Issue: Elements of common law battery. The correct answer is (B) because statements I, II and III describe the various actus reus and mens rea elements that were used for common law battery. These included either the intent to touch offensively or criminal negligence for mental states, and either an unlawful touching or a bodily injury for acts. Statement IV is not accurate because it describes an element of the new crime of assault that was added to the old crime of common law assault in many states in the 20th century. Assault is not the equivalent of common law battery but a different crime. The Model Penal Code abandoned the “battery” term, but borrowed and modified the elements of common law battery in its assault provision. Answers (A), (C) and (D) are incorrect because they do not list the likely elements and omit the inaccurate element.

I. State v. Martin
1. First-Degree Murder
The prosecution could charge Martin with first-degree murder if it can prove he premeditated and deliberated killing Mildred. The first time it appears clear that this may be in Martin’s head is when he grabs hold of Mildred’s wheelchair and pushes it toward the front door. That he wanted her dead by his action of pushing her out the door is clear by his phrase, “I hope you die too, then!” The prosecution will argue that he knew he wanted to kill her when he took hold of her wheelchair and that, since premeditation (to think about beforehand) and deliberation (to turn over in one’s mind) can occur, at the least, in the “blink of an eye”, and at the most, with enough time to reflect on his actions, the time from grabbing her wheelchair to pushing her out the door was sufficient to take a second look. If one takes the Forrest factors, the prosecution could argue that there was no provocation on the part of the accused (meaning that her statement that his wife was dead was not enough to provoke this reaction), the statement of the defendant that he wanted her dead indicated his desire, the ill-will just prior to the killing indicates his motivation.

The defense will argue that this is not a first-degree murder by any stretch. There is no certainty that he intended to kill her when he shoved her out the door. It might have been a whim, but not his conscious object. Part of this argument goes to support that, if anything, this intent was borne out of the heat of passion. The killing was not done in a brutal manner, there were not multiple blows, and there was provocation, in that Mildred gave him information that upset him deeply.

2. Voluntary Manslaughter
The defense will argue that if this killing was considered intentional, it was done in the heat of passion, making it voluntary manslaughter. First, Martin was in fact in a heat of passion when he sent Mildred wheeling out the door. He got “madder and madder” until he was “thoroughly” distraught. Second, the heat of passion was “sudden” upon the heels of the provocation. The argument occurred and then he wheeled her out the door in a heat of passion. Third, the provocation was adequate such that it would “deprive an average person of his self-control and cool reflection.” In this case, Martin was just told that his wife was dead. While he should have known that his wife had been dead for years, he, in fact, was suffering from a bout of dementia and did not know this. The defense’s argument depends upon the jury being able to look at the reasonable person “in the actor’s situation.” The defense will argue that “his situation” was that he suffered from bouts of senility. The defense would point to the Model Penal Code’s suggestion of what qualifies for the “actor’s situation” and argue that senility is like “blindness” or “extreme grief.” Indeed, this was, from his perspective, extreme grief. While words alone may not be enough in some jurisdictions, the words here are more like “informational words”, such as informing a person that they saw his wife in bed with another man.

The prosecution will retort that while Martin was in the heat of passion and it was sudden, that the provocation was not “adequate to deprive an average person of his self-control and cool reflection.” The reasonable person is, by definition, not senile. A reasonable person in his situation would have known his wife had been dead. The senility is more like drunkenness � just an aspect of a person’s character that causes them to have less self-control, and therefore should not be taken into account. Even if the information given by Mildred were the first time Martin had heard it, his reaction was extreme. The ordinary person does not react to news about a loved one’s death by killing the messenger.

3. Second-Degree Murder
The prosecution will argue that Martin is guilty of second-degree murder. First, he was reckless in that he was consciously aware of a substantial and unjustifiable risk that Mildred might be hit by a car in the street. Indeed, one knows he was aware because he yelled after her that he hoped she would die. That statement also supports the “extreme indifference to human life.” Pushing someone out into the street and yelling after them, “I hope you die, too!” manifests this indifference; it shows a depraved heart. Martin clearly hoped she would die.

The defense will argue that there was not a “substantial risk” that she would be hit by a car, given that it was a side street and that the chance of a car coming along and not being able to stop was minimal. Also, he was suffering from a bout of senility, so it is hard to say that he was “aware” of anything. Second, his statement that he hoped she would die was a statement borne of anger and not a true sentiment of his beliefs. We all say things like that when we are angry without meaning them.

4. Reckless or Negligent Manslaughter
The prosecution could also charge Martin with reckless homicide. At the very least, the prosecution will argue that Martin was guilty of negligent homicide, in that he should have been aware of the substantial and unjustifiable risk that Mildred would be hit by a car. A reasonable person would have been aware of the risk. Again, here, the defense will argue that the reasonable person in his situation is senile and is not much aware of anything.

5. Causation
For all crimes, the defense will argue that Martin’s actions were not a proximate cause of Mildred’s death.
First, under the foreseeability test used in many states, Walter hitting Mildred was a coincidence. It was not foreseeable, however, that Mildred would get hit, since this was a quiet side street, where the chance of a car coming along at just that time was minimal, and, in any case, it was unforeseeable that a car would not be able to stop in time for a wheelchair crossing the street. Additionally, the defense will raise the “apparent safety” doctrine, since Mildred could have been safe if she had simply turned her wheelchair but she chose not to (like Preslar, where the woman who was chased out of her home chose to sleep outside and froze to death). Also, her not turning her wheelchair was a “free, deliberate human intervention” in that she chose not to save herself, hence breaking the chain of causation.

