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Private nuisance is a substantial, unreasonable invasion of an individual's interest in the use and enjoyment of land. Macca v. Gen. Telephone Co. of N.W., 262 Or. 414, 418-19, 495 P.2d 1193 (1972). Access to sunlight has become an important use due to solar energy. This has value to both homeowners and society in diversifying energy sources. Unhindered private development is no longer valid. Prah v. Maretti, 321 NW 2d 182 (WI Supreme Ct. 1982). The private nuisance asserted here is therefore given recognition over the landowner's right to build anywhere he pleases. The private nuisance is an interference with one or a relatively few owners, and is actionable by the person whose rights have been disturbed. Blessington v McCrory Stores Corp., 198 Misc. 291, 299, aff'd 279 App Div. 806, aff'd 305 N.Y. 140.
It is highly doubtful that these circumstances could justify charging the babysitter with a crime. First, there is no mens rea or criminal intent. There was a negligent act but not one of such seriousness that it would generally put persons at serious risk for their lives. The large menacing man also far overpowered her potential ability to resist. Furthermore, the crime was arguably not foreseeable in the way that the death occurred. For a good discussion of the requirements of criminal negligence and mens rea under modern views, see US v. Cordoba-Hincapie, 825 F. Supp. 485, 500-505 (E.D. NY 1993).
See Powell v. Texas, 392 US 514, 532-33 (1968). He was convicted, not for being a chronic alcoholic, but for being in public while drunk on that occasion. The state has not sought to punish a mere status, nor has it attempted to regulate appellant's behavior in the privacy of his own home. Rather, it has imposed on him a criminal sanction for public behavior which may create substantial health and safety hazards, both for him and for members of the general public, and which offend the moral and esthetic sensibilities of a large segment of the community. This is not the same as convicting one for being an addict, being a chronic alcoholic, or a leper.
Criminal intent exists because rape is a general intent crime, requiring only that he intended to perform the act. Also, there cannot be a reasonable belief that prior experience gives future consent to sex. See People v. Dancy, 124 Cal. Rptr. 2d 898, 908-911 (CA Ct of Appeal, 6th App. Dist. 20020). There is no free pass for future sexual relations, and actual consent cannot be inferred from an unconscious person. Thus, a man who intentionally engages in sexual intercourse with an unconscious woman is denying her right to refuse consent. Since a woman may withdraw her consent at any time, People v. Roundtree, 91 Cal. Rptr. 921, 925-926, 77 Cal.App.4th 846 (Cal. App. 2000), neither a woman's actual "advance consent" nor a man's reasonable belief in such consent could possibly eliminate the wrongfulness of the man's conduct.
This is a legitimate government interest that cannot be successfully challenged on discriminatory grounds without more of a showing of discrimination, the offering of truly less burdensome alternatives, and a showing that the government's interest is not legitimate. The Supreme Court has held that “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 143 (1970), citing Huron Cement Co. v. Detroit, 362 U.S. 440, 443 (1960). Here, we don't have a state statute, instead it is a local law or ordinance, but the reasoning would be the same.
The tenancy by the entirety is predicated upon the legal unity of husband and wife, and the estate is held by them in single ownership. They do not take by moieties, but both and each are seized of the whole estate. Lang v. Commissioner of Internal Revenue, 289 U.S. 109, 53 S.Ct. 534, 77 L.Ed. 1066 (1933). Neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution. Fairclaw v. Forrest, 76 U.S.App.D.C. 197, 130 F.2d 829 (1942). The indivisibility of the estate, except by joint action of the spouses, is an indispensable feature of the tenancy by the entirety. Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72 (1918); Newman v. Equitable Life Assur. Soc., 119 Fla. 641, 160 So. 745 (1935).
A criminal conspiracy may exist and be punished whether or not the substantive crime is achieved because the conspiracy is a distinct evil, dangerous to the public, and punishable in itself. State v. Huff, 769 NW 2d 154, 158-59 (WI Ct. of Appeals 2009), citing to United States v. Fiander, 547 F.3d 1036, 1042-1043 (9th Cir.2008). The illegality of the agreement does not depend on the achievement of its ends, and it is irrelevant that the ends of the conspiracy were from the very inception of the agreement objectively unattainable. Legal impossibility is not a defense to the crime of conspiracy. See also, US v. Hsu, 155 F. 3d 189, 203-04 (3rd Cir. 1998). It is also irrelevant that the defendant enters an agreement with undercover agents. Under a unilateral conspiracy, a person who intends to accomplish the criminal objective of the conspiracy is guilty even though the other members never intended that a crime be committed. Huff, 769 NW2d 158.
