Property Offense Flashcards
Larceny
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
Asportation
Slightest movement of property is enough
Possession
- 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.
Custody vs. Possession
- 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.
Possession: Bailee and “Breaking Bulk”
- 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.
Intent to Permanently Deprive
- 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).
Tip
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.
Abandoned, Lost, or Mislaid Property
Larceny can be committed w/ lost/mislaid property/property that has been delivered by mistake, but not w/ abandoned property.
“Continuing Trespass” Situation
- 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.
EMBEZZLEMENT
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
Distinguish Embezzlement from Larceny
- 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
Embezzlement: Fraudulent Intent
- 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.
FALSE PRETENSES
- 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
FALSE PRETENSES: Misrepresentation Required
- 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
FALSE PRETENSES: Intent to Defraud
- 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.
“Larceny by Trick” Distinguished From False Pretenses
- 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.
Tip
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.
ROBBERY
Robbery consists of:
(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
Tip
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.
Distinguish Larceny From Robbery
- 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.
Notes for MBE
- 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.
EXTORTION
- 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).
Distinguish Robbery From Extortion
- Extortion: threats may be of future harm & taking does not have to be in presence of victim
RECEIPT OF STOLEN PROPERTY
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
RECEIPT OF STOLEN PROPERTY: “Possession”
- 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”).
RECEIPT OF STOLEN PROPERTY: “Stolen” Property
Property must be stolen at time D receives it.
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Tip
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.
THEFT
- Modern statutes & M.P.C.: some/ all of the above property offenses are combined & defined as the crime of “theft”
FORGERY
- 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)
Fraudulently Obtaining Signature of Another
- 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
FORGERY: Uttering a Forged Instrument
- 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.
BURGLARY
- 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).
BURGLARY: Breaking
- 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
BURGLARY: Entering
- Entering: any body part crosses into structure
BURGLARY: Dwelling House of Another
- Dwelling cannot be barn/commercial structure.
BURGLARY: At Night
CL: burglary has to be at night.
BURGLARY: Intent to Commit a Felony Therein
- Intent to commit felony must exist at time of breaking & entering.
ARSON
- 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.
Tip
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.
Malice
- Malice requirement: no specific intent is required.
- Acting w/ reckless disregard of an obvious risk that structure would burn will suffice for arson culpability.
Arson: Damage Required
- 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
Related Offense—Houseburning
- 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.
