DO you break the law when???

[frankie_the_yankee]

So someone can stipulate that they pointed and fired their gun. That is a historical fact and if stipulated the jury will accept it as such. But whether or not it was a violation of the law is a judgement that only a jury can ultimately make.

I agree…and the jury will see that based on those facts and on statute, that the defendant was in violation…but they will find the defendant not guilty because he had just cause to violate law and act in self-defense…and therefore should not be punished.

The way I see it, the jury will find that the justification presented was adequate to establish that the actions were in lawful self defense and that no violation occured. So they will find the defendent not guilty.

[TX_Jim]

Frankie;

It is important for students to understand the defense to prosecution.

I start with using a very simple example;

If I walk up and just punch you in the nose, what is that? The class always agrees that it is an assault.

I then change it, and say, "what if FIRST, you grab my shirt, pull your other fist back, and say thru clenched teeth, 'I'm gonna whip your tail.'? Before you can hit me, I punch you in the nose. What is that?"

I then get mixed answers. Most say it is self-defense, and I ask how they know. Seldom do any of them know why, they just "know it". I then tell them that we will learn the law, and apply the scenario in a bit, but for now, did my actions meet the definition of assault. Of course it does.

SO, how can I not be found guilty of assault. We look at 9.02 of the penal code § 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to
prosecution that the conduct in question is justified under this
chapter..

In the second example, your actions met the definition of assault.

But that is not exactly the same thing as saying that you violated the law, or committed a crime.

Because when the jury (if it goes that far) considers the elements you present in your defense to prosecution, they may well decide that your actions were within the law and find you not guilty.

When more than one section of the law applies, all relevant parts of the law must be considered before a jury can determine if the law has been violated.

At least that's how I see it.

Good...you guys are making my point for me....

I jury first determines if a statute was violated..broken...infringed...what ever you want to call it. In no statutes were violated...jury says not guilty and no justification is needed. Ahhh...however, if a statute was violated or broken...in the case "assault"...then a jury can look at at the justification and determine guilty or not guilty.

if in the case on the latter, the jury returns not guilty not because assualt did not occur....but because you were justified in the assualt.

[TEX]

Have you committed crime if you haven't been convicted of it? You cetainly haven't committed one in Biblical terms.

[txinvestigator]

Frankie;

It is important for students to understand the defense to prosecution.

I start with using a very simple example;

If I walk up and just punch you in the nose, what is that? The class always agrees that it is an assault.

I then change it, and say, "what if FIRST, you grab my shirt, pull your other fist back, and say thru clenched teeth, 'I'm gonna whip your tail.'? Before you can hit me, I punch you in the nose. What is that?"

I then get mixed answers. Most say it is self-defense, and I ask how they know. Seldom do any of them know why, they just "know it". I then tell them that we will learn the law, and apply the scenario in a bit, but for now, did my actions meet the definition of assault. Of course it does.

SO, how can I not be found guilty of assault. We look at 9.02 of the penal code § 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to
prosecution that the conduct in question is justified under this
chapter..

In the second example, your actions met the definition of assault.

But that is not exactly the same thing as saying that you violated the law, or committed a crime.

Because when the jury (if it goes that far) considers the elements you present in your defense to prosecution, they may well decide that your actions were within the law and find you not guilty.

When more than one section of the law applies, all relevant parts of the law must be considered before a jury can determine if the law has been violated.

At least that's how I see it.

Close. The elements of the defense are not considered by the jury if the elements of the offense are not met.

[TX_Jim]

Have you committed crime if you haven't been convicted of it? You cetainly haven't committed one in Biblical terms.

If convicted, you have committed a crime against the standards set forth by the people of this nation or against the standards set forth by the poeple of the convicting jurisdiction (I say it this way to avoid the argument you be be convicted of a city oridinance and therefore not a crime against the nation). As for a crime in a biblical sense...i assume that depends on your relgion (if you have one). But I really do not want to open that can of worms.

[TX_Jim]

Have you committed crime if you haven't been convicted of it? You cetainly haven't committed one in Biblical terms.

Sorry....I did not finish answering. If you have NOT been convicted...than no “crime� has occurred. That being said...that does not mean there was not a transgression of statute.