The common law definition is the felonious taking of money or goods of value from the person of another or in his immediate presence, accomplished by means of force or fear. See Black's Law Dictionary. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it. See People v. Hayes, 52 Cal.3d 577, 626-27, 802 P. 2d 376 (CA Supreme Ct. 1990). Here, the wallet was given up under a set of circumstances that shows that the large man was intending to and did place the businessman in a state of fear. The wallet was under the control and in the presence of the businessman and would have remained under his control if he had not been overcome with fear generated by the large man's actions.
Common law burglary consisted of breaking and entering the dwelling of another at nighttime with the intent of committing a felony therein. See Black's Law Dictionary. See Taylor v. United States, 495 US 575, 592-93 - Supreme Court 1990. The perp here busted in the door of the residence late at night with the intent of committing a theft of the man's money. Robbery is the felonious taking of money or property from another without consent, and accomplished by means of force or fear. See Black's Law Dictionary. See People v. Williams, 305 P. 3d 1241, 57 Cal.4th 776, 781 (2013). The perp did take the money by the use of force or fear by waving the gun. Attempted murder does not exist: no threats of death, no evidence of intent, and no substantial steps taken with the intent to commit murder.
Generally, under the UCC and the Restatement, a prohibition on assignment of the contract refers only to duties that may be delegated, and not to rights in the contract. Here there is an attempt to restrict all aspects of the contract, but prohibiting the assignment of the right to receive payment is generally invalid under the UCC and not favored under common law. See Restatement (Second) of Contracts, § 322(1). See also, Aldana v. Colonial Palms Plaza, Ltd., 591 So.2d 953 (Fla.Dist. Ct.App.1991). See Charles L. Bowman & Co. v. Erwin, 468 F.2d 1293, 1297 (5th Cir.1972); Cedar Point Apartments, Ltd. v. Cedar Point Investment Corp., 693 F.2d 748, 753 (8th Cir.1982), cert. denied, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983).
The offense of criminal assault, i.e., the intent to put the victim in fear of harm, is a specific intent crime because the focus is on the intent of the actor and not on the results. In criminal assault, therefore, the defense of voluntary intoxication may be used. In this case, however, the offense is criminal battery, which involves the actual infliction of bodily harm on the victim. The forbidden conduct in battery is a physical act, which results in bodily harm upon another. Although the definition of battery requires the State to prove that the defendant intended to do the physical act, nothing in the definition requires proof that the defendant meant to violate the law or cause a particular result. The definition of criminal assault under common law requires the State to prove the defendant committed an act with an additional special mental element — specifically, an act done with intent to cause fear in another of immediate bodily harm or death. State v. Fleck, 810 NW 2d 303, 309-312 (MN Supreme Ct. 2012). Fleck provides a very good explanation of the difference between specific intent and general intent crimes, and particularly, between criminal assault and criminal battery. See also, State v. Jamison, 517 P. 2d 1241 (AZ 1974); State v. Redmon, 244 NW 2d 792, 797-98 (IA 1976).
Manufacturers are not strictly liable for risks that were considered undiscoverable by the standards of the time. This is the case regardless of what consumer expectations may have been at the time. See Brown v. Superior Court, 751 P. 2d 470 (CA Supreme Ct. 1988).
The three elements of conspiracy are: (1) intent to commit the crime; (2) agreement between the defendant and at least one other person to commit it; and (3) an "overt act" performed by one of the conspirators in furtherance of the conspiracy. See State v. Peralta, 800 NW 2d 512, 516-17 (WI Ct of Appeals 2011). Any act toward commission of the crime is sufficient. Id. The overt act in conspiracy should not be confused with the "substantial step" element required for attempt. To convict of attempt, the State must prove that defendant did acts toward the commission of the crime showing clearly that she formed that intent and would commit the crime. Id. at 517. The three men had an agreement to murder the neighbor, which was conspiracy through the overt act of getting the poison. See Model Penal Code § 5.03. Friend did not go beyond mere planning but the man and brother did, and the two are guilty of attempted murder. Friend did not form the specific intent to murder and would not have done the crime.
