If a man entered the
orchard of (another) man and was seized
there for stealing,
he shall pay ten shekels of silver.
Sumeria 1868-1857
B.C.
The best things are
not things.
Whoever dies with the
most toys wins.
The rain it raineth
on the just and also on the unjust fellow,
but chiefly on the
just, because the unjust steals the just's umbrella.
Things are to be
used. People are to be loved. We are prone to reverse it.
You Decide: Attempted
theft, attempted robbery or robbery?
Daylight
Robbery - a one-hour documentary of U.S. corruption and fraud in
the Iraq war.
By StealthBy ServantBy the Finder of Lost, Mislaid or Misdelivered
PropertyBy Bailee (Gratuitous or for Hire)By TrickConsolidationDeprivationTheft by Unlawful Taking or DispositionTheft by DeceptionTheft by ExtortionTheft of ServicesClaim of Right DefenseGrading MPC Theft CrimesConsolidationOwnership of PropertyIntent to StealClaim of RightReceiving Stolen PropertyTheft by False PretensesTheft by ExtortionValue - LadderSpecial Statutes That Protect ConsumersMPC ForgeryTPC ForgeryCommon LawMPC RobberyTPC RobberyCommon LawMPC BurglaryTPC Burglary
INTRODUCTION - PROPERTY
CRIMES
The French philosopher
Voltaire in his essay on Manners in 1756 said, "All men have equal
rights to liberty, to their property, and to the protection of laws."
(1 - Declaration of Independence), (2), (3 - 1923 article re distribution of property) How does
our criminal justice system react to the right to private property? As man has
evolved, the criminal law has expanded and grown in its role as a protector of
private property. In our American system, the acquisition of private property
(coupled with sensual pleasure) is what life is seemingly all about, despite
the fact that greed (and lust) is one of the original seven deadly sins (Pride,
gluttony, sloth, anger, and envy are the other five.) Criminal laws protecting
property have been used as a device to keep man's greed and avarice in check
and to provide the property-owning public with a feeling of security. These
same criminal laws are used to promote the work ethic - the idea being that one
way to legitimately gain property is by labor. (1) To a considerable extent, our society is based on
monetary values and business transactions. Equity (fairness) and natural law (higher
laws that transcend positive laws) have not had great influence in recent
times.
From the philosophical
perspective, some persons believe that private property is a necessary and
proper means by which each individual achieves his livelihood and happiness. To
them, the justification of the existence of the state consists in its
protection of private property, while the ultimate corruption of the state
appears when it nonconsensually deprives peaceful and honest persons of their
rightful possessions. (1) (2) On the other side of the coin, the Tao Te Ching tells
us: If you overvalue possessions, people begin to steal.
The American
revolutionists seemed to fee that the security of private property was tied to
the concept of liberty. Our philosophy as a county appears to demand respect
for the individual's liberties and his/her control over legitimately acquired
property. Thus, in the United States no person or government may unlawfully
deprive any person of his life, liberty or rightfully acquired property without
due process of law (1). See the Fifth and
Fourteenth Amendments.
In our previous portions
of the crimes and defenses web site, we examined the law of
criminal homicide. In most instances, our inquiry focused on the
elements of the various crimes. As a rule, nothing good can be said about
conduct that results in the loss of human life, irrespective of whether it is a
crime, a civil tort, or simply an accident. The same cannot be said when we
consider the acquisition of property. In property cases, we may be asking
whether a particular method of acquiring property is wrongful, or, if it is
wrongful, whether it should be defined as criminal or left solely as a civil
wrong. As we examine property crimes, we notice that there is a history of
increasing criminalization. One might ask whether this is part of ubiquitous
crime hysteria or simply keeping pace with ever expanding complexity of
property transfer.
I've got everything I
need, but it still ain't quite enough.
Elton John (lyrics
from Georgia)
The common law crime
of larceny (1),
(2) contained six
elements (1):
(1) a trespassory (2) taking and (3) carrying
away (asportation) of (4) the tangible personal
property (Such things as real property, chose-in -action, services,
"base" and wild animals in nature, and trade secrets were excluded
from the concept of "personal property; UCL 5th, p. 563,
says dogs were base but horses and cattle were not; another source, Criminal
Law by Crump, et al., p. 377, agrees that dogs were base but claims
that horses, cows, pigs, and chickens were also base but cats and foxes were
not; if Crump has it right, cattle and horse rustling might have been a good
trade in common law days; of course , we know that theft of cattel by armed
bands was by far the most important crime against property the fifteenth
cetntury and earlier; so, logic would tell us that Crump has it wrong, at least
re cows.) (5) of another (except the spouse who at common law
was deemed to have joint possession of one another's property) (6) with
intent to steal (animus furandi - the intent to permanently deprive
the owner of the value of the property, irrespective of whether the thief
intended to benefit himself). The crime of larceny is complete very quickly.
Larceny is designed to protect against permanent deprivation, but it does not
depend on the owner actually being permanently deprived. In fact, larceny can
occur event though the property is soon restored to its owner, as when the
inept larcenist is caught while fleeing with the loot and the owner suffers
nothing more than a momentary loss of possession, Recognize that It's the
intent of the larcenist to permanently and unlawfully deprive the owner of
his/her property that is the centerpiece of the crime. It may be easier for you
to think of larceny as an unlawful attempt to permanently deprive a person of
her property, an attempt that does not depend for its efficacy on whether the
larcenist is successful in doing so. Also, keep one other thing in mind as you
study common law larceny and modern day theft (1- theft), (2 -
theft) - it doesn't matter in terms of whether the crime was committed that the
larcenist afterwards changed his mind and brought the property back.
In early times, the
first concern of the law was with crimes of violence where property was taken
from the person by force, e.g., the highwayman who robbed travelers on or near
a public highway. The common law crime that developed from that concern is the
one we know as robbery (1),
(2). That
crime will be discussed later on this page. After recognizing the crime of
robbery, the common law next expanded to criminalize all taking of another's
property from his immediate possession and without his consent, even though no
force was used. When no force was used in such circumstances, this antisocial
conduct was called larceny by stealth.
Perhaps the best example of larceny by stealth is the pickpocket who, without
violence of the threat of it, trespasses into the victim's clothes, takes
personal property, e.g., a wallet, and carries away the wallet.
As time went by, common
law larceny expanded to encompass several forms of trespassory taking,
including the following:
·
By
stealth - This most
typical larceny offense occurred when, unbeknownst to the victim, the defendant
took and carried away the victim's tangible personal property with intent
to permanently deprive.
·
By
servant - This offense
took place when a servant or employee who had been given custody of
property by the trusting master or employer as a incident of the service or
employment took the master's or employer's property with intent to permanently
deprive the master/employer of the use, value and benefit of the property. In
effect, the custody of the servant/employee was the possession of the
master/employer. However, if the servant or employee received the property
directly from a third person rather than from the master/employer, it was
deemed to be lawful possession in the servant/employee rather than custody, and
no trespassory taking from the master/employer was deemed to have taken place
if the servant/employer appropriated the property. In other words, by legal
fiction the common law courts held that in cases where the servant or employee received
property directly from the master or employer, the servant never got possession
of the goods; instead the servant or employer got only custody.
Thus, when the servant or employee subsequently misappropriated the property,
it was then that he was deemed to be trespassorily taking the property as
required by the definition of larceny. As Justice
Oliver Wendell Holmes, Jr., said in Commonwealth v. Ryan, 30 N.E. 364 (MA. 1892) (1): "We must take it as settled that it is not
larceny for a servant to convert property delivered to him by a third person
for his master, provided he does so before the goods have reached their
destination, or something more has happened to reduce him to a mere custodian;
while, on the other hand, if the property is delivered to the servant by his
master, the conversion is larceny." The common law theory re the
servant/employee receiving property from a third person as in Ryan was that possession
passed from the third person to the servant/employee; the servant/employee
could not therefore "take" possession from the employer; since there
was no trespassory taking, there was no larceny when the servant converted the
property to his own use. On the other hand, if a servant received possession of
property from a third person and then transferred it to the master under
circumstances where it is clear that possession passed to the master, e.g.,
where the servant transferred money to a cash register and rang up the sale,
and then at a later time took the property from the register, a larceny
(trespassory taking from the master's possession) occurred. But, if the
servant/employer placed the property in the master/employer's receptacle for a
brief temporary purpose, possession did not pass to the master, so long as the
servant remained in control of the property and no larceny occurred when the
property was removed from the receptacle (the precise situation in Ryan).
You can see the potential problem with such narrow distinctions, i.e., the
defendant charge or convicted of larceny would often claim that the crime, if
any, was embezzlement and vice versa. [Note: Gaps in the larceny by servant
crime resulted in the enactment of the first English embezzlement statute in
1799.]
