Criminal Law And Procedure Learning Questions - Set 3 Flashcards
The following are elements of larceny:
A
Taking of personal property; passing of title; trespass
B
Taking of personal property; asportation; trespass
C
Taking of personal property; asportation; passing of title
D
Asportation; passing of title; trespass
B
Larceny consists of: (i) A taking; (ii) And carrying away (asportation); (iii) Of tangible personal property; (iv) Of another; (v) By trespass; (vi) With intent to permanently (or for an unreasonable time) deprive the person of his interest in the property.
The passing of title is not an element of larceny. However, it is an element of false pretenses.
____________ is an element of __________.
A
Obtaining title; larceny by trick
B
Intent to defraud; false pretenses
C
Trespass; false pretenses
D
Trespass; embezzlement
B
Intent to defraud is an element of false pretenses. The offense of false pretenses generally consists of: (i) obtaining title; (ii) to the property of another; (iii) by an intentional (or, in some states, knowing) false statement of past or existing fact; (iv) with intent to defraud the other.
Trespass is not an element of false pretenses or embezzlement. Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of the property.
Obtaining title is not an element of larceny by trick; rather with larceny by trick, the defendant merely obtains possession, not title.
Which of the following statements regarding embezzlement is true?
A
The defendant must take and carry away the property.
B
If the defendant intends to restore the exact property taken, it is not embezzlement.
C
The misappropriation of property occurs at the time the defendant obtains wrongful possession of the property.
D
The conversion must result in direct personal gain to the defendant.
B
If the defendant intended to restore the exact property taken, it is NOT embezzlement. But if he intended 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 he intended to return.
In embezzlement, the misappropriation of the property occurs while the defendant has lawful, NOT wrongful, possession of it. On the other hand, in larceny, it occurs generally at the time the defendant obtains wrongful possession of the property.
In embezzlement, since the defendant is already in possession of the property, there is NO need that he take and carry away the property. Rather, embezzlement requires a fraudulent conversion of the property.
The conversion need NOT result in direct personal gain to the defendant. The conversion required by embezzlement requires only that the defendant deal with the property in a manner inconsistent with the trust arrangement pursuant to which he holds it.
The difference between the crimes of larceny by false pretenses and larceny “by trick” is that:
A
For larceny by false pretenses, the victim must actually rely on the misrepresentation in giving up her property, but for larceny by trick, the misrepresentation need not induce the victim to give up her property.
B
For larceny by false pretenses, the victim intends to convey title, but for larceny by trick, the victim intends to convey only custody.
C
For larceny by false pretenses, the victim intends to convey only possession, but for larceny by trick, the victim intends to convey title.
D
For larceny by false pretenses, the misrepresentation need not induce the victim to give up her property, but for larceny by trick, the victim must actually rely on the misrepresentation in giving up her property.
B
False pretenses differs from larceny by trick in that title is obtained through false pretenses, but only custody of the property is obtained through larceny by trick. What is obtained depends upon what the victim intended to convey to the defendant.
For both crimes, 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 (larceny by false pretenses) or custody (larceny by trick) to the defendant.
The owner of a garage and one of his mechanics had a dispute over the amount of wages due for work that the mechanic had done on cars. The owner alleged that he paid the mechanic for work that the mechanic did not perform, while the mechanic contended that she did the work. After arguing over the matter for over an hour, the mechanic quit. The owner did not allow the mechanic to take her tools with her, stating that he was keeping her tools until she repaid the money that he had overpaid her.
The mechanic met with a friend and discussed the situation with him. After hearing what had happened, the friend, believing that the owner was unlawfully retaining the mechanic’s tools, suggested that he could pose as a garage client and retrieve the tools for the mechanic, and the mechanic agreed. The plan succeeded, except for the fact that the friend took tools that belonged to a new employee. The owner immediately realized what had happened, and he gave the friend’s license number to the police. The friend was arrested before he could show the tools to the mechanic.
Of the following, which is the best argument for the friend as a defense to a charge of larceny in a common law jurisdiction?
response - correct
A He had the consent of the tools’ owner.
B He thought the tools belonged to the mechanic.
C He intended to return the tools to the mechanic rather than keep them.
D He was apprehended by the police before the mechanic could inspect the tools.
