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Definition
(The trespassory taking) and (carrying away) of (personal property) (of another) with intent to deprive permanently.
Specific Intent Crime
Legal fictions created to include instances when D is given custody and instances when the intent to deprive is lacking .
Moreover, only tangible forms of personal property are encompassed in the offense.
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| – A "trespass" is the dispossession of another’s property without his consent, or in the absence of justification for such nonconsensual dispossession. Dispossession by fraud also constitutes a trespassory taking. |
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| Larceny involves the trespassory taking of personal property from the possession of another. Ownership is not the key. |
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| A person has possession of property when he has sufficient control over it to use it in a reasonably unrestricted manner. Possession can be actual or constructive. It is actual if the person is in physical control of it; it is constructive if he is not in physical control of it but no one else has actual possession of it, either because the property was lost or mislaid or because another person has mere "custody" of it. All non-abandoned property is in the actual or constructive possession of some party at all times. |
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A person has mere custody of property if he has physical control over it, but his right to use it is substantially restricted by the person in constructive possession of the property. A person in physical control of property has mere custody of the property in any of the following situations:
1. He has temporary and extremely limited authorization to use the property.
2. He received the property from his employer for use in the employment relation. However, an employee who obtains property from a third person for delivery to the employer takes lawful possession upon delivery, and thus cannot be convicted of larceny of the property if he carries it away.
3. He is a bailee of goods enclosed in a container. When a bailee is entrusted with a container for delivery in unopened condition, he receives possession of the container but mere custody of its contents. When the bailee wrongfully opens the container and removes the contents, i.e., when he "breaks bulk," a trespassory taking of possession of the contents results.
4. He obtained the property by fraud. When one receives property from another based on a false promise to return it, he receives only custody of the property, and is guilty of larceny if he appropriates it. On the other hand, if one has an honest intent when he receives the property (and, thus, no fraud is involved), he receives possession of the property, and any subsequent misappropriation constitutes embezzlement or no offense.
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[1] Common law – A person is not guilty of larceny unless he carries away the personal property that he took trespassorily from another. However, virtually any movement of the property away from the point of caption is sufficient, e.g., larceny, rather than attempted larceny, occurs even if a shoplifter is caught with the merchant’s property in his possession inside the premises.
[2] Model Penal Code – The Code does not require proof of asportation. [MPC § 223.2(1)] This feature of the Code has been incorporated into most states’ revised theft laws.
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At CL must be tangible, moveable property.
MPC: covers ALL property, anything of value |
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Continuing Trespass Doctrine
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Only at CL
Helps make mens rea and actus reus align.
: if D takes V’s bike with the intent only to hide it for a day, but later decides to keep it, the mens rea and actus reus do not align. This doctrine makes it so that every second the bike is gone, is a continuing trespass (i.e. the actus reus) thus the moment he decides to keep the bike
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Definition
1. (when def. is given possession of personal property by his use of fraud then it is considered a trespassory taking). Only applies when the def. from the unset never intended to return possession.
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Definition
Embezzlement is not a common law offense and thus is a legislative creation. Most embezzlement statutes set forth the following elements:
1.) that the defendant came into possession of the personal property of another in a lawful manner;
2.) that the defendant thereafter fraudulently converted the property; and
3.) that the defendant came into possession of the property as the result of entrustment by or for the owner of the property.
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Term
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Definition
(At common law, a person who "knowingly and designedly" obtains title to property by false pretenses is guilty of the offense of false pretenses. A "false pretense" is a false representation of an existing fact.
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Definition
False Representation – False pretenses requires a false representation, whether in the form of writing, speech, or conduct. Generally, nondisclosure of a material fact does not constitute false pretenses, even if the omitter of the information knows that the other party is acting under a false impression. However, nondisclosure constitutes misrepresentation if the omitter has a duty of disclosure, such as when he has a fiduciary relationship to the victim.
[2] Existing Fact
[a] Common and Statuory Law – At common law, the expression of an opinion, uttered with the intent to defraud another, does not constitute false pretenses. According to the modern majority rule, the offense of false pretenses also does not apply to misrepresentations regarding future conduct, although many states have recently expanded their theft laws to encompass false promises.
[b] Model Penal Code – Section § 223.3 provides that a person is guilty of "theft by deception" (the Code’s equivalent offense) if he creates or reinforces a false impression regarding the value of property. However, the Code expressly immunizes puffing, if the statement would not deceive an ordinary listener.
The Model Penal Code prohibits deception regarding a person’s "intention or other state of mind." The Code expressly provides, however, that deception regarding the intention to fulfill a promise cannot be inferred solely from the fact that the promisor did not perform as guaranteed. [MPC § 223.3(1)]
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