title to the property. Wilson clearly has committed a taking and carrying away
of personal property of another with intent to steal. The question then remaining is
whether Wilson obtained possession of the property or title to the property. From the
facts it appears that Wilson was solely acting as Jones’s agent and therefore never
obtained title to the property. Nonetheless, regardless of the conclusion reached on this
issue, Wilson has committed a crime: larceny (larceny by trick) if he did not receive title,
or obtaining property by false pretense if he did receive title. In either instance Wilson
received the property by false representations made with the intent to defraud and with
knowledge of their falsity.
A second issue concerning Wilson that should be discussed is whether the personal
property is that of another. For larceny the thief need not take the property from its
owner; a thief taking the property from another thief is guilty of larceny. Thus, Wilson’s
taking of the property from Jones is criminally wrong.
5. Truck drivers for a hauling company, while loading a desk, found a $100 bill that had
fallen out of the desk. They agreed to get it exchanged for small bills and divide the
proceeds. En route to the bank, one of them changed his mind and refused to proceed
with the scheme, whereupon the other pulled a knife and demanded the bill. A police
officer intervened. What crimes have been committed?
Answer: Larceny, Robbery. This case presents a number of difficult questions. First,
regarding whether the drivers committed the crime of larceny is dependent upon whether
their conduct demonstrated the necessary intent to steal. In this case they are not simply
finders in that they know who the money belonged to and when they took it with the
intent to keep it they committed the crime of larceny. Here, unlike in question 4, the
drivers knew who was the owner and intended to convert the money to their own use.
The crime had not been completed, so the one driver who wanted to back out could
return the money to the owner. It would still be an attempted larceny, however. Also,
the one driver who pulled a knife on the other is guilty of both an assault and a robbery.
As with larceny, a thief stealing from another thief by means of force is guilty of a
robbery.
6. Peter, an undercover police agent, was trying to locate a laboratory where it was
believed that methamphetamine, or “speed”—a controlled substance—was being
manufactured illegally. Peter went to Mary’s home and said that he represented a large
organization that was interested in obtaining methamphetamine. Peter offered to supply
a necessary ingredient for the manufacture of the drug, which was very difficult to
obtain, in return for one-half of the drug produced. Mary agreed and processed the
chemical given to her by Peter in Peter’s presence. Later Peter returned with a search
warrant and arrested Mary. Mary was charged with various narcotics law violations.
Mary asserted the defense of entrapment. Should Mary prevail? Why?
Answer: Entrapment. The defense is not valid. If the rule advanced by Mary were adopted,
it would not help Mary, for the evidence disclosed that, although the necessary ingredient
was difficult to obtain, it was not impossible. Peter merely contributed the ingredient to
a criminal enterprise already in progress. Peter did not commit any crime in infiltrating
Mary's drug enterprise. The chemical, which the problem did not disclose, was harmless
by itself and its possession was legal. The court reaffirmed earlier decisions that the
principal element in the defense of entrapment was the defendant's predisposition to
commit the crime. The court reasoned that it would not be desirable to grant immunity
from prosecution to a person who planned to commit a crime, and then committed it,
simply because a government undercover agent induced him by providing an opportunity
or facility for commission of the offense. It is only when the government implants the
criminal design in the mind of the defendant that the defense of entrapment may be
asserted. Therefore, in this case the defense of entrapment is not available to Mary.
United States v. Russell, 411 U. S. 423, 93S. Ct. 1637, 36 L. Ed. 2d 366 (1973).
7. The police obtained a search warrant based on an affidavit that contained the following
allegations: (a) Donald was seen crossing a state line on four occasions during a five-
day period and going to a particular apartment; (b) telephone records disclosed that the
apartment had two telephones; (c) Donald had a reputation as a bookmaker and as an
associate of gamblers; and (d) the FBI was informed by a “confidential reliable
informant” that Donald was conducting gambling operations from the apartment. The
affidavit did not indicate how the informant knew of this information nor did it contain
any information about the reliability of the informant. When a search was made based
on the warrant, evidence was obtained that resulted in Donald’s conviction of violating
certain gambling laws. Donald challenged the constitutionality of the search warrant.
Were Donald’s constitutional rights violated? Explain your answer.
Answer: Fourth Amendment: Search Warrants. The search warrant was not sufficiently
supported by the evidence to be valid. The fact that Donald frequented an apartment
with two telephones does not prove anything. The statement that Donald was a known
gambler is an “unilluminating assertion” of suspicion that is entitled to no weight in
appraising the magistrate’s decision to issue the warrant. In determining whether the
informant’s tip was sufficient to issue the warrant the following factors must be
considered. The affidavit stated that the confidential informant was “reliable”.
However, no reason was given to support that conclusion. Additionally, the tip did not
contain the underlying circumstances from which the informer concluded that Donald
was running a bookmaking operation, or how the tip was obtained. “In the absence of a
statement detailing the manner in which the information was gathered, it is especially
important that the magistrate may know that he is relying on something more substantial
than a casual rumor circulating in the underworld or an accusation based merely on an
individual’s general reputation.” Here the only facts supplied were that Donald was
using two telephones in conducting gambling operations. This is not sufficient to show
probable cause that a crime was being committed. No search warrant should have been
issued and; therefore, the evidence obtained by the search was not admissible. Spinelli
v. United States, 394 U. S. 410, 89, Ct. 584, 21 L. Ed. 2d 637 (1969).
8. A national bank was robbed by a man with a small strip of tape on each side of his face.
An indictment was returned against David. David was then arrested, and counsel was
appointed to represent him. Two weeks later, without notice to David’s lawyer, an FBI
agent arranged to have the two bank employees observe a lineup, including David and
five or six other prisoners. Each person in the lineup wore strips of tape, as had the
robber, and each was directed to repeat the words “Put the money in the bag,” as had
the robber. Both of the bank employees identified David as the robber. At David’s trial
he was again identified by the two, in the courtroom, and the prior lineup identification
was elicited on cross-examination by David’s counsel. David’s counsel moved the court
either to grant a judgment of acquittal or alternatively to strike the courtroom
identifications on the ground that the lineup had violated David’s Fifth Amendment
privilege against self-incrimination and his Sixth Amendment right to counsel. Decision?
Answer: Fifth Amendment (self-incrimination) and Sixth Amendment (right to counsel).
No, as to the Fifth Amendment privilege. Neither the lineup itself, nor anything that
David was required to do in the lineup violated David's privilege against self-
incrimination. There is no question of the admissibility into evidence of anything David
said or did at the lineup that involves his privilege. The privilege protects an accused
from being compelled to provide evidence of a testimonial or communicative nature.
This was not the case here, and thus the Fifth Amendment provides no basis for striking
the judgment.
Yes, as to Sixth Amendment right to counsel. Because the lineup was conducted without
notice to and in the absence of counsel there may have been a violation of David’s Sixth
Amendment right to counsel. The confrontation compelled by the lineup between the
accused and the victim or witnesses to elicit identification is filled with numerous
dangers and factors that might seriously limit the defendant's right to a fair trial. Because
of this a post-indictment lineup is a "critical stage of the prosecution," at which David

