Crimes Against Property Flashcards
What are the elements of larceny? (10.3%)
• Taking (a.k.a. “caption”; any movement of property, however slight) and
• And carrying away* (a.k.a. “asportation”;
–*ELIMINATED IN MPC, which focuses on “unlawful control”; any movement of property, however slight; most courts will impute another person’s asportation to the defendant if the person acted at the defendant’s direction);
- Of another person’s property;
- Without his consent (trespassory);
–defendant bears the burden of proving that there was consent
• With the intent to deprive him of it permanently.
What intent is required for larceny?
Specific intent.
• As long as the defendant thinks it’s his property—however unreasonably—he is not
guilty of larceny. (Example: wrong black umbrella; anything “borrowed”)
• There is no defense of restoration if the defendant later has a change of heart and restores the property to the rightful owner. The crime is complete at the time of the taking.
Examples of sufficient intent to permanently deprive:
- defendant takes property with the intent to claim a reward
- defendant intends to throw away or abandon the property
- defendant intends to sell the property back to the owner
- defendant intends to pledge or pawn the property without being able to redeem it
Examples of insufficient intent to permanently deprive:
- defendant intends to borrow property with the ability to return it
- defendant intends to pay for merchandise that she has the means to buy (property must have been offered for sale)
- defendant intends to take money as repayment of a debt (cannot serve as a justification for robbery in most states)
What is the “continuing trespass” rule of larceny?
If the original taking was without consent, yet was not unlawful because there was no intent to steal at the time of the taking, then larceny may be committed at a later time if the intent to steal is later formed.
Under the “continuing trespass” rule, the original trespass is deemed to be “continuing” in order for the criminal act to coincide with the criminal intent. The defendant’s original taking must have been wrongful (e.g., a taking based on knowledge that the property belonged to another, such as a taking with the intent to borrow and return the property).
What is the difference between larceny and embezzlement?
Embezzlement: the defendant is legally entrusted with the property by the owner, and then the defendant later fraudulently converts the property to his own use.
Larceny: the initial taking must be trespassory; there cannot be lawful entrustment by the owner.
Can it be larceny?
- The owner of property (i.e., a person who has title to it) takes it from someone other than the owner (e.g., a lessee) who is entitled to current possession of the property
- The taking of stolen property from a thief
- A joint owner of property takes possession of the property from a co-owner
- Taking property that has been abandoned by its owner
- Taking property that has been lost by its owner
- Taking property that has been mistakenly delivered
- Owner: Yes.
- Thief: Yes, unless the taker has a superior possessory interest in the property (e.g., an owner or a lessee of the property).
- Joint owner: No, because the taker has an equal right to possess the property.
- Abandoned property: No.
- Lost property: Yes, if, at the time of the finding, the finder knows the owner or believes that he can locate the owner and the finder possesses the necessary intent to permanently deprive the owner of the property.
- Mistakenly delivered property: Yes, if the recipient of the property realizes that a mistake has been made at the time of the receipt of the property and the recipient possesses the necessary intent to permanently deprive.
What are the elements of larceny by trick? (6.9%)
Larceny by trick is
- Larceny
-
Accomplished by fraud or deceit
- The representation (whether oral, written, or by actions) must be a false representation of a material past or present fact. A prediction about a future event, a false promise, or an opinion, such as sales talk or puffing, is not sufficient.
- Inducing the victim’s reliance
-
Resulting in the CONVERSION of the victim’s property.
- Property is converted when the defendant, in a manner so serious as to deprive the victim of the use of the property, deprives the victim of possession of the property or interferes with the property. The deprivation must be substantial enough to justify a court to order the defendant to pay the full fair market value of the property.
Larceny by trick requires that the defendant fraudulently induce the victim to deliver possession of, but not title to, the property to the defendant.
How does larceny by trick differ from false pretenses? (6.9%)
Larceny by trick: the defendant obtains possession.
False pretenses: the defendant obtains title.
What are the elements of forgery?