·
By
the finder of lost, mislaid, or misdelivered property - First, understand that found property may be abandoned rather than
lost or mislaid. There is a big distinction. Abandoned property is property
that has been abandoned by its former owner or possessor with the intent of
relinquishing all control over the property. Abandoned property cannot be the
subject of larcenous taking, i.e., when another takes it, there is no trespass
to the possession of the owner. Lost or mislaid property is property that
is no longer in the control of the owner or former possessor but which was not
knowingly relinquished insofar as the intent of the loser or mislayer is
concerned. The common law did not take a purely "finders keepers, losers weepers"
philosophy, but it did give finders more protection against larceny conviction
than the MPC does with regard to theft.Larceny of lost property: This
larceny crime occurred when at the time of the finding of lost
property there was an indicia of ownership such that the true owner of the lost property
could reasonably be found, and the finder took the lost property with intent to
steal it, i.e., s/he intendedat that time to permanently deprive
the owner of the found property. If there was no indicia of ownership in lost
property, the finder's state of mind (mens rea) was irrelevant, and the offense
was not larceny. The situation is roughly analogous to that of abandoned
property where there is no owner, (Note: Abandoned property is property that
has been abandoned by its former owner or possessor with the intent of
relinquishing all control over the property. Abandoned property cannot be the
subject of larceny because there no trespass to the possession of an owner,
thus , no larceny.) except that here no owner can reasonably be expected to be
found. However, if there is adequate indicia of ownership of the lost property,
the determination of whether there is larceny depends on the state of
mind of the finder. When at the time of the finding, the finder of lost
property, whose ownership was reasonably ascertainable, intended to appropriate
the property rather than return it to its rightful owner, larceny occurred. Larceny
of mislaid property: In the case of mislaid property,
i.e., property that was not lost but simply misplaced, temporarily forgotten
and left, the common law presumed that the owner would return for it, and,
thus, the only issue was the finder's state of mind. Consequently, if the
finder of mislaid property picked the item up intending at
that time to steal it, there was larceny. If the finder of either lost
or mislaid property did not intend to steal it when it was first found, but
formed such an intent later in time, there was no larceny. Larceny
of misdelivered property: What about situations where property was
misdelivered based on a unilateral mistake, e.g., the cleaners mistakenly but
willingly misdelivered V's suit to D? Larceny occurred when D realized that
possession of someone else's property had been delivered to him and D took
delivery anyway with the intent to keep the property suit and permanently
deprive the owner of it. The legal view was that when the transferor acted
under unilateral mistake of fact, delivery of the chattel was ineffective to
transfer right to possession; if the transferee, knowing of the transferor's
mistake, receives the goods with the intention of appropriating them, his
receipt and removal of them is a trespass and the offense larceny. On the other
hand, if there is a mutual mistake, e.g., D thought the suit was his when it
was delivered to him, and the recipient is innocent of wrongful purpose at
the time of his initial receipt of the property, its subsequent
conversion by the transferee is not larceny.
·
By
bailee (gratuitous or for hire) - With the dawn of the commercial age, commerce became more
dependent on transportation of goods to market by persons who were independent
contractors (bailees) rather than servants. As you might imagine, some of these
bailees were a bit shady to the point that they might convert a shipment of
goods. A bailment is a delivery of personal property by one person (the bailor)
to another (the bailee) who holds the property for a certain purpose under an
implied-in-fact or express contract; unlike a sale or gift of personal
property, a bailment involves a change in possession but not in title. A
bailment for hire is a bailment for which the bailee is compensated, as when
one leaves a car with a parking attendant; a gratuitous bailment is one in
which the bailee receives no compensation, as when one borrows a friend's car.
When property was converted by a bailee who had been given custody pursuant to
an agency relationship, larceny could occur under special circumstances. When a
container was delivered to the bailee, it was held that the bailee had constructive
possession of the containers but only custody of the
contents of the container. It was said that when the bailee opened the
containers, i.e., broke bulk, a trespass against possession of the bailor
occurred and hence larceny would occur if the other elements were present. On
the other hand, if the bailee simply sold the unopened containers, there was no
larceny because there was no trespass to the bailor's possession, the bailee
having been given lawful possession of the container. The concept of theft by
bailee dates back to the famous "breaking bulk" Carrier's
Case, 13 Edw.IV (1473), where the carrier (bailee for hire) broke open
bales (containers) and took the contents, (in this case a blue dye called woad) from the
constructive possession of the owner.
·
By
trick -This type of
larceny offense occurred when property was taken by one who obtainedpossession
but not title based on misrepresentation of treating it in a
particular way, but who at the time intended to misappropriate it and did so.
Larceny by trick differs from larceny by stealth only in the manner of taking.
This is a type of larceny involving taking by means of fraud and deception,
i.e., the taking is with the consent of the victim but the consent was obtained
by misrepresentation. Note that in larceny by trick the victim consensually
parts with possession due to the fraudulent inducement of the thief. The
seminal case reflecting this offense was Pear's Case in 1780, holding that one
who obtained possession of, but not title to, a horse on the false pretext that
he wants to take a journey when in fact he intends to sell the horse, which he
does, is guilty of larceny by trick. The modern day analog would be the
customer at an auto dealership who, with intent to steal a car, took a solo
"test drive" but just kept going. Note the difference between larceny
by trick and false pretenses; in larceny by trick the larcenist uses a
misrepresentation (fraud, trick) to induce the owner to part with possession
only; in false pretenses the owner is induced by a misrepresentation
(fraud) to part with title alone or title and possession. One of
the seminal cases that you find in many casebooks is Graham v. United States, 187 F.2d 87 (D.C. 1950)
involving a crooked lawyer who had tricked his client into paying $2000 in
juice, above the $200 legal fee, by falsely telling the client that the juice
was bribe money for the police; the conviction for larceny by trick was upheld
on the ground that the crime was larceny not false pretenses because the client
intended that possession but not title to the $2000 to pass to the defendant
with title remaining in the client until accomplishment of the specific purpose
of the bribe.
Larceny is viewed as a
specific intent crime because it requires proof that the accused intended at
the time of taking to permanently deprive the victim of the value, use and
benefit of the tangible personal personal property in question. It is also
crime against another person's possessory rights ( as opposed to ownership
rights) in that the accused trespasses and carries away the property of one
with a superior right to possession. Note that under the common law (as well as
MPC and TPC theft) the victim of larceny could himself be a thief, i.e., a
person with no lawful ownership right in the property.
Most of the litigation
concerning common law larceny centered on what was meant by "trespass to
possession." Other issues that were the subject of litigation included
such questions as what constituted a "taking," what constituted
"carrying away (asportation)," what constituted "property of
another," and what constituted "possession" as opposed to
"mere custody."
The general rule of
common law required that the act, i.e., the trespassory taking, and the mens
rea, i.e., the intent to permanently deprive," had to coincide, i.e.,
occur concurrently. The common law recognized an exception to this general rule
through the important doctrine of continuing trespass, i.e.,
if there was any wrongfulness in the original taking, a subsequently formed
specific intent to deprive was deemed to be sufficient because the wrongfulness
of the original taking constituted a continuing trespass. For example, if
D borrowed (took) his next door neighbor's (V's) bicycle without permission (a
trespass to V's possession) but with the intent to return the bike, but D
subsequently formed the intent to keep the bike (depriving V of it permanently)
the crime of larceny would exist at the time D decided to
permanently keep the bike he had unlawfully taken. So if there is any
wrongfulness in the original taking, a subsequently formed specific intent to
permanently deprive will be deemed to be contemporaneous in time with the
taking. Professor Dressler explains in UCL5th, p. 567, that the
continuing trespass doctrine is based on the assumption that when a person
takes possession of another person's property by a wrongful trespass, every
moment that he retains possession of it constitutes a new trespassory taking
that continues until he terminates possession of the property.
As to carrying
away (asportation), at common law asportation (a carrying
away) of the stolen property by the thief was an essential element of larceny.
In general, the courts said that the slightest movement of the property was
sufficient to satisfy the requirement of asportation. Suppose a would be car
thief was caught red-handed as he tried unsuccessfully to start and steal
another's car. Is it larceny or only attempted larceny because of the absence
of asportation? It would appear to be attempted larceny. Could you have a taking
and carrying away even though the wrongdoer never takes the property into his
actual possession? Visualize a case of possible constructive asportation of the
owner's property where a vehicle is actually in possession of car dealership
and is sold by a crook posing as a salesman to a bona fide purchaser who drives
off with the car. Would the purchaser who actually takes and moves the car be
considered as the innocent agent of the crook, thus satisfying the trespassory
taking and asportation requirements re larceny of the car by the crook? [Note:
Why would the purchaser of the car who was cheated out of his money by the
crook be more likely to be a victim of false pretenses than larceny by trick?
Did the purchaser intend to convey possession or possession and title to the
purchase money?] Finally, asportation of property does not always involve a
trespassory taking in the sense of exercising control over property. For
example, suppose that D, moves a widget slightly; however, it the widget weighs
500 tons, may be difficult for D to take it.
Intent to pay later - What happens when property is for sale and
the accused takes it, intending at the time of taking to pay later for the
property taken? In this hypo, there is no intent to unlawfully deprive the
owner of the value of the property as is required for common law larceny.
Intent to pay later apparently does not act as a defense to larceny if the
property taken was not for sale.
Claim of Right - If one who takes, acquires or
appropriates property has an honest claim of right to ownership of the
property, then one of the crucial elements of larceny and robbery , i.e.,
intent to steal, is missing. The common law crime of larceny requires a specific
intent to steal. If the defendant subjectively believes that he owns and is
entitled to possession of the property that he wrongfully takes , logic
suggests the he be absolved of the crime of larceny because he does not intent
to steal the property. This is the theory behind the defensive claim of right.
At common law, claim of right was a defense to larceny and robbery. (Remember
that common law robbery required proof of a completed larceny.) While modern
day courts accept claim of right as a defense to the mens rea of larceny when
the good faith honest claim is for specific property, if the defendant takes
other property of another with the goal of settling a real or supposed debt due
from that person, the claim of right defense may be precluded. Also, some
jurisdictions show a reluctance to allow claim of right in cases of forcible
takings, e.g., robbery or when property is obtained by threat, extortion. For
an interesting approach, seeTufunga and Smith from California.
