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Criminal Law - Outline Part 5

By Collin B. Hardee

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Embezzlement – Interferes w/ Ownership
  1. fraudulently or knowingly or willingly
    1. Specific Intent Crime
    2. Fraudulently = false representation
    3. Knowingly = aware or conscious disregard
    4. Willfully = wrongful doing of an act
  2. uses for a purpose other than that which the D received it to use (presumes some sort of consent)
    1. person trusted w/ property need not turn it to his/her own use
    2. D’s intent and willingness to return the property later is NOT a defense
  3. the property of another
    1. Money and Paper; not services
  4. held by the D under his or her care
    1. Involves entrustment of property, i.e., consent
False Pretenses – Interferes w/ Title
  1. Makes a representation of a past or existing fact or a future event
    1. Examples:
      1. Promise that property is free of liens
      2. False statements as to identity of D
      3. Use of counterfeit money
      4. Worthless check
  2. That is FALSE AND
    1. D’s honest belief that the representation was true may be a Defense
  3. Is calculated and intended to deceive AND
    1. Doesn’t have to defraud a particular person
    2. Failure to perform a contract doesn’t prove intent to defraud
  4. Does in fact deceive another person AND
    1. Person can be corporation, partner, association, organization, or group
    2. Actual loss is not required
  5. The person obtains, or attempts to obtain money, property (including land), services or some other thing of value from that other person
    1. Must gain actual POSSESSION of property, does not need title or ownership
    2. Person must rely on false representation which induced them to give up property
    3. If D makes false representation for reason other than obtaining property, crime has NOT occurred
  • Larceny v. FP = does not require false representation
  • Larceny v. FP = property taken w/o consent
  • Larceny v. FP = D intent to take property away permanently
  • L v. E = trespass of property w/o consent

Legal Fictions in Larceny

  • Larceny by Bailee: possession of package is custody; when “breaking the bulk” to get to content becomes larceny
  • Larceny by Employee: employer retains constructive possession – employee has mere custody
  • Larceny by Trick/Fraud: b/c of the trick, original possessor retains constructive possession – trickster gets mere custody
  • Lost or Mislaid Property: depends on 2 factors: (1) whether there is reasonable clue to ownership of the property when it was discovered AND (2) state of mind of the finder; larceny if at time of taking, intent to steal it
  • Doctrine of Recent Possession: inference of guilt based on D’s recent possession of stolen property after a recent larceny or breaking and entering: (1) property was stolen, (2) stolen good in D’s custody, subject to his control and exclusion of others, and (3) D came into possession recently after it was stolen

Embezz. v. larceny = property comes lawfully into possession of taker and then is fraudulently/unlawfully appropriated by him

False Pretenses
  • FP v. Larceny = requires false representation
  • FP v. Larceny = involves initial contact w/ person
  • FP v. Larceny = does not require intent to take away permanently
  • has sufficient control over item and can use it in a generally unrestricted manner
  • Actual (physical control) OR Constructive (not in physical control, but nobody else has actual possession of it – lost or someone else has “mere custody” of it)
  • Ownership is not the key – titles doesn’t matter
  • Has physical control, but his right to use is substantially restricted by the person w/ constructive
  • Temporary and extremely limited authorization to use property
  • Obtained property by fraud
  • Person has custody if he/she has temporary and limited right to use the property in the possessor’s presence
Burglary MPC
  1. Breaking
  2. Entering
  3. Into the Dwelling House OR Sleeping Apartment
  4. Of Another
  5. At Night
  6. To commit a felony therein
  1. Breaking
  2. Entering
  3. W/O consent
  4. Dwelling house/sleeping apartment/curtilage
  5. of another
  6. W/ Intent to commit any felony or larceny
  7. (1st Degree) when occupied
Inchoate Crimes Solicitation – Focus on D’s Actions C/L and NC
  1. Entices, advices, counsels, incites, induces, orders, or commands another to commit a felony
    1. Another person = even if person solicited is undercover cop who has NO INTENTION to carry out the crime
  2. W/ the SPECIFIC INTENT that the other person commit the crime - does not require the crime actually be carried out
  • Mens Rea
    • Actor’s PURPOSE is to promote or facilitate the commission of a substantive offense; AND
  • Actus Reus
    • w/ such purpose, he commands, encourages, or requests another person to engage in conduct that would constitute the crime, an attempt to commit, or would establish the other’s complicity in its commission or attempted commission
Conspiracy – Completed Upon Agreed Upon Solicitation C/L and NC
  1. Enter into an agreement w/ at least one other person
    1. If D and COP (pretending to agree w/o intent to carry out) agree, NO conspiracy
    2. D must know he is entering into an agreement
  2. To commit an unlawful act
    1. NC doesn’t require overt act
  3. W/ INTENT at the time by D and at least one of the others that agreement be carried out
    1. Enough if at least 2 parties have intent – even if several people in party have no intent

