Criminal Law Lecture Outline - Fall 2008

Criminal Law

Fall 2008

Section 1

Professor Lee

Class Outline

October 16, 2008

THEFT, cont'd.

E. Distinguishing among theft offenses

1. Larceny = trespassory (wrongful) taking of the property of another with intent permanently to deprive 

2. Embezzlement = fraudulent appropriation of property of another by one who has been entrusted with possession 

3. False pretenses = obtaining title to personal property by intentionally misrepresenting a present or past material fact with intent to defraud, and victim relies on misrepresentation 

4. Larceny-by-trick = obtaining personal property of another by way of an intentional misrepresentation, but without transfer of title 

5. Most states have consolidated theft offenses but still no “mixing and matching” of elements permitted 

6. State v. Robington 

a. Title passes when transferor has no expectation of getting property back 

b. Intent to deprive is gauged as of the time that property is taken 

7. People v. Talbot 

a. Conflict of authority: most jurisdictions require intent to permanently deprive for embezzlement; a few (incl. Calif.) regard any use inconsistent with terms of entrustment as sufficient 

8. Chaplin v. United States 

a. Conflict of authority: some jurisdictions consider false representation of intentions actionable as false pretenses; others do not

A.  D walks into a jewelry store and asks to see a diamond ring.  "May I look at it in the natural sunlight?" he asks.  The clerk says yes.  D walks off with the ring.

B.  D walks into a jewelry store and asks to see a diamond ring.  "I think your phone is ringing," he tells the clerk.  When the clerk goes to answer the phone, D walks off with the ring.

C.  D walks into a jewelry store and asks to see a diamond ring.  "Let me write you a check," he says.  There are insufficient funds in D's account to cover the check.

D.  D walks into a jewelry store and asks to see a diamond ring.  "Let me write you a check," he says.  D knows his account has insufficient funds to cover the check.  The clerk does not know this.  The clerk knows the ring is actually cubic zirconia.  D does not know this.

E.  D walks into a jewelry store and poses as a clerk.  A customer asks to see a diamond ring.  D tells the customer he will sell the ring for $100 cash.  D pockets the $100 and walks out.

F.  D walks into a jewelry store and offers to wash their display cases.  The store owner accepts.  While no one is looking, he grabs a diamond ring and walks out.

G.  D walks into a jewelry store and offers to shine the diamond rings.  The store owner accepts.  At the end of the day, he walks off with one of the rings, intending to return it after showing it to a woman whom he was trying to impress.

A.  Depends on when he developed the intent to deprive.  If he intended to deprive at the time he took the ring, then it is larceny by trick.  If he only developed the intent to steal later, then it is embezzlement.

B.  Larceny.  Not false pretenses because title to the ring did not pass; the clerk expected to get the ring back.

C.  Depends on whether D knew there were insufficient funds.  If so, then it is false pretenses, because he impliedly represented that there were adequate funds.  If he believed there were sufficient funds at the time he wrote the check, then it is an ordinary commercial default (no crime).

D.  D obtained title to the ring by false pretenses.  If the bank covered the overdraft, then the clerk obtained title to the money by false pretenses.  If the bank did not cover the overdraft, then the clerk is guilty of no crime because he neither "obtained title" to any property nor "took" any property.

E.  D has committed larceny against the store, having taken the ring while no one was looking.  D has obtained title to the $100 by false pretenses, having falsely represented to the customer that he had good title to the ring.

F.  Larceny.  It's not embezzlement because D wasn't entrusted with the care of the rings; he was entrusted with care of the cases.

G.  Depends on whether this jurisdiction requires "intent to permanently deprive" or merely "intent to use the property in a manner inconsistent with the terms of the entrustment" for embezzlement.