Offenses Against Personal Property Flashcards
What is Larceny?
Trespassory taking and carrying away of the personal property of another with the intent to permanently deprive.
Within Larceny, what constitutes Trespassory?
1) Without the consent of the person who has the right to lawful possession (Superior Possessory Interest), or 2) If consent is accomplished by intentional misrepresentation (Larceny by Trick)
The defendant can only be convicted of larceny if the taking was wrongful. Taking will be wrongful if it is done without the consent of the property’s owner. Therefore, if the victim consents to having his property taken the defendant cannot be convicted of larceny even if the defendant later changes his mind and demands his property back.
However, If the victim consents to having his property taken, the defendant can still be convicted of larceny if he obtained the victim’s consent through deception. Such a conviction would be for the crime of “larceny by trick.” Typically, larceny by trick requires that the defendant gain the victim’s consent through a misrepresentation of a past or present fact. However, a false promise to do something in the future in exchange for the receipt of goods now would not result in a larceny by trick conviction even if the defendant never had the intention of carrying out his original promise.
Within Larceny, if consent is accomplished by intentional misrepresentation, what result?
The misrepresentation acts as a substitute for “Trespassory “ and the crime becomes Larceny by Trick. The consent is invalidated by the misrepresentation.
If the victim consents to having his property taken, the defendant can still be convicted of larceny if he obtained the victim’s consent through deception. Such a conviction would be for the crime of “larceny by trick.” Typically, larceny by trick requires that the defendant gain the victim’s consent through a misrepresentation of a past or present fact. However, a false promise to do something in the future in exchange for the receipt of goods now would not result in a larceny by trick conviction even if the defendant never had the intention of carrying out his original promise.
Within Larceny, what constitutes Taking?
Obtaining control and dominion. Displacing owner of possession is not enough.
In order to be convicted of larceny the defendant must have actually taken the property. This means that he must have acquired possession of the property. Usually, proof that the defendant carried the property away will also suffice to prove that he gained possession of it. Also, the taking can be accomplished directly by the defendant, or constructively, as in a scenario where the defendant causes an innocent agent to take the property for him.
Within Larceny, is displacing owner of possession enough to constitute a Taking?
No
Within Larceny, what constitutes Carrying Away?
1) Asportation (detachment, movement or carrying away of property) 2) Movement toward getting away - not necessarily getting away
In order to be convicted of larceny the defendant must have carried the property away. Please note that even the slightest movement of the property from one location to another is adequate for larceny purposes. However, the movement must be part of the act of carrying the property away. If the movement is made in preparation for carrying the property away it will not suffice. For example:
Flounder, a freshman at Faber College, is applying for membership in the Delta fraternity. As part of his hazing, Flounder must steal a keg of beer and bring it to the next Delta party. One night Flounder slips into the local liquor store and finds a keg of beer to steal. To avoid being seen, he plans on leaving the store through the back door. However, the keg that he wants to steal is sitting up against the door and blocking it. Flounder takes the keg of beer and moves it over a few feet so that he can open the door, but, before he gets a chance to take the keg and leave, he is caught.
In this case, Flounder cannot be convicted of larceny because he never carried the keg away. We said before that even a very slight movement of property from one place to another will satisfy the carrying away requirement. However, the movement of the property must be part of the act of carrying the property away. In this case, Flounder’s moving the keg of beer was in preparation for carrying it away. Therefore, it does not satisfy the carrying away requirement and he cannot be convicted.
Within Larceny, what constitutes Personal Property?
Tangible property.
Any tangible property can be the subject of larceny. Anything physically attached to the ground, such as a house, cannot be the subject of larceny. However, if something becomes severed from the ground it becomes tangible property and can thereby become the subject of larceny. For example:
Jack is hunting for firewood one day and decides to take a look around Kate’s property to see what he can find. Jack finds an old oak tree that has been blown over in a recent storm. The oak tree is completely severed from the ground and Jack cuts it into cords of wood and hauls the wood away. In this situation, Jack can be convicted of larceny because, although the tree was originally attached to the ground, it had become detached from the ground and thus is considered tangible property. Therefore, when Jack took the wood, he committed larceny against Kate’s property.