Wharton’s Rule: no conspiracy when crime requires 2 people (bribery, adultery)

Bilateral: two or more persons must conspire w/ intent

Jointly Tried, allow in hearsay “in the furtherance of” conspiracy

Accomplice v. Conspirator?

  • Accomplice requires crime be accomplished
    • Requires proof that second party intended to promote or facilitate

Pinkerton Doctrine: conspirator may be held liable for criminal offenses committed by a co-conspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy

  1. PURPOSELY agree to aid or engage in crime w/ another
  2. Joint liability w/ co-conspirators even if not known
  3. Require an overt act EXCEPT when the crime is Felony of 1st Degree or 2nd Degree
    1. Overt Act = In furtherance of the conspiracy
  4. Person DOES NOT become a co-conspirator merely by aiding and abetting the conspirators, if he himself does not reach agreement w/ them

Wharton’s Rule: rejects rule; “as long as one has the intent to agree to the commission of a crime”

Unilateral: does not require more than one person (undercover officer)

Co-Conspirator Liability: only liable for the substantive crimes of co-conspirators where ACCOMPLICE liability can be found (intent to commit the substantive crime or reasonably foreseeable)


  1. Renunciation – Affirmative Defense IF:
    1. Completely and voluntarily renounce criminal intent; AND
    2. Either persuade the solicited party not to commit the offense or otherwise prevent him from committing it
Attempt – Falls Short of Completing the Crime C/L and NC
  1. Specific Intent to do something that is a crime
    1. Inferred from facts and circumstances
    2. Must have mental state of attempted crime
  2. At time person has intent, he/she performs a substantial overt act calculated and designed to bring about the crime AND
    1. Overt Act = direct act toward commission of the crime
    2. Act need not be the last proximate act to consummation of the offense but beyond mere preparation
  3. Act comes close to bringing the crime about had D not been stopped or thwarted
    1. Mere preparation is not enough

Mens Rea

  • For the Attempt: specific intent to commit acts or cause resulting target crime
  • For target Crime: intent necessary for target crime (specific or general depending on crime); for strict liability must only show intent to attempt, no mens rea
  • Reckless Crimes: courts generally don’t try attempt for reckless crimes
  • Negligent Crimes: logically impossible to attempt an accident

Actus Reus Tests

  • Physical Proximity: act must be sufficiently proximate to the intended crime
  • Last Act: must be engaged in the “last proximate act”
  • Indispensable Element: act is indispensable to the crime – criminal is not guilty of an attempt if they have no yet gained control over an “indispensable element” of the offense (i.e., do not have gun yet to commit murder) b/c haven’t crossed line of mere preparation
  • Dangerous Proximity: guilty when her conduct is in dangerous proximity of success or when an act is so near the result that the danger of success is very great considering 3 factors – 1) nearness of danger, 2) greatness of harm, and 3) degree of apprehension felt
  • Probable Distance: past the point where most men, holding intention, would think better of their conduct and desist – passed point where voluntarily abandoned effort to commit crime
  • Unequivocally Approach (Res Ipsa Loquitur): act that “speaks for itself” which transform conduct from preparation to perpetration of a step toward commission – act standing alone unambiguously manifests criminal intent
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