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Criminal Law > Property Offense > Flashcards

Property Offense Flashcards

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1
Q

Larceny

A

Larceny consists of:
(1) A taking (obtaining control)
(2) And carrying away (asportation)
(3) Of tangible personal property (excluding realty, services, & intangibles, but including written docs embodying intangible rights such as stock certificates)
(4) Of another
(5) By trespass (w/o consent/by consent induced by fraud)
(6) W intent to permanently deprive that person of their interest in the property

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2
Q

Asportation

A

Slightest movement of property is enough

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3
Q

Possession

A
  • Property must be taken from custody/possession of another.
  • If D had possession of property at time of taking, crime is not larceny, but may be embezzlement.
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4
Q

Custody vs. Possession

A
  • Possession involves a greater authority over property than custody.
  • D has possession if given discretionary authority over property & has custody if given limited authority
  • Low level employees have custody of employer’s property & are guilty of larceny for taking it.
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5
Q

Possession: Bailee and “Breaking Bulk”

A
  • Generally, bailee has possession & thus may be guilty of embezzlement if they take the property.
  • However, bailee opens closed containers in which property has been placed by bailor (bailee “breaks bulk”), possession is regarded as returning to bailor & bailee may then be guilty of larceny if they take that property.
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6
Q

Intent to Permanently Deprive

A
  • Generally, larceny requires that at time of taking D intended to permanently deprive person of their property.

Sufficient Intent
- An intent to create a substantial risk of loss, or an intent to sell/pledge the goods to the owner, is sufficient for larceny.

Insufficient Intent
- Where D believes that property they are taking is theirs/where they intend only to borrow property/to keep it as repayment of a debt, there is no larceny.

Possibly Sufficient Intent
- There may be larceny where D intends to pay for goods (if goods were not for sale)/ intends to collect a reward from the owner (if there is no intent to return goods absent a reward).

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7
Q

Tip

A

For a larceny question, be sure that D had the intent to permanently deprive when they took the property. If not, there is no larceny (unless it is a continuing trespass situation Many questions turn on this one small point.

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8
Q

Abandoned, Lost, or Mislaid Property

A

Larceny can be committed w/ lost/mislaid property/property that has been delivered by mistake, but not w/ abandoned property.

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9
Q

“Continuing Trespass” Situation

A
  • If D wrongfully takes property w/o intent to permanently deprive (ex. w/o permission borrows an umbrella), & later decides to keep the property, D is guilty of larceny when they decide to keep it.
  • However, if original taking was not wrongful (ex. D took the umbrella thinking it was theirs) and later decides to keep it, it is not larceny.
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10
Q

EMBEZZLEMENT

A

Embezzlement is:
(1) The fraudulent
(2) Conversion (dealing w/ the property in a manner inconsistent w/ the arrangement by which D has possession)
(3) Of personal property
(4) Of another
(5) By a person in lawful possession of that property

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11
Q

Distinguish Embezzlement from Larceny

A
  • Embezzlement differs from larceny b/c in embezzlement D misappropriates property while it is in their rightful possession, while in larceny D misappropriates property not in their possession
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12
Q

Embezzlement: Fraudulent Intent

A
  • D must intend to defraud.

Intent to Restore
- If D intends to restore exact property taken, it is not embezzlement.
- However, if D intends to restore similar/ substantially identical property, it is embezzlement, even if it was money that was initially taken & other money (of identical value) that they intended to return.

Claim of Right
- As in larceny, embezzlement is not committed if conversion is pursuant to a claim of right to the property.
- Whether D took property openly is an important factor.

Notes for MBE
* Trustee is often MBE embezzler.
* Person does not have to carry away to be an embezzler— just possession of property is required.
* Embezzler does not have to get the benefit.

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13
Q

FALSE PRETENSES

A
  • False pretenses is:
    (1) Obtaining title
    (2) To another’s personal property
    (3) By an intentional false statement of a past/present fact
    (4) W/ intent to defraud the other
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14
Q

FALSE PRETENSES: Misrepresentation Required

A
  • Vic must actually be deceived by, or act in reliance on, misrep, & this must be a major factor/cause of vic passing title to D.
  • CL: D’s misrep must have related to past/present fact, & false promises to do something in the future were not sufficient.
  • M.P.C. & modern view: any false representation suffices, including a false promise to perform in the future
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15
Q

FALSE PRETENSES: Intent to Defraud

A
  • Depending on the statute involved, D must either have known statement to be false/intended that vic rely on misrep.
  • Most states will find D “knew” of falsity of any statements when, after being put on notice of high probability of statement’s falsity, they deliberately avoided learning the truth.
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16
Q

“Larceny by Trick” Distinguished From False Pretenses

A
  • If vic is tricked—by misrep of fact—into giving up mere custody/possession of property, crime is larceny by trick.
  • If vic is tricked into giving up title to property, crime is false pretenses.
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17
Q

Tip

A

When choosing between false pretenses & larceny by trick, focus on what vic intended to convey to D. If vic intended to give D ownership of property, crime is false pretenses. If vic intended to give D possession/ custody (ex. D tricked vic into letting them borrow victim’s car), crime is larceny by trick.

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18
Q

ROBBERY
Robbery consists of:

A

(1) A taking
(2) Of another’s personal property
(3) From other’s person/presence (anywhere in their vicinity)
(4) By force/threats of immediate death/physical injury to vic, family member, or some person in vic’s presence
(5) W/ intent to permanently deprive them of it

19
Q

Tip

A

For D to be guilty of robbery, vic must give up their property b/c they feel threatened. If vic gives up property for another reason (ex. they feel sorry for D, or they want D to go away), D will not be guilty of robbery. D may, however, be guilty of attempted robbery.