Criminal attempt is an act or omission constituting a substantial step in a course of conduct planned to culminate in the actor's commission of the crime. See, generally, for example, State v. Hohnstein, 328 NW 2d 777, 780 (NE Supreme Ct 1983); State v. Group, 98 Ohio St.3d 248, 781 N.E.2d 980 (OH 2002). The man has not gone far enough nor committed a substantial act intended to commit the crime. The candle was on his desk at that point for innocent purposes. Although he has intended plan in his mind, he carried none of them out. There is no attempted crime. See Model Penal Code § 5.01. There is no action that can be attributed to him just because the janitor was careless with the candle.
A fundamental principle of the Constitution is that Congress has the power to preempt state law. Art. VI, cl. 2; state law is also naturally preempted to the extent of any conflict with a federal statute. It also violated the dormant Foreign Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. See Crosby v. National Foreign Trade Council, 530 US 363, 371 (2000).
Upon the transfer of real property covered by a mortgage as security for a debt, the property remains subject to a lien for the debt but the grantee is not personally liable for the debt unless he agreed to do so in the conveyance. Cornelison v. Kornbluth, 15 Cal.3d 590, 596, 542 P. 2d 981 (CA Supreme Ct 1975). The mortgage that is filed by the bank puts a lien on the property that lasts until the underlying debt is paid off. Anyone who buys the property without making sure that all liens are satisfied, takes subject to the lien, so that the bona fide purchaser (as well as the adult child) took title subject to the existing lien on the property. The lien of a mortgage is extinguished upon the sale of the real property unless the purchaser has knowledge, either actual or constructive, of the existence of the mortgage. Where the mortgage is of record it is constructive knowledge of its existence. Baccari v. De Santi, 70 AD 2d 198 (NY App Div., 2nd Dept. 1979); In re Schlabach, 490 BR 555, 561 Bankr. Ct, SD Ohio 2012). That is why the title search must be done.
Generally, if a person is committing a misdemeanor and unintentionally causes the death of another, that person may be prosecuted for involuntary manslaughter. This applies if the misdemeanor is malum in se - wrong in itself - such as assault. Thus an unintentional death caused by assault and battery is usually treated as involuntary manslaughter. See, as examples: Schlossman v. State, 105 Md. App. 277 (MD Ct of Spec. App 1995); Commonwealth v. Sheppard, 404 Mass. 774, 775-76, 537 NE 2d 583 (Mass Sup. Jud. Ct. 1989); State v. Davis, 798 SW 2d 268, 271 (TN Ct. of Crim. App. 1990).
The general rule is that a property owner is entitled to the continued subjacent lateral support of his neighbor's property, and the neighbor who excavates his property so as to remove the subjacent lateral support becomes liable for the resulting damages. Sometimes, as in this example, the court may also order injunctive or other equitable relief if appropriate. See, for example, Keck v. Longoria, 771 SW 2d 808, 809-810 (AR Ct. of App. 1st Div. 1989); Bradley v. Valicenti, 185 Pa. Superior Ct. 403, 406-07 (Pa.Super. 1958).
A statutory classification that does not infringe fundamental constitutional rights must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for it. Where there are plausible reasons for the classification, the inquiry is at an end. See, for example, FCC v. Beach Communications, Inc., 508 US 307, 313-314 (1993). See also Heller v. Doe, 509 US 312, 319-320 (1993). In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because it "is not made with mathematical nicety or because in practice it results in some inequality." Dandridge v. Williams, 397 U.S. 471, 485 (1970).
Past consideration cannot form the basis for a binding contract. A party cannot rely on a pre-existing duty as new consideration in an attempt to formulate a contract. Here, the defendants clearly rely on past consideration, which renders the alleged oral modification unenforceable. Generally, new consideration is needed to modify a contract. The seller already has a duty to sell for $10,000 and there’s no consideration offered to make the seller want to sell for $8,000. This is partly because it’s not fair to allow one party to dictate change, on the threat of non-performance, which only benefits himself without taking on a new detriment. See, for example, Margeson v. Artis, 776 NW 2d 652, 656-57 (IA Supreme Ct 2009).