Example…driving along at 55 in a 40 mph zone…but you get all the way home without being stopped. No crime…according to definition has been committed…however, you still violated traffic laws.

Same scenario but this time a LEO pulls you over and tickets you for the violation. You fight the ticket in court and loose your argument…at that point you are found guilty…then yes…you have committed a crime.

Things get even grayer when you throw “withheld adjudication� or “no contest� into the mix.

[txinvestigator]

Frankie;

It is important for students to understand the defense to prosecution.

I start with using a very simple example;

If I walk up and just punch you in the nose, what is that? The class always agrees that it is an assault.

I then change it, and say, "what if FIRST, you grab my shirt, pull your other fist back, and say thru clenched teeth, 'I'm gonna whip your tail.'? Before you can hit me, I punch you in the nose. What is that?"

I then get mixed answers. Most say it is self-defense, and I ask how they know. Seldom do any of them know why, they just "know it". I then tell them that we will learn the law, and apply the scenario in a bit, but for now, did my actions meet the definition of assault. Of course it does.

SO, how can I not be found guilty of assault. We look at 9.02 of the penal code § 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to
prosecution that the conduct in question is justified under this
chapter..

In the second example, your actions met the definition of assault.

But that is not exactly the same thing as saying that you violated the law, or committed a crime.

Because when the jury (if it goes that far) considers the elements you present in your defense to prosecution, they may well decide that your actions were within the law and find you not guilty.

When more than one section of the law applies, all relevant parts of the law must be considered before a jury can determine if the law has been violated.

At least that's how I see it.

Good...you guys are making my point for me....

I jury first determines if a statute was violated..broken...infringed...what ever you want to call it. In no statutes were violated...jury says not guilty and no justification is needed. Ahhh...however, if a statute was violated or broken...in the case "assault"...then a jury can look at at the justification and determine guilty or not guilty.

if in the case on the latter, the jury returns not guilty not because assualt did not occur....but because you were justified in the assualt.

OK. we are now on the same page.

[frankie_the_yankee]

may be this is the disconnect....I have not dfined violation...what is your definition of violation?

Same as yours.

The disconnect is that I believe that:

1) Only a jury can determine whether or not a given act is a violation of the law. As Chas said, anything prior to that merely represents someone's opinion.

2) When a jury determines whether or not a violation occurred, they do so by examining all elements of the applicable law, including any exceptions, justifications, or affirmative defenses that may apply.

3) In consideration of all of the above, the jury makes a detemination of guilty or not guilty. "Guilty" if the jury finds as a fact that the law was violated (since the defendent freely admits to the facts). "Not Guilty" if they find as a fact that the law was not violated.

Actually, the whole fallacy in the "act itself is a violation" argument is that only a jury can make a finding of a fact. Only a jury can make a pronouncement of a fact. The rest of us can have suspicions and/or opinions, but that's all we can have.

Just because you were charged doesn't mean you have committed a crime. Just because you were indicted doesn't mean you have committed a crime. Until a jury makes a finding, these things are all merely allegations.

So when you shoot someone who just robbed and shot you and is about to shoot you again, the correct answer to the questions, "Was the law violated?", and "Was a crime committed?", is, "Probably not, but we can't know unless and until a jury renders a verdict."

Not really helpful as a CHL class example IMO.

The differences between exceptions, justifications, and affirmative defenses can be explained to a class in a more straightforward manner.

[Charles L. Cotton]

I hope you review this and have enough intellectual integrity to see past egos and realize that my logic holds true and can be applied to many (if not all) circumstances.

I've been swamped for two days and just saw this. Your time here is going to be very short.

You arguments are erroneous, your logic is flawed and then you get insulting. Perhaps those credentials you hold in so little regard are more important than you realize.

Chas.

[TX_Jim]

I hope you review this and have enough intellectual integrity to see past egos and realize that my logic holds true and can be applied to many (if not all) circumstances.

I've been swamped for two days and just saw this. Your time here is going to be very short.

You arguments are erroneous, your logic is flawed and then you get insulting. Perhaps those credentials you hold in so little regard are more important than you realize.

Chas.

