Embezzlement Flashcards
Embezzlement Elements
(i) The fraudulent;
(ii) Conversion;
(iii) Of property;
(iv) Of another;
(v) By a person in lawful possession of that property.
Embezzlement vs. Larceny, what’s the difference?
(1) Manner of Property: Embezzlement happens when the defendant has lawful possession of the property. Larceny gains possession by trespassing on someone else’s superior to that of the defendant.
(2) Manner of Misappropriation: Larceny requires caption and asportation with the intent to permanently deprive. Embezzlement requires intentional conversion.
What is conversion?
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. No movement or carrying away of the property is required. The conversion need not result in direct personal gain to the defendant.
What kind of property can be embezzled?
Embezzlement statutes are often worded in terms of “property that may be subject to larceny”; i.e., real property and services may not be embezzled. Some relatively expansive statutes, however, make embezzlement of real property a crime.
Requirement that Property be that “Of Another”
Embezzlement requires that the property converted be that of someone other than the converter. Therefore, a person who borrows money, converts the sum to his own use, and subsequently fails to repay it is not guilty of embezzlement.
Fraudulent Intent
A defendant must intend to defraud for a conversion to become embezzlement. This appears to be the functional equivalent of larceny’s specific intent to permanently deprive
What about intent to restore?
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.
What about claim of right?
As in larceny, embezzlement is not committed if the conversion is pursuant to a claim of right to the property, as where it is retained for payment of a debt honestly believed to be owed. The fact that the defendant retained the property openly tends to establish a claim of right.
Necessity for Demand for Return
If it is clear that there has been a conversion of the property, the victim need not make a demand that it be returned. If, however, there is doubt as to the existence of a conversion, a demand by the owner for return and a refusal to return by the defendant may be necessary.
Limitation to Property Entrusted
Some states limit embezzlement to the fraudulent conversion of property “entrusted” or “delivered” to the embezzler. These states would not punish one who finds lost property and, while in lawful possession of it, fraudulently converts it.
