Property Offenses

Question 1

What is larceny?

Answer 1

Larceny consists of:
• A taking (obtaining control)
• And carrying away (asportation)
• Of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates)
• Of another with possession
• By trespass (without consent or by consent induced by fraud)
• With intent to permanently deprive that person of their interest in the property

Question 2

What is asportation?

Answer 2

The slightest movement of the property is enough for purposes of the bar exam.

Question 3

What is possession?

Answer 3

The property must be taken from the custody or possession of another. If the defendant had possession of the property at the time of the taking, the crime is not larceny, but may be embezzlement.
a. Custody vs. Possession
Possession involves a greater scope of authority to deal with the property than does custody. Generally, the defendant has possession if they were given discretionary authority over the property and has custody if they were given only limited authority over the property. Ordinarily, low level employees have only custody of an employer’s property and so are guilty of larceny for taking it.
b. Bailee and “Breaking Bulk”
Generally, a bailee has possession and thus may be guilty of embezzlement if they take the property. However, if the bailee opens closed containers in which the property has been placed by the bailor (that is, the bailee “breaks bulk”), the possession is regarded, by use of a fiction, as returning to the bailor, and thus the bailee may then be guilty of larceny if they take that property.

Question 4

What is the intent to permanently deprive?

Answer 4

Generally, larceny requires that at the time of the taking the defendant intended to permanently deprive a person of their property.
a. Sufficient Intent
An intent to create a substantial risk of loss, or an intent to sell or pledge the goods to the owner, is sufficient for larceny.
b. Insufficient Intent
Where the defendant believes that the property they are taking is theirs or where they intend only to borrow the property or to keep it as repayment of a debt, there is no larceny.
c. Possibly Sufficient Intent
There may be larceny where the defendant intends to pay for the goods (if the goods were not for sale) or intends to collect a reward from the owner (if there is no intent to return
the goods absent a reward).

Question 5

What about abandoned, lost, or mislaid property?

Answer 5

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

Question 6

What is continuing trespass situation?

Answer 6

If the defendant wrongfully takes property without the intent to permanently deprive (for example, without permission borrows an umbrella), and later decides to keep the property, the defendant is guilty of larceny when they decide to keep it. However, if the original taking was not wrongful (for example, the defendant took the umbrella thinking it was theirs) and later decides to keep it, it is not
larceny.

Question 7

What is embezzlement?

Answer 7

Embezzlement is:
• The fraudulent
• Conversion (that is, dealing with the property in a manner inconsistent with the arrangement by which defendant has possession)
• Of personal property
• Of another
• By a person in lawful possession of that property

Question 8

How is embezzlement different from larceny?

Answer 8

Embezzlement differs from larceny because in embezzlement the defendant misappropriates property while it is in their rightful possession, while in larceny the defendant misappropriates property not in their possession.

Question 9

What is the fraudulent intent necessary for embezzlement?

Answer 9

Defendant must intend to defraud.
a. Intent to Restore
If the defendant intends to restore the exact property taken, it is not embezzlement. However, if the defendant intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money—of identical value—that they intended to return.
b. Claim of Right
As in larceny, embezzlement is not committed if the conversion is pursuant to a claim of right to the property. Whether defendant took the property openly is an important factor.
c. Notes for the Multistate Bar Exam
• A trustee is often the MBE embezzler.
• A person does not have to carry away to be an embezzler—just the possession of the property is required.
• The embezzler does not have to get the benefit.

Question 10

What are false pretenses?

Answer 10

The offense of false pretenses is:
• Obtaining title
• To personal property of another
• By an intentional false statement of a past or existing fact
• With intent to defraud the other

Question 11

Is misrepresentation required for false pretenses?

Answer 11

The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to the defendant. Traditionally, the defendant’s misrepresentation must have related to a past or present fact, and false promises to do something in the future, even without the present intent to perform, were not sufficient. However, under the M.P.C. and the modern prevailing view, any false representation suffices, including a false promise to perform in the future.

Question 12

Does there have to be an intent to defraud for false pretenses?

Answer 12

Depending on the statute involved, the defendant must either have known the statement to be false or have intended that the victim rely on the misrepresentation. Most states will find that the defendant “knew” of the falsity of any statements when, after being put on notice of the high probability of the statement’s falsity, they deliberately avoided learning the truth.

Question 13

How is false pretenses different from larceny by trick?

Answer 13

If the victim is tricked—by a misrepresentation of fact—into giving up mere custody or possession of property, the crime is larceny by trick. If the victim is tricked into giving up title to property, the crime is false pretenses.

Question 14

What is robbery?

Answer 14

Robbery consists of:
• A taking
• Of personal property of another
• From the other’s person or presence (including anywhere in their vicinity)
• By force or threats of immediate death or physical injury to the victim, a family member, or some person in the victim’s presence
• With the intent to permanently deprive them of it

Question 15

How is robbery different from larceny?

Answer 15

Robbery differs from larceny because robbery requires that the defendant use force or threats to obtain or retain the victim’s property. Thus, pickpocketing generally would be larceny, but if the victim notices the attempt and resists, the taking would be robbery.