B
The friend’s best argument is that he thought the tools belonged to the mechanic. Larceny is the taking and carrying away of the tangible personal property of another by trespass with the intent to permanently (or for an unreasonable time) deprive the owner (or person in possession) of his interest in the property. Thus, larceny is a specific intent crime, in that the defendant must intend to permanently deprive the person of his interest in the property. Importantly, this intent generally must exist at the time of taking (save for the continuing trespass doctrine). In this case, the friend believed that the mechanic was being unlawfully deprived of his property, and his intent was to return the tools to their rightful owner. Thus, when he took the tools, he lacked the intent to permanently deprive another of his interest in the property. This would be true even if the garage owner factually had a lawful right to retain the tools, as the mistake of law would negate the friend’s intent to permanently deprive another of his interest in the property. (A) is wrong, of course, because he did not have the consent of the owner of the tools he took. (C) is wrong because it is not a defense to a charge of larceny that the defendant did not intend to keep the item taken for his own use. (D) is wrong because it prematurely raises the continuing trespass doctrine. Under the continuing trespass doctrine, a defendant may be convicted of larceny when he initially takes property with a wrongful state of mind, but without the intent to permanently deprive the owner of the property, and then later forms the intent to permanently deprive the owner of the property. Here, the friend had not yet had the opportunity to form that later intent (even assuming the initial taking was with a wrongful state of mind). Thus, (D) does not address the correct issue.
The defendant’s neighbor owned an authentic major league baseball signed by Babe Ruth. The defendant asked if he could show it to some friends who were visiting. The neighbor agreed as long as he kept it in the display case, which the defendant promised to do. In fact, the defendant intended to use the ball in a pickup game. During the game, the ball was hit over the fence and into a yard with a guard dog, which had chewed up several other balls that had previously landed in the yard. The dog did the same to that ball. When the neighbor learned what happened to the ball, he pressed charges against the defendant.
If the defendant is convicted, he will most likely be found guilty of what crime?
A Common law larceny.
B Embezzlement.
C False pretenses.
D Larceny by trick.
D
The defendant is guilty of larceny by trick because he obtained possession of the baseball by means of a misrepresentation. Larceny is the taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of her interest in the property. The taking must be without the consent of the person in possession of the property. If such consent is induced by a misrepresentation of a past or existing fact, the consent is not valid. The resulting larceny is called larceny by trick. Here, the defendant obtained possession of the baseball with the owner’s consent. However, this consent was obtained by means of the defendant’s misrepresentation about friends visiting. This was a false statement of an existing fact, made with the intent that his neighbor rely on the statement, and the misrepresentation induced his neighbor’s consent. At the time of this taking, the defendant intended to deal with the baseball in a manner that involved a substantial risk of damage or loss. This suffices as intent to permanently deprive. Therefore, all the elements are in place for larceny by trick. (A) is not as good a choice as (D) because the taking in this case is better characterized as larceny by trick rather than larceny, given that the defendant induced his neighbor to consent to his taking possession of the baseball. (C) is incorrect because the defendant obtained only possession of the baseball, not title. False pretenses differs from larceny by trick in what is obtained. If the defendant obtains only possession of the property, the offense is larceny by trick, whereas obtaining of title means that false pretenses has been committed. What the victim intended to convey to the defendant is determinative. The neighbor intended only to let the defendant borrow the baseball for a short time, not to convey title to him. Consequently, the only thing the defendant obtained was possession of the baseball. Because title to the baseball was not obtained, there can be no conviction of false pretenses. Regarding (B), embezzlement is the fraudulent conversion of property of another by a person in lawful possession of that property. In embezzlement, misappropriation occurs while the defendant has lawful possession of the property, while in larceny, it occurs generally at the time the defendant obtains wrongful possession of the property. Here, as detailed above, the defendant’s taking of possession of the baseball was trespassory due to the manner in which he obtained consent to such possession. The crime of larceny was complete on the defendant’s taking possession with the requisite intent to permanently deprive. Thus, at the time the baseball was destroyed, the defendant had already misappropriated it and was not in lawful possession of it. As a result, there can be no conviction for embezzlement.
