Property Offense Flashcards
(43 cards)
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