Question 16

Notes for MBE

Answer 16

• The presence requirement is very broadly drawn and would even cover a farmer tied up in his barn while the robber took things from his house.
• As for taking either by force or threat, actions such as ripping a necklace from a person’s neck is sufficient.
• The threat must be a threat of imminent harm.

Question 17

What is extortion?

Answer 17

Common law extortion consists of the corrupt collection of an unlawful fee by an officer under color of office. Under modern statutes, extortion (blackmail) often consists of obtaining property by means of threats to do harm or to expose information. Under some statutes, the crime is complete when threats are made with the intent to obtain property; meaning, the property need not be obtained.

Question 18

How is extortion different from robbery?

Answer 18

Extortion differs from robbery because in extortion the threats may be of future harm and the taking does not have to be in the presence of the victim.

Question 19

What is the receipt of stolen property?

Answer 19

Receipt of stolen property consists of:
• Receiving possession and control
• Of “stolen” personal property
• Known to have been obtained in a manner constituting a criminal offense
• By another person
• With the intent to permanently deprive the owner of their interest in it.

Question 20

What is possession of stolen property?

Answer 20

Manual possession is not necessary. The defendant possesses the property when it is put in a location designated by them or they arrange a sale for the thief to a third person (that is, “fencing”).

Question 21

What is stolen property?

Answer 21

The property must be stolen property at the time the defendant receives it.

Question 22

What is theft?

Answer 22

Under many modern statutes and the M.P.C., some or all of the above property offenses are combined and defined as the crime of “theft.”

Question 23

What is forgery?

Answer 23

Forgery is the making or altering of a false writing with intent to defraud. More specifically, forgery consists of the following:
• Making or altering (by drafting, adding, or deleting)
• A writing with apparent legal significance (for example, a contract, not a painting)
• So that it is false; that is, representing that it is something that it is not, not merely containing a misrepresentation (for example, a fake warehouse receipt, but not an inaccurate real warehouse receipt)
• With intent to defraud (although no one need actually have been defrauded)

Question 24

What happens if you fraudulently obtain the signature of another?

Answer 24

If the defendant fraudulently causes a third person to sign a document that the third person does not realize they are signing, forgery has been committed. But if the third person realizes they are signing the document, forgery has not been committed even if the third person was induced by fraud to sign it.

Question 25

What happens when uttering a forged instrument?

Answer 25

Uttering a forged instrument consists of: (1) offering as genuine; (2) an instrument that may be the subject of forgery and is false; (3) with intent to defraud.

Question 26

What is burglary?

Answer 26

Common law burglary consists of:
• A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation; if defendant had the resident’s consent to enter, the entry is not a breaking)
• And entry (placing any portion of the body or any instrument used to commit the crime into the structure)
• Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business)
• Of another (ownership is irrelevant; occupancy by someone other than the defendant is all that is required)
• At nighttime
• With the intent to commit a felony in the structure (felony need not be carried out to constitute burglary)

Modern statutes often eliminate many of the “technicalities” of common law burglary, including the requirements of a breaking, that the structure be a dwelling, that the act occur at nighttime, and that the intent be to commit a felony (that is, intent to commit misdemeanor theft is often enough).

Question 27

What does breaking mean?

Answer 27

The breaking can be actual (involving some force, however slight) or constructive.
• Actual Breaking
It is not an actual breaking for a person to come uninvited through a wide open door or window. If it is wide open, there is no breaking. But if a person pushes open an interior door to another room (for example, the bedroom or living room), then a breaking exists.
• Constructive Breaking
A constructive breaking is a breaking by fraud or threat.

Question 28

What does entering mean?

Answer 28

An entering occurs when any part of the body crosses into the structure.

Question 29

What does dwelling house of another mean?

Answer 29

The dwelling cannot be a barn or a commercial structure.

Question 30

What does at night mean?

Answer 30

At common law the burglary has to be at night.

Question 31

What does it mean to have an intent to commit felony therein?

Answer 31

The intent to commit the felony must exist at the time of the breaking and entering.

Question 32

What is arson?

Answer 32

Arson at common law consists of:
• The malicious (that is, intentional or with reckless disregard of an obvious risk)
• Burning (requiring some damage to the structure caused by fire)
• Of the dwelling
• Of another

Like statutory changes for burglary, modern arson statutes (including the M.P.C.) have modified the common law rules, usually to expand potential criminal liability. Most states have expanded the definition of arson to include damage caused by explosion, and expanded the types of property that may be destroyed to include commercial structures, cars, trains, etc.

Question 33

What does malice under arson mean?

Answer 33

As for the malice requirement, no specific intent is required. Acting with a reckless disregard of an obvious risk that the structure would burn will suffice for arson culpability.

Question 34

What damage is required under arson?

Answer 34

Destruction of the structure, or even significant damage to it, is not required to complete the crime of arson. Mere blackening by smoke or discoloration by heat (scorching) is not sufficient, but mere charring is sufficient

Question 35

What about the related offense of houseburning?

Answer 35

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