However, if the defendant severs something from the ground in order to take it, the severed property must come into the owners possession and then be taken from the owner in order for it to be larceny. If the severed property does not come into the possession of the owner, it is not considered tangible and will not give rise to a crime of larceny. For example:
EXAMPLE (1): Jack enters Kate’s property, picks an apple off of a tree on Kate’s land and eats it. In this case, Jack has not committed larceny because the apple never came into Kate’s possession after it was severed from the tree.
EXAMPLE (2): Jack enters Kate’s property, picks an apple off of a tree on Kate’s land and puts it on the ground while he gets a bottle of water out of his bag. Jack then eats it. In this case, Jack has committed larceny because the apple came into Kate’s possession when Jack put it on the ground.
Within Larceny, how is the classification of larceny established?
Value of property determines classification - grand or petty theft, grand or petite larceny
Within Larceny, what constitutes Of Another?
One who has superior possessory interest.
A conviction for larceny requires that the property that the defendant takes must belong to another person. Please note that this does not mean that the other person must own the property. All it means is that the victim must have a right to possess the property that is greater than the defendant’s right to possess the property. Thus, a person can actually be convicted for taking his own property back from the victim if the victim has a greater right to possession than the defendant does at the time of the taking. For example:
Jake asks Dylan if she will rent him her new Cadillac SUV for a day trip that Jake wants to take. Dylan agrees to rent the car to Jake for $350 for the day. Jake pays Dylan and Dylan gives Jake the keys. However, before Jake departs for his day trip, Dylan takes a spare key and drives off in the car. In this case, Dylan can be convicted of larceny even though she is the owner of the car. The fact that Dylan rented the car to Jake for the day means that Jake has the right to possess the car for the day and this right is greater than Dylan’s right to possess the car. That being the case, Dylan’s actions constitute larceny.
As we have said before, since larceny requires the taking of the property of another, if the property is lawfully in the hands of the defendant already, he cannot be charged with larceny. However, if the defendant only has custody over the property then he can be convicted of larceny. The difference between possession and custody is a factual one which turns on how much control the defendant is given over the property when the victim first gives it to him. If the defendant is given significant control over the property, he has possession of it and thus any taking and carrying away of the property with the intention of depriving the owner of it is not larceny. However, if the defendant is only given limited authority over the property, he only has custody of it and any taking and carrying away of the property with the intent of depriving the victim of it is considered larceny. For example:
EXAMPLE (1): Fred works for the First National Bank of Bedrock. His position at the bank is General Manager of Financial Affairs and his job is to manage and invest the bank’s money. As such, Fred is the only bank employee, other than the president, that is trusted with the code to the bank’s vault. Late one night when no one else is around Fred lets himself in to the vault and steals $250,000 of the bank’s money. In this case, Fred cannot be convicted of larceny. The fact that Fred controls the bank’s financial affairs and had the code to the vault demonstrates that he had enough authority over the bank’s money at the time he took it so that it cannot be considered that Fred took the money from the possession of the bank. Therefore Fred cannot be convicted of larceny.
EXAMPLE (2): Fred works as a security guard at the First National Bank of Bedrock. His job is to guard the vault. As part of Fred’s job description, he is in charge of monitoring who and what enters and exits the vault. In addition, Fred is allowed into the vault to make whatever security checks he feels are necessary. One night, after everyone else has left the bank, Fred lets himself into the vault and steals $250,000. In this case, Fred can probably be convicted of larceny. Fred only had limited authority over the contents of the vault and, therefore, all he had was custody over the money. Thus, Fred’s actions can be construed as the taking and carrying away of the property of the bank and, therefore, his actions can result in a larceny conviction. See Morgan v. Commonwealth, 47 S.W.2d 543 (Ky. 1932).