At common law, larceny
was a capital crime. An early statute divided the offense into two grades -grand
larceny if the value of the property taken exceeded twelve pence (the
value of one sheep) andpetty (petit) larceny if it did not. Both
offenses were felonies under the statute, but whipping was substituted for
death as the penalty for petty larceny
Hint to Law Students: Law school and bar exams sometimes involve temporary taking of
property scenarios where there may not be either an intent to permanently
deprive the owner of this property (as required by common law larceny) or the
intent to withhold the property for so an extended period of time that a major
portion of the value or enjoyment is lost to the owner or where D intends to
dispose of the property in a manner that makes recovery of the property by the
owner unlikely (as required by the MPC or TPC for theft). Often the facts in
the exam will demonstrate what might be called a brief unauthorized use of a
motor vehicle, usually a car. We recognize this not as larceny or theft but as
joyriding, and many jurisdictions will have a special non-theft joyriding
statute. See Sections 223.9 MPC - Unauthorized Use of Automobiles and Other
Vehicles and 31.07 TPC Unauthorized Use of a Motor Vehicle.
Hint to Law Students: Recall that common law larceny, embezzlement, false
pretenses, receiving stolen property, burglary, robbery, and assault in
the form of attempted battery, along with other crimes such as extortion
(blackmail), forgery, kidnapping for ransom, attempt, conspiracy, solicitation,
and, in degrees of murder jurisdictions, first degree premeditated murder, are
deemed to be specific intentcrimes. Under the common law approach,
an honest, good faith mistake
of fact (1), whether reasonable or unreasonable, is
available as a defense to negate the specific intent of such crimes. General
intent could be negated by a good faith, reasonable mistake of fact. Also, the
common law allowed voluntary
intoxication to negate specific intent of specific intent crimes.
So watch for questions in which the accused was honestly mistaken or
intoxicated concerning the specific intent element of the crime. For example,
look for larceny questions in which D took property, mistakenly believing in
good faith that the property was hers; if so, D would probably have a mistake
of fact defense.
Do not buy stolen goods.
The
Talmud
He who profits by a crime commits it.
Seneca Medea - First Century
The common law larceny
offense required proof of a trespassory taking with intent to permanently
deprive the victim of his property. Complicity
theory in criminal law is based on accomplice liability or
co-conspirator liability. The "fence" who simply purchases the stolen
loot or booty after the offense would not fall within either
of these complicity theories. Thus, it becomes necessary to create a statutory
crime criminalizing the conduct of those who, with the requisite state of mind,
e.g., knowledge that the goods are stolen, purchases the stolen goods or assists
the thief in disposing of them. We generally call this offense receiving stolen
property. (1), (2)
A bank manager saw a nervous new employee
diligently counting out $100 bills.
"You look like an industrious young
man," he said. "Where did you receive your
business education?" "Yale," the
young man replied."Excellent," the manager said.
"And what's your name?" "Yim
Yohnson."
Toward the end of the
eighteenth century, the expansion of the law of larceny through judicial
interpretation by common law judges came to a standstill. The primary reason
for judicial reluctance to expand the scope of larceny was the fact that the
death penalty was attached as punishment for virtually all of the felony
offenses of the time, including grand larceny. (Petty larceny of property
valued at twelve pence or less was a non-capital felony.) By legislative
enactment, the English property crimes continued to keep pace with the
developing mercantile society. Prompted by Bazeley's Case, 168 Eng. Rep. 517 (1799), where an
enterprising bank teller received money from a customer and immediately
pocketed it, thus relieving himself of responsibility for common law larceny,
the first embezzlement statute was enacted by the English Parliament in 1799.
While there is no set-in-stone definition of statutory embezzlement (1),
(2) in
the various jurisdictions, it can be described generally as: (1) the
fraudulent; (2) conversion (exercising the rights of ownership and thusly
interfering with the owner's rights to the benefit, enjoyment or use of the
property); (3) of the property (generally the same type of property covered by
the larceny crime); (4) of another; (5) by one who is already in lawful
possession of the property. Some embezzlement statutes require that
the the lawful possession be through some type of fiduciary relationship, e.g.,
agency or trust. In such case, the crime may be visualized as a breach of the
owner's trust. Note that embezzlement requires an actual conversion, unlike the
requirement of common law larceny that there be merely a taking and
asportation. On the other hand, unlike common law larceny where there must be
an intent to permanently deprive the owner, embezzlement requires an intent to
defraud the owner.
The statutory crime of
embezzlement has numerous variations but can be visualized as a crime against
ownership because the embezzler has lawful possession of the property at the
time of the crime. In this sense, it differs from common law larceny which
requires a trespassory taking from the owner's possession. One who takes
possession of property lawfully and then coverts it to his own use,
benefit or enjoyment is not guilty of common law larceny. Embezzlers don't have
the mere custody that was a fiction in common law larceny. Notice also that the
embezzler's intent to defraud, as evidenced by the unlawful conversion, arises
after s/he comes into lawful possession of the property. Embezzlers start off
as lawful possessors. The act that embezzlement punishes is not the trespassory
taking or larceny but the conversion, misapplication or misappropriation of the
owner's property which the embezzler possesses. In short, to have embezzlement,
we must have actual conversion of the property where the embezzler exercises
the right of ownership over the property to the exclusion of the rightful
owner's interest. Additionally, embezzlement doesn't require asportation in the
sense of physical carrying away of the property; conversion by misappropriation
is enough, as where an accountant juggles funds. Under some embezzlement
statutes, there is no requirement that the embezzler intend to permanentlydeprive
the owner of the property. Thus, unauthorized temporary borrowing of property,
e.g., corporate funds by corporate officials to whom the funds had been
entrusted, might be embezzlement under some statutes. See People v. Talbot, 28 P.2d 1057 (Cal. 1934). In modern
times, jurisdictions with MPC- influenced theft statutes might treat such
conduct as theft if the intent to the converter was to withhold property from
the owner for so extended a period that a major portion of the value or
enjoyment of the property is lost to the owner; also, there may be a statutory
offense covering misapplication of property crime, e.g., TPC Section 32.45, that might apply to such situations.
Under some embezzlement statutes if the defendant could be shown to have
intended, at the time of conversion, to restore the exact property taken,
it would not be considered embezzlement; however, under this approach, if the
defendant intended to restore similar or substantially identical property, it
would be considered embezzlement, even if it was money (fungible property) that
was initially taken and it was other money, though of identical value, that he
intended to return. [In the case of larceny, it the trespassory taker intended
at the time of taking to return the very same property, there would be no
intent to permanently deprive and no larceny.] [Students Note: In UCL5th, p. 571, Dressler states
"Embezzlement involves two basic ingredients: (1) D came into possession
of the personal property in a lawful manner; (2) D thereafter fraudulently
converted the property (i.e., D performed some act that demonstrated his intent to deprive another of the property
permanently)." While I do not
personally agree that embezzlement always requires a showing of the embezzler's
intent to permanently deprive, for purposes of our final exam we will take the
Dressler statement as correctly stating the law.]
In trying to understand
the technical difference between common larceny and embezzlement, recallCommonwealth v. Ryan, 30 N.E. 364 (Mass. 1892); there
Justice Holmes held that it was embezzlement when money delivered to an
employee by a third person was put briefly into an open cash drawer by the
employee who then pocketed the money without ringing up the sale. At common
law, if a servant/employee in a shop stole money from the master's cash
register or safe, this was held to be a trespassory taking from the master and
was larceny (by servant). If the servant/employee lawfully received money from
a customer and then put it in his pocket, the crime was viewed as embezzlement.
During the nineteenth
century, the concept of embezzlement was broadened to encompass various types
of fiduciaries such as attorneys, public officials, corporate officials,
trustees, agents, and brokers. Today the coverage of embezzlement in most
jurisdictions has expanded to cover not only fiduciaries but virtually anyone
who has property of another in possession. Under the influence of the MPC, in
many jurisdictions embezzlement has been consolidated into the general concept of
theft. See Section 31.02 TPC and Section 223.1 MPC.
If I were two-faced, would I be wearing this
one?
Laws should be made to protect the trusting as
well as the suspicious.
As through this world I've traveled, I've seen a
lot of funny men;
some will rob you with a six-gun and some with a
fountain pen.
Fraud may consist as well in suppression of what
is true as in the representation of what is false.
The statutory crime of
false pretenses (1- Wiki), (2), (3) is a crime of deception. It is aimed at
deterring and punishing deceivers (cheaters, swindlers, con-men) from gaining
title to property by deception (deceit, fraudulent misrepresentation). The
first false pretense statute entered English law as a misdemeanor in 1756. It
was necessary, since the common law crime of larceny was a crime against
possession and sometimes owners were deceived by misrepresentation into parting
with title or title and possession to their
property. The theory that kept common law larceny from applying in this
situation was that when, as a result of false representation, the defendant
obtained title to property rather than mere possession, there could be no
larceny because there was no opportunity for a subsequent misappropriation. But
what about cheaters who only got possession of property as a result of
deceitful misrepresentation? Even with the crime of false pretenses, there was
still a gap between larceny and false pretenses when the the deceiving cheater
only got possession of property. The upshot of that quandary resulted in the
the 1779 Pear's Case, 168 Eng. Rep. 208, of horse-stealing
where the common law judges extended common law larceny to situations where the
trick or misrepresentation that resulted in the cheat gaining possession alone
was treated as a trespass to possession and thus larceny. [Filling the Gap
in Larceny with Larceny by Trick: Remember Pear's Case where
Pear hired or rented a horse owned by Finch from a livery, intending from the
outset to take the horse to a different town and sell it, which he did that
same day. The horse's owner, Finch, did not intend to pass title to his horse,
only possession. The common law court said that the possession was not
consensual because of Pear's fraudulent intent when he first received it.
Pear's fraudulent possession was never legal. When Pear sold the horse, the
fraudulent conversion was a trespass to the owner's possession and, therefore
common law larceny. More specifically it was called larceny by trick.
When you think about how many rental horses there were in those times,
extension of larceny to this type of horse stealing made a lot of practical
sense, particularly since false pretenses didn't apply to the situation because
of no intent by the livery services to transfer title or title and possession
of their horses.]