was entitled to counsel. The U. S. Supreme Court vacated the judgment and remanded
the case to determine if admission of the evidence was "harmless error," or sufficient to
warrant a new trial. United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d
1149 (1967).
9. Waronek owned and operated a trucking rig, transporting goods for L.T.L. Perishables,
Inc., of St. Paul, Minnesota. He accepted an offer to haul a trailer load of beef from
Illini Beef Packers, Inc., in Joslin, Illinois, to Midtown Packing Company in New York
City. After his truck was loaded with ninety-five forequarters and ninety-five
hindquarters of beef in Joslin, Waronek drove north to his home in Watertown,
Wisconsin, rather than east to New York. While in Watertown, he asked employees of the
Royal Meat Company to butcher and prepare four hindquarters of beef—two for himself
and two for his friends. He also offered to sell ten hindquarters to one employee of the
company at an alarmingly reduced rate. The suspicious employee contacted the
authorities, who told him to proceed with the deal. When Waronek arrived in New York
with his load short, Waronek telephoned L.T.L. Perishables in St. Paul. He notified them
“that he was short the hindquarters, that he knew where the beef went, and that he
would make good on it out of future settlements.” L.T.L. told him to contact the New
York police but he failed to do so. Shortly thereafter, he was arrested by the Federal
Bureau of Investigation and indicted for the embezzlement of goods moving in interstate
commerce. Explain whether Waronek was guilty of the crime of embezzlement.
Answer: Larceny/Embezzlement. Waronek was guilty of embezzlement. Waronek was
entrusted with possession of the hindquarters under a contract of carriage, and he took
and converted these to his own use. Larceny involves an unlawful trespass to the
possessory interest of the owner in the property. If the owner is not in possession of the
property taken, there can be no larceny. Where the taker has been entrusted with the
possession of the property, the crime is more aptly described as embezzlement. United
States v. Waronek, 582 F. 2d 1158 (1978).
10. Four separate cases involving similar fact situations were consolidated because they
presented the same constitutional question. In each case, police officers, detectives, or
prosecuting attorneys took a defendant into custody and interrogated him in a police
station to obtain a confession. In none of these cases did the officials fully and effectively
advise the defendant of his rights at the outset of the interrogation. The interrogations
produced oral admissions of guilt from each defendant, as well as signed statements
from three of them, which were used to convict them at their trials. The defendants
appealed, arguing that the officials should have warned them of their constitutional
rights and the consequences of waiving them before the questioning began. It was
contended that to permit any statements obtained without such a warning violated their
Fifth Amendment privilege against self-incrimination. Were the defendants’
constitutional rights violated? Discuss.
Answer: Fifth Amendment. Judgment for defendants. The long-standing Fifth Amendment
privilege against self-incrimination applies to police interrogations of defendants in
custody as well as in the courtroom. It guarantees the accused “the right to remain silent
unless he chooses to speak in the unfettered exercise of his own will.” Frequently,
custodial interrogations by law enforcement officials involve intimidation, trickery,
violence, and other coercive measures that tend to deprive the defendant of his free will.
Therefore, to safeguard the Fifth Amendment privilege, law enforcement officials must
inform the defendant prior to an interrogation that: (1) he has the right to remain silent
and anything he says might be used against him in court; (2) he has the right to consult
with a lawyer and to have the lawyer present during the interrogation; and (3) if he is
indigent, a lawyer will be appointed to represent him. If prior to or during the
interrogation, the defendant indicates that he wishes to remain silent, the questioning
must cease. If he states that he wants an attorney, the questioning must cease until the
attorney is present. If statements are obtained following the defendant’s waiver of his
rights, the government has a heavy burden to prove that the waiver was given knowingly
and intelligently. If the officials fail to follow this procedure, any statements obtained
during the interrogation are inadmissible.
In each of these cases, the law enforcement officials did not inform the defendants of
their Fifth Amendment privileges before their interrogations. The defendants’ right to
remain silent and protection from self-incrimination were not adequately protected,
making their confessions inadmissible in court. Therefore, their convictions were
reversed. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
11. Officer Cyril Rombach of the Burbank Police Department, an experienced and well-
trained narcotics officer, applied for a warrant to search several residences and
automobiles for cocaine, methaqualone, and other narcotics. Rombach supported his
application with information given to another police officer by a confidential informant
of unproven reliability. He also based the warrant application on his own observations
made during an extensive investigation: known drug offenders visiting the residences
and leaving with small packages as well as a suspicious trip to Miami by two of the
suspects. A state superior court judge in good faith issued a search warrant to Rombach
based on this information. Rombach’s searches netted large quantities of drugs and
other evidence, which produced indictments of several suspects on charges of conspiracy
to possess and distribute cocaine. The defendants moved to exclude the evidence on the
grounds that the search warrant was defective in that Rombach had failed to establish
the informant’s credibility and that the information provided by the informant about the
suspect’s criminal activity was fatally stale. Explain whether the evidence should be
excluded.
Answer: Fourth Amendment. No. Judgment for the prosecution. The Fourth Amendment
contains no express provision mandating the exclusion of evidence that is obtained by an
unlawful search and seizure. Consequently, an unlawful search and seizure will not
automatically grant an individual a constitutional right to have the unlawfully obtained
evidence excluded. When law enforcement officers act in good faith and rely reasonably
on a facially valid search warrant issued by a detached, neutral magistrate, the evidence
obtained should not be excluded, even if the warrant is subsequently declared defective.