Within Larceny, what Mens Rea is required for Intent to Permanently Deprive or Steal?
Specific Intent
The defendant must act with the specific intent to permanently deprive the owner of the property.
Please note that, under the common law, in order to be convicted for larceny, the defendant must have intended to permanently deprive the owner of his property at the time he took it. If the defendant takes the property and then later formulates the intent he is not guilty of larceny. For example:
Dylan asks Jake if she can borrow Jake’s new Cadillac SUV to take a day trip to the mountains. Jake agrees and gives Dylan the keys. As Dylan is driving to the mountains she decides to keep the car for herself rather than returning it as promised. In this case, Dylan cannot be convicted of larceny because the requisite intent was not present at the time she took the car from Jake. See Ennis v. State, 167 P.229 (Okla. 1917).
Within Larceny, what four conditions satisfy Intent to Permanently Deprive or Steal?
Intent to 1) permanently deprive or steal 2) withhold property permanently 3) sell back to the owner, or 4) deal with the property in such a way as to cause a substantial risk of loss
As far as the mens rea requirement for larceny is concerned, the defendant must act with the intent to permanently deprive the owner of the property. Please note that, as long as the defendant intended for the victim to be permanently deprived of the property, he can be convicted even if the victim is not permanently deprived of the property. That being the case, if the defendant took and carried away the property of another with the intent of returning it, he cannot be convicted of larceny.
Further, if the defendant takes the property without intending to permanently deprive the owner he can still be convicted of larceny if he took the property with the intent of doing something with it that would create a substantial risk of its permanent loss to the owner. See State v. Langis, 444 P.2d 959 (Or. 1968). For example:
Dylan takes Jake’s new Cadillac SUV with the intent of using it in a demolition derby and then returning it to Jake afterwards. In this case, Dylan can be convicted of larceny even though she did not intend to permanently deprive Jake of the property because she has taken the property with the intent of doing something with it that would create a serious risk of its permanent loss to Jake.
Further, if the defendant takes property from the victim with the intent of returning it after the victim pays a ransom price for it, the defendant can be convicted of larceny despite the fact that he does not technically intend to permanently deprive the owner of the property
Within Larceny, what are the three Special Situations?
1) Reward for return of property 2) Pawning of property 3) Intent to reimburse
Within Larceny, what are the two conditions under which “Reward for Return of Property” may arise? What result?
1) Property is taken and will be returned IF reward is offered - Larceny
2) Property is taken and will be returned with HOPE of reward - No Larceny
Within Larceny, what are the two conditions under which “Pawning of Property” may arise? What result?
1) Lacks intent to redeem - Larceny
2) Has intent to redeem - No Larceny
Within Larceny, what are the two conditions under which “Intent to Reimburse” may arise? What result?
Ask “Is the item for sale”?
Yes - No Larceny
No - Ask “Is the item fungible (able to replace or be replaced by another identical item; mutually interchangeable)?
*Yes: No larceny
*No: Larceny
If the defendant takes property from the victim with the intent of returning equivalent, but not identical, property to the victim, he cannot be convicted of larceny if the property is of a type where it will not make a difference to the victim whether the original property or its equivalent is returned to him. For example:
Michael wants a bowl of cereal but he has no milk in his refrigerator and is a little bit short on cash at the moment. Michael goes over to Sonny’s house, rummages through the fridge, and finds a bottle of milk which he takes home with him, intending to buy Sonny a replacement bottle of milk the next time he goes to the supermarket. In this case, Michael cannot be convicted for larceny because he took the milk with the intent of replacing it with an equivalent, and this is the kind of product where it would not make a difference to Sonny whether he gets the original bottle back or a replacement bottle.
What defenses are available to Larceny?
1) Mistake of fact (both reasonable and unreasonable) 2) Claim of Right (under mistake of Civil Law).
Within Larceny, what are the elements of the defense of Mistake of Fact?
Mistake of Fact
Reasonable? Valid Defense.
