Crimes Against Property

Question 1

Larceny (Felony Theft)

Answer 1

Elements:

1. The trespassory
2. Taking and carrying away
3. The property of another
4. With the intent to deprive him of it permanently

Larceny is a crime against possession, not against ownership

1. If you take something from somebody who doesn’t legally own the thing, that is still larceny
2. If the owner of property gives the thing to somebody and that person doesn’t return it, that is not larceny
   
   1. That person had rightful possession of it
   2. The failure to return loaned property is not larceny
   3. The justification is that if you are the rightful owner of property, you should be careful who you loan it to

A defense to larceny is that you are the rightful owner

Problems with larceny:

1. Carriers, employees, and buyers

Question 2

Larceny: Exceptions to Trespassory Requirement

Answer 2

1. Building bulk (carrier’s case)
   
   1. If an owner gave something to a carrier to deliver to a buyer, as long as the owner packaged the item, if the carrier opened the package and took off with it, that is larceny
   2. When they open it the package, possession reverts back to the owner through constructive possession, and the carrier only has custody
2. Employees have mere custody
   
   1. There is a difference between custody and possession
   2. If an employee steals property, they commit larceny because they are not in possession and only have custody
3. In simultaneous transfers, constructive possession is retained
   
   1. Where there is supposed to be an interchange of money and goods, and the seller runs off with the money, that is larceny
   2. The seller only has custody of the buyer’s money, not possession
4. Where custody (but not title) is obtained by deceit, constructive possession is retained
   
   1. If the buyer at the time of taking custody knows he is not going to pay and already has a plan to deceive the seller, that is larceny

These four exceptions did not cover all kinds of potential problems

1. Statutes were passed to make other situations misdemeanor crimes, as opposed to larceny which is a felony that was punishable by death at the common law
2. This is why embezzlement and false pretenses were created
   
   1. They are misdemeanors that do not carry more than a year in jail

Question 3

Embezzlement (Misdemeanor Theft)

Answer 3

1. Elements:
   
   1. Defendant came into the possession of property of another in a lawful manner
   2. Through entrustment by or for the owner, and
   3. Defendant thereafter fraudulently converted the property
2. Embezzlement is a statutory misdemeanor
3. Usually applies when somebody loans property to someone else, and they didn’t return it even though they were supposed to
   
   1. They probably didn’t have the intent not to return it when they took the property
   2. Sometimes applies when an employee doesn’t give money to his employer
4. If you are guilty of embezzlement, you can’t be guilty of larceny, and vise-versa
   
   1. In the case of an employee, if the property never goes into possession of the true owner, this is embezzlement and not larceny (Commonwealth v. Ryan)

Question 4

False Pretenses (Statutory Misdemeanor)

Answer 4

1. Elements:
   
   1. Knowingly
   2. Using a false representation (written or oral)
   3. Of a material fact
   4. To secure title (not simply possession)
   5. To the property of another
   6. Where there was reliance on the representation
2. The buyer is giving possession, so its not a crime against possession
3. False pretenses must reference a present fact and cannot be a promise about future behavior (People v. Ashley)
   
   1. Some states (like CA) will allow a promise about future behavior to be a false pretense, but you must be able to prove that you knew at the time you made the promise that you wouldn’t follow through with the future promise

Question 5

Robbery

Answer 5

Elements:

1. Taking
2. The personal property
3. Of another
4. From another’s person
5. By force or violence (or threats thereof)
6. With the intent to deprive him of it permanently

Majority rule: Pickpocketing DOES NOT constitute robbery (New Jersey v. Sein)

1. No threat of force or violence
2. If there is a struggle, this might constitute a robbery

Minority rule (DC): Pickpocketing DOES constitute robbery (“Robbery by stealth”)

1. The rationale is that there is more potential for somebody to get hurt

Defense to robbery charge:

1. A bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent (People v. Tufunga)
   
   1. Defendant must have a good faith belief that the property belongs to him
   2. This belief does not have to be reasonable
2. The property must be the exact property you believe you are entitled to, not merely a different piece of property worth the same amount
3. This is also a defense to larceny

Question 6

Burglary

Answer 6

Elements:

1. Breaking and entering
2. The dwelling
3. Of another
4. At nighttime
5. With the intent to commit a felony therein

To prove the intent requirement, a reasonable trier of fact must have concluded that there was evidence that he had intended to commit a felony (US v. Melton)

1. This element is difficult to prove and can only be determined based on surrounding circumstances