EMBEZZLEMENT (specific intent).
a. Fraudulent conversion of personal property of another by a person in lawful possession of theproperty with intent to defraud
EMBEZZLEMENT (specific intent).-elements
(i) The fraudulent; (ii) Conversion; (iii) Of property; (iv) Of another; (v) By a person in lawful possession of that property
EMBEZZLEMENT Distinguished from Larceny
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EMBEZZLEMENT-A was foreman of a construction crew. One day, he took a tool used by the crew to his home. The next day, he was fired. On his way out, he took another tool. Was he guilty of embezzlement of one, two, or no tools?
Held: Only of the first tool, which he converted while it was in his possession by virtue of his employment. He had no right to possession of the tools at the time he took the second.
Manner of Misappropriation
Larceny requires caption(taking) and asportation(carrying away) with the intent to permanently deprive. Embezzlement requires intentional conversion.
Requirement that Property Be that "Of Another
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EMBEZZLEMENT-Claim of Right
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FALSE PRETENSE (specific intent)
-Obtaining possession and title to the property of another by intentional false statement withintent to defraud >Bank teller accidentally gives two $10 bills to customer, customer is aware, but omits to tell. Omission is the key here to false pretense.
Larceny by Trick" Distinguished
False pretenses differs from larceny by trick in what is obtained. If only custody of the property is obtained by the defendant, the offense is larceny by trick. If title is obtained, the offense is false pretenses. What is obtained depends upon what the victim intended to convey to the defendant
LARCENY (specific intent,)-rule statement
-is the trespassory taking and carrying away of another's personal property with the intent to permanently deprive. At CL, the property had to be tangible and movable. Larceny is a crime against legal possession not ownership
LARCENY-Tangible (CL) and intangible (MPC) items
Ex. Cutting a plant and stealing part of it is not larceny because immovable, but if picked and laid out it is because it is then considered movable.
Larceny -element: Trespassory Taking
- non-consensual taking of possession not ownership/title. (slight movement is all that's required)>
Larceny Types of possession
-Possession is sufficient control to use the property in a reasonable unrestricted manner-Actual possession/physical control (possession) (sometimes referred to custody)-Constructive/Legal Possession: no physical control but claimed exclusive right to use >Ex. Leasing a vehicle. You have right to use but do not own.-Lost and mislaid property (even hidden to an extent): owner retains constructive possession; think about time it has been lost or mislaid >Circumstances depend on what property actually is ($100 bill vs. diamonds)
Larceny-Custody
is physical control by temporary limited right to use/purpose>Example of limited purpose is dry cleaner. Your possession is given to them for that limited purpose>You can be convicted of Larceny if it's your possession if you gave permission of temporary possession to use.
Custody vs. Possession
>Possession involves much greater scope of authority to deal with the property than does custody. >Generally, the defendant has possession if she was given discretionary authority over the property and has custody if she was given limited authority over the property.> If the defendant has only custody of the property, then another person inevitably has a greater possessory interest over that property than the defendant
Breaking Bulk Rule:-At CL
-a bailee who took all of the goods with which he was entrusted was not guilty of larceny because they had legal possession but if the bailee only took some of the goods this was called "breaking bulk" thus losing legal possession of the goods.
Bailee and "Breaking Bulk
>Generally, a bailee has possession. If, however, she opens closed containers in which the property has been placed by the bailor (i.e., she "breaks bulk"), the possession is regarded by use of a fiction as returning to the bailor. If a bailee misappropriates property after breaking bulk, she takes it from the possession of the bailor and is guilty of larceny if she has the intent to steal.> trespassory taking of the content of a container by Bailee = larceny
Possession at the Time of the Taking
In determining whether someone has committed larceny, it is important to determine who had lawful possession of the property in question at the time of the taking. If a person has lawful possession when she takes the property, she is not guilty of larceny, even if she does not own the property. (But she may be guilty of embezzlement.) By contrast, a person can be guilty of larceny for taking her own property, if someone else had lawful possession at the time the owner takes it>>E.x (A owns two cars but only uses one of them. She decides, therefore, to lease the unused car to B for one year. Six months into the one year lease, A decides she wants the car back. When B refuses to rescind the lease, A sneaks into B's driveway and drives the car away, using her extra key. A is guilty of larceny even though she is the owner of the car, since B had lawful possession of the vehicle when A took it.)
Stolen Property
-can be the subject of larceny (i.e., a second thief is guilty of larceny when he takes property from a first thief).
Joint Property
At common law, larceny could not be committed by the taking of jointly held property by one of the joint owners.
Lost, Mislaid, and Abandoned Property
Lost or mislaid property is regarded as constructively in the possession of the owner, and thus if it is found and taken, it is taken from his possession and larceny might be committed. -Abandoned property, however, has no owner and larceny cannot be committed by appropriating it
Abandoned or Lost Property
Property abandoned by its owner, i.e., discarded with the intent of giving up all rights in it, cannot be the subject of larceny. One who finds property that has merely been lost by its owner can, however, commit larceny of it. Two requirements exist: (i) The finder must know or have reason to believe she can find out the identity of the owner; and (ii) The finder must, at the moment she takes possession of the lost property, have the intent necessary for larceny>>>If the finder takes custody of the lost property without the intent to steal, but later formulates this intent, she has not committed larceny. Nor has she committed embezzlement, since no trust relationship between the finder and the owner has been created.
Taking
It is essential that the defendant actually obtain control of the property
Destruction or Movement Is Not Sufficient
-Mere destruction or movement of the property is not sufficient to constitute a taking.>>D knocked a glass from X's hand. It fell and broke. Is D guilty of larceny? No. Although X may have lost possession, D never obtained control. The damage to the item is irrelevant.
Sufficient If Caused to Occur by Innocent Agent
-Even if a defendant obtains control of the property through the act of an innocent agent, it is a taking.E.x: D, pointing out a cow in a nearby field, offers to sell it to X for $10. X gives D the money and then takes the cow. In fact, the cow belonged to Y. Is D guilty of larceny of the cow? Yes. She obtained control of it by virtue of X, an innocent agent of hers.
Taking by Consent Induced by Misrepresentations—"Larceny by Trick
If the victim consents to the defendant's taking custody or possession of the property, but this consent has been induced by a misrepresentation, the consent is not valid. The resulting larceny is often called "larceny by trick." A major difficulty is in distinguishing larceny by trick from false pretenses.>Larceny but possession was obtained through frauda. Leasing a car and then never returning itb. Renting a car is both actual and legal possession
Sufficient Intent
1. Intent to Create Substantial Risk of Loss-If the defendant intends to deal with the property in a manner that involves a substantial risk of loss, this is sufficient for larceny2. Intent to Pledge Goods or Sell Them to Owner-It is larceny to take goods with the intent to sell them back to the owner or to pledge them, because this involves the substantial equivalent of permanent loss or the high risk of permanent loss.
Insufficient Intent
I. Intent to Borrow- If the defendant intends to return the property within a reasonable time and at the time of the taking has a substantial ability to do so, the unauthorized borrowing does not constitute larceny. Note that many states make it a crime to borrow a motor vehicle, even when the borrower fully intends to return it ("joyriding").II. Intent to Obtain Repayment of Debt- It is not larceny to take money or goods of another if the defendant honestly believes that she is entitled to them as repayment for a debt of the other (although the goods must not be worth more than the amount of the debt). In these situations, the defendant believes the property is "hers" and therefore lacks an intent to deprive someone else of "his" property
Intent to Claim Reward
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