To exclude such evidence would punish law enforcement officers, whose conduct is
objectively reasonable, for a magistrate’s error. Such a case may also result in permitting
some guilty defendants to go free or to receive reduced sentences, simply because of a
technical flaw in the application. These considerations weigh heavily in favor of
recognizing a good faith exception to the exclusionary rule.
12. Raymond Johnson snatched a purse that had been left in an unattended car at a gas
station. The purse contained both money and a firearm. Johnson was convicted for the
crimes of grand theft of property (cash and payroll check) and grand theft of a firearm.
Johnson appealed, arguing that this conviction is a double jeopardy violation in that it
constitutes multiple convictions for a single act. Should he be convicted of two separate
crimes for stealing the purse?
Answer: Essential Elements of a Crime. No; Johnson cannot be separately convicted for
grand theft of property and grand theft of a firearm. The question presented is whether a
defendant may be separately convicted and sentenced for grand theft of cash and grand
theft of a firearm accomplished by means of snatching a purse that contained both cash
and a firearm when the defendant did not know the nature of the purse’s contents. When
one commits a theft by taking the property of another, the degree of felony is defined by
such factors as the value of the goods or whether a firearm is taken. However, these
classifications do not constitute separate crimes. A separate crime occurs only when
there are separate distinct acts of seizing the property of another. If Johnson had taken
the purse and then picked up the gun separately, there could be two convictions for
separate acts. However, in this case, there was one intent and one act of taking the
handbag. Accordingly, there could be only one theft conviction in this case.
13. On February 10, Kelm secured a loan for $6,000 from Ms. Joan Williams. Kelm told
Williams that the loan was to finance a real estate transaction. Five days later, Ms.
Williams received a check drawn by Kelm in the amount of $6,000 from Kelm's attorney.
Although the check was dated February 15, Kelm claims that she delivered the check to
her attorney on February 10. The following week, Ms. Williams learned the check was
uncollectible. Subsequently, Williams received assurances from Kelm but was
unsuccessful in her efforts to obtain money from the drawee's bank. When Williams
deposited the check, it was returned with a notation that it should not be presented again
and that no account was on file. Bank records show that the account was closed on
March 8 and that it had negative balances since February 10. Did Kelm illegally issue a
bad check? Explain.
Answer: Bad Checks. Yes, Kelm illegally issued a bad check. State v. Kelm, Superior Court
of New Jersey, 1996, 289 N.J. Super. 55, 672 A.2d 1261; cert. denied, 146 N.J. 68, 679
A.2d 655 (1996).
The principal issue on appeal is whether an intent to defraud is an element of Section
2C:21-5 [issuing a bad check] of the New Jersey statutes. The statute provides:
A person who issues or passes a check or similar sight order for the payment of money,
knowing that it will not be honored by the drawee, commits an offense.… For the
purposes of this section as well as in any prosecution for theft committed by means of a
bad check, an issuer is presumed to know that the check or money order (other than a
post-dated check or order) would not be paid, if:
***
(b) Payment was refused by the drawee for lack of funds, upon presentation within 30
days after issue, and the issuer failed to make good within 10 days after receiving notice
of that refusal.…
This statute, unlike its predecessor, does not contain the language “with intent to
defraud.” Kelm's reliance on cases interpreting the prior bad check statute is misplaced.
An intent to defraud is not an element of the offense of issuing a bad check. Rather, the
current statute requires mere knowledge at the time the check is issued or passed that it
will not be honored by the drawee.
Addressing Kelm's second assertion, the statute's reference to postdated checks does not
completely exempt such checks from its operation. That reference only exempts the
drawer of a postdated check from the presumption of knowledge that the check will not
be paid. In such cases, the state must prove such knowledge beyond a reasonable doubt.
The trial judge's charge to the jury correctly reflected the statutory requirement of
knowledge. It also states that if the jury should find that the check was postdated, then
the element of knowledge requires proof beyond a reasonable doubt. The jury was
correctly instructed by this charge. Therefore, the jury's verdict is affirmed.
ANSWERS TO “TAKING SIDES” PROBLEMS
Olivo was in the hardware area of a department store. A security guard saw him look
around, take a set of wrenches, and conceal it in his clothing. Olivo looked around once
more and proceeded toward an exit, passing several cash registers. The guard stopped him
short of the exit.
(a) What argument would support the prosecutor in finding Olivo guilty of larceny?
(b) What argument would you make as Olivio’s defense counsel for finding him not
guilty of larceny?
(c) Which side’s argument do you find most convincing? Explain.
ANSWER:
(a) A shoplifter need not leave the store to be guilty of larceny. The modern definition of
larceny aims to protect individual property rights. If a shopper exercises dominion
and control over merchandise wholly inconsistent with the owner’s continued rights
and the other elements of larceny are present, a larceny has occurred. A customer
may exercise such dominion and control—in a manner contrary to that of a
prospective purchaser—without leaving the store. In this particular case, Olivo’s
suspicious survey of the area, concealment of the tools in his clothing, and movement
toward an exit suggest an exercise of dominion and control inconsistent with the
store’s continued rights.
(b) Olivo has not left the store, so he has not deprived the owner of his rights in the
merchandise. As long as Olivo is still in the store, he has a right to hold the
merchandise. The owner should have waited until Olivo had actually left the store
with the merchandise.
(c) Answers will vary.
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Boone spent his time in farming, working at the forge, and
hunting; but he liked hunting best, and was never so happy as in the
thick forest alone with his gun. He often went on long hunting trips,
returning with bear’s meat, venison, bear’s oil, and furs, the last to
be sold for other things needed at home.
Fig. 56. Pineville Gap, where the Cumberland River passes

