Rethinking Criminal Law docx

The Interests Protected in Punishing Fraud 49 Chapter Two: Common-Law Larceny and Its Metamorphosis 59 §2.1.. This is the explicit rationale in the Model Penal Code for as-sessing liabil

Rethinking Criminal Law

Rethinking Criminal Law

George P Fletcher

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Library of Congress Cataloging-in-Publication Data

Fletcher, George P.

Rethinking criminal law / George P Fletcher.

p cm.

Originally publish^ BogtQB • Little, Brown, c l?78.

Includes bibliographical references and index.

ISBN 0-19-513695-0

1 Criminal law 2 Criminal liability I Title.

K5018.F57 2000 345—dc21 99-086719

1 3 5 7 9 8 6 4 2

Copyright(c) 2000 Oxford University Press

To Fanny Fletcher Naxon

a woman of valor

Preface

Table of Abbreviations and Short-Form Citations xxv

Part I—Rethinking Specific Offenses i

Chapter One: The Topology of Theft 3

§1.1 Introduction 3

§1.1.1 Larceny and Embezzlement 4

§1.1.2 Obtaining Property by False Pretenses 10

§1.2 Points of Stress in the Topology of Theft 13

§1.2.1 Receiving the Chattel with a

Fraudulent Purpose 15

§1.2.2 The Problem of Finders 18

§1.2.3 The Problem of Mistaken Delivery 20

§1.2.4 The Problem of Delivery from a Third Party 22

§1.2.5 A Guide to Analyzing Theft Offenses 26

§1.3.2 Larceny as a Crime Against Possession 35

§1.3.3 Protecting Objects and Protecting

Economic Interests 39

§1.3.4 The Interests Protected in Punishing Fraud 49

Chapter Two: Common-Law Larceny and

Its Metamorphosis 59

§2.1 Enigmas of the Common Law 59

xix

§2.1.1 Possessorial Immunity 61

§2.1.2 Enigmas of the Common Law:

