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Unformatted text preview: Criminal Law
Crimes Against Property CRJU E314 Criminal Law
Spring 2011, Mr. Smith
Spring Property Crimes Generally
Property Per Samaha, there are three aspects to
crimes involving the property of others:
1. Taking it …
Examples: Larceny, Robbery, Embezzlement
and False Pretenses
and 2. Damaging or destroying it …
Examples: Malicious Injury and Arson
Examples: 3. Invading it …
Examples: Trespass and Burglary Theft Offenses Generally
Theft At common law, the crimes of robbery and
larceny were the primary theft offenses
recognized. All other theft offenses have come about
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)
Larceny Common law larceny involves the
Common 1) unlawful (trespassory) taking
and 2) carrying away (asportation) of 3) the personal property of another
personal 4) with the intent to permanently deprive
the possessor of the property
the Larceny is a specific intent crime and
cannot be committed against “real”
property, only against “personal” property.
property Real property consists of land, including
improvements, structures and appurtenances
thereto and excluding non-affixed items.
thereto Personal property consists of all other
property, other than real estate, that is not
permanently affixed or attached to the land
and which is movable (i.e. capable of
asportation) The distinction between Grand and Petty
Larceny usually lies in the value of the
personal property taken. In South Carolina, the larceny of personal
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”,
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
by “trespass” involves the unconsented
removal of personal property from another
person’s Legally, the trespass is known as trespass de
bonis asportatis (trespass for goods taken
away) The physical taking of the property is legally
referred to as “caption.”
referred The personal property taken must be in the
“possession” of the other person; ownership is
The term “possession” contemplates a right of
control over the disposition of the property.
control A person has possession of property when he has
sufficient control over it to use it in a reasonably
unrestricted manner. (e.g. A borrows B’s car for a week
with B’s consent)
A person has mere custody of property, as opposed to
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 B’s briefcase while B searches in his pocket for
change) Examples of Custody
Examples Temporary and extremely limited
authorization to use the property:
authorization A customer in a shoe store is handed a pair of
shoes by a clerk to try on.
shoes Property of an employer for use in the
employment A police officer is entrusted with a patrol vehicle
with which to conduct patrol activities.
with Carrying Away
Carrying At common law, a person was not guilty of
larceny unless the property was “carried away.”
(i.e. there was asportation)
The slightest movement of the property was
considered sufficient as long as the defendant
demonstrated by the action that there was the
requisite animus furandi (intent to steal).
A defendant need merely move the property and
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
subject of larceny.
subject Domesticated animals, to include livestock (i.e. “neat”
cattle) are considered personal property. Wild animals,
unless trapped, or killed, are not.
Even stolen property and contraband can be
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.
Some states, such as South Carolina, however,
have changed the common law rule and allow
larceny of intangible property, such as “choses in
action.” (i.e. a property right in something
intangible which is enforceable through legal
action) SC Code section 16-13-30
(A) Simple larceny of any article of goods,
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
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
property if the removal does not occur in one single
Thus, a person who shakes an apple tree and then steals
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
theft of fixtures to real property in specialized
statutes. South Carolina Code section 46-1-20 makes it illegal to
steal “from the field any grain, cotton, or vegetables…”
Such a theft is not generally considered a larceny
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.
Many modern statutes have opted to not use the word
“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,
called animus furandi.
As long as the property remains in possession of
the defendant, the mens rea continues. Most
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
“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
belonging to V in order to further his escape. The
van contains ice cream to be delivered to V’s
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
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
against the “personal” property of the victim, not
against “real” property or its fixtures.
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 V’s apple
orchard holding the firearm on V while he steals apples
growing on the lower branches of one of V’s trees. D’s
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
the immediate presence of the victim.
the Example 1: D, armed with a handgun, breaks into the
residence of V while V is away. D steals a valuable watch
and escapes. The theft of V’s watch is considered a
larceny (committed in the course of a burglary).
Example 2: D, armed with a handgun, breaks into the
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 V’s 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
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. A suspect who robs a victim, at gunpoint, of a $10 Timex is
subject to the same possible maximum punishment as the
robber who, at gunpoint, steals the victim’s $30,000 Rolex.
robber The presence of a weapon, such as a knife or firearm,
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,
while Armed Robbery is a 30 year felony.
