BAR FLASHCARDS - Crim L 7 - Property Off's
Larceny
Taking and carrying away of tangible personal property of another by trespass with intent to permanently deprive.
Larceny consists of:
• A taking (obtaining control)
• And carrying away (asportation)
• Of tangible personal property (excluding realty, services, and in- tangibles, but including written instruments embodying intangible rights such as stock certificates)
• Of another with possession
• By trespass (without consent or by consent induced by fraud)
• With intent to permanently deprive that person of their interest in the property
Larceny: Asportation
The slightest movement of the property is enough for purposes of the bar exam.
Larceny: Possession
The property must be taken from the custody or possession of another.
If the defendant had possession of the property at the time of the taking, the crime is not larceny, but may be embezzlement.
a. Custody vs. Possession: Possession involves a greater scope of authority to deal with the property than does custody. Generally, the defendant has possession if they were given discretionary authority over the property and has custody if they were given only limited authority over the property. Ordinarily, low level employees have only custody of an employer’s property and so are guilty of larceny for taking it.
b. Bailee and “Breaking Bulk”: Generally, a bailee has possession and thus may be guilty of embez- zlement if they take the property. However, if the bailee opens closed containers in which the property has been placed by the bailor (that is, the bailee “breaks bulk”), the possession is regarded, by use of
a fiction, as returning to the bailor, and thus the bailee may then be guilty of larceny if they take that property.
Larceny: Intent to Permanently Deprive **
a. Sufficient Intent:
b. Insufficient Intent:
c. Possibly Sufficient Intent:
Generally, larceny requires that at the time of the taking the D intended to permanently deprive a person of their property, (UNLESS there is a CONTINUING TRESPASS situation).
a. Sufficient Intent: An intent to create a substantial risk of loss, or an intent to sell or pledge the goods to the owner, is sufficient for larceny.
b. Insufficient Intent: Where the defendant believes that the property they are taking is theirs or where they intend only to borrow the property or to keep it as repayment of a debt, there is no larceny, OR if they believe that they have some right to it.
c. Possibly Sufficient Intent: There may be larceny where the D intends to pay for the goods (if the goods were not for sale) or intends to collect a reward from the owner (if there is no intent to return the goods absent a reward).
When must the defendant have the intent to permanently deprive?
AT THE TIME OF TAKING.
For a larceny question, be sure that the defendant had the intent to permanently deprive when they took the prop- erty. If not, there is no larceny (unless it is a continuing trespass situation (see 7.1.5., infra)). Many questions turn on this one small point.
Larceny: Abandoned, Lost, or Mislaid Property
Larceny can be committed with lost or mislaid property or property that has been delivered by mistake, but not with abandoned property.
Larceny: “Continuing Trespass” Situation
- Defendant wrongly takes property without intent to permanently deprive and later decides to keep it = LARCENY.
If the defendant wrongfully takes property without the intent to permanently deprive (for example, without permission borrows an umbrella), and later decides to keep the property, the defendant is guilty of larceny when they decide to keep it.
HOWEVER, if the original taking was not wrongful (for example, the defendant took the umbrella thinking it was theirs) and later decides to keep it, it is not larceny.
EMBEZZLEMENT
Embezzlement is:
• The fraudulent
• Conversion (that is, dealing with the property in a manner inconsistent with the arrangement by which defendant has possession)
• Of personal property
• Of another
• By a person in lawful possession of that property
EMBEZZLEMENT - Distinguish from Larceny
Embezzlement differs from larceny because in embezzlement the defendant misappropriates property while it is in their rightful possession, while in larceny the defendant misappropriates property not in their possession.
EMBEZZLEMENT - Fraudulent Intent.
a. Intent to Restore?
b. Claim of Right?
benefit?
Defendant must intend to defraud.
a. Intent to Restore
If the defendant intends to restore the exact property taken, it is not embezzlement.
However, if the defendant intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money—of identical value— that they intended to return.
b. Claim of Right
As in larceny, embezzlement is not committed if the conversion is pursuant to a claim of right to the property.
Whether defendant took the property openly is an important factor.
NOTES:
A trustee is often the MBE embezzler.
A person does not have to carry away to be an embezzler—just the possession of the property is required.
The embezzler does not have to get the benefit.