The Carrier's Case 66

§2.1.3 The Problem of Staged Larceny 70

§2.2 A Theory for Resolving the Enigmas of the

Common Law 76

§2.2.1 Possessorial Immunity 81

§2.2.2 Carrier's Case 83

§2.2.3 Staged Larceny 86

§2.2.4 The Rationale of Manifest Criminality 88

§2.3 The Metamorphosis of Larceny 90

§2.3.1 The King v Pear 90

§2.3.2 Reinterpreting the Tradition 94

§2.3.3 The Intellectual Background 100

§2.4 Judicial Expansion of the Common Law 103

§2.4.1 Liability of Finders 104

§2.4.2 The Problem of Mistaken Delivery 107

§2.4.3 Legislative Consolidation 110

Chapter Three: Two Patterns of Criminality 115

§3.1 Abstracting from the History of Larceny 115

§3.1.1 The Pattern of Manifest Criminality 115

§3.1.2 The Pattern of Subjective Criminality 118

§3.1.3 Maxims Common to Both Patterns

§3.3.1 Two Doctrinal Issues in Attempts 135

§3.3.2 Objectivist Approaches and the

Theory of Attempts 139

A Stages of Commission 140

B The Criterion of Danger 141

C Apprehension and UnequivocalConduct 141

§3.3.3 Manifest Criminality and

Impossible Attempts 146

A The Shooting Cases 149

B The Poisoning Cases 152

C The Empty Receptacle Cases 154

D Receiving Stolen Property 154

§3.3.4 A General Theory of Attempting 157

§3.3.5 The Ascendancy of Subjective Criminality 166

§3.3.6 The Principles Behind the Subjectivist

§3.4.1 Possession Offenses as a Form of

Discretionary Social Control 202

§3.5 The Overt Act in Treason 205

§3.5.1 Compassing Death and Overt Acts 207

§3.5.2 Overt Acts and Treason Under the

Constitution 213

§3.6 An Excursus on Conspiracy 218

§3.6.1 Inconsistent Criteria of

Inchoate Liability 220

§3.6.2 The Requirement of an Overt Act 223

§3.7 Stop-and-Frisk and Flirtations with

Manifest Criminality 225

§3.8 The Two Patterns of Criminality Revisited 232

Chapter Four: Homicide: Three Lines of Liability 235

§4.1 Toward a Third Pattern of Liability 235

§4.2 Intentional Killings 242

§4.2.1 Provocation 242

§4.2.2 Diminished Capacity 250

§4.2.3 Premeditation and Deliberation 253

§4.2.4 Intention in Homicide 256

§4.3 Homicide by Excessive Risk-Taking 259

§4.3.1 Liability for Manslaughter 262

§4.3.2 Liability for Murder 264

§4.4 Formal Criteria of Liability 274

§4.4.1 The Historical Background 276

§4.4.2 The Misdemeanor-Manslaughter Rule 285

§4.4.3 Tort Theory Points the Way 287

§4.4.4 Felony-Murder in the Second Degree 290

§4.4.5 Conflicting Rationalia for Curtailing

the Second-Degree Felony-Murder Rule 297

§4.4.6 First-Degree Murder: The Means Tests 303

§4.4.7 First-Degree Murder: Felony-Murder 307

§4.4.8 The Institutional Context of Formal Liability 319

§4.5 Comparative Notes 321

§4.5.1 Analogues to Manslaughter 322

§4.5.2 The Standard Form of Criminal Homicide 325

§4.5.3 Aggravated Homicide 326

A The Motive of the Slaying 326

B The Manner of Killing 328

Chapter Five: The Jurisprudence of Homicide 341

§5.1 The Uniqueness of Homicide 341

§5.1.1 Blaming and Tainting 343

§5.1.2 Omissions and Negligence 349

§5.1.3 Interaction with the Victim and

Culpability by Degrees 350

§5.1.4 The Outer and Inner Circles of Liability 355

§5.2 The Outer Circle of Liability 358

§5.2.1 The Jurisprudence of Acting 358

§5.2.2 The Jurisprudence of Causing Death 360

A The Degree of Causal Contribution 362

B The Victim Endangers His or HerOwn Life 365

C An Intentional Intervening Act

by a Third Person 366

§5.2.3 The Jurisprudence of Life and Death 372

§5.3 From Desecration to a Pattern of Harmful

Consequences 379

§5.3.1 Desecration in a Secular Society 380

§5.3.2 A Pattern of Harmful Consequences 385

§5.3.3 The Three Patterns of Liability 388

Part II—Rethinking the General Part 391

Chapter Six: The Quest for the General Part 393

§6.1 The Need for Synthesis 393

§6.2 Some Preliminary Distinctions 395

§6.2.1 Descriptive and Normative Uses of

the Same Terms 396

§6.2.2 Conceptual and Empirical Propositions 401

§6.2.3 Analyzing Statutes and Explicating the

Structure of the Criminal Law 406

§6.3 Punishment and Its Rationale 408

§6.3.1 On What Punishment Is 409

§6.3.2 The Rationale of Punishment 414

§6.4 The Concept of Acting 420

§6.4.1 Acts and Omissions 421

§6.4.2 Acts Contrasted with Conditions 426

§6.4.3 The Teleological Theory of Action 433

§6.5 The Concept of Intention 439

§6.5.1 Intending and Desiring 440

§6.5.2 Intention and Recklessness 442

§6.5.3 Intending and Omissions 449

§6.5.4 Intention in Ordinary Language 449

§6.5.5 Intention and Motives 452

§6.5.6 A Glossary of Intents 452

§6.6 The Concepts of Wrongdoing and Attribution 454

§6.6.1 Wrongdoing and Norms 456

§6.6.2 Punishment and Wrongdoing 459

A The Components of Desert 461

B Defiance as Wrongdoing 463

§6.6.3 On the Indispensabiliry of Wrongdoing 466

