SORRY OFFICER I DIDN’T MEAN IT, the stress-testing of language in legal regulation and dispute resolution…

During the eighteenth century there was a maturation of colonial legal systems with much unevenness from colony to colony, the bench and bar became better trained and better regulated. English-educated lawyers probably exerted appreciable influence in the middle and southern colonies. It seems that adequate common-law books were present in at least some of the colonies, though doubtless in scattered libraries, Certainly it can be said that in the fairly typical colonies the common law was knowable and for the most part followed by the time of the Revolution.
The post-Revolutionary evidence makes it conclusive that by 1765 the courts applied the common law “in the main.” It was said that “The ends of the bridge are secure even if the floor has some missing planks.”
William & Mary Law Review
Volume 10
Issue 2 Article 7 (1968)


We Americans are beneficiaries of the English Common law. Much Common law jurisprudence has been superseded by Statutory law which oftentimes clarifies uncertain outcomes based upon arcane case law applied to unique facts.
By way of example, a common, albeit mistaken, belief is that in Maryland criminal law, all theft-type crimes are the same. Although words like burglary and larceny and embezzlement and theft are used interchangeably in our day-to-day life, in fact, they have different meanings, and apply in  different situations. But consider embezzlement, which is perhaps the most different from the group. Most theft-type crimes require that the accused take possession of property by force, or without permission. In common terms, the items must be “stolen.” In many cases, someone can legally have possession of an item, but retain the item wrongfully, or use the item in a way that exceeds or violates the scope of why the person was entrusted with it in the first place. The person does not have to intend to steal anything at the time he  takes possession of the item.
For example, your boss may give you $1000 to go to Staples and buy office supplies for the office. You initially plan to do just that, then you realize you could use some cash for yourself. So, you buy $900 worth of office supplies, and keep $100 for yourself. You have embezzled those funds. Surely, you did not steal that money initially; it was given to you with permission by the boss. But clearly, you embezzled some of it. However, State law no longer uses the terms larceny, embezzlement, shoplifting, or receiving stolen property, as these crimes all fall under the theft statute.


“SORRY OFFICER, I DIDN’T MEAN IT”- The Queen’s Bench disagrees when motorist fails to remove his car from the foot of the arresting constable in a prompt rather than a subjectively propitious time.

For a crime to have occurred, there must have been an actus reus (“GUILTY ACT”) and a mens rea (GUILTY MIND”). The two must coincide with each other from a temporal aspect.

In Fagan v Metropolitan Police Commissioner [1969] 1 QB 439,
Mr Fagan, the defendant, was asked to move his car by a police officer. He reversed his car as told, but accidentally drove onto the officer’s foot. When the officer told him to get off his foot, Mr Fagan told him to wait, and refused to move. He was convicted of assaulting a constable in execution of his duties, but complained that the two necessary elements of the offense – the act (actus reus) and mental state (mens rea, or guilty mind) – had not happened at the same time. When he drove onto the officer’s foot he did not intend to harm him, and at the point where he did intend to continue doing him harm he only omitted (failed) to move his car off the officer’s foot. In criminal law the two elements have to happen at the same time, so he argued that he should not be convicted.

This cunning submission however did not work. The court said that driving onto the officer’s foot and staying there was one long battery (unlawful touching of another), so that when he began intending to continue hurting the officer he was still performing the actus reus. Mr Fagan was therefore convicted of assault. Normally an omission is not an actus reus, apart from in certain circumstances such as gross negligence manslaughter, so it is interesting how the court managed to decide this was one long act rather than an act followed by an omission to correct the situation.

If you have been charged with a crime in Maryland pick up the phone and give me a call at 410-391-0552 (land) or 410-491-0227 (cell) to arrange a confidential and courteous consultation.

Sources: Oxford Royale Academy

William B. Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L. Rev. 393 (1968),


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