Back to false pretenses.
We know that the limitations of common law larceny led to the statutory
misdemeanor of false pretenses. When you look for false pretense look for
transfer of title to property based on fraud. False pretenses is a crime
against ownership of property. False pretenses typically consists of the
following elements: (1) a false representation, i.e., a
misrepresentation; (2) of amaterial; (3) past or present fact;
(4) that is intended to and does cause the victim to pass title to his
property; (4) to the misrepresenting party who knows his/her
representation to be false and who intends thereby to defraud the victim.
You are looking for a misrepresentation of a past or present factof
monetary significance, not a future promise or present intention, coupled with victim
reliance on the misrepresentation playing a material part in inducing
the victim to pass title, not just possession, of the victim's
property to the accused, plus knowledge by the accused that his
misrepresentation is false and an intent to defraud the victim. Remember, false
pretenses involves a taking of title or title and
possession of property with the consent of the owner; however, the
owner's consent to the passage or giving up of title is not deemed effective
because it was secured or induced by misrepresentation of a material previously
or presently existing fact i.e. fraud. The facts must show that the victim gave
up title because s/he relied on the misrepresentation. Notice that false
promises of future occurrences did not qualify as misrepresentations. False
pretenses is consolidated in the crime of theft under TPC Section 31.02 and is a species of "theft"
under MPC Section 223.3
Cheats, swindles, and
cons are sometimes the logical deceptive extensions of the sort of behavior
that might be considered perfectly respectable in legitimate dog-eat-dog
business.
Vito Corleone - The Godfather (the classic
example)
Extortion as defined by
statute generally in many jurisdictions is the act or practice of obtaining
property something by illegal means, as by force, intimidation or coercion. (1), (2), (3),
(4).
In common law days, the so-called common law extortion was a
limited offense - committed by a public official who illegally obtained
property under color of office, esp., an official's collection of an unlawful
fee.
Common Law - In common law days, the statutory crime
of extortion was limited in subject matter and scope. Extortion was the corrupt
collection of an unlawful payment by an official under color of office. Neither
threat nor coercion was an element of the offense. Modern day extortion
statutes are broader and encompass the obtaining or attempting to obtain
property of another by means of a threat(coercion, intimidation).
Some refer to the crime of extortion as "blackmail." The crime
of extortion is akin to robbery in the sense that it involves use of threat to
obtain property, but it differs because the threat is not of immediate violent
action. For example, the robbery threat might be as follows: "Your money
or you will be injured or killed right now." The extortionate threat does
not have to be one that is carried out in the presence of the the victim, as is
true with traditional common law robbery where the taking is from the person by
means of actual or threatened violence. See robbery below. The extortionate
threat can also be of action that is not unlawful or violent, e.g., the threat
to expose truthful information that would damage another's reputation by
exposing truthful information or to ruin a person's credit score. The
extortionate threat can be a threat of future harm, not necessarily physical.
For example, an extortionate threat might be as follows: "Your money or
your vacation cottage will be torched." (or "Your kids will be hurt
or abducted some time in the future," or "Your husband/wife will be
told about your sexual infidelity with a co-worker," or "You'll be
accused of battery," or as judge in your criminal case, "I'll give
you the maximum punishment," or "You'll be reported to the Better
Business Bureau for rendering sub-par service.") In the case of public
servants extorting a victim, the public servant may even be required to do the
act that s/he threatens to do unless the victim provides him/her with property.
Attempted larceny and larceny merge into extortion. Some jurisdictions, see MPC
Section 223.4 and TPC Section 31.03 below, require that the money or
other property actually be obtained. In those jurisdictions, when the would be
extortionist is arrested before obtaining the loot, he will be liable for attempted
extortion (attempted theft if the extortion crime is consolidated).
Note that there is a
crime known as compounding that might at first blush be confused with
theft by extortion. How does compounding differ from extortion? In compounding
the unlawful act is the putative complainant in a criminal case (who becomes
the defendant in the compounding case) soliciting, accepting,or agreeing to
accept a benefit in consideration of abstaining from, discontinuing or delaying
a criminal proceeding; it applies only after criminal proceedings have been
instituted. See, for example,Section 36.05 TPC where the crime of compounding has
been made part of the offense of tampering with a witness.
The Model Penal Code treats theft in Article 223; forgery
and fraud are the subject of Article 224. The MPC defines "theft" in
three sections in terms of (1) theft by unlawful taking and
disposition (This encompasses the crimes of larceny and
embezzlement.), Section 223.2; (2) theft by deception (This
encompasses larceny by trick and false pretenses.), Section 223.3; and (3) theft
by extortion, Section 223.4. In addition to these three categories of
theft, the MPC also defines four other special categories of theft, namely, (1) theft
of lost, mislaid or misdelivered property, Section 223.5; (2) receiving
stolen property, Section 223.6; (3) theft of services, Section
223.7; and (4) theft by failure to make required disposition of funds
received, Section 223.8. Finally, the MPC defines the non-theft (and, thus,
not consolidated) offense of unauthorized use of automobiles and other
vehicles, Section 223.9.
MPC Consolidation: Re consolidation, the issue bound up in the consolidation of
theft crimes is whether we should preserve the rather complex differentiations
between the different property crimes and the strict charging rules that
accompanied that complexity. This antedated system required prosecuting
attorneys to make very neat choices when carving an allegation of a property
crime out of a given set of facts. History revealed that under the old
complex system defendants charged with one type of property crime would often
seek and sometimes obtain reversal on appeal by contending that the evidence
technically established the commission of a different property offense than the
one charged, i.e., a claim of fatal variance between the allegata and
the probata - the allegations don't conform to the proof.
Section 223.1 MPC consolidates theft offenses into a single offense, setting
forth several different "theft" crimes and saying that the
prosecution may prove a different form of theft crime than was charged.
Specifically, with reference to Article 223 - Theft and Related Offenses, it
says, "Conduct denominated theft in this Article constitutes a single
offense. An accusation of theft may be supported by evidence that it was
committed in any manner that would be theft under this Article, notwithstanding
the specification of a different manner in the indictment or information,
subject only to the power of the Court to ensure fair trial by granting a
continuance or other appropriate relief where the conduct of the defense would
be prejudiced by lack of fair notice or by surprise."
MPC Deprivation: The MPC definition of "deprive"
is found in Section 223.0(1) MPC. It, like the Texas definition in Section 31.01(2) TPC, is considerably broader than the
common law larceny requirement of intent to permanently deprive. Specifically,
Section 223.0(1) states: "deprive" means: (a) to withhold
property of another permanently or for extended a period as to appropriate a
major portion of its economic value, or with intent to restore only upon
payment of reward or other compensation; or (b) to dispose of the property so
as to make it unlikely that the owner will recover it.
The MPC eliminates the
common law requirement of asportation and requires only the unlawful taking or
exercise of unlawful control. See Section 223.2(1) MPC. The MPC includes, under
the definition of theft, anyone who takes or exercises unlawful control. See
Section 223.2(1). The "unlawful" requirement has the purpose of
necessitating that the taking or control be without the owner's effective
consent.
MPC Theft By Unlawful
Taking or Disposition -
Section 223.2 deals with movable property in (1) which says that a person is
guilty of theft if he unlawfully takes, or exercises
control over, movableproperty of another with purpose to
deprive him thereof, and (2) which says that a person is guilty of theft if he
unlawfully transfers immovable property of another or any
interest therein with purpose to benefit himself or another not entitled.
MPC Theft by Deception - Section 223.3 describes the four
circumstances in which one will be liable for theft when he purposely obtains property
of another by deception, i.e., (1) one creates or reinforces a
false impression, including false impressions as to law, value, intention or
other state of mind; but deception as to a person's intention to perform a promise shall
not be inferred from the fact alone that he did not subsequently perform the
promise; or (2) prevents another from acquiring information which would affect
his judgment of a transaction; or (3) fails to correct a false impression which
the deceiver previously created or reinforced, or which the deceiver knows to
be influencing another to whom he stands in a fiduciary or confidential
relationship; or (4) fails to disclose a known lien, adverse claim or other
legal impediment to the enjoyment of property which he transfers or encumbers
in consideration for the property obtained, whether such impediment is or is
not valid, or is or is not a matter of official record. The Section also
makes clear that the term "deceive" does not, however, include falsity
as to matters having no pecuniary significance, or puffing by
statements unlikely to deceive ordinary persons in the group addressed. We are
all exposed to overblown statements in advertising, e.g, the old jalopy that
has a sign on the windshield saying "Just like new!" or the soap
powder that "cleans like magic" or the cigarette that claims
"one puff and it's springtime." These statements are not deceptive in
the criminal sense of affecting (influencing) the judgment of another in the
transaction. Compare with "deception" in Section 31.01(1) TPC.
MPC Theft by Extortion - Section 223.4 MPC defines theft by
extortion as purposely obtainingproperty of another by threatening to;
(1) inflict bodily injury on anyone or commit any other criminal offense; (2) accuse anyone of a criminal offense; (3) expose any secret tending to subject any person to hatred,
contempt, or ridicule, or to impair his credit or business repute; (4) take or withhold action as an official, or cause an
official to take or withhold action; (5) bring about or continue a
strike, boycott or other collective unofficial action, if the property is not
demanded or received for the benefit of the group in whose interest the actor
purports to act; (6) testify or provide information or withhold testimony or
information with respect to another's legal claim or defense, or (7) inflict
any other harm which would not benefit the actor. Compare with
"coercion" in Section 1.07 (9) TPC.