§6.6.4 On the Externality of Wrongdoing 469

§6.6.5 Wrongdoing and Harm 472

A Arguments for the ThreeGerman Theories 476

B The Evidentiary Value of Harm 481

C Harm and Remorse 482

§6.6.6 Wrongdoing, Mistakes and Accidents 483

§6.7 Tensions in the Theory of Attribution 491

§6.7.1 The Descriptive Theory of Attribution 492

§6.7.2 The Normative Theory of Attribution 495

§6.7.3 Responsibility and Attribution 496

§6.7.4 Guilt Without Attribution 497

§6.8 Objectivity and Subjectivity in Criminal Theory 504

§6.8.1 Utility and Objective Standards 506

§6.8.2 Justice and Attribution 511

Chapter Seven: The Structure of Wrongdoing 515

§7.1 Introduction 515

§7.2 The Problem of the Burden of Persuasion 516

§7.2.1 The Private Law Style 519

§7.2.2 The Private Law Style in

Criminal Litigation 524

§7.3 The Revolt Against the Private Law Style 532

§7.3.1 The Emergence of a Normative

Theory of Guilt 532

§7.4 The Structure of Wrongdoing 552

§7.4.1 Definition and Justification 555

§7.4.2 On Norms and Privileges 562

§7.4.3 On Distinguishing Between

Norms and Exceptions 566

§7.5 Due Process and Fair Warning 569

§7.5.1 The Problem of Vagueness 570

§7.5.2 Legislative Control over the Refinement

of the Criminal Law 573

§7.6 The Structure of Offenses: A Review 575

§7.6.1 The Definition of the Offense 575

§7.6.2 Wrongdoing and Justification 576

§7.6.3 Culpability, Wrongdoing and Excuses 577

Chapter Eight: The Theory of Derivative Liability 581

§8.1 The Concepts of Direct and of Derivative Liability 581

§8.2 Derivative Liability for Omissions 585

§8.2.1 Causation and Derivative Liability 588

§8.2.2 An Alternative to "But For" Causation 593

§8.2.3 Verbs of Interference and Causation 599

§8.2.4 Liberty, Interference and Allocation 602

§8.2.5 The Quinlan Case 606

§8.3 Derivative Liability: The Criteria of Duty 611

§8.3.1 The Personal Relationship Between the

Defendant and a Dependent Person 611

§8.3.2 A Community of Shared Risks 614

§8.3.3 Contract and Undertaking 614

§8.3.4 The Defendant's Creating the Danger 618

§8.3.5 Statutory Duties 620

§8.3.6 Duties To Control Third Persons 622

§8.3.7 The Scope of Duties To Avert Harm 622

§8.4 Derivative Liability for Omissions: Some Doubts 625

§8.4.1 Conceptual Problems 625

§8.4.2 Constitutional Arguments 628

§8.4.3 Accommodations 631

§8.4.4 Why Punish the Failure To Avert Harm? 633

§8.5 Perpetrators and Accessories: Derivative Liability

for Human Conduct 634

A The Formal Basis of Liability 635

B Causation 635

C Intent 635

§8.5.1 Direct Liability for Perpetration 637

§8.5.2 Two Categories of Accessories 640

§8.5.3 A Special Category of Instigation 644

§8.5.4 Neighboring Concepts of Complicity 645

A Accessories After the Fact 645

§8.6.2 The Rationale for Categorically Mitigating

the Accessory's Punishment 654

§8.7 Specific Problems of Demarcation 657

§8.7.1 Is the Person Who Culpably Executes the

Deed Always a Perpetrator? 657

§8.7.2 When Is a Conspirator a Co-perpetrator? 659

§8.7.3 Accessories and Perpetrators-by-Means 664

A F's conduct is wrongful but excused 664

B F's conduct is justified and thereforenot wrongful 667

C F's act is formally legal 670

§8.7.4 The Special Status of Instigators 671

§9.1.1 What Mistakes Are About 684

A Mistakes about elements ofthe definition 684

B Mistakes related to justificatoryclaims 684

C Mistakes about excusing conditions 685

D Mistakes in cases of negligentrisk-taking 685

E Mistakes about elements extrinsic

to culpability 685

§9.1.2 Outcomes in the Analysis of Mistakes 687

A Mistakes Negating Intent 687

B Mistakes Negating Culpability 687

C Irrelevant Mistakes 690

§9.2 Arguments Favoring the Exculpatory

Effect of Mistakes 691

§9.2.1 Mistakes Negating the Required Intent 691

§9.2.2 The Borderland of Definition

and Justification 698

§9.2.3 Requiring That Exculpatory Mistakes

Be Reasonable 707

§9.3 Strategies for Disregarding Mistakes 713

§9.3.1 Mistakes Extrinsic to Wrongdoing

and Culpability 713

§9.3.2 Arguments for Strict Liability:

Special Governmental Purposes 716

§9.3.3 Arguments for Strict Liability:

The Wrongdoer Runs the Risk 723

§9.3.4 Arguments for Strict Liability:

Mistakes of Law 730

§9.4 Domesticating Mistakes of Law 736

§9.4.1 The German Experience 737

§9.4.2 The American Instrumentalist Rationale 755

Chapter Ten: The Theory of Justification

and Excuse 759

§10.1 Tensions in the Theory of Justification 759

§10.1.1 The Interactional Effects of

Justificatory Claims 759

§10.1.2 The Problem of Putative Justification 762

§10.1.3 Is There a Single Theory of Justification? 769

A The Value of Autonomy 770

B Acting in the Name of theGovernment 771

§10.2 The Theory of Lesser Evils 774

§10.2.1 Lesser Evils in the German Tradition:

