Larceny: related offenses

Question 1

Embezzlement

Answer 1

Embezzlement requires the prosecutor to prove that:

(1) The defendant had the victim’s consent to have the property—i.e., the defendant has lawful possession;
(2) The defendant converted the property to her own use:

• even if she does not keep the property for herself; and
• even if the property did not rightfully belong to the initial possessor.

Question 2

Burglary: common law

Answer 2

At common law, burglary was:

• Breaking and
• entering
• the dwelling
• of another
• at night
• with the specific intent to commit a felony once inside.

Question 3

Burglary: modern approach

Answer 3

Under the modern approach to burglary, a prosecutor must prove:

(1) Breaking, either physically or by fraud, of

(a) a dwelling or
(b) part of a dwelling—e.g., a wall safe;

(2) Entering—i.e., breaking the plane of the dwelling;
(3) Dwelling, whether:

(a) a structure regularly lived in;
(b) under some modern statutes, “dwelling” can also include a commercial building;

(4) Of another—i.e., one cannot burglarize oneself;
(5) With the intent to commit a felony once inside—usually but not always larceny.

Question 4

Burglary: attempted felony

Answer 4

A defendant who fails to commit the underlying felony may nevertheless be guilty of both:

(1) burglary; and
(2) attempt to commit the underlying felony, so long as she took a substantial step toward completing the felony.

Question 5

Forgery

Answer 5

At common law, forgery is:

(1) the making of a false writing with apparent legal significance
(2) with the intent to defraud.

Making includes:

(1) creating a false writing or altering a real one; or
(2) fraudulently inducing another to sign a document when that person is unaware of the significance of the document.

Question 6

Robbery

Answer 6

At common law, robbery is larceny with assault:

• the taking
• of another person’s property
• without her consent
• and with intent to deprive her of it permanently;

And the taking must occur:

• from the victim’s person or in her presence
• either by violence or by putting the victim in fear of imminent harm.

Question 7

Robbery: extortion

Answer 7

Extortion is a variation of robbery involving threats of future harm, including non-physical harm:

• Under the majority approach, the threat alone suffices for extortion;
• Under the minority approach, the defendant must:(a) make a threat; and
  (b) obtain the property through the threat.

Question 8

Robbery: lesser includeds

Answer 8

Larceny, assault, and battery all merge into robbery or attempted robbery as lesser-included offenses.

Question 9

Robbery: force requirement

Answer 9

Even the use of slight force to gain possession of another’s property is generally sufficient.

But the force used by the defendant must be more than the amount necessary to effectuate taking and carrying away the property.

Question 10

Embezzlement: lower-level employees

Answer 10

Lower-level employees generally cannot be guilty of embezzlement.

Such an employee typically has custody, not possession, of the employer’s property.

Question 11

Receiving stolen goods

Answer 11

To be found guilty of receiving stolen goods, the defendant must have had knowledge that the goods at issue were stolen at the time she received the goods.

If the jury finds an actual belief that the goods were not stolen, even if such belief is unreasonable, it cannot find the defendant guilty. All that is required is an honest, subjective belief that the goods were not stolen.

Question 12

Robbery: force or intimidation

Answer 12

The threat must be of immediate serious physical injury to the victim, a close family member, or other person present.