Note that the property
must be obtained by the extortionist for MPC theft by
extortion to exist. (Texas takes the same approach.) Otherwise, the offense
will be attempted theft. Note that the MPC makes it an affirmative defense to
prosecution based on paragraphs (2),(3) or (4) above that the property obtained by threat of
accusation, exposure, lawsuit or other invocation of official action was honestly
claimed as restitution or indemnification for harm done in the
circumstances to which such accusation, exposure, lawsuit or other official
action relates, or as compensation for property or lawful services. This has
the effect of creating a claim of right defense that the prosecution must
disprove beyond a reasonable doubt when the defense produces evidence of claim
of right when the threat fits within the (2), (3) and (4) in the above
paragraph (red for easy location). Apparently a creditor
may threaten a debtor with loss, but only to the amount lawfully owed to the
creditor. But may the creditor also threaten to sully the debtor's reputation
in the business community in order to exact immediate payment of the debt?
MPC Theft of Lost,
Mislaid or Misdelivered Property: MPC Section 223.5
covers scenarios involving theft of lost, mislaid or misdelivered property.
(Texas has no corresponding law.) The MPC states that a person who comes
into control of property of another that he knows to have been lost, mislaid,
or delivered under mistake is guilty of theft if, with the purpose to
deprive the owner thereof, hefails to take reasonable measures to restore
the property to the one entitled to it. Notice that, unlike the common
law, the MPC does not require that there be a reasonable clue to ownership at
the time of the taking of lost property. This can come to light later in the
process.
MPC Receiving Stolen
Property: The MPC makes a person guilty of theft if
he purposely receives, retains, or disposes of movable property or another
knowing that it has been stolen, or believing that it has probably
been stolen, unless the property is received, retained, or disposed
with purpose to restore it to the owner. The word "receiving" means
acquiring possession, control or title, or lending on the security of the
property. The "lending" provision allows the crime to include
pawnbrokers. Notice that the MPC includes the word retain; this
covers the situation where a person might have innocently received the property
but after later learning that the property was stolen chooses to keep it.
Compare with the Section 31.03(b)(2) & (3) TPC approach to receiving
and concealing by requiring that the accused "know"
the property was stolen by another and making it and law enforcement
stings aspects of unlawful appropration in the theft crime.
How much must the
alleged receiver of stolen property know about the "hotness" of the
goods s/he is receiving? What do we mean when we say that the receiver must
know or believe that the property was stolen. Actual knowledge or belief is
required by most jurisdictions. The MPC allows belief that the property has probably been
stolen to suffice as the culpable mental state. Would it be appropriate to
allow conviction if a reasonable person in the defendant's position would or
should have "known." Should recklessness or even criminal negligence
suffice? In some states, proof less than actual knowledge that the goods
were stolen will suffice. In other states, e.g., Texas, actual knowledge is
required. However one may find that some of those states, e.g., Texas, provide
for a presumption, usually in the form of a permissible inference, of actual
knowledge that the goods were stolen when certain circumstances are shown to
exist.
Interestingly, the MPC
provides that the knowledge or belief that the property has been stolen ispresumed in
the case of a "dealer" (a person in the business of buying or selling
goods including apawnbroker) who (a) is found in possession or control of
property stolen from two or more persons on separate occasions; or (b) has
received stolen property in another transaction within the year preceding the
transaction charged; or (c) being a dealer in property of the sort received,
acquires it for a consideration which he knows is far below its reasonable
value. This presumption can be used by prosecutors who have the gumption to go
after the pawnbrokers, junkyards, auto salvage yards, etc. that are
receivers of stolen goods. [Note: A competent burglar commits several hundred
burglaries before having to do time. That burglar has no personal use for the
majority of the property that he steals. The burglar needs to convert the
stolen property for cash. Where does s/he go to accomplish this goal? Common
sense would suggest that most stolen property winds up in pawnshops and flea
markets, often in a different city from where it was stolen. If we want to
discourage burglars, it might be wise to choke off their sources for converting
the stolen goods into cash. That would mean strong regulation of pawn shops and
flea markets. You may be interested to know that the pawnshop owners typically
have strong lobbies in the state legislatures. See the discussion below
relating to Texas.]
MPC Theft of Services: Unlike common law larceny that applies only to tangible personal
property, the MPC law of theft covers theft of service. Section 223.7 MPC
states that a person is guilty of theft if he purposely obtains services which
he knows are available only for compensation, by deception or threat,or by
false token or other means to avoid payment for services; also, a person
commits theft if, having control over the disposition of services of others ,
to which he is not entitled, he knowingly divertssuch services to
his own benefit or to the benefit of another not entitled thereto. Services are
broadly defined to include labor, professional services, transportation,
telephone service, accommodation in hotels, restaurants, etc. If the actor
refuse to pay or absconds without paying or offering to pay gives rise that the
service was obtained by deception as to intention to pay. Compare with theft of
service inSection 31.04 TPC.
MPC Claim of Right
Defense to Theft: The MPC, Section 223.1(3), provides claim
of right as anaffirmative defense to theft when
the actor (a) is unaware that the property or service was that of another
or (b) acted under an honest claim of right to the property or
service involved or that he had a right to acquire or dispose of it
as he did or (3) took property exposed for sale, intending to purchase and pay
for it promptly, or reasonably believing that the owner, if
present, would have consented. The MPC appears to grant the claim of
right defense to theft of services as well as property. [Note: Unlike the TPC,
"affirmative defense" under the MPC, Section 1.12(1), means that the
defense has the burden of production, but once that burden has been met, the
prosecution has the burden of persuasion to rebut the affirmative defense
beyond a reasonable doubt.]
Grading MPC Theft Crimes: The MPC approach to grading crimes is found in Section 223.1(2).
Theft is a felony of the third degree if the amount involved exceeds $500, or
if the property stolen is a firearm, automobile, airplane, motorcycle,
motorboat or other motor-propelled vehicle, or in the case of receiving stolen
property, if the receiver is in the business of buying and selling stolen
property. An other theft is a misdemeanor, except if the property was not taken
from the person or by threat, or in breach of a fiduciary obligation, and the
actor proves by a preponderance of the evidence that the amount involved was
less than $50, the offense is a petty misdemeanor. As to amounts,
remember that the MPC was written in 1962 when the value of a dollar far
exceeded its present value. Inflation would drastically change the MPC $
numbers. [Note: Prior to enactment of the revised TPC in 1974, $50 was the line
between felony and misdemeanor theft in Texas.] Notice that this MPC grading
scheme applied to all theft. [Note: At the this time in 1962, Texas had some 60
different theft crimes, each with its own separate punishment provision.]
In some circumstances,
however, the MPC does not confine itself to actual value of
the property stolen when calculating the appropriate punishment category.
Section 223.1(2)(c) indicates that "the amount involved in a theft shall
be deemed to be the highest value, by any reasonable standard, of
the property or services which the actor stole or attempted to
steal." The grading factors are considered as material elements of the
offense according to the MPC commentary in Section 1.13(10) and in Section
2.02, Comment 1. The mens rea element applies to all the material
elements of the offense. Since there is no mens rea specified in the grading
language, a standard of recklessness will be applied. So if an actor recklessly
believes he is stealing a cheap glass imitation of the Koh-i Noor
diamond but is actually stealing the real thing, he may be convicted
of theft using the real value of the diamond. However,when there is an honest
but negligent mistake under Section 2.04(1) as to the value of
the property, i.e., where the actor mistakenly, though negligently, believes
that the property is worth less than it actually is, mistake can be used to
lower the grade of the offense. The theory of the MPC is that the actor's own
culpable state of mind, even though grounded in negligence, should be the
focus. So if the thief negligently thinks he's stealing a cheap glass imitation
of the Koh-i
Noor diamond but is actually stealing the real thing, value will be
based on the glass imitation. [Note: This differs from the Texas approach to
monetary value which is based on the actual fair market value of
the property and not what the thief thinks he's getting. See Section 31.08 TPC] What should "value" mean?
Should we always look only to the actual value of the stolen property or
services, or, when the actor mistakenly thought he was stealing something of
materially less value, should he be allowed to claim mistake of fact and
benefit by being punished according to what he thought the value of the
property or service was?
Consolidation in Texas: Unlike the MPC that sets forth several theft crimes and
says that the prosecution may prove a different form of theft than was charged,
the TPC creates a single theft offense and allows it to be proven in many
different ways. Texas, in Section 31.02 TPC, consolidates various forms of theft,
e.g., theft by false pretext, conversion by a bailee, theft from the person,
shoplifting, acquisition of property by threat, swindling, swindling by
worthless check, embezzlement, extortion, receiving or concealing embezzled
property, and receiving or concealing stolen property, into a single offense -
theft - and allows it to be proven many different ways. When more than one
theory of theft, e.g., consent by owner ineffective due to deception,
coercion, youthfulness, intoxication, or diminished capacity for property
disposition due to advanced age, is charged in separate paragraphs of the
charging instrument, consolidation allows the accused to be convicted even if
the jury members differ as to what manner of theft, e.g., why the consent was
not effective, was committed. One might worry that consolidation of theft
crimes prevents the punishing authority from fitting punishment to the
particular manner and mode of commission. One answer to that quandary is to
establish a range of punishment that is broad enough so that it can be tailored
to the facts of the particular case.
The Texas Penal Code
treats theft in Chapter 31. The general theft of property statute is Section 31.03TPC.
Section 31.03 (a) TPC defines theft as the unlawful appropriation of
property with intent to deprive the owner of the
property. Notice that the appropriation must be without the "effective
consent" of the owner (invito domino - without the consent of the owner).
The "owner" includes anyone with title to the property, possession of
the property (whether lawful or not) or with a greater right to actual care,
custody, control or management of the property than the defendant. See Section 1.07 (35) TPC.
The gravamen of the
theft offense in Texas is in depriving the owner of the use, benefit, enjoyment
of his or her property without consent. See McClain v. State, 687 S.W.2d 350 (Tex. Crim. App. 1985).