The prosecution will retort that what she did was fail to act, that her not saving herself was an omission, and therefore, no omission can break the chain of causation. She simply traveled along at the speed and the direction that Martin pushed her in. Also, Walter hitting her was a coincidence, but it was entirely foreseeable that a car would come along and hit her (as Martin indeed hoped), and it would be hard to stop since no one is expecting or looking for a wheelchair to suddenly enter the road.

6. Affrimative Defense — Insanity
Martin could argue that his senility constituted insanity, which would be a complete defense to any of the charged crimes. Under the Model Penal Code, a person is not responsible for his criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he lacked the substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. The former is a cognitive test and the latter is a volitional test. Senility usually affects the cognitive function. It is unlikely that senility will fulfill either the cognitive test of the Model Penal Code, or the M’Naghten test: where the defendant must demonstrate that he: (1) did not know the nature and quality of the act that he was doing; or, (2) if he did know, he did not know that what he was doing was wrong. While Martin was confused about some facts, he knew that he was pushing Mildred out into the street in her wheelchair.

II. State v. Walter
1. Reckless or Negligent Homicide
In connection with Walter’s act of hitting Mildred, the prosecution will charge Walter with either reckless homicide or negligent homicide. To prove reckless homicide, the prosecution will have to show that Walter was aware of a substantial and unjustifiable risk that he would hit someone, and chose to disregard that risk. The prosecution will argue that anyone who drives the roads is aware that, if they take their eyes off the road, the risk is high that they will cause an accident. The defense will argue that Walter was not aware of such a risk. He was on a quiet side street with no expectation of a wheelchair entering the road, and reached down for just a second. Also, the risk that Mildred would enter the street at that time was not substantial. His reaching down for a CD was not a gross deviation from the conduct of the average law-abiding citizen.

The prosecution will argue that he was negligent in that, even if he did not know of the risk, he should have known. The defense will argue that the reasonable person in his situation would never have anticipated such a risk, for all of the reasons argued in the above paragraph.

If the prosecution cannot prove recklessness or negligence in the act of hitting Mildred, he may pursue an omission theory. Because Walter hit Mildred, he created the risk that caused her injury and he owed her a duty of care, which he neglected by driving away. The omission can be said to have accelerated her death: but for his leaving she would not have died when she did. The prosecution can argue that he was reckless in that he aware of the risk she would die if he left her there and leaving her there was a gross deviation from the standard of care of the law-abiding person. Even if he was not aware because he panicked and did not know how seriously injured she was, a reasonable person would know of the risk she would die if left without care.

I. State v. Boomer
1. Void for Vagueness
Timothy Boomer will argue that the Michigan statute violates the due process clause of the U.S. Constitution because it is void for vagueness. A statute can be void for vagueness in one of three ways: (1) the statute is so unclear that ordinary persons have to guess at its meaning; (2) the statute is overly broad in that it includes innocent conduct;

(3) the statute allows for unfettered police discretion.
Boomer will argue that the words “indecent,” “immoral,” “obscene,” “vulgar,” and “insulting” are so unclear that a law-abiding human being would not know what behavior was precluded. For example, words that are “insulting” to one person may be simply humorous to another. If a person told a joke involving a rabbi and a priest, for example, some might find that “indecent” or “immoral,” while others would find it normal humor. The meaning of the words turns too much on the sensibilities of the individual. They do not have common meanings to which all agree.

Mr. Smith will also argue, for many of the same reasons already stated, that the language of the statute is overly broad. Purely innocent commentary can be taken as “insulting” or “vulgar” depending upon the listener. Also for the same reasons, the statute allows for unfettered police discretion on whom to arrest, since the arrests will turn on the own individual officer’s definition of what is “insulting” or “indecent.” This is not unlike the unfettered discretion given to officers in Chicago v. Morales in defining when a person is loitering “with no apparent purpose.”
While in 1897, it might have been clear to the framers of the statute what would be “insulting” or “vulgar” to say in the presence of women and children, we do not have that statutory history available, and, in any case, as times have changed dramatically since then, it would be a violation of due process to hold persons liable for making statements that no longer carry that meaning.

The prosecution may respond to this argument that the average person understands what would be insulting to a woman or children, just as the dissent argued in Chicago

v. Morales that the average person knows when they are loitering with no apparent purpose. For example, in this case, when Timothy Boomer fell into the water and cussed, these words are universally unacceptable in mixed company. However, this argument will be problematic since Smith will be arguing that the statute is void on its face and not just in application to his case.

2. Mens rea as to attendant circumstance
Boomer can argue that he had no idea there were women and children around. To do this, however, he needs to argue that the statute contains some sort of mens rea that applies to “in the present or hearing of any woman or child.” This will be impossible, since, at the most, he may be able to argue that the common law dictates that a crime carry a mens rea of at least recklessness, but that mens rea would apply only to the nature of conduct element of the crime, which is “using” the indecent language. Clearly, he was not only reckless about using vulgar language, but purposeful. However, the common law presumes that mens rea does not apply to the attendant circumstance of “in the presence of . . .”. This presumption makes sense here since the law was meant to prohibit offending women and children and so a person would be at their own risk, if they used offensive language, to be sure there were no women or children present. If this statute were strict liability (which could be argued in
that it is a misdemeanor offense dealing with an issue of public welfare), the attendant circumstance would obviously still be strict liability.