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


–          CL: three forms, had to charge with a specific one and meet all of its elements
–          MPC: the “unlawful taking or exercising unlawful control” over another person’s moveable property, ie can just charge with theft, includes all three, pick the one that fits
o   many states have adopted, inc CA
–          Defenses: (1) claim of right, (2) didn’t intend to keep/borrowed (except with embezzlement)
–          for lost and mistaken property, the intent has to exist at the time; for ordinary larceny, however, intent can exist at that time or at any time during the taking → idea of continuous trespassory taking
o   once the intent is formed, can’t get rid of it, even if change your mind
–          some crimes for which an honest mistake of fact (stupidity, drunkenness, etc.)excuses you; for others, has to be reasonable → general v. specific intent crime

–          CL: The (1) wrongful (2) taking and (3) carrying away (4) of the personal property (5) of another (6) with the intent to deprive permanently
–          MPC: see Theft
–          Modern View: (1) wrongful (2) taking/control over (3) of the personal property (probably including intangible) (4) of another (5) with the intent to deprive for valuable life
o   doctrine of continuous taking means intent to keep can form at any time, not just when you grab something
–          Cases:
o   Lund v. Commonwealth: unauthorized use of computer time too intangible, not really property -> no larceny
§ obviously many states have laws criminalizing theft of ideas/time/other intangibles not
o   Oxford v. Moss: theft of exam questions lacked intent to deprive permanently and content of questions not really property -> no larceny
o   Henry v. State: taking your own possessions when someone else has a superior claim of right (in hock) -> larceny
o   State v. Carswell: asportation only requires a slight move so long as the whole thing moved: moving a/c a few feet within one room -> larceny
o   People v. Kunkin: taking without an intent to keep something permanently, not larceny (sneaking out an internal memo but planning to return it)
§ Receipt of stolen property: Elements: (1) property received, concealed or withheld, (2) property had been stolen, and (3) recipient knew property had been stolen.
o   Mason v. State: taking something with the intent to pay (and actually paying), not larceny if the item is one that would normally be for sale
For hypos, see p. 481

–          Larceny by Trick: CL: (1) gaining possession of (2) someone else’s property (3) through trickery (4) with the intent to keep; MPC: 223.3, guilty if create/reinforce false impression, prevent someone from getting info, fail to correct a false impression, or fail to disclose important info
o   State v. Robington: gaining possession without title through deceit (claiming you wanted to take the car for a test drive) then keeping the item -> larceny
–          Mistaken Delivery: (1) know it was a mistake but (2) received with the intent to keep = Larceny
o   MPC: 223.5: theft if fail to try to restore; initial intent doesn’t matter, only your ultimate decision
o   US v. Rogers: receiving money you know you have no right to -> money
–          Lost/Mislaid Items: CL: (1) Intent to keep the item plus (2) some reasonable clue as to who the true owner was = Larceny; MPC: 223.5: theft if fails to try to restore
o   Brooks v. State: concealing the fact that you found someone else’s property when you could have returned it pretty easily -> larceny
Hypo: suppose D is at airport, sees someone holding a suitcase that he wants, asks if he c

stomary to “borrow” company money is not a valid defense, nor is the ability to repay
–          Defenses: jx split: some say “fraudulent” = “intent to deprive permanently” so “borrowing” is a defense, others say no; some also say ad to know the stuff wasn’t yours to take so claim of right can be a defense

False Pretenses
–          CL: (1) A misrepresentation (2) of a present or past material fact (3) with the intent to defraud the victim (4) where the victim relies on the misrepresentation in (5) transferring title to some property
o   trad, misrepresentation of future not suff, though is today in most jxs
o   reliance must be real but not reasonable in most jxs
o   silence is usually not suff but certain exception where duty to diclose exists (and see MPC)
–          MPC: included in 223.3, theft by trick
–          Cases
o   Chaplin v. US: traditionally, misrepresentation had to be of present of past fact, not future intent, eg if you can convince jury you meant what was said initially, not guilty, even if changed your mind later (don’t want to criminalize business practices that sometimes go wrong)
Hypo: If you give me your suitcase, I will give you a million dollars. I never intended to pay you and run off without doing so. Crime?
–          Split: traditional view was that it had to be a past or present fact → increasingly, include present intention as a present fact
–          originally, idea of caveat emptor held sway