The requirement of "appropriation" serves to distinguish the theft
crime from destruction of property crimes, e.g., criminal mischief, see Sections 28.03, 28.04 TPC. "Appropriate" is the
key word in the Texas definition of theft. We don't use the word
"taking." See Sections 31.01(5), 31.03(a) TPC. The word
"appropriate" refers in part to an acquisition or exercise of
control over the property. The various methods by which D may
unlawfully appropriate need not be pled in the charging instrument, e.g.,
indictment, but they must be proved by the Texas prosecutor. There is not
requirement that the thief (D) actually converted the property to his own use
and benefit; it is sufficient if it is shown that he appropriated it by
acquiring control over it or acquiring title to it. Exercise of control does
not require receipt of the property.
TPC Ownership of
Property - As to
"ownership," the Texas statute talks about "appropriation"
without the owner's "effective consent." Who
qualities as an "owner"? Notice that Section 1.07 TPC defines the word "owner" in
terms of title, possession (lawful or unlawful) or greater right to possession.
SeeMcGee v. State, 572 S.W.2d 723 (Tex. Crim App. 1978). As
to situations in which D has a joint interest in property, see Compton v. State, 607 S.W.2d 246 (Tex. Crim App. 1980)
holding that D's joint interest in property prevents the use of the concept of greater
right to possession in determining whether D appropriated the property
without the effective consent of V. What about partnership property? We know
that the common law held that D could not be liable for larceny of partnership
property owned jointly with V. The Texas position is not settled by binding
case law. Note the basic property principle in the United States that the owner
of property has a superior right to possession of his stolen property over a
bona fide purchaser - a piratus et latronibus capta dominium non mutant -
the ownership of things taken by pirates and thieves does not change; in some
countries of Western Europe, the bona fide purchaser of stolen property has a
superior property interest than the original owner from whom it was stolen.
TPC Intent to Steal -
The Animus Furandi - The Texas theft crime includes the mental state of "intent
to deprive the owner of property." See Section 31.03(a) TPC. Intent to permanently deprive surely
suffices to prove the deprivation (intent to steal, animus furandi)
The element of theft, but a deprivation less than permanent also suffices when
the intent is to withhold the property for so extended period of time that a
major portion of the value or enjoyment is lost to the owner or where one
intends to dispose of property in a manner that makes recovery of the property
by the owner unlikely. Again, it is also not essential to show that D intended
to benefit himself. See Section 31.01(2) TPC for the definition of
"deprive."
TPC Lost Property - In Texas, in order for lost property
to be subject to theft by the finder, it would seem that the circumstances must
be such that the owner can be identified by ordinary means, i.e., there must be
an indicia of ownership. See Williams v. State, 268 S.W.2d 670 (Tex. Crim. App.
1954).
TPC Misdelivered
Property - If a bank
erroneously credits D's account with money and D knows that the credit was a mistake,
may D spend the money without being liable for theft? See Clayton v. State, 872 S.W.2d 4 (Tex.App [Tyler]) 1993) which
holds that this would be theft since lack of effective consent is shown by the
exercise of control over property that D knows he has no right to possess. See
alsoBailey v. State, 885 S.W.2d 193 (Tex. App. [Dallas]
1994).
TPC Claim of Right - The TPC is silent on claim of right.
[Note: There's a history to the glaring omission of claim of right from the
theft chapter of the TPC. The proposed
revision of the TPCpresented to the Texas legislature by the State Bar in
1973 had a provision for the claim of right defense. The proposed Texas Penal
Code stated in Section 31.10 - "It is a defense to prosecution under
this chapter that the actor: (1) acted under an honest claim of right to the
property or service involved; or (2) acted in the honest belief that he had the
right to obtain or exercise control over the property or service as he did; or
(3) obtained or exercised control over property or service honestly believing
that the owner, if present, would have consented." The Texas
Legislature, composed largely of persons unlettered and naive in matters
relating to the basic law of crimes and defenses, took the claim of right
provision out of the revised code that it enacted in 1974. We can all thank our
lucky stars that these politicians didn't do much tampering with the proposed
code. It turned out to be one of the best in the country - not because of what
the legislature did, but because of what they didn't do.] One might argue that
claim of right in Texas is simply a part of mistake of fact. But remember that
any claimed mistake of fact under Section 8.02 TPC must be reasonable (another
moronic change penal code change made by the Texas legislature that deprives
the person who negligently or recklesslypicks up
his neighbor's mail or newspaper or a stranger's umbrella or briefcase from
claiming mistake of fact to negate the element of intent to steal in
a theft/larceny prosecution); whereas, traditional claim of right is based
simply on an honest, good faith belief, reasonable or unreasonable,
that it is the actor's property or that the owner has given the actor
permission to take it or that the owner has abandoned it.
TPC Receiving Stolen
Property - Law enforcement
officers don't always catch the thief in the act of unlawful taking. What
happens when a suspect is found in possession of property that has been
recently stolen? Should case law allow a jury to reasonably infer or conclude
(a permissible inference) from such circumstantial proof that the suspect stole
the property? It stands to reason that those who steal property may remain
in possession of it for some time afterwards. On the other hand, persons
may acquire property honestly from a thief shortly after it was taken. It is
always possible that the defense may have a reasonable explanation for the
accused's possession, but one can imagine circumstances that would support the
logical inference that the suspect in possession of stolen property stole the
property. Suppose, however, that we think that someone else might have stolen
the property and that the defendant is a receiver of stolen property,
perhaps a fence. If the defendant is the receiver of the stolen property and
knew that the property was stolen, should we create a separate crime of
receiving stolen property or just consolidate receiving into the general
concept of theft? Texas, inSection 31.02 TPC, has chosen to consolidate receiving
and/or concealing stolen or embezzled property into the general Section 31.03 theft crime.
TPC Theft by False
Pretenses - Theft by deception falls
within the general theft statute in Texas. Deception is one of the conditions
that makes consent to appropriation of property ineffective. SeeSection 31.01(3)(A) TPC. deception is defined in five
circumstances in Section 31.01 (1) TPC. re puffing or overblown statements,
notice that Section 31.01(1) requires that the deceptive words or conduct be
ones likely to affect the judgment of another in the transaction.
TPC Theft by
Extortion -
Extortion is expressly consolidated into the crime of theft, Section 31.03 TPC, by the consolidation statute, Section 31.02 TPC. Consent to appropriation of property is
not effective if it is induced by coercion (threat). To find the extortion
theory in the general theft crime, one must look to the definition of
"coercion" in Section 1.07(9) TPC. Note that under Section 1.07(9)
"coercion" means, among other things, a threat, however communicated:
(A) to commit an offense; (B) to inflict bodily injury in the future on the
person threatened or another; (C) to accuse a person of any offense; (D) to
expose a person to hatred, contempt or ridicule; (E) to harm the credit or
business repute of any person; (F) or take or withhold action as a public
servant, or to cause a public servant to take or withhold action. The threat
may be implied or explicit. The harm threatened is not always required to be
against the person threatened. For example, the threat to commit an offense,
e.g., a bomb on an airliner, even though it doesn't endanger the person, e.g.,
the mayor, threatened or the threat to inflict bodily injury in the future may
be against someone, e.g., a loved one, other than the person threatened or the
threat to harm business repute may be against someone other that the person
threatened. Although most states don't require appropriation of the property at
issue for extortion to exist, Texas does because the theft statute requires
appropriation. If the extortionist is arrested before he appropriates the
victim's property, the offense will be attempted theft.
TPC Value - The TPC approach is to consider what the actor
intends to steal as immaterial in the proof of value. Sections 31.08 (theft) and 32.02 TPC (fraud) tell you how to to determine value at
the relevant time and place, e.g., fair market value, or if that cannot be
determined, replacement value. Notice that the actor can offset the ascertained
value of the property or service if he can prove by a preponderance of the
evidence that he gave consideration for or had a legal interest in the property
or service stolen. See Section 31.08 TPC. The TPC allows for aggregation of
value by the prosecution when all the items are stolen pursuant to one
scheme or continuing course of conduct. See Section 31.09 TPC . For aggregation, the owner does not
have to be the same, nor do the thefts have to occur closely in time and space.
If the prosecution chooses to aggregate value, it must be pled in the in the
charging instrument. What if the prosecution alleges a wrong value? Where the
charge is a misdemeanor theft and the proof shows it to be a felony amount,
jurisdiction remains in the misdemeanor court, and the defendant is tried for a
misdemeanor with no ground of complaint. if the charge is a felony , but the
proof shows a misdemeanor, the felony (district) court has jurisdiction, but
only for a misdemeanor. In cases where value is material, it is an element of
the crime and failure to prove it is fatal.
Sometimes value is not
material to the grade of offense. There are a number of examples in Section 31.03(e) TPC. For example, regardless of value theft
from the person or theft from a human corpse or grave is a state jail
felony. Special interest groups have done what is necessary to have certain
animals, e.g., sheep, cattle, goats, swine, horses, exotic fowl, and exotic
livestock, or any part thereof protected by the statute regardless of value.
[Note: What punishment for stealing a ham or rack of ribs or a side or beef or
a can of cat food made from horse meat? Would the part have to be from a
rustled animal or could it be from the red meat section of the corner grocery?]
As the rural Texas judge explained after being asked why killers don't
get indicted and cattle thieves get twenty years:
"There's a lot of folks in Texas that need killin', but we
don't have any cows that need stealin'."
