The language of the law. Part Latin, part Greek, part law French, even part Anglo-Saxon. And all confusing.
As genealogists, we all love the bad boys (and girls) of our families.
The rogues and rascals and especially the lawbreakers.
Because they generally do us the favor of leaving records for us to use as we chase them through the years.
The Legal Genealogist‘s favorite ancestor is one who qualifies us for membership in the Daughters of the Republic of Texas. To qualify, we have to be able to prove our ancestor lived in the Republic of Texas. Ours was indicted by the Republic of Texas.1
But as much as we love the bad boys and girls, we don’t always understand them.
Which is what we’ve been talking about here this week.
Monday, we talked about mayhem, and how it’s defined at common law.2 Then that led to a reader question and yesterday’s discussion of degrees of crime — the difference between, say, first degree assault and second degree assault.3
Which led to another reader comment yesterday: “How about a follow-up or two on ‘lesser included offenses’ (every robbery includes a larceny) and ‘attempts.’”
Sigh… a blogger’s work is never done.
So… today… lesser included offenses.
And this is something we saw in the case we started the week with. The case, remember, was one where the defendant in Minnesota was charged with mayhem, but only convicted of assault. The Court explained that “A defendant in a criminal prosecution may be convicted of a lesser degree of the offense charged in the indictment. So where … the indictment charges mayhem, there may be a conviction for assault …, for an assault and battery is necessarily included in the commission of the crime of maiming.”4
And that’s the key to this whole concept of lesser included offenses: the lesser offense is necessarily part of the greater one. In other words, the less serious crime is a lesser-included offense if and only if you can’t commit the more serious crime without also committing the less serious (lesser included) one.
Think about the example the reader used: every robbery includes a larceny.
Larceny, by definition, is the “wrongful and fraudulent taking and carrying away by one person of the mere personal goods of another from any place, with a felonious intent to convert them to his (the taker’s) use, and make them his property, without the consent of the owner.”5 Robbery is the “felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”6
So… I’m out riding my bike, and I leave it outside a store when I go in to buy an ice cream. You decide to help yourself to my property and ride away on my bike. You have just committed the crime of larceny.
But if I’m out riding my bike, and you step out from behind a tree, point a gun at me and tell me to hand over my bike or you’re going to shoot me, you’ve now committed a robbery.
In both cases, you took my bike, without my permission. And you couldn’t have committed the robbery without also committing the larceny. So — as the reader notes — every robbery includes a larceny.
It works the same way with crimes of violence: mayhem is an attack on the person of another that ends up with a particular type of injury.7 You can’t commit mayhem without committing a battery — an “unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent.”8 And you usually won’t get a battery without an assault — an “unlawful attempt or offer, on the part of one man, with force or violence, to inflict a bodily hurt upon another.”9
But sometimes the evidence isn’t quite what the prosecutor or police would want it to be. Maybe in my bike-stealing case, the evidence isn’t strong enough to prove that the bike was taken by force or fear. Or it isn’t clear that the bike was taken directly from me or from my immediate presence. Or maybe the jury just wanted to give the bad boy a bit of a break. It was, after all, a cheap bike — or maybe the jurors don’t like me as the victim one bit.
In those cases, the bad boy can still be convicted of larceny even if not convicted of robbery. And — here’s a key point — it doesn’t have to be specifically charged in the indictment or criminal complaint.
Because larceny is always a lesser-included element of the crime of robbery. It’s one of those cases where you can’t commit the more serious crime without also committing the less serious (lesser included) one.
So… lesser-included offenses. Something you’ll see all the time in court records, and it helps us understand the records when we understand what was being charged — and why the jury might have reached the decision it reached.
SOURCES
- See Judy G. Russell, “George Washington Cottrell of Texas: One Man or Two?,” National Genealogical Society Quarterly 105 (September 2017): 165-179. ↩
- Judy G. Russell, “Maybe mayhem… and maybe not,” The Legal Genealogist, posted 4 Dec 2017 (https://www.legalgenealogist.com/blog : accessed 6 Dec 2017). ↩
- Ibid., “Crimes: a matter of degree,” posted 5 Dec 2017. ↩
- State v. Damuth, 160 N.W. 196, 197 (Minn. Sup. Ct., 1916); digital images, Google Books (http://books.google.com : accessed 3 Dec 2017). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 687, “larceny.” ↩
- Ibid., 1049, “robbery.” ↩
- Ibid., 762, “mayhem.” ↩
- Ibid., 124, “battery.” ↩
- Ibid., 94, “assault.” ↩
Okay, Judy. One more? The difference between “robbery” and “burglary”, which today’s media doesn’t seem to understand. I learned the difference 26 years ago in “The Legal Environment of Insurance”, a course which was one of ten parts to attain the designation of Chartered Property Casualty Underwriter (CPCU). I’ve tried to explain it to people, so I’d love to see your explanation — because you explain concepts so clearly. Love your blog!!!!!! And classes!!!!!
Perhaps it’s easier to grasp the concept of lesser included offenses by looking at the situation from the other end of the telescope, which is often how the offenses got defined in the first place. Start with the Ten Commandments, we have “thou shalt not steal.” Taking somebody else’s stuff without their permission is the mind of bad act we instinctively feel deserves punishment, but there’s stealing, and then there’s big time stealing. it’s one thing to see Judy’s unattended bike an help yourself to a ride, and something entirely different to threaten her with bodily harm if she doesn’t let you pry it from her living hands, and still another if you render those hands cold and dead in the process of prying it loose. We instinctively feel the added element of threatened violence, and very real violence make those kind of thefts dramatically worse and that justice demands they be more seriously punished. Similarly, it’s one thing when Jean Valjean steals a loaf of bread, and something else entirely when it’s Bernie Madoff ripping off millions from retirees and charities. What we end up with is a ladder of progressively more heinous aggravating factors added to the commission of the original crime of simple stealing, with the prosecutors, and ultimately the jury, deciding how far up the ladder the perpetrator climbed.
Now you’re mixing apples and oranges. Stealing the bike isn’t a lesser-included offense of killing someone in the process of stealing the bike. The larceny of the bike is a separate crime from the murder.