Forgery is the:
-
Making
- creating, altering, or fraudulently inducing another to sign
-
Of a false writing
- writing itself must be false, instead of merely including false information in an otherwise genuine document
- With apparent legal significance
-
With the intent to defraud
- i.e., make wrongful use of the forged document, even if no one is actually defrauded.
What are the elements of embezzlement? (10.3%)
Embezzlement is the:
-
Fraudulent
- intent to defraud
- still counts for embezzlement if the defendant intends to return similar property or the cash equivalent of the value of the property
-
Conversion
- serious interference with the owner’s property rights
-
Of the property
- same types of property subject to larceny
- Of another
-
By a person who is in lawful possession of the property.
- i.e. the defendant starts out having the owner’s consent to have the property but commits embezzlement by converting the property to his own use
- Custody of the property is insufficient – the defendant must be in lawful possession of the property when the conversion occurs for it to constitute embezzlement. Possession involves a greater scope of authority to deal with property than does custody (e.g., low level employees usually only have custody of their employer’s property – thus, they commit larceny if they take it).
What are the elements of larceny by false pretenses? (6.9%)
Larceny by false pretenses entails:
-
Obtaining title to the property
- same types of property subject to larceny
- Of another person
- Through the reliance of that person
-
On a known false representation of a material past or present fact; and
- A prediction about a future event, a false promise, or an opinion, such as sales talk or puffing, is not sufficient.
- The representation may be made orally, in writing, or by actions (e.g., resetting a car’s odometer).
- Silence does not constitute a representation, even when the defendant is aware of the owner’s misunderstanding, unless the defendant caused the misunderstanding or the defendant has a fiduciary obligation to the victim.
-
The representation is made with the intent to defraud.
- The defendant must know that the representation is false and specifically intend to defraud. Most courts find that a defendant acts knowingly and has knowledge of a particular fact when he is aware of a high probability of the fact’s existence and deliberately avoids learning the truth. A few states require actual knowledge of a particular fact.
- If the defendant subjectively believes that he owns the property in question, he will not be guilty of false pretenses.
In short, the defendant obtains TITLE to someone else’s property through an act of deception.
What are the elements of robbery?
- Larceny;
- From the person or presence of the victim;
- By force or intimidation (threat of immediate serious physical injury).
How much force is required for robbery? [FREQUENTLY TESTED]
The force used by the defendant must be more than the amount necessary to effectuate taking and carrying away the property.
When a pickpocket takes the victim’s property without the victim’s knowledge, the taking does not constitute robbery unless the victim notices the taking and resists. Similarly, most state courts that have considered the issue have said that purse-snatching is not robbery unless additional circumstances transform the larceny into a robbery. Such circumstances are present when the victim notices the taking and resists, or when the victim is intimidated, knocked down, struck, or injured by greater force than is required to carry away the property.
EXAM NOTE: The MBE often tests the degree of force necessary for robbery. Remember that slight force is sufficient. Common law required that the force must be manifested immediately before or at the same time as the taking, while the modern trend in many jurisdictions is that the force may be immediately following the taking (e.g., during escape).
What happens when larceny is accompanied by assault and/or battery?
Larceny, assault, and battery all merge into robbery or attempted robbery. Merger of these crimes is often tested on the MBE by asking, “which is the highest crime D can be convicted of?”
Example: “Panicked, the boyfriend pushed the roommate to the floor and ran out of the apartment with the camera.” Not robbery and battery, but robbery alone.
Under the modern approach, what is extortion (majority and minority views)?
Most jurisdictions have enacted statutes that more broadly define extortion as the taking of money or property from another by threat.
- Majority: it is the making of threats (rather than the obtaining of the property) that is the essence of the crime.
- Minority: the accused must actually obtain the property to be guilty.
How does extortion differ from robbery?
a) The threats need not be of immediate harm, nor need they be of a physical nature (e.g., threatening future exposure of the victim’s marital infidelity); and
b) The property intended to be taken need not be on the victim or in his presence.