Basic
Texas Theft Punishment Ladder Based on Valuation
Amount of Monetary Loss
Punishment Range
$200,000 or more
First Degree Felony
$100,000 - $199,999
Second Degree Felony
$20,000 - $99,999
Third Degree Felony
$1,500 -
$19,999
State Jail Felony
$500 - $1,499
Class "A" Misdemeanor
$50 - $499 or
Class
"B" Misdemeanor
$20 -$499 and defendant
obtained the property
by issuing or passing a check or
similar sight draft
order in a manner described
by Section 31.06 TPC
Less than
$50 or
Class "C" Misdemeanor
$20 and
the defendant obtained the property
by issuing or passing a check
or similar sight draft
order in a manner described by
Section 31.06 TPC
TPC - Special Texas
Statutes That Protect Consumers From Fraud - In Texas we have specific penal statutes that
protect the consumer from fraud, e.g., Deceptive Business Practices, Section 32.42TPC; and penal statutes that protect business,
e.g., forgery, Section 32.21 TPC, credit card abuse,Section 32.31 TPC, and false statement to obtain
credit, Sections 32.32 TPC; misapplication of fiduciary property or
property of a financial institution, including removing mortgaged property, Section 32.45 TPC ; and issuing a bad check with
knowledge that there are insufficient funds on account,Section 32.41 TPC ( a class C misdemeanor, irrespective
of the amount of the check and without the necessity of proving intent to
steal).
Forgery (1),
(2) (also
included passing a forged instrument) is a statutory crime and not
judge-made. Forgery can be described as the false making or altering of a
legally significant instrument with the intent to defraud, e.g., a forged
check. (1 -
defined). Since forgery in most instances is committed with the purpose of
obtaining property, it may be viewed as a form of theft by deception. The
purpose of criminalizing forgery is to discourage and punish those whose
conduct puts the authenticity of instruments into question. The typical early
forgery statutes required that the fraudulent making or altering of a writing
with legal significance had to render it false and not merely inaccurate or a
misrepresentation.
MPC Forgery - Forgery under the MPC is defined in
Section 224.1. The MPC definition of a "writing" is quite
broad. A person is guilty of forgery if, with purpose to defraud or
injure anyone, or with knowledge that he is facilitating a fraud or injury to
be perpetrated by anyone, the actor (a) alters anywriting of
another without his authority; or (b) makes, completes, executes,
authenticates, issues or transfers any writing so that it
purports to be the act of another who did not authorize that act, or to have
been executed at a time or place or in a numbered sequence other than was in
fact the case, or to be a copy of an original when no such original existed; or
(c) utters (passes) any writing which he knows to be forged in
a manner specified in (a) or (b) above. Note that Section 224.4 MPC contains a
prohibition against simulating antiquities and rare objects.
TPC Forgery - Texas recognizes the separate offense of
forgery and criminal simulation as property crimes in Sections 32.21 and 32.22 TPC See McFarland v. State, 605 S.W.2d 904 (Tex. Crim. App.
1980) that explains the types of forgery, i.e., (1) making, (2) uttering
(passing), and (3) possessing a forged instrument.
Moving across the dimly lit parking
lot, a law student was suddenly approached
by a grizzly stranger who had slipped
out of the shadows. "Please sir," asked the stranger,
"would you be so kind as to help a
poor unfortunate fellow who is hungry and out of work?
All I have in the world is this
gun."
Common Law - Common law robbery may be defined
generally as the illegal taking of property from the person of another, or in
the person's presence, by violence or intimidation. may be visualized as a property
crime aggravated by violence or threat of violence against the person or as a
crime of violence against the person aggravated by a threat to property. (VIDEO) (VIDEO) Either way you look at it, robbery involves a
combination of the laws of assault (battery) and larceny (theft). We could
probably get along with simply charging the offender with the two separate
crimes of assault (or battery) and larceny (theft). However, we have chosen to
create the crime of robbery, into which these separate crimes merge.
The common law of
robbery (1),
(2)
is generally defined as the commission of theft from the person or in his
presence by the use of force or threat of force. In effect, the robbery crime
involves a violation of a property right (proof of a completed larceny is
required) coupled with a crime against the person (assault
or battery), i.e., assault for the purpose of larceny, coupled with the
completion of larceny. In the absence of statutory modification the constituent
elements of robbery at common law are as follows: (1) a trespassory
taking; (2) accompanied by asportation; (3) of personal property of value; (4)
from the person of another or in his presence; (5) against his will (without
his effective consent); (6) by use of violent force or putting him in fear
through threat of immediate force; (7) with intent to steal (animus furandi).
At common law, the force
or intimidation had to occur during the commission of larceny. Common law
courts typically required that the force or intimidation occur during the
actual taking. Thus, at common law, when a defendant took possession of
property without the intimidating use of force or fear but then employed force
or fear in order to keep the property or effect escape, the offense would not
be robbery. Force used to prevent a victim from recapturing property that was
already taken and carried away was not robbery, though it would be assault or
battery. [Note that not all takings from the person are robbery. The pickpocket
or even the purse-snatcher who takes without threat of force or use of violence
is a larcenist/thief from the person, not a robber.] On the other hand, a
minority of jurisdictions including the MPC and the TPC, hold that force used
in attempt to commit, in commission, or in flight after the attempt or
commission of theft qualities as robbery. Also, some jurisdictions, including
the MPC and TPC, do not adhere to the common law rule that required a completed
theft as an element of robbery. Under the common law, the incomplete robbery,
e.g., where theft was not completed, would be treated as an attempted robbery.
In some jurisdictions, e.g., Texas but not the MPC, the crime of robbery is
aggravated when the robber uses or exhibits a deadly weapon.
[Note: Women should be
wary of hijackers on the streets. Robbery is the only crime in which women seem
more likely to be victimized by strangers rather than intimates, other family
members, or acquaintances.]
MPC Robbery - Section 222.1 MPC defines the offense of
robbery. Like Texas, MPC robbery only occurs "in the course of committing
theft." The three circumstances which give rise to robbery are: (1)
inflicting serious bodily injury upon another, (b) threatening another with or
purposely putting him in fear of immediate bodily injury; or (3) committing or
threatening immediately to commit any felony of the first or second degree. The
MPC interprets the requirement of force or intimidation to include force or
threat of force that takes place during attempted theft or during flight from
attempted or completed theft. Robbery occurs under the MPC even though the
robber is unsuccessful in taking the property. An attempted theft and a threat
to cause injury suffice for MPC robbery. The focus is on the forceful aspects
of the offense rather than the property aspects. The MPC limits robbery to
forceful or intimidating acts that constitute an immediate threat to commit or
commission of a first or second degree felony offense or involve either serious bodily
harm or the threat of it. The offense jumps from a second degree felony to a
first degree felony if in the course of committing the theft the actor attempts
to kill anyone, or purposely inflicts or attempts to inflict serious bodily
injury. (Note: Most jurisdictions, e.g., Texas, do not limit robbery to
this high level of bodily harm.] When there is no threat of a first or
second degree felony and less than serious bodily injury or the threat of it,
one may look to the MPC offenses of extortion, assault and theft as potential
charges. Note that, like the common law, claim of right is a defense to MPC
robbery.
TPC Robbery - The offense of robbery is found in Chapter 29 TPC. There are two robbery offenses, Robbery in Section 29.02 TPC and Aggravated Robbery in Section 29.03 TPC. Robbery can only occur in the course of
committing theft, i.e., conduct that occurs in an attempt to commit, during the
commission, or in immediate flight after the attempt or commission of theft.
The essence of robbery as opposed to theft is a physical interaction in the
form of injury or threat of injury between the accused and the victim. However,
unlike the common law, it is not required that the victim of the theft be the
same person who is injured or threatened with imminent bodily injury or death.
Note that a theft or attempted theft can turn into a robbery if the thief
inflicts injury or threatens injury during the attempt, the commission, or
flight from attempt or commission of the theft. Similarly, robbery can occur in
Texas, under the terms of the robbery statute, where D obtains or attempts to
obtain property from V1, e.g., the bank manager husband who is at the bank,
while D is threatening imminent bodily injury or death to V2, e.g, D is holding
a loaded gun at the head of V1's wife, V2, at the family home. Visualize a
scenario where D calls V1 from the family home and with a gun at V2's head
threatens to kill or rape V2 unless V1 immediately delivers $50,000 to an
innocent waiting delivery service messenger hired by D. Unlike common law
but like the MPC, one may be liable for robbery even though the theft was not
completed. See Gilmore v. State, 822 S.W.2d 350 (Tex. App. - Ft. Worth
- 1992).
Federal Robbery Statutes - The crime of carjacking (1 - US Atty's Manual), 18 USC 2119, is one example of the federal government's
incursion into what is normally considered violent street crime that the state
courts can handle. Carjacking 18 USC Section 2119 is a species of robbery. The crime
is described thusly: Whoever, with the intent to cause death or serious bodily
harm (1) takes a motor vehicle that has been transported, shipped, or received
in interstate or foreign commerce from the person or presence of another by
force and violence or by intimidation, or attempts to do so, shall - (1) be
fined under this title or imprisoned not more than 15 years, or both, (2) if
serious bodily injury (as defined in section 1365 of this title, including any conduct that, if the
conduct occurred in the special maritime and territorial jurisdiction of the
United States, would violate section 2241 or 2242 of this title) results, be fined under this title
or imprisoned not more than 2 years, or both, and (3) if death results, be
fined under this title or imprison any number of years up to life, or both, or
sentenced to death. SeeJones
v. United States, 526 U.S. 227 (1999).
The
faults of the burglar are the qualities of the financier.
