§702-205  Elements of an offense.  The
elements of an offense are such (1) conduct, (2) attendant circumstances, and
(3) results of conduct, as:



(a) Are specified by the definition of the offense,
and



(b) Negative a defense (other than a defense based on
the statute of limitations, lack of venue, or lack of jurisdiction). [L 1972, c
9, pt of §1]



 



COMMENTARY ON §702-205



 



  As explained in the commentary to §702-204, a clear analysis
requires that the various distinct ingredients of an offense be separately
recognized.  The ingredients, denominated "elements" in §702-205, are
the conduct, the circumstances attendant to conduct, and the results of
conduct, which are specified in the definition of an offense and which negative
a defense on the merits.



  The effect of including within the definition of
"element" facts (conduct, attendant circumstances, results) which
negative a defense on the merits (a defense other than one based on the statute
of limitations, lack of venue, or lack of jurisdiction) is to postulate an
equivalence of the state of mind required to establish a particular offense
regardless of the diverse circumstances giving rise to the charge.  Thus, if
the crime of murder requires that the defendant act intentionally or knowingly
with respect to each element, one who intentionally kills another, recklessly
mistaken that the other's conduct threatens one's life, would not be guilty of
murder, although one might be guilty of a crime requiring only recklessness. 
Since the defendant must act intentionally or knowingly with respect to
attendant circumstances which negative the defense of self-defense, conviction
for murder would fail unless it could be proven that defendant knew or believed
that the defendant's assailant's conduct did not in fact threaten serious
bodily harm or death.



  Prior Hawaii law did not deal directly with the problem of
defining "element" of an offense; however, the question has been
treated tangentially in cases involving sufficient corroboration of
extrajudicial confessions.  A footnote in one case has provided the following
comment and definition:



Proof of the commission of a crime consists of three elements,
each of which must be proved beyond a reasonable doubt:  (1) the basic injury,
such as the death in murder, the burning in arson, or the missing property in
theft, (2) the fact that the basic injury was the result of a criminal, rather
than a natural or accidental cause, and (3) the identification of the defendant
as the perpetrator of the crime.  The first two of these elements constitute
the corpus delicti or body of the crime, which is proved when the prosecution
has shown that a crime has been committed by someone.[1]



However, the same opinion, which involved a charge of burglary,
also referred to that requirement, under the prior law, that the entry be
accompanied by an intent to commit a felony, as an "essential
element".[2]



  The Code seeks to eliminate the somewhat inconsistent use of
the word "element" and to provide a less abstract and more meaningful
definition.



 



SUPPLEMENTAL COMMENTARY ON §702-205



 



  The Legislature enacted §702-205 of the Proposed Draft of the
Code without change; however, in Chapter 703, dealing with defenses of
justification, the Legislature departed from the Proposed Draft and required an
objective assessment of the defendant's state of mind, or a "reasonable
belief" on the defendant's part, respecting the attendant circumstances
which justify conduct otherwise deemed unlawful.  Therefore, the example set
forth in the second paragraph of the above commentary is no longer applicable.



 



Law Journals and Reviews



 



  Agonizing Over Aganon:  A New Approach to Drafting Jury
Instructions in Criminal Cases.  10 HBJ No. 13, at pg. 73.



 



Case Notes



 



  Section not inconsistent with entrapment provisions of §701-115. 
58 H. 479, 572 P.2d 159.



  Pursuant to the definition of "element" set forth
in this section, the prior conviction reference in §709-906(7) constitutes an
element of the offense of the felony abuse charge.  116 H. 3, 169 P.3d 955.



  Mentioned:  75 H. 152, 857 P.2d 579.



 



__________



§702-205 Commentary:



 



1.  State v. Hale, 45 Haw. 269, 277n, 367 P.2d 81, 86n (1961).



 



2.  Ibid.