Offenses Against Property and the Habitation

Question 1

What is the crime of false pretenses?

Answer 1

False pretenses:

• obtaining title
• to the property of another
• by an intentional false statement of past or present
• with intent to defraud

Question 2

What is the crime of larceny?

Answer 2

Larceny:

• a taking (control)
• asportation (movement)
• of tangible personal property
• of another
• wrongfully
• with intent to permanently (or significantly) deprive

Question 3

T/F: If D intends to restore the exact property taken, it is not embezzlement.

Answer 3

True. For it to be embezzlement, D must take a similar or substantially identical tangible thing. Taking money falls into embezzlement here.

Question 4

What is the different between false pretenses and larceny by trick?

Answer 4

For false pretenses, victim intends to convey title, but for larceny by trick the victim intends to convey only custody.

Question 5

Can a taking with the intent to return be larceny?

Answer 5

No. Larceny requires a taking of another’s property with the intent to permanently deprive the person of property.

Question 6

What is “continuing trespass” for larceny?

Answer 6

When D wrongfully takes a tangible object and originally did not have the intent to permanently deprive the owner of the object, but during the wrongful possession D gains the intent to permanently deprive the owner.

Question 7

Can D be convicted of larceny (continuing trespass) if he asked the owner for permission first?

Answer 7

No. For continuing trespass, the original taking must have been wrongful - such as without consent or obtained by deception.

Question 8

What is embezzlement?

Answer 8

It is when D rightfully possessed a tangible object at the start but uses the object for contrary use of what D has permission for and D has the intent to defraud.

fradulent
conversion
of personal property of another
by a person in lawful possession of that property

Question 9

Does intent to return or replace converted property invalidate an embezzlement conviction?

Answer 9

No. Intent to return or replace converted property does NOT show lack of intent to defraud required for embezzlement. See Bernie Madoff (I’ll return the money I’m stealing from you).

Question 10

When an employee steals from his employer, is this larceny or embezzlement?

Answer 10

Generally, an employee only has custody of his employer’s property and is committing larceny when he takes it.

Question 11

Are unkept promises or misrepresentations of a future fact sufficient for false pretenses? (“I’ll be rich in the future and can pay off this debt then.”)

Answer 11

No. This is not sufficient for a false pretenses conviction.

Question 12

What is robbery?

Answer 12

Theft + violence

It is larceny in which property is taken either by force or threats. Force must be used to obtain property or prevent victim from immediately regarding it. Threats require threat of imminent physical harm, victim is put in fear of harm, and threat would cause apprehension of immediate harm in a reasonable person.

Question 13

What are the elements of burglary?

Answer 13

Entry by breaking of the dwelling of someone else during the nighttime with the intent to commit a felony therein.

Question 14

What is arson?

Answer 14

Malicious burning of another’s dwelling. The burning requires some physical damage by fire to the structure. Awareness of a high risk is enough to make a burning malicious.

Question 15

T/F: At common law, if a person engaged in conduct constituting both a felony and a misdemeanor, they can be convicted only of the felony.

Answer 15

True. At common law, the misdemeanor merged into the felony.

Question 16

How does the concept of merger work under the MPC?

Answer 16

There is no longer any merger UNLESS it is for a person who solicits another to commit a crime cannot be convicted of both the solicitation and the completed crime.

Basically:

conspiracy + completed crime = two offenses
attempt + completed crime = just completed crime

Question 17

How does double jeopardy work?

Answer 17

This prohibits trial/conviction of a person for a lesser included offense if they have been put in jeopardy for the greater offense.

BUT court can impose multiple punishments where the punishments are two or more statutorily defined offenses specially intended by the legislature to carry separate punishments.

Question 18

How can possession be an act?

Answer 18

Criminal statutes that penalize possession of contraband generally require that D have control of the item for a long enough period to have an opportunity to terminate the possession. (*D’s dominion and control is fine, doesn’t need to be on them)

*Absent a state of mind requirement, D must be aware of their possession of the contraband.

Question 19

What are the major specific intent crimes?

Answer 19

Specific intent crimes are imputed from the manner in which the crime was committed (doing it with a specific intent or objective).

The major specific intent crimes:
- solicitation, attempt, conspiracy, 1st degree premeditated murder, assault, larceny, robbery, burglary, forgery, false pretenses, + embezzlement

Question 20

T/F: Attempted common law murder requires the specific intent to kill.

Answer 20

True. Attempt is a specific intent crime even though murder is not. To attempt murder in a common law jurisdiction, D needs that intent to kill.

Question 21

What is a common law malice crime?

Answer 21

The intent necessary for malice crimes (common law murder and arson) requires a reckless disregard of an obvious or high risk that the particular harmful result will occur.

*Defenses to specific intent crimes (e.g. voluntary intoxication) do not apply to malice crimes.