Pineville Mountain a Few Miles beyond Cumberland Gap
In 1767 Boone and one or two friends made a hunting tour into
Kentucky, though they did not know they were so far west as that. As
they were kept there by heavy snows, they camped at a “salt lick”
and lived by shooting the buffaloes and other animals that came to
get the salt.
The hunters returned to their homes in the spring and did not go
out until 1769. Meantime John Finley was peddling in that south
land, and one day surprised Boone, and himself, too, by knocking at
the door of Boone’s cabin. He made the hardy pioneer a long visit,
and in the spring, having talked it all over many times, they set out
for Kentucky.
They crossed the Blue Ridge and the Great Valley and came to
Cumberland Gap. This was Boone’s first journey to the great pass. It
is pleasant now to stand in the gap at the top of the pass and think of
the time when Boone with his hunting friends made their way up
from the east and went happily down through the woods to the
strange country on the west.
At one time they were taken by Indians, who plundered their
camp and stole all their furs. Most of the party were discouraged and
went back to the settlements, but Boone and one companion were
angry at their loss and determined to stay and make it good. This
was like Boone, who knew nothing of fear, and who did not easily
give up what he wanted to do.
He made several trips to Kentucky and greatly liked the new
country. At length, having decided to take his family with him and
make his home there, he became the leader of the pioneers that
went out under the Transylvania Company, as it was called.
They built a fort and founded a place named Boonesborough,
after the great hunter. But he was much more than a hunter, being
now a military commander and doing surveying also for people who
were taking up tracts of new land. Houses and forts were built,
forests were cleared, and crops were raised. Such was the
beginning of the state of Kentucky.
It was not all simple and pleasant work, however. In 1768, the
year before Daniel Boone and John Finley went through the
Cumberland Gap, a great company of Indians had gathered at Fort
Stanwix, which we remember from the battle of Oriskany, and by a
treaty had given to the English the rights to the Kentucky region. But
the powerful Cherokees of the southern mountains were not at Fort
Stanwix, and they had something to say about the settlement of
Kentucky lands. So Boone called them together at a great meeting
on the Watauga river, and bought the Kentucky forests from them.
This was the time when an old chief said to Boone, “Brother, we
have given you a fine land, but I believe you will have much trouble
settling it.” The old Indian was right,—they did have much trouble.
Cabins were burnt, and settlers were slain with gun and tomahawk,
but Boone and many others with him would admit no failure. People
began to pour in through the Cumberland Gap, until more forests
were cleared, the towns grew larger, and the Indians, who do not like
to fight in the open country, drew back to the woods and the
mountains.
Boone marked out the trail which was afterwards known as the
Wilderness road. It had also been known as Boone’s trail, Kentucky
road, Virginia road, and Caintuck Hog road. A man who went out
with Boone in one of his expeditions to Kentucky kept a diary, and in
it he gives the names of some of the new settlers. One of these was
Abraham Hanks, who was Abraham Lincoln’s grandfather. It was no
easy journey that these men made to Kentucky, and no easy life that
they found when they got there, but they planted the first American
state beyond the mountains, and the rough pioneers who lived in
cabins and ate pork, pumpkins, and corn bread were the ancestors
of some of our most famous men.
The Wilderness road has never been a good one, and is no
more than any other byroad through a rough country to-day.
Sometimes the early travelers, who always went in companies for
safety, would be too tired to go on until they had stopped to rest and
to get cheer by singing hymns and saying prayers. But they made
the best of it, for they knew that they were going to a fine country,
which would repay them for their sufferings.
Fig. 57. Cornfield near Cumberland Gap
Boone and five other men were once in camp by a stream, and
were lucky enough to have with them the story of Gulliver’s Travels.
One of the young men, who had been hearing the book read by the
camp fire, came in one night bearing a couple of scalps that he had
taken from a pair of savages. He told his friends that “he had been
that day to Lulbegrud and had killed two Brobdingnags in their
capital.” The stream near which it happened is still called Lulbegrud
creek. These wilderness men made the best of things, and though
they worked hard and fought often, they were a cheerful and happy
company. They were not spoiled by having too many luxuries, and
they did not think that the world owed them a living without any effort
on their part.
Beginning about the time of the Declaration of Independence,
many people found the way to Kentucky by the Great Valley, the
Cumberland Gap, and the Wilderness road. When fifteen years had
gone by there were seventy thousand people in Kentucky, along the
Ohio river. Not all had come by the gap, for some had sailed down
the river; but they all helped to plant the new state.
Moreover in fighting off the Indians from their own cabins and
cornfields they had protected the frontiers of Virginia and others of
the older states, so that Kentucky was a kind of advance guard
beyond the mountains, and led the way for Ohio, Indiana,
Tennessee, and other great states in the West and South.
Down in the heart of Kentucky, by the Ohio river, is a land long
known as the Kentucky Blue Grass region. The “blue grass,” as it is
called, grows luxuriantly here, as do grain and tobacco, for the soils,
made by the wasting of limestone, are rich and fertile. Wherever the
soil and climate are good, crops are large and the people thrive.
They have enough to eat and plenty to sell, and thus they can have
good homes, many comforts, books, and education.
If the pioneers had had to settle in the high, rough, eastern parts
of Kentucky, it would not have been worth while to suffer so much to
get there; but they were on the way to the Blue Grass country. Even
before the coming of the white man there were open lands which,
perhaps by Indian fires, had lost their cover of trees. Such lands are
often called prairies. These prairies, however, were not so flat as
those of Illinois, and they were bordered by groves and forests.
There were fine streams everywhere, and near by was the great
Ohio, ready to serve as a highway toward Philadelphia or New
Orleans.
Fig. 58. Kentucky Blue Grass
The Wilderness road came out on the river at the falls of the
Ohio, and here, as we have learned, a city began to spring up, partly
because of the falls and partly because of the Blue Grass region
lying back of it. In this region we find the state capital, and here,
along the roads, may be seen old mansions belonging to well-to-do
descendants of the plucky men who came in by the Wilderness road
or steered their flatboats down the Ohio.
If we go back to Cumberland Gap, we shall see that many things
have happened since Boone’s time. In the pass and on the Pinnacle,
a thousand feet above on the north, are ridges of earth, which show
where busy shovels threw up defenses in the Civil War; for armies
passed this way between Kentucky and the valley of Tennessee, and
made the gap an important point to be seized and held.
The road through the gap is still about as bad a path as one
could find. Near it on the east side of the mountains is yet to be seen
a furnace of rough stones, built in those early days for smelting iron.
But there is little else to remind us of that far-off time. To-day you
may, if you choose, pass the mountains without climbing through the
gap, for trains go roaring through a tunnel a mile long, while the echo
of the screaming whistles rolls along the mountain sides.
Fig. 59. Three States
Monument, Cumberland Gap
On the flat grounds just inside the gap is Middlesboro, a town of