Embezzlement Embezzlement is a legislative creation and
is not a type of larceny.
is Embezzlement differs fundamentally from
larceny in the respect that there is no
trespassory taking involved.
trespassory In an embezzlement the defendant receives
the possession of the victim’s 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
Embezzlement is limited to public property
that lawfully comes into the possession of
a public employee and which is then
fraudulently converted. South Carolina Code section 16-13-210
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
property, then the crime is Breach of
Trust, under South Carolina Code section
16-13-230, not Embezzlement.
16-13-230, False Pretenses
False The various theft offenses known as “false
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,
whether in the form of writing, speech, or
conduct as to an existing fact.
conduct SC Code section 16-13-240
“A person who by false pretense or
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,
makes a service call to V’s 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
cashes the check. D does not return to repair
V’s water heater, refuses to take V’s calls and
refuses to return V’s money.
refuses D iis guilty of Obtaining Property by False
Pretenses. Malicious Injury to Property
Malicious Malicious injury statutes are directed at
conduct that deprives a victim of the value
or usage of property without asportation of
the Malicious injury laws require, typically, that
the defendant’s conduct be intentional or
have the purpose of causing damage to the
victim’s property. A defendant’s negligent damage to the victim’s
property will not suffice.
property SC Code section 16-11-510
SC It is unlawful for a person to willfully and
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
another. SC Code section 16-11-520
SC It is unlawful for a person to willfully and
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
Arson Arson was defined at common law as “the
malicious burning of the dwelling house of
another.” Today, arson is an offense in all U.S.
jurisdictions, usually defined by a statutory
formula that has little resemblance to the
common law crime.
common Current arson statutes have abandoned the
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
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
indirectly, in the death of a person is guilty of the
felony of arson in the first degree and, upon
conviction, must be imprisoned not less than thirty
Trespass Trespass was not a crime at common law
unless it was accompanied by or tended to
create a “breach of the peace.”
create Criminal trespass statutes are much broader
than the common law offense and generally
address “unwanted intrusions” onto
another’s real property.
another’s The intrusive act required for the crime of
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
upon another’s real property after having been
warned not to do so (trespass after notice) or b)
refusing to leave the real property of another
after having been told to do so (trespass by
refusal to leave).
refusal Generally, one cannot trespass on public
property absent a written law that restricts
access to the area under certain circumstances
to all persons.
to SC Code section 16-11-620
SC Any person who, without legal cause or good
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
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
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
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. SC Code section 16-11-640
SC It shall be unlawful for any person not an occupant,
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
provisions of this section shall not apply to any
justifiable emergency entry or to premises which
are not posted with clearly visible signs prohibiting
trespass upon the enclosed premises. The
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
Burglary Burglary was defined at common law as “the
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
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
the person enters a dwelling without consent and
with intent to commit a crime in the dwelling, and
either: (1) when, in effecting entry or while in the dwelling or in
immediate flight, he or another participant in the crime:
immediate (a) is armed with a deadly weapon or explosive; or
(b) causes physical injury to a person who is not a participant
in the crime; or
(c) uses or threatens the use of a dangerous instrument; or
(d) displays what is or appears to be a knife, pistol, revolver,
rifle, shotgun, machine gun, or other firearm; or
or (2) the burglary is committed by a person with a prior
record of two or more convictions for burglary or
housebreaking or a combination of both; or
(3) the entering or remaining occurs in the nighttime.
occurs SC Code section 16-11-312
SC (A) A person is guilty of burglary in the second
degree if the person enters a dwelling without
consent and with intent to commit a crime therein.
…no aggravating circumstance required. (B) A person is guilty of burglary in the second
degree if the person enters a building without
consent and with intent to commit a crime therein,
…any aggravating circumstance, as required for a
burglary in the first degree.
burglary SC Code section 16-11-313
SC (A) A person is guilty of burglary in the third degree
if the person enters a building without consent and
with intent to commit a crime therein.
…no aggravating circumstance required. ...
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This note was uploaded on 02/20/2012 for the course CRJU E314 taught by Professor Mr.smith during the Spring '11 term at South Carolina.
- Spring '11