This might very well be my last post on this site…at least under this screen name. I will apologize if I insulted anyone as that was not my intention. I just do not believe that credentials should have anything to do with valid arguments. If the argument is sound, it will stand on its own and should not need credentials to validate the argument. Those who do not know better can be easily influenced based on credentials alone and not the validity of the argument. I don’t hold someone’s credentials in low regard…after all they worked hard to get them (and I do have a few of my own…not in the legal world…but I do have some in my profession). I just do not believe that they should be used to lend credence to an argument. Think about this…Why do people get second opinions when diagnosed with a disease…is it possible that even though their doctor has MD in their title that they could be wrong or mistaken?!?!?!? Absolutely…no one is perfect.

That being said…I am going to say something that I tried to avoid during this debate (mostly because I hate when others do this). After your “step by step� response, I spoke with a friend of my dads who happens to be a retired probate judge. I know most will say that he is only a probate judge but he worked on both sides (as a prosecutor and as a defense lawyer) before becoming a judge. I showed him this thread and I admit that he did correct me on a couple of minor points but for the most part my logic was right on. I will not divulge his name on this forum as I do not have his permission…however, I will try to gain his permission and I will provide it to you (as well as his contact information) off line at a later date if you wish to discuss it with him.

If you choose…as site administrator…to ban me from the forum…so be it. I know that I behaved with absolute integrity.

[frankie_the_yankee]

Did the judge identify or specify just who it might be, besides a jury, that could state as a fact that some given act is a violation of the law?

Did the judge say that the standard for violating the law is just that an act is a "clear cut" violation in your opinion, in my opinion, in the opinion of the responding officers, the DA, or the Grand Jury?

Did he explain why if a jury feels that someone's actions were justified under the law they will find them "not guilty" rather than "guilty but not punishable", leaving them not only not punished for their violation but without a criminal record (of a conviction)?

[TX_Jim]

Did the judge identify or specify just who it might be, besides a jury, that could state as a fact that some given act is a violation of the law?

He did say that everything is speculation untill a determiniation is made by the "court." He did not specifically say "jury"...he said "court"...but I assume that is what he was talking about it. Also...if you notice in the thread...I conceaded that point long ago as it was never my intention to suggest that anyone other than a jury had the final say in any of this. This was not even a point i was trying to make...although i guess my wording may have seemed that way.

Did the judge say that the standard for violating the law is just that an act is a "clear cut" violation in your opinion, in my opinion, in the opinion of the responding officers, the DA, or the Grand Jury?

No..he did not use the word "clear cut." He did explain (much as txinvestigator did) that the court will first determine if a statute was violated...if it was not violated...than the court does not really care about justification...if the court does find that a statute was violated than they consider the justification. He said that this may be a little convoluted as the court hears all of this at once...both the prosecuter saying there was a violation and the defense saying it was justified. But in the end the court must first decide if there was a violation. He did say that a court, in this type of case, often times do not need to spend much time determining if a violation of statute occured because the defense usually does not argue against this and only argues the justification part.

This was my point from the begining. Remember i said that no crime occured because a not guilty would be returned...but that does not mean a violation of statute did not occur. He did agree with that...just because the defendant was justified and found not guilty does not mean that the assualt statute was not violated.

Did he explain why if a jury feels that someone's actions were justified under the law they will find them "not guilty" rather than "guilty but not punishable", leaving them not only not punished for their violation but without a criminal record (of a conviction)?

We did not discuss this as I never used those words/phrase...you used those words/phrase. He did agree that my definition of crime was correct and agreed that a crime is made up of two parts...one, a violation or transgression of statute and said transgression results in a penalty.

My point was that a court is most likely to see that a transgression occured but because it was justified...the court will not penalize the defendant by passing down a not guilty.

[frankie_the_yankee]

He did say that everything is speculation untill a determiniation is made by the "court." He did not specifically say "jury"...he said "court"...but I assume that is what he was talking about it.

Well, that means that prior to a "court" finding, no one can say definitively that a statute was violated in a particular case.

So, as I stated in the first place, the correct answer to the questions "Was the law violated?", and "Was a crime committed?", is, "Probably not, but we can't know unless and until a jury renders a verdict."