FALSE PRETENSES
The offense of false pretenses is:
• Obtaining title
• To personal property of another
• By an intentional false statement of a past or existing fact
• With intent to defraud the other
False pretenses - Misrepresentation Required
The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to the defendant. Traditionally, the defen- dant’s misrepresentation must have related to a past or present
fact, and false promises to do something in the future, even without the present intent to perform, were not sufficient. However, under the M.P.C. and the modern prevailing view, any false representation suffices, including a false promise to perform in the future.
False pretenses - Intent to defraud
Depending on the statute involved, the defendant must either have known the statement to be false or have intended that the victim rely on the misrepresentation. Most states will find that the defen- dant “knew” of the falsity of any statements when, after being put on notice of the high probability of the statement’s falsity, they deliber- ately avoided learning the truth.
“Larceny by Trick” Distinguished
If the victim is tricked—by a misrepresentation of fact—into giving up mere custody or possession of property, the crime is larceny by trick. If the victim is tricked into giving up title to property, the crime is false pretenses.
Larceny by trick: Victim gives up ustody or posession of proiperty
False pretenses: V gives up TITLE to property. .
When choosing between false pretenses and larceny by trick on the exam, focus on what the victim intended to convey to the defendant. If the victim intended to give the
defendant ownership of the property, the crime is false pretenses. If the victim intended to give the defendant possession or custody of the property (for example, the defendant tricked the victim into letting them borrow the victim’s car), the crime is larceny by trick.
Robbery
Robbery consists of:
• A taking
• Of personal property of another
• From the other’s person or presence (including anywhere in their vicinity)
• By force or threats of immediate death or physical injury to the victim, a family member, or some person in the victim’s presence
• With the intent to permanently deprive them of it
For a defendant to be guilty of robbery, the victim must give up their property because they feel threatened.
If the victim gives up their property for another reason (for example, they feel sorry for the defendant, or they want the defen- dant to go away), the defendant will not be guilty of robbery.
The defendant may, however, be guilty of attempted robbery.
Robbery Distinguished from Larceny
Distinguish Larceny
Robbery differs from larceny because robbery requires that the defendant use force or threats to obtain or retain the victim’s property. Thus, pickpocketing generally would be larceny, but if the victim notices the attempt and resists, the taking would be robbery.
Robbery NOTES
• The presence requirement is very broadly drawn and would even cover a farmer tied up in his barn while the robber took things from his house.
• As for taking either by force or threat, actions such as ripping a necklace from a person’s neck is sufficient.
• The threat must be a threat of imminent harm
Crime: Larceny
Activity:
Method:
Intent:
Title:
Crime: Larceny
Activity: Taking and asportation of property from possession of another person
Method: Without consent or with consent obtained by fraud
Intent: With intent to steal
Title: Title does not pass.
Crime: Embezzlement
Activity:
Method:
Intent:
Title:
Crime: Embezzlement
Activity: Conversion of property held pursuant to a trust agreement
Method: Use of property in a way inconsistent with terms of trust
Intent: With intent to defraud
Title: Title does not pass
Crime: False Pretenses
Activity:
Method:
Intent:
Title:
Crime: False Pretenses
Activity: Obtaining title to property
Method: By consent induced by fraudulent misrepresentation
Intent: With intent to defraud
Title: Title passes.
Crime: Robbery
Activity:
Method:
Intent:
Title:
Crime: Robbery
Activity: Taking of property from another’s presence
Method: By force or threat of force
Intent: With intent to steal
Title: Title does not pass
EXTORTION
Common law extortion consists of the corrupt collection of an unlawful fee by an officer under color of office.
Under modern statutes, extortion (blackmail) consists of obtaining property by means of threats to do harm or to expose information.
Under some statutes, the crime is complete when threats are made with the intent to obtain property; meaning, the property need not be obtained.
Extortion- Distinguish Robbery
Extortion differs from robbery because in extortion the threats may be of future harm and the taking does not have to be in the presence of the victim.
RECEIPT OF STOLEN PROPERTY
RECEIPT OF STOLEN PROPERTY
Receipt of stolen property consists of:
• Receiving possession and control
• Of “stolen” personal property
• KNOWN to have been obtained in a manner constituting a criminal offense
• By another person
• With the intent to permanently deprive the owner of their interest in it
Receipt of stolen property -
“Possession”
“Stolen” Property:
Manual possession is not necessary. The defendant possesses the property when it is put in a location designated by them or they arrange a sale for the thief to a third person (that is, “fencing”).
