Law
Criminal
Chapter Criminal 11
Crimes Against Property
CRJU E314 Criminal Law
Spring 2011, Mr. Smith
Spring
Property Crimes Generally
Property
Per Samaha, there are three aspects to
Per
crimes involving the property of others:
1. Taking it
1.
Examples: Larceny, Robbery, Embezzlement
Examples:
and False Pretenses
and
2. Damaging or destroying it
Examples: Malicious Injury and Arson
Examples:
3. Invading it
3.
Examples: Trespass and Burglary
Theft Offenses Generally
Theft
At common law, the crimes of robbery and
At
larceny were the primary theft offenses
recognized.
recognized.
All other theft offenses have come about
All
through statutory creation, usually in
response to circumstances involving a
criminal dispossession that did not neatly
fit the elements of larceny at common
law. (e.g. embezzlement)
law.
Larceny
Larceny
Common law larceny involves the
Common
1) unlawful (trespassory) taking
taking
(caption) and
and
2) carrying away (asportation) of
3) the personal property of another
3)
personal
4) with the intent to permanently deprive
4)
intent
the possessor of the property
the
Larceny is a specific intent crime and
Larceny
cannot be committed against real
property, only against personal property.
property
Real property consists of land, including
Real
improvements, structures and appurtenances
thereto and excluding non-affixed items.
thereto
Personal property consists of all other
Personal
property, other than real estate, that is not
permanently affixed or attached to the land
and which is movable (i.e. capable of
asportation)
asportation)
The distinction between Grand and Petty
The
Larceny usually lies in the value of the
personal property taken.
In South Carolina, the larceny of personal
In
property valued at less than $2,000 is petty
larceny. If the amount is $2,000 or more, the
crime is grand larceny.
crime
Larceny is a crime against possession,
Larceny
not against ownership. (i.e. you can
commit larceny of the personal property of
A while it is in the possession of B)
while
Trespassory Taking
Trespassory
For purposes of larceny offenses, a taking
For
by trespass involves the unconsented
removal of personal property from another
persons possession.
persons
Legally, the trespass is known as trespass de
Legally,
bonis asportatis (trespass for goods taken
bonis
away)
away)
The physical taking of the property is legally
The
referred to as caption.
referred
The personal property taken must be in the
The
possession of the other person; ownership is
not required.
The term possession contemplates a right of
The
control over the disposition of the property.
control
A person has possession of property when he has
person
sufficient control over it to use it in a reasonably
unrestricted manner. (e.g. A borrows Bs car for a week
with Bs consent)
with
A person has mere custody of property, as opposed to
person
possession, if he has physical control over it, but his
right to use it is substantially restricted by the person
who is in constructive possession of the property. (e.g.
A holds Bs briefcase while B searches in his pocket for
change)
change)
Examples of Custody
Examples
Temporary and extremely limited
Temporary
authorization to use the property:
authorization
A customer in a shoe store is handed a pair of
customer
shoes by a clerk to try on.
shoes
Property of an employer for use in the
Property
employment relationship:
employment
A police officer is entrusted with a patrol vehicle
police
with which to conduct patrol activities.
with
Carrying Away
Carrying
At common law, a person was not guilty of
At
larceny unless the property was carried away.
(i.e. there was asportation)
(i.e.
The slightest movement of the property was
The
considered sufficient as long as the defendant
demonstrated by the action that there was the
requisite animus furandi (intent to steal).
animus
A defendant need merely move the property and
defendant
have an intent to steal. It is sufficient even if the
defendant moves the property and then
immediately releases it or returns it and there is
no requirement that the defendant seek financial
gain from the theft of the property.
gain
Personal Property
Personal
Personal property is movable property.
Both animate and inanimate property can be the
Both
subject of larceny.
subject
Domesticated animals, to include livestock (i.e. neat
Domesticated
cattle) are considered personal property. Wild animals,
unless trapped, or killed, are not.
unless
Even stolen property and contraband can be
Even
considered as subject to larceny, although a person in
possession of contraband is said to have no property
interest in its possession.
interest
Intangible Personal Property
Intangible
At common law larceny involved the wrongful
taking and carrying away of personal property.