A student and a few of his friends were making their way to spring break. Along the way, the old van that they were driving broke down. Not wanting to miss any part of spring break festivities, the student asked the mechanic on duty at the repair shop for a rush job. The mechanic provided the student with a repair estimate, and the student, on the basis of the estimate, authorized the repair and promised to pay when he came back to pick up the van. When the mechanic called the student to tell him that the van was repaired, the student, rather than paying for the repair, told one of his friends that the mechanic had agreed to finance the repair charges and that the only thing left to do was pick up the van in the garage’s parking lot. The student handed the friend a key to the van and told him to go pick the van up so that they could continue their trip to spring break. The friend did so.
The mechanic makes a criminal complaint against the student for larceny of the van. If the case is prosecuted, will the student likely be found guilty?
A No, because it was the student’s van to begin with.
B No, because the friend took the van.
C Yes, because the friend took the van from the mechanic without the mechanic’s knowledge or permission.
D Yes, because the student promised to pay the mechanic for his work when he came to get the van.
C
The student will most likely be found guilty. Larceny is the taking and carrying away of the personal property of “another” with the intent to permanently deprive the other person of the property. It is possible to commit larceny of your own property if another person, such as a bailee, has a superior right to possession of the property at that time. Because the mechanic had a right to possession of the van until he was paid, the student committed larceny when he had his friend take the van without the mechanic’s consent. (B) is wrong because a person can be guilty even though he did not personally engage in the behavior if he acts through an innocent agent. (D) is also incorrect. The student is guilty, but not for the reason stated in (D). He would be guilty even if he had not made the promise to pay for the van; he incurred an obligation to pay by having the repairs done.
An art restorer, after attending art school for a number of years, secured a job restoring the paintings for an art museum. After several years on the job, the artist discovered that he could imitate the artwork of nearly any artist. He decided that he could make some extra money copying the artwork of up-and-coming artists, while staying away from more well-known artists to reduce his chance of getting caught.
An art collector searching for a painting by a new artist saw the restorer at an art fair selling various paintings, one of which appeared to be by the new artist. The restorer was selling the painting for $100. The collector thought that the price was very low and that the painting should probably sell for around $500, but she bought the painting anyway, giving the restorer $100 after the restorer confirmed that the painting was an original from the new artist. After taking it to an art appraiser for insurance purposes, she discovered that the painting was a forgery. However, she also discovered that the painting’s frame was worth about $125.
With which theft offense may the art restorer be charged?
A Larceny by trick.
B False pretenses.
C Embezzlement.
D No theft offense.
B
The art restorer has committed false pretenses because his misrepresentation concerning the authenticity of the painting induced the collector to convey title to the $100. The offense of false pretenses consists of obtaining title to the property of another by an intentional (or knowing) false statement of past or existing fact, with intent to defraud the other. The art restorer falsely represented to the collector that the painting he sold her was an original from a new artist, intending that the collector would rely on such a misrepresentation by paying money for the painting. The collector, acting in reliance on this misrepresentation, conveyed to the art restorer title to the $100. Thus, all of the elements of false pretenses are present in the restorer’s dealings with the collector. Because the restorer has committed false pretenses, which is a theft offense, (D) is incorrect. Monetary loss on the part of the victim is not an element of the crime. Thus, although the lack of damages might prevent the collector from suing in civil court, the fact that the collector suffered no monetary loss from the crime is irrelevant for criminal law purposes. (A) is incorrect because the restorer obtained title to the $100 rather than mere possession. If a victim consents to someone’s taking possession of property, but such consent is induced by a misrepresentation, the consent is not valid. The resulting offense is larceny by trick. False pretenses differs from larceny by trick in what is obtained. If the victim intends to convey only possession of the property, the offense is larceny by trick. However, if the victim intends to convey title, the offense is false pretenses. Here, the collector intended to convey title to the $100, acting in reliance on the restorer’s false representation that the painting was an original. Because the restorer obtained title, the offense of which he can be convicted is false pretenses rather than larceny by trick. (C) is incorrect because embezzlement consists of the fraudulent conversion of property of another by a person in lawful possession of that property. In embezzlement, misappropriation of the property occurs while the defendant has lawful possession of it. Here, the restorer did not convert the $100 while he was in lawful possession of it; rather, he obtained title to the money by means of a misrepresentation. Because the restorer did not have lawful possession of the money, he has not committed embezzlement.
