Select Page

Criminal Law
University of California, Hastings School of Law
Diamond, John L.


Actus Reus

· Four general elements of all crimes include:

o A voluntary act (actus reus)

o A culpable intent (mens rea)

o A concurrence between the mens rea and actus rea

o Causation of the harm

· This element requires a voluntary act (even very minor) or a legal omission

o Words can be a voluntary act (perjury)

o Nod of a head (conspiracy)

o Setting an alarm clock to plan a bank heist (attempted robbery)

o Thoughts alone CANNOT be criminal

· Consider that to be guilty of crime, it’s sufficient that the person’s conduct include a voluntary act, but it is not necessary that all aspects of his conduct are voluntary

o Ex. Know epileptic drives and has a seizure, where the actus rea was defined by his getting into the car, turning the ignition and driving

· The following are generally not considered voluntary acts for criminal purposes:

o Reflex or convulsion

o Unconsciousness

o Hypnosis (courts –FORK; MPC—yes )

o Sleepwalking (eg Ambien – maybe)

o Possession – when a person knowingly procures it or fails to dispose of it once he knows of its existence (otherwise not voluntary)

o Coercion

· A legal omission may satisfy this element

o Generally, one cannot be held criminally liable for an omission to act

o Exceptions when there is a legal duty to act:

1. Statute imposes a duty to care for another (Vermont)

2. Where on stands in a certain status “special relationship” with another

° Parental obligations to care for her child

3. Where on has assumed a contractual duty to care for another

° Lifeguard hired by the city intentionally fails to rescue a swimmer

4. Where on has voluntarily assumed the care of another and so secluded the

helpless person as to prevent others from rendering aid

° D indicates that he will rescue the drowning person and dissuades others from helping and then fails to attempt a rescue

5. Defendant’s landowner Status

6. One created the peril

o Jones v US: Holding that an omission of an act is only punishable where the duty neglected is a legal duty and not merely a moral obligation (Involuntary manslaughter charges were reversed regarding the death of a child under Jones care since it had not instructed the jury to find a legal duty – gov’t proposed that she met #3 and #4 {above})

Theft Crimes


· Larceny is a common law crime of possession that occurs at the instant it occurs. There is no need for the property to be damaged, destroyed or convert to the personal use of the taker.

· Distinction between grand larceny and petty larceny is value of property. The actual value is considered. Unless the thief believes the property to be worth more (MPC).

° Thief thinks he is stealing a Picasso and it turns out to be a fake, he is charged with grand larceny (MPC)

· Elements:

1.Trespassory (wrongful)


3.And carrying away (asportation) – NOT MPC

4.Of the personal property – Expanded in MPC

5.Of another – MPC included spousal and partnership property if unprivileged

6.With the intent to deprive the owner of the property


· Trespassory

° Wrongful or non-consensual

° Hypo: If you are given permission to use someone’s car and later decide not to return it—not guilty of larceny

· Taking (Diamond did not discuss this exactly but I included for completeness)

° Distinguish between custody and possession

° Custody is when one has physical possession but her right to use is substantially restricted (here, the owner maintains constructive possession)

° Determining when custody ended and possession begins is critical to decide whether the mens res and actus reus concurred

· Of Personal Property – what does this include?

° Classically referred to tangible personal property, excluding real property, domestic animals, stocks and bonds, electricity, fruits & vegetable on the vine

° Statutory changes have expanded persona property to include in addition to the above, computer time, labor and services, trade secrets, avocados

° Trees attached to real property are typically excluded unless they are chopped down and the thief returns later to retrieve them (once chopped down – lumbar became personal property of the land owner)

° MPC—property means anything of value including real estate, tangible and intangible personal property, contract rights, choses-in-action, and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric and other power

° Lund v Comonwealth (1977): Reversed conviction for larceny of computer time since it was considered intangible and had no monetary value, furthermore it could not be taken and carried away (PhD candidate used other people’s keys and access to do research on University computer)

° Oxford v Moss(1979): Held that obtaining a copy of the Civil engineering test with the intent to return to the test did not constitute larceny as the property was intangible and not covered under the crime of larceny

· Of Another

° The property taken, to constitute larceny, must be property belonging to another

° Distinguish possession of property from ownership of property

° Partnerships and spousal property is not considered property of another under common law, but is under the MPC (FORK)

· MPC—property of another includes property in which any person other than the actor of interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property

° Mistake is a defense to larceny if one believes that the property belongs to him regardless of the reasonableness of the belief

° Henry v State (1900): Defines that a superior right of possession dictates the element of property of another (Henry supplied a bike and a suit as collateral for his room and board; when he took it without paying his debt then he was guilty of larceny)

· Asportation

° Even the slightest distance of carrying away satisfies this element

° MPC abolishes this requirement (FORK) – should be enough to show that the actor has control over the property

° Donut spinning is asportation which spinning a pie along its axis is not

° State v Carswell(1978): Affirming conviction when defendant moved an air conditioner 6 inches qualified as asportation

· Lost or Mislaid Property (FORK)

° Common Law requires that at the time of taking the actor intended to deprive permanently AND a clue to ownership was present at the time of taking (ie owner retains constructive possession)

° Common law concept that all mislaid property has a clue to ownership

° Hypo: Find watch with name inscribed and intend to return it, later decide to keep it—not guilty under common law

° Hypo: Find a watch with n

at she retains wrongful possession of it. Therefore, concurrence exists when she decides to deprive permanently the property and can be found guilty of larceny – does not apply to lost or mislaid property – this doctrine extends the taking so that once the actor decides to deprive permanently then the larceny occurs

° Claim of Right Doctrine: One is not guilty of larceny if he takes property belonging to another based on a belief that he has a right to possession therefore could not have formed the intent to deprive permanently the property of another if one believes mistakenly that the property belongs to you

· Allows for mistake in fact or in law

· Can be unreasonable

· Hypo: Take a Picasso that one thinks belongs to you and burns it—not guilty of larceny

° Unlike lost/mislaid property, larceny occurs immediately upon forming the intent to deprive permanently (provided other elements met)

· If you borrow a car without consent, then decide to keep it, but then return it—guilty of larceny

° Mason v State(1877): When one gives or intends to give an equal or greater value substitute for a fungible good does not have the intent to permanently deprive and is not guilty of larceny (Actors took beer from the store the night before and returned to pay for it—holding generally reserved for goods for sale)

° Hypo: If you leave money on the counter for something in the store and leave—not guilty of larceny

° Hypo: (cf.) If you take someone’s beer bottle in the park and exchange it for a dollar without his consent—probably guilt of larceny


° Statutory crime meant to fill the gaps in CL larceny

° Elements:

1. Fraudulent (FORK)

§ “the intent to deprive permanently”

§ “the intent to deprive” (borrowing not okay)

2. Appropriation

3. Of Property

4. Of Another

5. By one who has been entrusted with possession

° Removes the elements of trespassory, taking, and carrying away

° Claim of Right is a defense against embezzlement

° In all jurisdiction, the claim on replacing property with an equivalent substitute is not a defense (if returning the identical property (not money) then defensible in “borrowing” jurisdictions)

° People v Talbot(1934): Fiduciary relation arises when one entrusts property to another and the fraudulent appropriation of the property of the latter; can be done openly and may even be customary (CEO used company funds for yacht, etc found guilty of embezzlement) (Diamond finds this case problematic)

° Larceny cannot be embezzlement and embezzlement cannot be larceny

° Problems with application of embezzlement because everyone does it

° Finder of lost/mislaid property are not guilty of embezzlement because she has never been entrusted with the possession