Question 22

T/F: Instead of using specific and general intent, the MPC divides crimes into purposely, knowingly, recklessly, and negligently.

Answer 22

True.

P = conscious object
K = aware conduct of a particular nature, very likely, aware, deliberately avoids learning the truth
R = consciously disregards a substantial and unjustifiable risk, gross deviation from standard of care
N = fails to be aware of a substantial and unjustifiable risk

Question 23

Differentiate larceny and embezzlement.

Answer 23

With embezzlement, D misappropriates property while it is in his rightful possession while in larceny, D misappropriates property that was not in his possession.

Question 24

What is larceny by trick?

Answer 24

If the victim is tricked into giving up mere custody of property.

Question 25

Differentiate larceny by trick and false pretenses.

Answer 25

Under larceny by trick, victim is tricked into giving up mere custody of the property. Under false pretenses, the victim is tricked into giving up title.

Question 26

T/F: For D to be guilty of robbery, the victim must have given up property because they felt threatened.

Answer 26

True. If victim gave up property for any other reason, it is not robbery. Robbery is a taking of personal property from the other's person or presence by force or threats of immediate death or physical injury with the intent to permanently deprive.

Question 27

What is receipt of stolen property?

Answer 27

Receiving possession and control; of stolen personal property; known to have been obtained in a manner constituting a criminal offense; with the intent to permanently deprive

Question 28

What is forgery?

Answer 28

Making or altering a writing with apparent legal significance (e.g. contract) so that it is false with intent to defraud

Question 29

T/F: To commit burgulary, the intent to commit a felony therein must be present at the time of entry.

Answer 29

True. Burgulary is a breaking and entry of a dwelling at nighttime with the intent to commit a felony therein.

Question 30

The defendant was fired from his sales job while calling on customers in another city. He failed to return the company car that he was using for his sales visits; instead, he sold the car to a “chop shop” for cash. As to the car, what crime has the defendant committed? A - Larceny. B - Embezzlement.

Answer 30

(B) defendant has committed embezzlement because a court will probably find that he had “possession” of the car at the time he appropriated it. Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of it. Here, defendant had lawful possession of the car until he did not wrongfully converted the car. (A) is incorrect. Larceny is the taking and carrying away of the property of another by trespass with the intent to permanently deprive the person of the property. The intent to permanently deprive must be concurrent with the taking and carrying away. In the instant case, the defendant did not have the intent to permanently deprive the company of the car when he was given the car. Thus, the intent element is missing.

Question 31

The defendant, who worked as a gardener for the victim, decided to break into the victim’s home to steal some valuables one evening when he knew the victim would not be at home. The defendant, taking a key that the victim hid under a rock for emergencies, unlocked the front door and stepped into the doorway. At that moment, however, a security alarm sounded. On hearing the alarm, the defendant immediately left the premises. The crimes below are listed in descending order of seriousness. What is the most serious crime for which the defendant may be convicted? A - Burglary. B - Attempted burglary.

Answer 31

The defendant may be convicted of burglary. Common law burglary was the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a larceny or other felony inside. In the instant case, opening the door by use of a key would be sufficient to constitute a breaking, and the facts indicate that the defendant actually entered the house. Furthermore, the defendant intended to steal valuables when he entered the victim’s home; thus, the intent to commit a theft inside the home may be established. As a result, the defendant has committed burglary. (B) is incorrect because, although the defendant was unable to complete the theft of the valuables, the crime of burglary is complete on entry.

Question 32

The defendant planned to break into a home, steal any valuables that he could easily pawn, and then burn down the home using gasoline from his lawnmower. When the defendant got to the home that night, he realized that he had forgotten the gas at home. Nonetheless, the defendant broke into the home through a basement window. Unbeknownst to him, the police were alerted by a silent alarm and arrested the defendant just as he was leaving the home with a sack filled with valuables. At common law, what crimes has the defendant committed? A - Burglary and attempted larceny. B - Burglary, attempted larceny, and attempted arson. C - Burglary and larceny.

Answer 32

The defendant has committed burglary and larceny. Burglary consists of a breaking and entry of the dwelling of another at nighttime, with the intent of committing a felony therein. The felony need not be carried out—all that is required is that the person committing the crime have the intent to commit a felony at the time of entry. The defendant has also committed common law larceny. Larceny is the taking and carrying away of the personal property of another, by trespass, with the intent to permanently deprive the owner of his interest in the property. The element of carrying away, or asportation, is satisfied as long as there is some movement of the property as a step in carrying it away. The movement need only be slight as long as it was part of the carrying away process. Here, the defendant placed valuables in a sack and started to leave the home. This movement was sufficient to constitute a carrying away. Having acted with the requisite intent to permanently deprive the true owner of his property, the defendant has committed larceny.