This is not a “possibility of reverter” that reverts back to the grantor instantly on the happening of the event. This conveyance does not use durational language such as "for as long as", "while", and "during". When the language used is conditional, such as "on condition", "if used for", and "provided that," it is a fee simple subject to a condition subsequent. This conveyance creates a future interest called a "right of entry." The property only reverts to the grantor if it exercises this right. See, for a good explanation, Higbee Corporation v. Kennedy, 428 A. 2d 592, 286 Pa. Superior Ct. 101, 107-108-110 (Pa.Super. 1981). It is not relevant here but is worth noting that a good real estate attorney may argue that the modification was so minimal that the condition subsequent should not be enforced; that is an equitable question for the court to decide. See Allegheny Co. Port Auth. v. Flaherty, 6 Pa. Commonwealth Ct. 135, 142-43 (1972). Therefore, the best answer in this hypothetical is number 2, that this is a fee simple subject to a condition subsequent, and the grantor can get the land back by exercising its right of entry.
In Engquist v. Oregon Dept. of Agriculture, 128 S. Ct. 2146, 2150-51 (2008), the Supreme Court held that the core concern of the Equal Protection Clause as a shield against arbitrary classifications, combined with unique considerations applicable when the government acts as employer as opposed to sovereign, makes a class-of-one theory of equal protection not applicable in the public employment context. The state as manager needs to use discretion to determine who may be hired or fired. The rule is not the same when the government is acting as a regulator.
See Liparota v. United States, 471 US 419, 425-27 (1985). The government must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulation. Statutes dispensing with mens rea have a generally disfavored status, and where the statute is silent or ambiguous, the criminal intent element should be favored as a requirement for conviction.
This doctrine, called the dormant commerce clause, is violated when there is a local entity that is favored to exclusively deal with products that will go into commerce. This is a form of protectionism that is prohibited. In a dormant Commerce Clause violation, the state or local law discriminates against out-of-state actors or has the effect of favoring in-state economic interests over out-of-state interests. Discriminatory laws motivated by "simple economic protectionism" are subject to a "virtually per se rule of invalidity." See City of Philadelphia v. New Jersey, 437 U.S. 617 (1978); C&A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383 (1994); Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349 (1951), Hunt v. Washington State Apple Advertising Comm., 432 U.S. 333 (1977).
The Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will adequately protect the constitutionally protected freedoms of expression. Our constitutional framework requires the most rigorous procedural safeguards be provided in obscenity regulations. Freedom of expression must be protected by a barrier of bulwarks. Criminal sanctions may be applied only after a determination of obscenity has been made in a criminal trial comprising all the procedural safeguards of the criminal process. Bantam Books, Inc. v. Sullivan, 372 US 58, 69 (1963). Any system of prior restraint of publication, without a prompt and full due process judicial determination, is prohibited. Prior restraint of speech carries the danger inter alia of restricting non-obscene books and materials, and has a chilling effect on other publications. See, for example, Freedman v. Maryland, 380 US 51 (1965).
The proof concerning impairment of earning capacity is, to some extent, speculative and imprecise. Overstreet v. Shoney's, Inc., 4 SW 3d 694, 703-04 (TN Ct of Appeals, Middle Section 1999). However, this imprecision is not grounds for excluding the evidence. Id. See also, Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041, 1047-48 (1949); Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027, 1037 (1980). Impairment of earning capacity is not necessarily measured by an injured person's employment or salary at the time of the injury. An injured person may assert that an injury caused a change of plans or loss of a career. Overstreet at 704-705. The jury will decide between persons with only vague hopes of a profession and those with the demonstrated ability and intent to do so. Often, making this distinction depends on the steps the person has actually taken to accomplish his or her educational or career goals. Id.
In a no-reserve auction, like this one, the auctioneer is considered the offeror and the highest bidder is the offeree. The offeree’s bid, being the highest, is the acceptance and constitutes the formation of a binding contract. In a reserve auction, the highest bid may ultimately be rejected by the auctioneer or seller because it is only an offer. The seller does not have to accept the offer made. See, for example, Pitchfork Ranch Co. v. Bar Tl, 615 P. 2d 541, 548-550 (WY Supreme Ct. 1980).