Unreasonable? Valid Defense
Within Larceny, is Mistake of Criminal Law a valid defense?
No
Within Larceny, is Mistake of Civil Law a valid defense?
Mistake as to a Claim of Right is a valid defense to Larceny
It is not considered larceny if a defendant takes property from the victim that he believes that the victim owes him.
What is Larceny by Trick?
Larceny, where the consensual taking is accomplished by intentional misrepresentation.
Larceny by Trick is Larceny. The misrepresentation replaces the requirement of Trespassory.
What is Embezzlement?
Wrongful conversion of rightfully possessed property with the intent to permanently deprive.
Embezzlement is the fraudulent conversion of the property of another by one who already has possession of it. “Conversion” is an act of interference with the owner’s rights to the property. It requires a use of the property by the defendant that goes against the terms of the arrangement by which the defendant has the property. For example:
Howard gives John, his stockbroker, $100,000 under an agreement that John will invest the money for Howard. Instead, John uses the money to buy himself a new boat. In this case, John has fraudulently converted Howard’s money. By spending the money for himself, John has committed an act of interference with Howard’s ownership rights over the money and he has used the money in a way that is inconsistent with the arrangement under which John came to be in possession of the money in the first place. Therefore, John has embezzled Howard’s money.
In order to be convicted of embezzlement the defendant must have had lawful possession of the property at the time he committed the act of conversion. If he obtained the property unlawfully, the conviction, assuming he meets the other requirements, would be for larceny.
However, if the defendant honestly believes that he has a right to the property, the act of conversion will not be embezzlement because the mens rea requirement that the defendant intend to defraud the victim will not be present in that case.
Typically the property that can be the subject of embezzlement is defined more broadly than the property that can be the subject of larceny. For example, real property can be the subject of embezzlement. For example:
Michael owns a parcel of land in Las Vegas. Michael is about to move overseas for a period of two years and he gives over care of his land to Fredo while he is gone. During the time that Michael is away, Fredo draws up a false deed naming himself as the owner and, when Michael returns from his trip, Fredo refuses to return the land to him. In this case, Fredo has wrongfully converted Michael’s property that was in Fredo’s lawful possession, and he did so with the intent to defraud Michael. Therefore, he has committed embezzlement.
What is False Pretenses?
Obtaining title to property of another by intentional misrepresentation with the intent to defraud.
The crime of “false pretenses” is the obtaining of title to property by false representation with the intent to defraud the victim. Embezzlement as you’ll recall, was the conversion of property without actually having title to that property. To commit the crime of false pretenses on the other hand, a defendant must actually obtain title to the property.
It is important to remember that in order to be convicted for false pretenses, a defendant must fraudulently acquire actual title to the property. It is not enough that the victim only gives over possession. If the defendant only obtains possession, but not title, he can be convicted of larceny but not false pretenses.
For example:
Michael has just purchased thirty acres of land in rural Nevada on which he plans to plant wheat and corn. Fredo would like very much to get his hands on Michael’s land. So, he goes to visit Michael one day and pretends to be a geologist. Fredo tells Michael that the land he has bought is a worthless piece of hard scrabble that will never grow anything. Michael believes Fredo and jumps at Fredo’s offer to buy the land from Michael at a price significantly below market value. Later, Michael finds out that the thirty acres he owned were one of the most fertile plots of land in all of Nevada. In this case, Fredo can be convicted of false pretenses. First, he actually obtained title to the land. Second, he did it through false representations that pertained to existing facts. Finally, the misrepresentation certainly pertained to a material fact and Michael relied on it. Therefore, Fredo can be convicted.
What is the difference between Larceny by Trick and False Pretenses?
Larceny by Trick involves only gaining Possession by fraud. False Pretenses involves gaining Title by fraud.
Within Theft Situations - what is Custody?
Limited possessory rights. Crime: Larceny
Within Theft Situations - what is Possession?
Broad possessory rights. Crime: Embezzlement