20
Q

Distinguish Larceny From Robbery

A
  • Robbery: requires D use force/threats to obtain/retain vic’s property.
  • Thus, pickpocketing generally would be larceny, but if vic notices the attempt & resists, the taking would be robbery.
21
Q

Notes for MBE

A
  • Presence requirement is very broad & would cover a farmer tied up in his barn while robber took things from his house.
  • Taking by force/threat: actions like ripping necklace from person’s neck is sufficient.
  • Threat must be of imminent harm.
22
Q

EXTORTION

A
  • CL extortion consists of:
    (1) Corrupt collection of unlawful fee
    (2) By officer under color of office.
  • Modern statutes: extortion (blackmail) often involves obtaining property by threats to do harm/to expose info
  • Some statutes: the crime is complete when threats are made w/ intent to obtain property (property need not be obtained).
23
Q

Distinguish Robbery From Extortion

A
  • Extortion: threats may be of future harm & taking does not have to be in presence of victim
24
Q

RECEIPT OF STOLEN PROPERTY

A

Receipt of stolen property consists of:
(1) Receiving possession & control
(2) Of “stolen” personal property
(3) Known to have been obtained by criminal offense
(4) By another person
(5) W/ intent to permanently deprive owner of their interest in it

25
Q

RECEIPT OF STOLEN PROPERTY: “Possession”

A
  • Manual possession is not necessary.
  • D possesses property when it is put in a location designated by them/they arrange a sale for thief to 3rd person (“fencing”).
26
Q

RECEIPT OF STOLEN PROPERTY: “Stolen” Property

A

Property must be stolen at time D receives it.

27
Q

.

A

.

28
Q

Tip

A

In analyzing receipt of stolen property questions, carefully check property’s status at time D receives it. If police have already recovered property & use it w/ owner’s permission, it is no longer stolen, & D cannot be convicted of receipt of stolen property. Note, however, D can be convicted of attempted receipt of stolen property if they intended to receive the property while believing it to be stolen.

29
Q

THEFT

A
  • Modern statutes & M.P.C.: some/ all of the above property offenses are combined & defined as the crime of “theft”
30
Q

FORGERY

A
  • Forgery consists of:
    (1) Making/altering (drafting/adding/deleting)
    (2) A writing w/ apparent legal significance (K, not painting)
    (3) So that it is false (appearing to be something it is not, not merely containing a misrep) (ex. fake warehouse receipt, not inaccurate real warehouse receipt)
    (4) W/ intent to defraud (no one needs to be defrauded)
31
Q

Fraudulently Obtaining Signature of Another

A
  • If D fraudulently causes 3rd person to sign doc that 3rd person does not realize they are signing, it is forgery
  • But if 3rd person realizes they are signing doc, no forgery even if 3rd person was induced by fraud to sign
32
Q

FORGERY: Uttering a Forged Instrument

A
  • Uttering a forged instrument consists of:
    (1) offering as genuine;
    (2) an instrument that may be the subject of forgery & is false;
    (3) w/ intent to defraud.
33
Q

BURGLARY

A
  • CL burglary consists of:
    (1) A breaking (creating/enlarging an opening by at least minimal force, fraud, or intimidation; if D had resident’s consent to enter, entry is not a breaking)
    (2) And entry (placing any portion of body/any instrument used to commit crime into structure)
    (3) Of a dwelling (structure used w/ regularity for sleeping purposes, even if used for other purposes such as conducting a business)
    (4) Of another (ownership is irrelevant; occupancy by someone other than D enough)
    (5) At nighttime
    (6) W/ intent to commit a felony in structure (felony need not be carried out to constitute burglary)
  • Modern statutes often eliminate: a breaking, that structure be a dwelling, at nighttime, & that intent be to commit a felony (intent to commit misdemeanor theft is often enough).
34
Q

BURGLARY: Breaking

A
  • Breaking can be actual (involving some force, however slight) or constructive.

Actual Breaking
- No actual breaking if person comes uninvited through wide open door/window.
- If wide open, no breaking.
- If person pushes open an interior door to another room, breaking exists.

Constructive Breaking
- Breaking by fraud/ threat

35
Q

BURGLARY: Entering

A
  • Entering: any body part crosses into structure
36
Q

BURGLARY: Dwelling House of Another

A
  • Dwelling cannot be barn/commercial structure.
37
Q

BURGLARY: At Night

A

CL: burglary has to be at night.

38
Q

BURGLARY: Intent to Commit a Felony Therein

A
  • Intent to commit felony must exist at time of breaking & entering.
39
Q

ARSON

A
  • CL: Arson consists of:
    (1) Malicious (intentional/ w/ reckless disregard of obvious risk)
    (2) Burning (requiring some damage to structure by fire)
    (3) Of dwelling
    (4) Of another
  • Most states have expanded definition of arson to include damage caused by explosion, & expanded types of property include commercial structures, cars, trains, etc.
40
Q

Tip

A

Although CL arson requires burning of dwelling, MBE questions testing on other arson issues often assume, w/o specifically stating, that arson extends to structures other than dwellings. Many statutes so provide.

41
Q

Malice

A
  • Malice requirement: no specific intent is required.
  • Acting w/ reckless disregard of an obvious risk that structure would burn will suffice for arson culpability.
42
Q

Arson: Damage Required

A
  • Destruction of structure, or even significant damage, is not required for arson.
  • Mere blackening by smoke/discoloration by heat (scorching) is not sufficient, but mere charring is sufficient
43
Q

Related Offense—Houseburning

A
  • CL: building had to be house of another; could not be guilty of arson of one’s own house.
  • CL: misdemeanor of houseburning consisted of:
    (1) a malicious;
    (2) burning;
    (3) of one’s own dwelling;
    (4) if structure is situated either in a city/town, or so near to other houses as to create a danger to them.

Criminal Law (9 decks)

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