Because the property had to be subject to
asportation, if the property did not have a
physical presence it was deemed intangible
property and was excluded from coverage.
property
Some states, such as South Carolina, however,
Some
have changed the common law rule and allow
larceny of intangible property, such as choses in
larceny
such
action. (i.e. a property right in something
intangible which is enforceable through legal
action)
action)
SC Code section 16-13-30
SC
(A) Simple larceny of any article of goods,
(A)
choses in action, bank bills, bills
receivable, chattels, or other article of
personalty of which by law larceny may be
committed, or of any fixture, part, or
product of the soil severed from the soil by
an unlawful act, or has a value of two
thousand dollars or less, is petit
larceny
Theft of Real Property and Fixtures
Theft
Trees, crops, and inanimate objects affixed in the
Trees,
earth fall outside the scope of larceny as long as
they remain in their affixed state.
they
Removal of items from the soil can render them personal
Removal
property if the removal does not occur in one single
uninterrupted movement.
uninterrupted
Thus, a person who shakes an apple tree and then steals
Thus,
the apples that have fallen to the ground, commits a
larceny. A person who climbs the apple tree and then
steals the apples hanging from the branches does not.
steals
Many states, like South Carolina, address the
Many
theft of fixtures to real property in specialized
statutes.
statutes.
South Carolina Code section 46-1-20 makes it illegal to
South
steal from the field any grain, cotton, or vegetables
Such a theft is not generally considered a larceny
Such
because the item stolen is not personal property as
long as it remains attached to the soil, or if it is
removed in one continuous action.
removed
Many modern statutes have opted to not use the word
Many
larceny to identify thefts of agricultural products and,
instead, use the word theft to describe such offenses.
instead,
Intent to Permanently Deprive
Intent
The mens rea for larceny is an intent to steal,
The mens
called animus furandi.
As long as the property remains in possession of
As
the defendant, the mens rea continues. Most
mens
courts, however, will also allow an intent to
create a substantial risk of permanent loss to
support a larceny conviction.
support
Thus, even though a defendant does not intend to
Thus,
permanently deprive the victim of the property, steps
taken by the defendant that will result in a reckless
exposure to permanent loss of the property will be
sufficient to support a larceny conviction.
sufficient
D, an escaped prisoner, steals a refrigerated van
D,
belonging to V in order to further his escape. The
van contains ice cream to be delivered to Vs
customers. D abandons the van, shortly after
stealing it, turning off the van and the power to
the refrigerated compartment and throwing the
key away. The ice cream melts.
Although D had no intent to permanently deprive
Although
V of the ice cream, his reckless abandonment of
the van will support conviction of larceny.
Robbery
Robbery
Robbery, like larceny, can only be committed
Robbery,
against the personal property of the victim, not
against real property or its fixtures.
against
Robbery is an aggravated form of larceny and can
be defined as a larceny against the person of
another committed through the use of force or
violence, or the threat thereof.
violence,
Example: D, armed with a handgun, enters Vs apple
Example:
orchard holding the firearm on V while he steals apples
growing on the lower branches of one of Vs trees. Ds
crime is not robbery but, instead, stealing crops, a
statutory non-larceny offense, committed in the course of
an aggravated assault. The apples are not personal
property until they have been removed from the tree, at
which point they have already been stolen.
which
A robbery can not occur unless it is committed in
robbery
the immediate presence of the victim.
the
Example 1: D, armed with a handgun, breaks into the
Example
residence of V while V is away. D steals a valuable watch
and escapes. The theft of Vs watch is considered a
larceny (committed in the course of a burglary).
larceny
Example 2: D, armed with a handgun, breaks into the
Example
residence of V while V is asleep on the sofa. V awakens to
see D in his home. D points his handgun at V and
demands he hand over his watch. V does so and D
escapes. The theft of Vs watch is considered a robbery
(committed in the course of a burglary).
(committed
The Role of Property Value
The
Although the value of personal property taken in a
Although
larceny does make a difference in the classification of
the offense and, thus, the maximum penalty (i.e. petty
versus grand larceny), it plays no role in the offense of
robbery.
robbery.
