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

1L Criminal Law, FALL 2014

Prof. Diamond, UC Hastings



a. Voluntary act + mens rea. Mens rea in the absence of action constitutes attempt. For attempt, CA code recommends half penalty, MPC recommends same penalty.

b. Omission of an act when there is a legal duty to act (not a “mere moral obligation”).

1. Situations which create legal duty against omission: (a) where statute imposes a duty, (b) where one stands in a certain status relationship (eg parent/child, caretaker/caretakee), (c) where one has assumed a contractual duty (eg lifeguard, police?), (d) where one has voluntarily assumed care of another and so secluded the helpless person as to prevent others from rendering aid, (e) ∆’s status as a landowner, (f) duty to control third parties such as children or employees, (g) ∆’s creation of peril

c. OMISSION Jones v. United States (D.C. 1962)

1. Facts: Jones convicted of manslaughter after allowing child under her care to die from maltreatment, appealed.

2. Issue and holding: Did Jones have duty to care for child (not her own) that omission of care constituted criminal liability? Yes, because having child dropped off at ∆’s house with ∆’s knowledge constitutes assumption of liability. BUT, here jury was not instructed to find a legal duty of care and trial court therefore committed plain error.

d. Model Penal Code

1. 2.01.1 Person is not guilty of an offense unless liability is based on conduct with includes voluntary act or omission to perform act of which he is capable.

2. 2.01.2 NOT voluntary: reflex/convulsion; bodily movement during unconsciousness or sleep (eg sleepwalking); conduct during hypnosis; bodily movement that otherwise is not a product of the effort or determiniation of the actor, either conscious or habitual

3. 2.01.3 Omission does not constitute liability UNLESS expressly stated by law or duty to perform is otherwise imposed by law.

4. 2.01.4 Possession constitutes an act IF possessor knowingly procured or received the thing possessed and was aware of his control over it for a sufficient amount of time to terminate possession.


2. Larceny!

a. Common-Law Elements: 1. The trespassory 2. Taking 3. And carrying away 4. Of the personal property 5. Of another person 6. With the intent to deprive the owner of the property 7. Permanently.

b. PROPERTY Lund v Commonwealth (1977) 480

1. College student used computers (without authorization) for doctoral dissertation. Because “use” is not in any element of larceny, using computer ≠ property which can be taken. Therefore not larceny.

2. Time and services cannot be interpreted as “goods and chattels” (at the time, chattel = personal property, not real property such as land. Now includes land).

c. PROPERTY/INTENT Oxford v. Moss (1978) 491

1. Student sneaks peek at answer sheet for exam, does not intend to take physical document. Court: information alone cannot be property, and because he did not intend (nor did he actually) to remove physical paper, no larceny.

2. CA Penal Code §499 does allow for trade secrets to be applicable to larceny as “information, including a formula, pattern, device…that derives independent economic value and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

3. MPC considers property to be “anything of value, including tangible and intangible personal property, contract rights…”

d. PROPERTY “OF ANOTHER” Henry v. State (1900) 499

1. Offers personal property in exchange for boarding house let, leaves without paying and takes personal property with him. Court: in agreeing upon property in exchange for let, ∆ transferred ownership to π and therefore counts as larceny.

2. Established that larceny constitutes taking property from someone who has superior right of possession. Here, third party boardinghouse owner (Mack) had S.O.R. and therefore property requirement is met.

i. What about partner stealing from partner (or spouse)? Common law holds that it is not usually sufficiently “of another” to constitute larceny. Some courts hold MPC view that partnership can constitute two separate entities.

e. CARRYING AWAY State v Carswell (1978) 502

1. ∆ moved A/C unit 4-6” at a Days Inn Motel. Court: ∆ had possession for a moment, which can constitute larceny. Physically moving property with intent (and ability) to keep permanently is all that larceny requires.

2. Common Law: Having control constitutes possession, movement constitutes asportation. No actual control = no actual larceny (eg if clothing is chained to mannequin, no asportation because actor never truly has control, but this can be attempted larceny)

3. MPC thinks asportation is stupid and instead says larceny is “unlawfully taking or exercising unlawful control” over someone else’s movable property. Some people say that this brings up issues regarding when control begins. These people are irrelevant.

f. FOUND OR STOLEN PROPERTY Brooks v. State (1878) 507

1. Brooks found money clip on street. Court: common law says larceny if there is good reason to believe that the owner can be found. BUT, intent to keep property forever must be present at the time of the taking in order to constitute larceny. So here, larceny.

2. MPC states that larceny is satisfied when actor fails to take reasonable measures to restore property to owner. MPC and CAL PC both allow intent to keep permanently to be formed at ANY time. Does intent need to be formed when owner can still be found, or may it be formed as a result of not finding owner?

g. MISTAKEN DELIVERY US v. Rogers (1961) 515

1. Teller overpays customer cashing check. Convicted for larceny.

2. Common Law says that this is larceny because it is obvious that he was being paid too much money and “ownership was obvious at the time of taking” after Brooks. Two additional elements: Mistake was made at the time of the taking and ∆ intended to permanently deprive owner at the time of the taking (modification of element 6).

3. MPC separates formulation of intent from discovery of mistake. Di

mon-Law elements: 1. Misrepresentation by ∆ 2. Of a past or present material fact 3. With the intent to defraud the victim 4. Where the victim relies on the misrepresentation in 5. Transferring the title to some property [to ∆]

1. One debate: is future fact untouchable under element 2, or does present intent constitute present fact? MPC says that misstatement of present intent is sufficient.

2. Must be a material misrepresentation: WHAT IS A MATERIAL MISREPRESENTATION?

3. Intent to defraud victim: ∆ either knows misrepresentation is false, or does not know validity and represents as true AND/OR intends to take something known to belong to victim, or to which ∆ has no right.

b. PAST OR PRESENT MATERIAL FACT Chaplin v United States (1946) 546

1. ∆s promised to use victim’s money for liquor stamps, took money and ran. Convicted on false pretenses, successfully appeals. Appellate court finds that intent regards the future, not past or present, so no false pretenses. Dissent takes MPC view that misstatement regarded present intent re: future action.

2. Policy consideration, generally opposes criminalizing failure to live up to promise. Not keeping a promise does not constitute false pretenses IF promise is made in good faith (but can constitute breach of contract)

3. When is there affirmative obligation to disclose?

i. Fiduciary obligation to client (eg accountant)

ii. Must correct misrepresentation (even if by omission)

iii. When statutes call for disclosure!

5. Consolidation of theft offenses

a. Crime can only be ONE of larceny/embezzlement/false pretense. So, analyze elements to find closest match.

b. To handle unclear cases, many jurisdictions have combined all three into “theft.” With this system, ∆ must defend against all three crimes and π must prove any one.

c. Jurors must agree upon which type of theft was committed

1. eg if victim intended only for possession to pass at the time of sale, then larceny by trick (such as paying for 29 sixpacks but taking 29 cases à victim did not intend to pass title to 29 cases). BUT, if victim intended to pass title, then false pretenses (such as switching price tags à victim intended to pass title of specific object, just for different price); If victim did not entrust money (as in asking ∆ to count $ and then ∆ runs away with it), larceny and not embezzlement

2. Cal Penal Code §484: value of property found by fair market value/going wage for services