Embezzlement

Held, Embezzlement. James has committed the statutory crime of embezzlement. For
James to be criminally liable for the statutory offense of embezzlement there must
be:
1. the misappropriation; or
2. a fraudulent conversion (specific intent requirement); 3. of the property;
4. of another;
5. by one who is already in lawful possession of it.
Note: Embezzlement was not a crime at common law. LaFave, Wayne R. Criminal Law.
Fifth Edition, Hornbook Series – West Publishing (2010) Thompson Reuters
STATUTORY CRIME of EMBEZZLEMENT
STATUTORY CRIME of EMBEZZLEMENT
BAILMENT and TRUST AGREEMENT SITUATIONs
Generally, when it comes to the statutory crime of embezzlement there is a: •
bailment (trust agreement) situation in which the bailor (decedent)
entrusted his/her property (the art collection in the trust);
• to the bailee (James);
• who is in lawful possession of the property (because of the bailment or trust
agreement); and
• later decides to convert the property to his/her own use. LaFave, Wayne R.
Criminal Law. Fifth Edition, Hornbook Series – West Publishing (2010) Thompson
Reuters
4
2

5
10/21/2020
STATUTORY CRIME of EMBEZZLEMENT
STATUTORY CRIME of EMBEZZLEMENT
MISAPPROPRIATION ELEMENT
With embezzlement the misappropriation of the property occurs:
• while the defendant (James) has lawful possession of the property;
• and later begins to fraudulently convert it. LaFave, Wayne R. Criminal Law. Fifth
Edition, Hornbook Series – West Publishing (2010) Thompson Reuters
STATUROTY CRIME of EMBEZZLEMENT
STATUTORY CRIME of EMBEZZLEMENT
By a Person in Lawful Possession of the Property
There is a distinction between possession when it comes to larceny and possession
when it
comes to embezzlement.
LARCENY
When it comes to the common law crime of larceny there must be a “trespass in the
taking” which means the defendant (who has mere custody) must take the property out
of the possession of the possessor; which means that he cannot have had lawful
possession.
EMBEZZLEMENT
When it comes to the crime of embezzlement remember that the property must already
be in
the embezzler’s lawful possession when he misappropriates it.

Larceny by Trick

At common law, the specific intent crime of Larceny by Trick required the defendant
to:
1. obtain possession (NOT TITLE);
2. of the personal property;
3. of another;
4. by means of a false representation or promise; (oral or written)
5. that he knows is false at the time he takes possession; and
6. in the future intends to fraudulently convert the property (specific intent);
and
7. later does.
LaFave, Wayne R., Criminal Law, Fifth Edition, Hornbook Series – West Publishing (2

False Pretenses

RULE: In order to commit the statutory, specific intent crime of False Pretense the
defendant must:
1. make a false representation (must be false when made); of
2. a material present or past fact (a future fact would not suffice –
however, modern law now recognizes a future fact);
3. which causes the victim to pass title (ownership);
4. of his property to the wrongdoer;
5. who knows his representation to be false; and
6. intends to defraud the victim (specific intent).

Larceny

The trespassory taking and carrying away of another persons perso Al property with
the intent to permanently deprive that person of their property