A suspect who robs a victim, at gunpoint, of a $10 Timex is
suspect
subject to the same possible maximum punishment as the
robber at who, gunpoint, steals the victims $30,000 Rolex.
robber
The presence of a weapon, such as a knife or firearm,
The
however, does make a significant difference in the
maximum penalty faced by the robber.
maximum
Common law robbery is a 15 year felony in South Carolina,
Common
while Armed Robbery is a 30 year felony.
while
Embezzlement
Embezzlement
Embezzlement is a legislative creation and
Embezzlement
is not a type of larceny.
is
Embezzlement differs fundamentally from
Embezzlement
larceny in the respect that there is no
trespassory taking involved.
trespassory
In an embezzlement the defendant receives
In
the possession of the victims property
lawfully but then decides to convert it to his
own use, such as where a government
employee steals funds that have been
entrusted to his care.
entrusted
In South Carolina, the crime of
In
Embezzlement is limited to public property
that lawfully comes into the possession of
a public employee and which is then
public
fraudulently converted.
South Carolina Code section 16-13-210
South
makes it unlawful for an officer or other
person charged with the safekeeping,
transfer, and disbursement of public
funds to embezzle the funds.
If the property involved is not public
If
property, then the crime is Breach of
Trust, under South Carolina Code section
Trust under
16-13-230, not Embezzlement.
16-13-230,
False Pretenses
False
The various theft offenses known as false
The
pretenses crimes differ from larceny in
that there is no trespassory taking
involved, but, instead, an inducement by
the stealth, or trick, of the defendant that
causes the victim to voluntarily turn over
the property to the defendant.
the
The crime requires a false representation,
The
whether in the form of writing, speech, or
conduct as to an existing fact.
conduct
SC Code section 16-13-240
SC
A person who by false pretense or
person
representation obtains the signature of a
person to a written instrument or obtains
from another person any chattel, money,
valuable security, or other property, real or
personal, with intent to cheat and defraud a
person of that property is guilty
D, the owner of an appliance repair service,
D,
makes a service call to Vs home to inspect a
malfunctioning water heater. D tells V he will
repair the water heater for $300 but will need
payment of $200 up front in order to buy the
necessary parts. D states that he will have the
necessary repairs completed within seven
days.
V writes D a check for $200 and V immediately
writes
cashes the check. D does not return to repair
Vs water heater, refuses to take Vs calls and
refuses to return Vs money.
refuses
D iis guilty of Obtaining Property by False
s
Pretenses.
Pretenses.
Malicious Injury to Property
Malicious
Malicious injury statutes are directed at
Malicious
conduct that deprives a victim of the value
or usage of property without asportation of
the property.
the
Malicious injury laws require, typically, that
Malicious
the defendants conduct be intentional or
have the purpose of causing damage to the
victims property.
A defendants negligent damage to the victims
defendants
property will not suffice.
property
SC Code section 16-11-510
SC
It is unlawful for a person to willfully and
It
maliciously cut, shoot, maim, wound, or
otherwise injure or destroy any horse, mule,
cattle, hog, sheep, goat, or any other kind,
class, article, or description of personal
property, or the goods and chattels of
property or
another.
SC Code section 16-11-520
SC
It is unlawful for a person to willfully and
It
maliciously cut, mutilate, deface, or
otherwise injure a tree, house, outside
fence, or fixture of another or commit any
other trespass upon real property of
other
another.
Arson
Arson
Arson was defined at common law as the
Arson
malicious burning of the dwelling house of
another.
another.
Today, arson is an offense in all U.S.
Today,
jurisdictions, usually defined by a statutory
formula that has little resemblance to the
common law crime.
common
Current arson statutes have abandoned the
Current
common law requirement that the property
belong to another or that it be a dwelling.
belong
SC Code section 16-11-110
SC
(A) A person who wilfully and maliciously causes an
(A)
explosion, sets fire to, burns, or causes to be
burned or aids, counsels, or procures a burning that
results in damage to a dwelling house, building,
structure, or any property whether the property of
himself or another, which results, either directly or
himself
which
indirectly, in the death of a person is guilty of the
felony of arson in the first degree and, upon
arson
conviction, must be imprisoned not less than thirty
years.
years.
