BAR FLASHCARDS - Crim L 7 - Property Off's

Question 1

Larceny

Answer 1

Taking and carrying away of tangible personal property of another by trespass with intent to permanently deprive.

Question 2

Larceny consists of:

Answer 2

• A taking (obtaining control)
• And carrying away (asportation)
• Of tangible personal property (excluding realty, services, and in- tangibles, 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 3

Larceny: Asportation

Answer 3

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

Question 4

Larceny: Possession

Answer 4

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 embez- zlement 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 5

Larceny: Intent to Permanently Deprive **

a. Sufficient Intent:

b. Insufficient Intent:

c. Possibly Sufficient Intent:

Answer 5

Generally, larceny requires that at the time of the taking the D intended to permanently deprive a person of their property, (UNLESS there is a CONTINUING TRESPASS situation).

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, OR if they believe that they have some right to it.

c. Possibly Sufficient Intent: There may be larceny where the D 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 6

When must the defendant have the intent to permanently deprive?

Answer 6

AT THE TIME OF TAKING.
For a larceny question, be sure that the defendant had the intent to permanently deprive when they took the prop- erty. If not, there is no larceny (unless it is a continuing trespass situation (see 7.1.5., infra)). Many questions turn on this one small point.

Question 7

Larceny: Abandoned, Lost, or Mislaid Property

Answer 7

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

Question 8

Larceny: “Continuing Trespass” Situation

Answer 8

• Defendant wrongly takes property without intent to permanently deprive and later decides to keep it = LARCENY.

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 9

EMBEZZLEMENT

Answer 9

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 10

EMBEZZLEMENT - Distinguish from Larceny

Answer 10

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 11

EMBEZZLEMENT - Fraudulent Intent.

a. Intent to Restore?

b. Claim of Right?

benefit?

Answer 11

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.

NOTES:
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 12

FALSE PRETENSES

Answer 12

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 13

False pretenses - Misrepresentation Required

Answer 13

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 defen- dant’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 14

False pretenses - Intent to defraud

Answer 14

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 defen- dant “knew” of the falsity of any statements when, after being put on notice of the high probability of the statement’s falsity, they deliber- ately avoided learning the truth.

Question 15

“Larceny by Trick” Distinguished

Answer 15

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.

Larceny by trick: Victim gives up ustody or posession of proiperty

False pretenses: V gives up TITLE to property. .

When choosing between false pretenses and larceny by trick on the exam, focus on what the victim intended to convey to the defendant. If the victim intended to give the
defendant ownership of the property, the crime is false pretenses. If the victim intended to give the defendant possession or custody of the property (for example, the defendant tricked the victim into letting them borrow the victim’s car), the crime is larceny by trick.

Question 16

Robbery

Answer 16

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

For a defendant to be guilty of robbery, the victim must give up their property because they feel threatened.
If the victim gives up their property for another reason (for example, they feel sorry for the defendant, or they want the defen- dant to go away), the defendant will not be guilty of robbery.
The defendant may, however, be guilty of attempted robbery.

Question 17

Robbery Distinguished from Larceny

Answer 17

Distinguish Larceny
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 18

Robbery NOTES

Answer 18

• 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 19

Crime: Larceny

Activity:

Method:

Intent:

Title:

Answer 19

Crime: Larceny

Activity: Taking and asportation of property from possession of another person

Method: Without consent or with consent obtained by fraud

Intent: With intent to steal

Title: Title does not pass.

Question 20

Crime: Embezzlement

Activity:

Method:

Intent:

Title:

Answer 20

Crime: Embezzlement

Activity: Conversion of property held pursuant to a trust agreement

Method: Use of property in a way inconsistent with terms of trust

Intent: With intent to defraud

Title: Title does not pass

Question 21

Crime: False Pretenses

Activity:

Method:

Intent:

Title:

Answer 21

Crime: False Pretenses

Activity: Obtaining title to property

Method: By consent induced by fraudulent misrepresentation

Intent: With intent to defraud

Title: Title passes.

Question 22

Crime: Robbery

Activity:

Method:

Intent:

Title:

Answer 22

Crime: Robbery

Activity: Taking of property from another’s presence

Method: By force or threat of force

Intent: With intent to steal

Title: Title does not pass

Question 23

EXTORTION

Answer 23

Common law extortion consists of the corrupt collection of an unlawful fee by an officer under color of office.

Under modern statutes, extortion (blackmail) 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 24

Extortion- Distinguish Robbery

Answer 24

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 25

RECEIPT OF STOLEN PROPERTY

Answer 25

RECEIPT OF STOLEN PROPERTY
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 26

Receipt of stolen property -

“Possession”

“Stolen” Property:

Answer 26

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”).

“Stolen” Property: The property must be stolen property at the time the defendant receives it.

In analyzing receipt of stolen property questions, carefully check the property’s status at the time defendant re- ceives it.
If the police have already recovered the property and use it with the owner’s permission, it is no longer stolen, and the defendant cannot be convicted of receipt of stolen property.
Note, however, that the defendant can be convicted of attempted receipt of stolen property if they intended to receive the property while believing it to be stolen.

Question 27

THEFT

Answer 27

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 28

FORGERY

Answer 28

Forgery is the making or altering of a false writing with intent to defraud.

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 29

Forgery - Fraudulently Obtaining Signature of Another

Answer 29

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 30

Forgery - Uttering a Forged Instrument

Answer 30

Uttering a Forged Instrument: 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 31

BURGLARY

Answer 31

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 con- sent 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 pur- poses, 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 misde- meanor theft is often enough).

Question 32

Burglary:

Breaking

Entering

Dwelling house of another

At night

Intent to commit a felony therein

Answer 32

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. (using key for any other purpose than it was given to you for).

Entering: An entering occurs when any part of the body crosses into the struc- ture.

Dwelling House of Another: The dwelling cannot be a barn or a commercial structure.

At Night: At common law, the burglary has to be at night.

Intent to Commit a Felony Therein: The intent to commit the felony must exist at the time of the breaking

Question 33

ARSON

Answer 33

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 34

Malice

Answer 34

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 35

Damage Required

Answer 35

Damage Required
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 36

Related Offense—Houseburning

Answer 36

Related Offense—Houseburning
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.

Question 37

.

Answer 37

Although common law arson requires a burning of a dwelling, MBE questions testing on other arson issues often assume, without specifically stating, that arson extends to structures other than dwellings. Many statutes so provid