several thousand people, with wide streets and well-built shops and
houses. Only a few miles away are coal mines from which thousands
of tons of coal are dug, and this is one reason why the railroads are
here. There are endless stores of fuel under these highlands, and
men are breaking into the wilderness as fast as they can.
But if we climb through the gap as Boone did, or ride a horse to
the Pinnacle, we may look out upon the wonderful valley below,
stretching off to the foot of the Great Smoky mountains, whose
rugged tops carry our eyes far over into North Carolina. Or we may
turn the other way and follow Boone’s trail to the Blue Grass. Down
in the gap is a rough, weather-beaten pillar of limestone about three
feet high and leaning as the picture shows (Fig. 59). It is almost, but
not quite, where three states come together, for it is here, at the
Cumberland Gap, that the corners of Virginia and Kentucky meet on
the edge of Tennessee.
CHAPTER XIII
FRONTIER SOLDIERS AND STATESMEN
Not long before the Revolution began some treacherous whites

in the western country had murdered the whole family of the friendly
Indian chief, Logan. This aroused the tribes and led to war. A piece
of flat land runs out between the two streams where the Great
Kanawha river joins the Ohio, in what is now West Virginia. Here, on
a day early in October, 1774, twelve hundred frontiersmen were
gathered under the command of an officer named Andrew Lewis.
These backwoods soldiers were attacked by a thousand of the
bravest Indian warriors, commanded by Cornstalk, a Shawnee chief.
It was a fierce struggle and both sides lost many men, but the
pioneers held their ground, and the red men, when they had had
enough fighting, went away. This battle at Point Pleasant finished
what is sometimes known as Lord Dunmore’s War, so called
because it was carried on under Lord Dunmore, the last governor
that the English king sent out to Virginia.
The successful white men were now free to go down the Ohio
river and settle on the Kentucky lands. Among the patriots fighting
for their frontier homes were our old friends James Robertson and
John Sevier of Watauga, and another young man, Isaac Shelby. We
are to hear again about all these, for they were men likely to be
found whenever something important was to be done.
The Great Kanawha is the same stream that we have called the
New river where it crosses the Great Valley in Virginia. We are
learning how many great rivers help to make up the Ohio, and what
an important region the Ohio valley was to the young country east of
the mountains.
The settlements of which we have just read were all south of the
Ohio river, for north of the river the Americans did not possess the
land. This means that the country which now makes up the states of
Ohio, Indiana, and Illinois was in foreign hands. The people were
largely French and Indians, but they were governed by the British.
In order to defeat the Americans, the British, in all the years of
the Revolutionary War, were stirring up the Indian tribes against the
patriots. Just as St. Leger had Indian allies in New York, so British
agents bribed the Indians of the West and South to fight and make
as much trouble as possible.
George Rogers Clark was a young Virginian who had gone out
to Kentucky, which then belonged to the mother state. He heard that
Colonel Henry Hamilton, who commanded the British at Detroit, was
persuading the Indians of that region to attack the frontier. He set out
for Virginia, saw Patrick Henry, the governor, Thomas Jefferson, and
other leading men, and gained permission to gather an army. This
was in 1777, the year of Oriskany and Saratoga. He spent the winter
enlisting soldiers, gathering his forces at Pittsburg.
Late the next spring they went in boats down the Ohio to the
point where the muddy waters of the Mississippi come in from the
north. This alone was a journey of a thousand miles.
Fig. 60. George Rogers Clark
Up the Mississippi from that place was Kaskaskia, on the Illinois
side. It is now a very small village, but it is the oldest town on the
Mississippi river and was the first capital of Illinois. In the time of the
Revolution it was governed by the British, although most of the
people were French. Clark and his little army soon seized the place
and made the people promise obedience to the new government.
There was another important old place called Vincennes, on the
Wabash river, in what is now Indiana.
When Colonel Hamilton heard what Clark was doing he led an
army of five hundred men, many of whom were Indians, from Detroit
to Vincennes. It took them more than two months to make the
journey. Clark sent some of his men with boats and provisions and
cannon down the Mississippi, up the Ohio, and up the Wabash. He,
with most of his little force, went across the prairie. It was a winter