Trespass
Trespass
Trespass was not a crime at common law
Trespass
unless it was accompanied by or tended to
create a breach of the peace.
create
Criminal trespass statutes are much broader
Criminal
than the common law offense and generally
address unwanted intrusions onto
anothers real property.
anothers
The intrusive act required for the crime of
The
criminal trespass is an entering of, or
remaining within or upon, the real property
of another where such action is in violation
of the law.
Most modern statutes address either a) entering
Most
upon anothers real property after having been
warned not to do so (trespass after notice) or b)
warned
or
refusing to leave the real property of another
after having been told to do so (trespass by
after
trespass
refusal to leave).
refusal
Generally, one cannot trespass on public
Generally,
property absent a written law that restricts
access to the area under certain circumstances
access
to all persons.
to
SC Code section 16-11-620
SC
Any person who, without legal cause or good
Any
excuse, enters into the dwelling house, place of
business, or on the premises of another person
after having been warned not to do so or any
after
person who, having entered into the dwelling
house, place of business, or on the premises of
another person without having been warned fails
and refuses, without good cause or good excuse, to
leave immediately upon being ordered or requested
to do so by the person in possession or his agent or
to
representative shall, on conviction, be fined not
more than two hundred dollars or be imprisoned for
not more than thirty days.
SC Code section 16-11-630
SC
Any person who, during those hours of the day or
Any
night when the premises owned or occupied by a
state, county or municipal agency are regularly
closed to the public, shall refuse or fail, without
justifiable cause, to leave those premises upon
being requested to do so by a law-enforcement
officer or guard, watchman or custodian responsible
for the security or care of the premises, shall be
deemed guilty of a misdemeanor and upon
conviction, be fined not more than one hundred
dollars or be imprisoned for not more than thirty
days.
days.
SC Code section 16-11-640
SC
It shall be unlawful for any person not an occupant,
It
owner or invitee to enter any private property
enclosed by walls or fences with closed gates
between the hours of six p.m. and six a.m. The
between
provisions of this section shall not apply to any
shall
justifiable emergency entry or to premises which
are not posted with clearly visible signs prohibiting
trespass upon the enclosed premises. The
trespass
provisions of this section are supplemental to
existing law relating to trespass and punishment
therefor. Any person who violates the provisions of
this section shall be deemed guilty of a
misdemeanor and upon conviction shall be fined
not less than twenty-five dollars nor more than two
hundred dollars or imprisoned for not more than
thirty days.
thirty
Burglary
Burglary
Burglary was defined at common law as the
Burglary
breaking and entering of the dwelling house
of another in the nighttime with the intent to
commit a felony.
Modern burglary bears little resemblance to
Modern
common law burglary. Under current
statutes, burglary has been expanded to
daytime entries into non-dwellings with the
intent to commit any crime and has been
divided into degrees.
divided
SC Code section 16-11-311
SC
(A) A person is guilty of burglary in the first degree if
(A)
burglary
the person enters a dwelling without consent and
enters
with intent to commit a crime in the dwelling, and
intent
and
either:
(1) when, in effecting entry or while in the dwelling or in
(1)
immediate flight, he or another participant in the crime:
immediate
(a) is armed with a deadly weapon or explosive; or
(a) armed
(b) causes physical injury to a person who is not a participant
(b) causes
in the crime; or
(c) uses or threatens the use of a dangerous instrument; or
(c)
threatens
or
(d) displays what is or appears to be a knife, pistol, revolver,
(d)
rifle, shotgun, machine gun, or other firearm; or
rifle,
or
(2) the burglary is committed by a person with a prior
(2)
record of two or more convictions for burglary or
record
housebreaking or a combination of both; or
or
(3) the entering or remaining occurs in the nighttime.
(3)
occurs
SC Code section 16-11-312
SC
(A) A person is guilty of burglary in the second
(A)
degree if the person enters a dwelling without
degree
enters
consent and with intent to commit a crime therein.
consent
no aggravating circumstance required.
(B) A person is guilty of burglary in the second
(B)
degree if the person enters a building without
enters
consent and with intent to commit a crime therein,
and
and
any aggravating circumstance, as required for a
any
burglary in the first degree.
burglary
SC Code section 16-11-313
SC
(A) A person is guilty of burglary in the third degree
(A)
burglary
if the person enters a building without consent and
enters
with intent to commit a crime therein.
with
no aggravating circumstance required.