George
Bernard Shaw
Common Law
The object of the common
law and modern day burglary offense (1),
(2) is not
just to prevent trespasses, but rather trespasses that are the first step to
target crimes that may be of greater magnitude, e.g., rape, robbery, murder,
assault, theft, etc. Burglary was a common law crime that was designed to
protect the habitation, i.e. the dwelling. It was a felony. Common law burglary
was defined as "the breaking and entering of the dwelling house of another
at night, with intent to commit a felony therein." Note the elements: (1)
actual or constructive breaking; (2) entry by the
defendant or any portion of his body or by an inanimate instrumentality that of
itself is capable of committing the target felony; (3) at night,
e.g., thirty minutes after sunset and thirty minutes before sunrise; (4) dwelling
house, i.e., a place of human habitation and the surrounding curtilage,
e.g., garage; (5) occupied by another; 96) with intent to commit a
felony inside the dwelling. Breaking occurred when one used some amount
of force to create an opening (a hole) or enlarge an existing one one in the
structure or substructure, i.e., parts of the house that are built into the
house or when one constructively broke by threat or fraud. At common law,
entry existed if a body part or an instrument or tool capable of committing the
offense, e.g., a long hook to grab the property, enters the property with the
actor on the other end of it. However, if the tool, e.g., a pry bar, is used
only to gain entry, e.g., breaking a lock or forcing open a window, this alone
was not enough to constitute an entry because the tool is not used to commit
the offense. The intent to commit a felony had to be present at the time
of entry. However, it was not necessary that the felony be committed for
burglary to occur. If the felony was committed, there was no merger of the
burglary and the target felony.
Modern statutes based on
common sense have greatly enlarged the scope of the burglary crime. In some the
requirement of breaking is omitted. In most, the common law restriction that
limited the crime to the dwelling house has been expanded to include all buildings,
residential and commercial. Often it is a crime to remain in a building that
was open to the public after it has closed. Nighttime has typically been
eliminated as an element in burglary statutes, though it may function as an
aggravating factor in some statutes. Intent to commit a felony has been
expanded to include all species of theft (misdemeanor and felony) and
misdemeanor assaults.
Burglary is a good
example of a conduct offense rather than a result offense.
From a conceptual viewpoint, burglary is akin to a criminal attempt, an
inchoate offense, in that it is a crime even though the object offense is not
completed. Generally, criminal laws don't allow conviction for an inchoate
offense to commit an inchoate offense, e.g., attempt to commit a conspiracy.
But what about attempted burglary? One might argue that attempted burglary
constitutes an attempt to attempt to commit the object offense and therefore
could not be a cognizable offense. However, since burglary is view as a
substantive, rather than inchoate, crime, attempted burglary is typically
accepted as a valid crime.
MPC Burglary - Burglary is defined in
Section 221.1(1) MPC. The crime is defined as entering a building or occupied
structure, e.g., a place, vehicle or structure adapted for overnight
accommodation of persons or for carrying on business therein, whether or not a
person is actually present, with the purpose to commit a crime therein, unless
the premises are at the time open to the public or the actor is privileged or licensed
to enter. It is an affirmative defense that the building or structure was
abandoned.
MPC burglary is a second
degree felony if it is perpetrated in the dwelling of another at night or if
the actor, in the course of committing the offense (this
includes attempt to commit the object offense or in flight after the attempt or
commission of the object offense), purposefully, knowingly, or recklessly
inflicts or attempts to inflict bodily injury on anyone or is armed with
explosives. Otherwise, burglary is a third degree felony. As to merger of
burglary with the object offense, only when the object offense is a first or
second degree felony is joint conviction for the burglary and commission or
attempt to commit the object offense allowed. See Section 221.1(3) MPC
TPC Burglary - The offense of burglary is
contained in Chapter 30 TPC. Aside from the felony crime of burglary of
buildings and habitations in Section 30.02 TPC, there are a couple of discrete burglary
offenses, e.g, vehicles, coin-operated machines. The latter two are Class
A misdemeanors, except that burglary of a vehicle has a provision for
enhancement of punishment based on prior convictions for burglary of a vehicle.
The felony offense of
burglary of a building can be committed in any of three ways: (1) By entering a
building not then open to the public, without the effective consent of the
owner, with intent to commit a felony, theft or assault; (2) By remaining
concealed in a building, without the effective consent of the owner,
with intent to commit a felony, theft, or an assault; or (3) By entering a
building, without the effective consent of the owner and committing or
attempting to commit a felony, theft or assault. If the actor is charged with
burglary under Section 30.02(a)(1) or (a)(2), the prosecution must prove that
the actor intended to commit a felony or theft at the time the actor entered or
remained concealed in the building. On the other hand, if the actor is charged
under (a) (3), the prosecution must prove only that the actor intentionally or
knowingly entered the building without the owner's permission and while inside
committed or attempted to commit a felony or theft. Section 30.01 TPC defines a "building"
broadly as any enclosed structure intended for use or
occupation as a habitation or for some purpose of trade, manufacture, ornament
or use. Common law breaking is not necessary. Entry is required by (1) and (2)
above, but entry may be accomplished by intruding any part of the body or by intruding
any physical object connected with the body. Notice that the object offense may
be misdemeanor theft or misdemeanor assault. Burglary and the object felony,
assault or theft don't merge. The actor is liable for each and may be convicted
of each.
Burglary of a commercial
building is a state jail felony. Burglary of a habitation is a second degree
felony, except when any party to the offense entered the habitation with intent
to commit any felony other than felony theft or committed or attempted to
commit a felony other than felony theft, in which case the burglary of the
habitation is a first degree felony. What's a habitation? Notice that
"habitation" is defined broadly as a structure or vehicle that is
adapted for overnight accommodation of persons. It included each separately
secured or occupied portion of the structure or vehicle and each structure
appurtenant to or connected with the structure or vehicle. What is not a
habitation? Case law suggest that an unoccupied house with no water, gas,
electricity, light bulbs, appliances or furniture would not be a habitation.
See Blankenship v. State, 780 S.W.2d 198 (Tex. Crim . App.
1988).
Note: Residential
property burglaries accounted for roughly 68 percent of all burglary
offenses in 2007 in the U.S. This is the one serious property crime that many
of us have or will have experienced when the string runs out. Residential
burglary will remain popular with professional criminals so long as the law
does not require pawn shops to photograph, fingerprint. and record the driver's
license of every person who pawns property and does not connect pawnshop
information with a national database of stolen property.
At common law, trespass
(1), (2), in
the sense of invasion of possession of realty, was a civil action (trespass
quare clausum fregit - a tort involving a person's unlawful entry on
another's land that is visibly enclosed). Trespass was not a crime at early
common law. (1 - indicating that criminal trespass did eventually
become a common law crime in the mid-eighteenth century), (2), (3), (4).
Criminal trespass is a
statutory crime in many states. It is defined generally as an unlawful
trespass on property that is clearly marked against trespass by signs or
fences. It also includes a trespass in which the trespasser remains on the
property after being ordered off by a person authorized to do so. (1), (2), (3)
MPC Trespass - The Model Penal Code makes a person
liable for criminal trespass if, knowing that he is not licensed or privileged
to do so, s/he enters or surreptitiously remains in any building or
occupied structure, or separately secured or occupied portion thereof.
The offense is a misdemeanor if committed at night; otherwise, it is a petty
misdemeanor. There is also provision for liability of the so-called
"defiant trespasser" who knowing that he isn't licensed or privileged
to do so, enters or remains in any place as to which notice of trespass is
given by (1) actual communication to the actor; (2) posting in a manner
prescribed by law or reasonable likely to come to the attention of intruders;
or (3) fencing or other enclosure manifestly designed to include intruders. The
defiant trespasser is liable for a petty misdemeanor if he defies an order to
leave personally communicated to him by the owner of the premises or other
authorized person. Otherwise, the offense is a noncriminal
violation. See Section 221.2 MPC for further information.
TPC Trespass - The Texas Penal Code defines criminal
trespass in Section 30.05. The statute, which is lengthy, covers entry
or remaining on property, including an aircraft, of another without effective
consent, or entering or remaining in a building of another (ownership is not
required) without effective consent if the actor (1) had notice that entry was
forbidden; (2) received notice to depart but failed to do so. Trespass is
deemed an offense against the possession and control and not an offense against
the property itself. See Reed v. State, 762 S.W.2d 640 (Tex. App. -
Texarkana1988, pet. ref'd)
Greed, for lack of a better word, is good.
Lack of honor by men in high places.
FDR's explanation for the crash of '29
Decency, security and liberty alike demand that
government officials shall be subjected to the same rules of conduct that are
commands to the citizen. In a government of laws, existence of the government
will be imperiled if it fails to observe the law scrupulously. Our Government
is the
potent, the omnipresent teacher. For good or for
ill, it teaches the whole people by its example. Crime is contagious. If the
Government becomes a lawbreaker, it breeds contempt for law;
it invites every man to become a law unto
himself; it invites anarchy.
Olmstead v. United States
Every government is a parliament of whores.
The trouble is, in a democracy, the whores are
us.
Who controls money controls the world.
The United States of America has been brought to
the brink of financial
chaos by lying, cheating, and stealing folks in
fancy clothes.
Will any of them be brought to the bar of
justice?
Will our elected legislators ever represent the
welfare of the people
rather than the economic interests of those who
fill their campaign coffers?
The United States is a corporate oligarchy hiding
itself in a cloak called democracy.
Politicians are corporate prostitutes. The
American Congress is kept,
kept by big corporations the way a whore is kept
by a rich man.
Who owns us? Corporate executives, politicians
and the owners of the press and television.
Is there a modern day equivalent to tar and
feathers and ropes and pitchforks
by which the millions who have lost their homes,
jobs, and savings
could express their displeasure with Wall Street
outlaws?
With the government's crosshairs on Wall Street,
Washington politicians are in
perfect position to milk the financial wrongdoers
of huge political contributions.
Federal crimes are
solely creatures of statute. There is no federal common law of crimes. In this
sense, the federal system is akin to a code state. Here's some summary material
regarding federal crimes that relate to property.
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