march and they had to wade through flood waters for a part of the
way.
He found the food and the guns and soon captured Hamilton and
his army. This was the last of British government between the Ohio
river and the Great Lakes. At the close of the war the American
messengers, who were in Paris arranging for peace, could say that
they already had possession of all the land this side of the
Mississippi, so no excuse was left for the British to claim it. In this
way one frontier soldier saved several great states for his country.
The frontiersmen had beaten Cornstalk at Point Pleasant in
1774. Clark had won the prairie country five years later; and the next
year, 1780, saw the great victory of Kings Mountain.
Lord Cornwallis was now chief general of the British. He had
conquered the southern colonies, the Carolinas and Georgia. Two of
his officers, Tarleton and Ferguson, were brave and active
commanders, and they were running over the country east of the
mountains keeping the patriots down. Ferguson gathered together
many American Tories and drilled them to march and fight.
Fig. 61. On the French Broad, between Asheville and
Knoxville
The Watauga men, just over the mountains to the west, were
loyal patriots. Ferguson heard of them and sent them a stormy
message. He told them to keep still or he would come over and
scatter them and hang their leading men.
They were not used to talk of this kind and they determined to
teach Ferguson a lesson. Isaac Shelby rode in hot haste from his
home to John Sevier’s log house on the Nolichucky river. When he
arrived he found all the neighbors there; for Sevier had made a
barbecue, and there was to be a big horse race, with running and
wrestling matches. Shelby took Sevier off by himself and told him
about Ferguson. They agreed to call together the mountain men and
go over the Great Smokies to punish the British general.
On September 25, 1780, they came together at Sycamore
Shoals on the Watauga river. Almost everybody was there, women
and children as well as men. Four hundred sturdy men came from
Virginia under William and Arthur Campbell. These two leaders and
most of the men in the valley were sons of old Scotch Covenanters,
and they were determined to win. A stern Presbyterian minister, the
Reverend Samuel Doak, was there. He had as much fight in him as
any of them, and as they stood in their rough hunter’s garb he called
upon God for help, preaching to them from the words, “The sword of
the Lord and of Gideon.”
They set out at once through the mountains, driving beef cattle
for part of their food supply, and every man armed with rifle,
tomahawk, and scalping knife. Roosevelt says there was not a
bayonet or a tent in their army. The trail was stony and steep, and in
the higher mountains they found snow. They marched as quickly as
they could, for they wanted to catch Ferguson before Cornwallis
could send more soldiers to help him.
On the way several hundred men from North Carolina, under
Benjamin Cleveland, joined them. They had appointed no
commander when they started, but on the march they chose one of
the Campbells from Virginia.
When Ferguson found that they were pursuing him and that he
must fight, he took up a strong position on Kings Mountain, in the
northwest corner of South Carolina. This hill was well chosen, for it
stood by itself and on one side was too steep for a force to climb.
Ferguson called his foes a “swarm of backwoodsmen,” but he
knew that they could fight, or he would not have posted his own
army with so much care. He felt sure of success, however, and
thought that Heaven itself could hardly drive him off that hill.
As the patriot leaders drew near the British camp they saw that
many of their men were too weary to overtake the swift and wary
Ferguson, should he try to get away. So they picked out about half of
the force, nearly a thousand mounted men. These men rode all
night, and the next day approached the hill. Those who had lost their
horses on the way hurried on afoot and arrived in time to fight. When
close at hand the riders tied their horses in the woods, and the little
army advanced to the attack on foot.
They moved up the three sides of the hill. Ferguson was famous
for his bayonet charges, and the patriots had no bayonets. So when
the British rushed down on the center of the advancing line the
mountaineers gave way and the enemy pursued them down the hill.
Then the backwoodsmen on the flanks rushed in and poured shot
into the backs of the British. Turning to meet these new foes, the
regulars were again chased up the hill and shot by the men who had
fled from their bayonets. Thus shrewd tactics took the place of
weapons. At length the gallant Ferguson was killed, the white flag
was hoisted, and the firing stopped. Many British were slain, and all
the rest, save a very few who escaped in the confusion, were made
prisoners.
Fig. 62. John Sevier