“Stolen” Property: The property must be stolen property at the time the defendant receives it.
In analyzing receipt of stolen property questions, carefully check the property’s status at the time defendant re- ceives it.
If the police have already recovered the property and use it with the owner’s permission, it is no longer stolen, and the defendant cannot be convicted of receipt of stolen property.
Note, however, that the defendant can be convicted of attempted receipt of stolen property if they intended to receive the property while believing it to be stolen.
THEFT
Under many modern statutes and the M.P.C., some or all of the above property offenses are combined and defined as the crime of “theft.”
FORGERY
Forgery is the making or altering of a false writing with intent to defraud.
Forgery consists of the following:
• Making or altering (by drafting, adding, or deleting)
• A writing with APPARENT LEGAL SIGNIFICANCE (for example, a contract, not a painting)
• So that it is false; that is, representing that it is something that it is not, not merely containing a misrepresentation (for example, a fake warehouse receipt, but not an inaccurate real warehouse receipt)
• With intent to defraud (although no one need actually have been defrauded)
Forgery - Fraudulently Obtaining Signature of Another
If the defendant fraudulently causes a third person to sign a document that the third person does not realize they are signing, forgery has been committed. But if the third person realizes they are signing the document, forgery has not been committed even if the third person was induced by fraud to sign it.
Forgery - Uttering a Forged Instrument
Uttering a Forged Instrument: Uttering a forged instrument consists of:
(1) offering as genuine;
(2) an instrument that may be the subject of forgery and is false;
(3) with intent to defraud.
BURGLARY
Common law burglary consists of:
• A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation; if defendant had the resident’s con- sent to enter, the entry is not a breaking)
• And entry (placing any portion of the body or any instrument used to commit the crime into the structure)
• Of a dwelling (a structure used with regularity for sleeping pur- poses, even if used for other purposes such as conducting a business)
• Of another (ownership is irrelevant; occupancy by someone other than the defendant is all that is required)
• At nighttime
• With the intent to commit a felony in the structure (felony need not be carried out to constitute burglary)
Modern statutes often eliminate many of the “technicalities” of common law burglary, including the requirements of a breaking, that the structure be a dwelling, that the act occur at nighttime, and that the intent be to commit a felony (that is, intent to commit misde- meanor theft is often enough).
Burglary:
Breaking
Entering
Dwelling house of another
At night
Intent to commit a felony therein
The breaking can be actual (involving some force, however slight) or constructive.
• Actual Breaking: It is not an actual breaking for a person to come uninvited through a wide open door or window. If it is wide open, there is no breaking. But if a person pushes open an interior door to another room (for example, the bedroom or living room), then a breaking exists.
• Constructive Breaking: A constructive breaking is a breaking by fraud or threat. (using key for any other purpose than it was given to you for).
Entering: An entering occurs when any part of the body crosses into the struc- ture.
Dwelling House of Another: The dwelling cannot be a barn or a commercial structure.
At Night: At common law, the burglary has to be at night.
Intent to Commit a Felony Therein: The intent to commit the felony must exist at the time of the breaking
ARSON
Arson at common law consists of:
• The malicious (that is, intentional or with reckless disregard of an obvious risk)
• Burning (requiring some damage to the structure caused by fire)
• Of the dwelling
• Of another
Like statutory changes for burglary, modern arson statutes (including the M.P.C.) have modified the common law rules, usually to expand potential criminal liability.
Most states have expanded the definition of arson to include damage caused by explosion, and expanded the types of property that may be destroyed to include commercial structures, cars, trains, etc.
Malice
As for the malice requirement, no specific intent is required. Acting with a reckless disregard of an obvious risk that the structure would burn will suffice for arson culpability.
Damage Required
Damage Required
Destruction of the structure, or even significant damage to it, is not required to complete the crime of arson.
Mere blackening by smoke or discoloration by heat (scorching) is not sufficient, but mere charring is sufficient.
Related Offense—Houseburning
Related Offense—Houseburning
At common law, the building had to be the house of another; one could not be guilty of arson of one’s own house. The common law misdemeanor of houseburning consisted of: (1) a malicious; (2) burning; (3) of one’s own dwelling; (4) if the structure is situated either in a city or town, or so near to other houses as to create a danger to them.
.
Although common law arson requires a burning of a dwelling, MBE questions testing on other arson issues often assume, without specifically stating, that arson extends to structures other than dwellings. Many statutes so provid
