Samaha Chapter 11 Smith

Samaha Chapter 11 Smith - Criminal Law Criminal Chapter 11...

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Unformatted text preview: Criminal Law Criminal Chapter 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 person’s possession. person’s 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 B’s car for a week with B’s 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 B’s 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 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 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 V’s apple Example: 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 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 V’s 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 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 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 who, at gunpoint, steals the victim’s $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 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 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 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 writes 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 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 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 defendant’s 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 another’s real property. another’s 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 another’s 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. ...
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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.

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