It was a wonderful victory for the men from the valley. They had
come from a region of which Cornwallis had hardly dreamed, and
they had destroyed one of his armies and killed one of his best
commanders. The battle turned the tide of the Revolution in the
South, but the victors hurried back as quickly as they had come.
They were not fitted for a long campaign, and, besides, they had left
their homes dangerously open to attacks from savages. It was,
however, the one battle of the Revolution against white foes alone
that was planned, fought, and won by the men of the frontier.
As soon as John Sevier returned to the valley he found plenty of
Indian fighting to do. He was skilled in this, and with the Watauga
men, who called him “Chucky Jack” and were devoted to him, he
was a terror to the red men of the southern mountains. He knew all
their tricks and how to give them back what he called “Indian play.”
At one time he took a band of his followers and made a daring ride
into the wildest of the Great Smokies, to attack some hostile tribes.
He burned their villages, destroyed their corn, killed and captured
some of their warriors, and got away before they could gather their
greater numbers to crush him.
We must not forget James Robertson, who all this time was
doing his part of the farming and the fighting and the planning for the
new settlements. Already the Watauga country began to have too
many people and was too thickly settled to suit his temper, and he
was thinking much about the wilderness beyond, near the lower part
of the Cumberland river. In a great bend on the south bank of that
stream he founded Nashborough in 1779, naming it in honor of
Oliver Nash, governor of North Carolina. Five years later it became
Nashville, and now we do not need to explain where it was.
Robertson went out by the Cumberland Gap, but soon left
Boone’s road and went toward the west, following the trails. When
he and his followers reached the place and decided upon it as
suitable for settlement, they planted a field of corn, to have
something to depend on for food later.
The next autumn a large party of settlers went out to
Nashborough. Robertson’s family went with them. They did not go
through the woods, but took boats to go down the Tennessee river.
Their course led them along the Tennessee to the Ohio, then up the
Ohio a few miles to the mouth of the Cumberland, and up the
Cumberland to their new home. They had a long, dangerous voyage,
and some of the party were killed, for the savages fired on them from
the banks.
One of the boats, carrying twenty-eight grown people and
children, had a number of cases of smallpox on board. The Indians
attacked this boat and killed or captured the four sick travelers. For
their deed the savages were badly punished, for they took the
disease, which soon spread widely among the tribes.
For a long time after Nashville was begun the pioneers had
fierce encounters with the Indians, and in spite of all their care many
lives were lost. Robertson was the strong man of the place, and was
rewarded with the confidence of the people.
When Tennessee became a state he helped to make its
constitution. He was a member of the state Senate in 1798, and lived
long enough to keep some of the Indians from helping the British in
the War of 1812. He died in 1814.
Fig. 63. James