Also...if you notice in the thread...I conceaded that point long ago as it was never my intention to suggest that anyone other than a jury had the final say in any of this. This was not even a point i was trying to make...although i guess my wording may have seemed that way.

It sure did. I don't know how many times you said that the law was violated (based on what I presume to be your opinion) but that the jury might decide not to punish if they believed the act was justified. That's a lot different from saying that only the jury can finally determine whether or not the law was violated.

No..he did not use the word "clear cut." He did explain (much as txinvestigator did) that the court will first determine if a statute was violated...if it was not violated...than the court does not really care about justification...if the court does find that a statute was violated than they consider the justification. He said that this may be a little convoluted as the court hears all of this at once...both the prosecuter saying there was a violation and the defense saying it was justified. But in the end the court must first decide if there was a violation. He did say that a court, in this type of case, often times do not need to spend much time determining if a violation of statute occured because the defense usually does not argue against this and only argues the justification part.

The confusion here is over the fact that the jury has to consider all parts of the law that apply. One part says that if you do such and such, it is an offense. Another part says that if you have proper justification for doing such and such, it is not an offense.

Taking both applicable parts of the law into account yields the result, in this case, that the act was not an offense.

This was my point from the begining. Remember i said that no crime occured because a not guilty would be returned...but that does not mean a violation of statute did not occur. He did agree with that...just because the defendant was justified and found not guilty does not mean that the assualt statute was not violated.

The justification negates the "violation".

My point was that a court is most likely to see that a transgression occured but because it was justified...the court will not penalize the defendant by passing down a not guilty.

If the "transgression" was justified they will find not guilty because no crime occurred.

It's more than just not assessing a penalty. A not guilty verdict means that you don't have a criminal record either. That means that as a matter of fact, as determined by the jury, the state did not establish that you committed a crime.

That's a big difference.

[Charles L. Cotton]

I hope you review this and have enough intellectual integrity to see past egos and realize that my logic holds true and can be applied to many (if not all) circumstances.

I've been swamped for two days and just saw this. Your time here is going to be very short.

You arguments are erroneous, your logic is flawed and then you get insulting. Perhaps those credentials you hold in so little regard are more important than you realize.

Chas.

This might very well be my last post on this site…at least under this screen name. I will apologize if I insulted anyone as that was not my intention. I just do not believe that credentials should have anything to do with valid arguments. If the argument is sound, it will stand on its own and should not need credentials to validate the argument. Those who do not know better can be easily influenced based on credentials alone and not the validity of the argument. I don’t hold someone’s credentials in low regard…after all they worked hard to get them (and I do have a few of my own…not in the legal world…but I do have some in my profession). I just do not believe that they should be used to lend credence to an argument. Think about this…Why do people get second opinions when diagnosed with a disease…is it possible that even though their doctor has MD in their title that they could be wrong or mistaken?!?!?!? Absolutely…no one is perfect.

That being said…I am going to say something that I tried to avoid during this debate (mostly because I hate when others do this). After your “step by step� response, I spoke with a friend of my dads who happens to be a retired probate judge. I know most will say that he is only a probate judge but he worked on both sides (as a prosecutor and as a defense lawyer) before becoming a judge. I showed him this thread and I admit that he did correct me on a couple of minor points but for the most part my logic was right on. I will not divulge his name on this forum as I do not have his permission…however, I will try to gain his permission and I will provide it to you (as well as his contact information) off line at a later date if you wish to discuss it with him.

If you choose…as site administrator…to ban me from the forum…so be it. I know that I behaved with absolute integrity.

The message in your previous post was clear; if I don't agree with your position, then I'm either intellectually dishonest, or too egotistical to admit you are right. That's insulting and your claim that you didn't intend it is falling on deaf ears. No person could say that to another and think it wouldn't be an insult.

As for credentials, I almost never mention them myself; you brought up the issue by saying credentials mean nothing to you. Now you admit you went to an attorney, a retired probate judge, to get a "second opinion" on your argument, then to use his opinion to bolster your arguments. I guess you do value some credentials, those that support your position that is.

