Crimes Against Property

Question 1

Larceny

Answer 1

The taking and carrying away of another’s tangible personal property without consent (i.e., trespassory) and with the intent to premanently dispossess the person of the property

Question 2

Larceny-required elements

Answer 2

1) Taking: obtaining control or possession
-If D already has possession at the time of the taking, it is not larceny (but may give rise to embezzlement)
2) Carrying awa: the slightest movement will suffice
3) Without consent: against victim’s free will (i.e., by trespass)
-The use of fraud or duress negates consent
-Note: this element distinguishes larceny from larceny by trick
4) Intent to permanently dispossess: must exist during taking
-Specific intent crime: not larceny if D takes property as security for a debt owed or believing it belongs to D
-Permanently = for an unreasonable period of time
-Continuining trespass: when one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property

Question 3

Larceny-finding a lost item

Answer 3

-Larceny can arise if the true owner is known or ascertainable and D decides to keep the property
-Must be lost or misplaced
-Larceny cannot arise for abandoned property

Question 4

Embezzlement

Answer 4

Fraudulent conversion of another’s personal property by one in lawful possession

Required elements:
1) Fraudulent conversion: D uses another’s property beyond the scope of, or inconsistent with, D’s possessory rights
2) By one in lawful possession: D must have lawful possession at the time of conversion

Question 5

Embezzlement-distinguished from larceny

Answer 5

Both involve obtaining property through misappropriation, but circumstances of the taking differ:
-Embezzlement = conversion of the property in D’s rightful possession
-Larceny = taking property not in D’s possession

Question 6

Special issues refuting embezzlement

Answer 6

• Intent to restore: if D takes property with the intent to restore the exact property, no embezzlement has occurred
  -Must be the exact same property; no even different monetary bills of equal value will suffice
• Claim of right: like larceny, embezzlement will not arise if the misappropriation is made under a claim of right to the property
  -i.e. D believes the property belongs to him

Question 7

False pretenses

Answer 7

Obtaining title to another’s property using false statements of past or existing fact, with intent to defraud

Required elements:
1) Obtaining title: obtaining ownership, not mere possession
2) By false statements: must be an intentional false statement
3) Of past or existing fact: misrepresentation regarding a future event is not sufficient
4) Intent to defraud: i.e. intent to steal

Victim must be deceived or act in reliance on the false statement in passing title to D

Question 8

Larceny by trick

Answer 8

Obtaining possession of another’s personal property using false statements of past or existing fact
* Posession vs. ownership is the distinguishing factor
-Larceny by trick: D acquires possession
-False pretenses: D acquires title

Question 9

Receipt of stolen property

Answer 9

Receiving possession and control of personal property known to have been illegally obtained, with intent to permanently deprive the owner of her interst in it

Note: beware of “sting” situations: if police and the trie property owner know of or arranged D’s receipt of property, it is not truly stolen
-D can be convicted of attempt receipt of stolen property if she intended to receive property, believing it to be stolen

Question 10

Receipt of stolen property-required elements

Answer 10

1) Receipt of possession and control: Physical possession not required
-D can have possession or control by designating the property’s location or arranging to sell it for the original thief
2) Of stolen personal property: Property must have been stolen when D receives it
3) Known to have been illegally obtained by another: D must know or have reason to know property is stolen
4) With intent to permanently deprive the owner of his interest

Question 11

Forgery

Answer 11

Creating or altering a written document with purported legal significance to be false, with the intent to defraud

Required elements:
1) Creating or altering
-E.g. drafting, adding, or deleting from a document’s contents
-Also includes offering a forged document as genuine even if D did not create the forged document
2) A document with purported legal significance: A document that carries legal value (e.g. a check, contract, but not a painting)
3) To be false: modifying the document into something it is not; changing its legal significance, not just changing it to be inaccurate
4) With intent to defraid: Specific intent crime
-Note: actually defrauding somebody is not required; the mere intent to defraud is sufficient

Question 12

Robbery

Answer 12

Wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent to permanently deprive
* Robbery = assault or battery + larceny
* Victim’s person or presence: interpreted broadly
* Force of threat or injury: a small force or threat will suffice
-Threat or injury must be to victim, a member of her family or a person in her presence
-Victim must give up the property because she feels threatened or harmed
-Threats of future harm are insufficient

Question 13

Larceny vs. Robbery

Answer 13

Robbery requires force or threats to obtain victim’s property, whereas larceny does not
-E.g. D commits larceny if he slips wallet from victim’s pocket unnoticed, but D commits robbery if he pulls victim’s wallet from victim’s hand

Question 14

Extortion

Answer 14

Obtaining property through threats of future harm or exposing information
-Extortion vs robbery: extortion does not require a taking from the victim’s person or presence
-Extortion involves threats of future, rather than immediate harm

Question 15

Burglary

Answer 15

Trespassory breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony therein

Note: on the MBE, apply modern rules unless otherwise instructed

Question 16

Burglary-required elements

Answer 16

1) Breaking: can be actual or constructive; must be trespassory
-Actual: opening or enlarging (e.g. opening an unlocked door)
-Constructive: entry by threat, force, fraud, or duress (fraud negates any consent victim may have given)
-Trespass required: entering with consent or through a wide open door is not a breaking
-Breaking not required under many modern statutes
2) Entering: placing any portion of the body or the intrument used for the breaking inside the dwelling
-Dwelling = structure used for sleeping purposes
-Modern statutes expand to include non-dwelling structures
3) Of another: ownership is irrelevant: occupancy will suffice
4) At nighttime: common law requirement
-Not a required element under modern statutes
5) With intent to commit a felony therein
-Modern statutes include misdemeanor thefts
-Felony need not be completed; D must merely intend to commit a crime at the time of the breaking and entering
-Intent acquired after entering is insufficient

Question 17

Arson

Answer 17

The malicious burning of the dwelling house of another
Required elements:

1) Malicious: with intent or extreme recklessness
2) Burning: requires some damage to structure caused by fire
-Damage from smoke, water, or explosions is not sufficient at common law
3) Dwelling house: structure where someone lives
-Common law requirement
-Note: on MBE it can be a non-residential structure
4) Of another: another person’s house
-At common law, there can be no arson if you own the dwelling but do not reside there

Damages required: must be charring or something more
-Discoloration, blackening, or other lesser damage is insufficient