Robertson
He was brave, and willing to endure hardship, discomfort, and

suffering in a good cause. He went alone over the snows to
Kentucky to get powder, and returned in time to save the little town
from destruction. The Indians killed his own son, but he would not
give up the settlement. Plain man though he was, he gained honor
from the men of his time, and wrote his name on the pages of
American history.
We must learn a little more of Isaac Shelby, whom we have seen
fighting hard at Point Pleasant and Kings Mountain. He was born in
the Great Valley, at Hagerstown. When he was twenty-one years old
he moved to Tennessee and then across to Kentucky. He fought in
the Revolution in other battles besides that of Kings Mountain, and
before he went to Kentucky he had helped to make laws in the
legislature of North Carolina.
Fig. 64. Sevier

Monument, Knoxville
It is rather strange to read that Kentucky was made a “county” of

Virginia. This was in 1776. In 1792, largely through Shelby’s efforts,
Kentucky was separated from Virginia and became a state by itself.
It was the first state beyond the mountains, being four years older
than Tennessee and eleven years ahead of Ohio.
Isaac Shelby was the first governor of Kentucky, from 1792 to
1796, and years later he was governor again. He fought in the War
of 1812, and his name is preserved in Shelbyville, a town of
Kentucky. The Blue Grass region has been called the “dark and
bloody ground” from the strifes of the red tribes and the troublous
days of the first settlers, but Shelby lived to see it the center of a
prosperous state.
Fig. 65. Old Statehouse at
Knoxville
John Sevier, too, had more honors than those of a noble soldier.
In front of the courthouse at Knoxville is a plain stone monument
raised in his memory (Fig. 64), and down a side street is an old
dwelling, said to be an early statehouse of the commonwealth which
is still associated with his name. In 1785 the state of “Franklin” was
organized and named in honor of the illustrious Benjamin; but North
Carolina, being heartily opposed to the whole proceeding, put an end
to it without delay. Sevier, as governor of the would-be state, was
imprisoned, but escaped, to the delight of his own people, who were
always loyal to him. They sent him to Congress in a few years and in
1796 made him the first governor of Tennessee. He enjoyed many
honors until his death in 1815, which came soon after that of his
more quiet friend, James Robertson. Both of these wilderness men
had much to do with planting the American flag between the
Appalachian mountains and the Mississippi river.
CHAPTER XIV
CITIES OF THE SOUTHERN MOUNTAINS
In the old days it took the traveler weeks to go from

Pennsylvania or the Potomac river to the valley of east Tennessee.
He might camp in the woods, living on the few provisions he could
carry and on what he could shoot in the forest, or he might share the
humble homes of chance settlers on the way.
Now he enters a vestibuled train and is rolled over a smooth iron
road along the streams and between the mountains. Starting one
day, he will find when he wakes the next morning that the sun is
rising over the Great Smokies, while around him are the rich rolling
fields that border the Tennessee river.
If the traveler wishes to see the land and learn what men have
done in a hundred years, he will leave the train at Knoxville. A
carriage or an electric car will carry him between blocks of fine
buildings to a modern hotel, where he will find food and bed and
places to read, write, rest, or do business, as he likes. Around him is
a busy city stretching up and down its many hills. Before long he will
wander down to the banks of the Tennessee river and see the boats
tied at the wharf, or he will cross the great bridge to the hills beyond
and look back over the city.
Fig. 66. Street in Knoxville
On those hilltops are pits dug in the woods, and some veteran of
the Union or the Confederate army will tell him that these are
ammunition pits. The old soldier will point across to where Fort
Sanders stood, and will describe those days in 1863 when
Longstreet came up and laid siege to the town, which was
garrisoned by Burnside and his army.
Our traveler need do little more than cross the great bridge at
Knoxville to find quarries of marble; and if he goes up and down for a
few miles, he will see rich deposits of this stone. It is prized because
it shows many colors,—cream, yellow, brown, red, pink, and blue.
The colors often run into each other in curious and fantastic ways,
and the slabs and blocks when polished are beautiful indeed. These

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17th Edition Mann Solutions Manual

Cases in This Chapter

6-1 NATURE OF CRIMES

*** Chapter Outcome ***

6-1a Essential Elements

6-1c Vicarious Liability

6-1d Liability of a Corporation

*** Chapter Outcome***

6-2 WHITE-COLLAR CRIME

6-2a Computer Crime

6-2b Racketeer Influenced and Corrupt Organizations Act (RICO)

*** Chapter Outcome***

6-3 CRIMES AGAINST BUSINESS

6-3c False Pretenses

To sustain a conviction, each element of an offense must be supported by evidence.

6-3f Extortion and Bribery

6-3h Bad Checks

continually attempted to reimburse Ballard Petroleum supports this conclusion.

*** Chapter Outcome***

6-4 DEFENSES TO CRIMES

6-4a Defense of Person or Property

6-4c Mistake of Fact

*** Chapter Outcome***

6-5 CRIMINAL PROCEDURE

6-5a Steps in Criminal Prosecution

6-5b The Fourth Amendment

6-5c The Fifth Amendment

6-5d The Sixth Amendment

ANSWERS TO QUESTIONS AND CASE PROBLEMS

of this a post-indictment lineup is a "critical stage of the prosecution," at which David

ANSWERS TO “TAKING SIDES” PROBLEMS

Fig. 56. Pineville Gap, where the Cumberland River passes

On the flat grounds just inside the gap is Middlesboro, a town of

Not long before the Revolution began some treacherous whites

Fig. 62. John Sevier

Fig. 63. James

He was brave, and willing to endure hardship, discomfort, and

Fig. 64. Sevier

It is rather strange to read that Kentucky was made a “county” of

In the old days it took the traveler weeks to go from

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