I don't care what a probate judge said about this issue, as you and I are arguing totally different concepts. Your position is based solely on your personal opinion as to when a "crime" is committed, or when an "offense" occurs. That's what I said from the begining. You, however, wanted a step-by-step analysis of my position, so I gave it to you. My approach is a legal one answering the question "when can we say an offense has occurred?" That occurs in only one of two ways, 1) a jury finds one "guilty;" or 2) someone pleads "guilty." Until then, the person is merely an accused.

Your approach is one of two things; a moral approach, or one ignoring the process of criminal jurisprudence. I have no problem with the moral approach, I do it just as much as anyone else, except when I'm in a case. Then I have to follow the dictates of the law in proving my case and what I or the news media think is irrelevant. When I hear the evening news anchor say, "An elderly couple was found murdered in the southwest side home this evening, . . ." I presume a crime has been committed. However, all we really know is that two people are dead in their home and we are assuming the facts would support a murder charge and that a jury hearing those facts would find the person guilty.

The criminal jurisprudence process cannot be cut short. No one gets to decide mid-stream if an accused/defendant is guilty or not guilty. This determination is made when the trial ends with a guilty or not guilty verdict, unless a plea of guilty is entered first. Even when a judge dismisses the charges against someone, he isn't ruling that no crime has been committed. He's ruling that there is insufficient evidence to continue the prosecution to determine if a crime has been committee (or offense has occurred, if you prefer that terminology.)

Did O.J. commit the crime of murder? No, 12 people said so. Did he kill two people -- I believe he did, the police believe he did, the prosecutor believes he did, most Americans believe he did, but our opinions don't matter; the jury said "not guilty." O.J. does not have a murder conviction on his "record" and the case is still officially "unsolved."

I believe you are taking a moral approach to this issue, which is fine, but you're trying to couch it in a pseudo-legal analysis of the Penal Code elements. In so doing, you find yourself looking to the dictionary for definitions of terms not used in the Code, then trying to bootstrap those definitions into your argument that an offense occurs at some point prior to a jury verdict. (You even note that, when words are not defined in a statute, we look to the common usage of the term. But this procedure is used to define words actually appearing in the statute!) The two approaches cannot be commingled. A moral position needs to foundation in the law and often there is none. It is morally wrong for a spouse to commit adultery, but it is no longer a criminal offense in Texas. (Yes, it can be relevant in a divorce, but we're talking about criminal statutes.) When we approach an event or issue from a legal perspective, we have to follow all the dictates of the law; the Penal Code, Code of Criminal Procedure, Texas Rules of Criminal Procedure, Texas Rules of Evidence, Texas Constitution, federal laws (where applicable) and the U.S. Constitution. The requirements of every one of these compilations must be met, before a determination can be made as to whether a crime has been committed.

You are not wrong in your opinion, your error comes when you try to cloak your opinion as a legal concept. It would be a mistake for me to do the same thing in reverse. For example, I couldn't argue that people shouldn't be upset with O.J. because a jury found him "not guilty."

Whether this is your last post is up to you. Follow the forum rules and you're fine, whether or not you and I agree on any issue, except civility. I have disagreed with other members (some of them friends), sometimes passionately, but we remain respectful to one another. It's not a lack of agreement on an issue that bothers me (unless it amounts to giving inaccurate, dangerous legal advice to someone), it's the insults or personal attacks that cause a problem.

Quite some time back, Kyle Brown, txinvestigator and I had a long-running discussion on the issue of TPC §9.04 Threats as Force. The issue revolved around whether or not a person could threaten the use of deadly force by producing a gun, when the Penal Code would only justify the use of non-lethal force. Kyle and txinvestigator were on one side of the discussion, I was on the other. I was wrong. After several weeks of talking to criminal defense attorneys, prosecutors and two law professors who teach criminal law, I realized Kyle and txinvestigator were correct and I now include a discussion on this issue (as it related to the McDermott case) in my seminars and my CHL classes. I also give Kyle and txinvestigator credit for changing my mind on this issue. I wish this was the only occassion on which I was on the wrong side of a discussion, but sadly it's not. I also have no problem admitting it when it occurs. I consider this being intellectually honest.

Chas.