The Statutory Background 775

§10.2.2 The Emergence of Extra-Statutory Necessity 779

§10.2.3 The Emergence of Necessity as a

Justification in Anglo-American Law 788

§10.2.4 Limitations on the Privilege of Necessity 792

§10.3 The Theory of Excuses 798

§10.3.1 Excuses, Character and Desert 799

§10.3.2 Excuses and Voluntariness 802

§10.3.3 Compassion and Mercy in the

Theory of Excuses 807

§10.3.4 Do Excuses Amend the Law? 810

§10.3.5 The Utilitarian Theory of Excuses 813

§10.4 A Comparative Survey of Excuses 817

B Is Insanity a Scientific Issue? 839

C The Movement To Abolish theInsanity Defense 843

§10.4.5 Intoxication 846

§10.4.6 Inconsistent Duties 852

§10.5 The Theory of Necessary Defense 855

§10.5.1 Necessary Defense as an Excuse 856

§10.5.2 Necessary Defense as a Variation

A The Duty To Retreat 864

B Rights of Third Parties 868

C The Culpability of the Aggressor 869

D The Problem of Proportionality 870

Table of Cases 877 Index 885

Criminal law is a species of political and moral philosophy Itscentral question is justifying the use of the state's coercive poweragainst free and autonomous persons The link with moral philos-ophy derives from one answer to the problem of justifying the use

of state power If the rationale or a limiting condition of criminalpunishment is personal desert, then legal theory invariably inter-weaves with philosophical claims about wrongdoing, culpability,justifying circumstances and excuses

A number of factors have inhibited the refinement of American criminal law and its underlying theory First, for over acentury the prevailing philosophy of criminal law has been theutilitarian theory of sanctions inspired by the work of Beccaria,Bentham, Holmes, Stephen and, in our time, Herbert Wechsler andthe Model Penal Code Though the utilitarians have sharpened oursensitivity to the social costs and benefits of punishment, this em-phasis on goals has distracted our attention from the problem ofjustice to the individual accused The question whether a sanction

Anglo-is in the social interest has overshadowed the more basic inquirywhether the punishment of the accused is morally justified

The emphasis in much recent thought is on the use of thecriminal law to identify and confine potentially dangerous offend-ers This is the explicit rationale in the Model Penal Code for as-sessing liability in cases of criminal attempts The good of thewhole is furthered by isolating a dangerous person in prison Andthis is all that is thought necessary to justify the suffering of theindividual confined

The shift in emphasis from guilt to dangerousness betokens amovement to merge the criminal law with the administrative pro-

cess of civil commitment The confinement of the dangerously sane was once radically distinguished from punishment of theguilty But the fashion now is to view both processes as aspects ofone mechanism of social control Even the requirement of culpabil-ity is reinterpreted as an evidentiary index of dangerousness Thatthe wicked are punished and the insane confined, is no longertaken to be an ordering distinction of the law Not surprisingly,this emphasis on social control has inhibited refinement of thebasic principles of criminal law The emphasis on interrelated in-struments of social control calls into question the identity of crimi-nal law as a distinct field of inquiry.

in-Another factor inhibiting study of the theoretical foundations

of criminal liability is the progressive legitimation of discretionaryjudgments within the formal criminal process Insensitive laws are

no evil if we can rely on the "good sense" of prosecutors If thereare important differences among offenses and offenders, we canrely on judges and parole boards to individualize punishment un-der systems of discretionary and indeterminate sentencing Thusthe criminal law may have a function in warning the public aboutconduct that might be punished, but the fine discriminations inthe level of punishment are left to discretionary judgments

If this has been the general drift of the criminal law, there arenonetheless signs that the tide may change The revival of norma-tive ethics and political theory signals the retreat of utilitarian in-fluence The sustained critique by Rawls, Nozick, Dworkin andUnger—all writing from the perspective of different moral philo-sophies—has expanded the potential of normative theory Ourminds are coming unstuck from the calculus of utility and gropingtoward new theories of justice and of the good More than a dec-ade ago, H L A Hart helped to stimulate this search, first, bylimiting the principle of utility to the justification of the criminallaw as a whole; and further, by demonstrating that the criminallaw lends itself to rigorous philosophical analysis In more recentyears, the search for justice in the criminal law has revived retri-bution as the rationale of punishment There is also growing con-cern that moral culpability function as a necessary condition of lia-

bility In the openness of the present climate and with the breaking philosophical work of the last decade, the times may beright for a major commitment by many scholars to reworking andrefining the substantive criminal law

ground-There are in fact urgent practical reasons for taking the nal law seriously as a body of principles bearing on the just pun-ishment of offenders The mood of the country has suddenlyshifted against indeterminate sentencing Whatever the stimulusfor this shift, the future may well lie with determinate sentencingschemes of the type recently enacted in California The newscheme prescribes a standard penalty for each offense, with a per-missible variation of one year upwards or downwards If a sen-tencing judge elects the more serious or the more lenient sentence,

crimi-he or scrimi-he must justify tcrimi-he deviation in a written opinion Parole islimited to time earned for good behavior

The turn toward determinate sentencing means that the ing of close distinctions can no longer be avoided by the exercise

draw-of judicial discretion The burden falls on the criminal law to statethe criteria that ought to be sufficient for the standard sentenceand which should point in favor of aggravation or mitigation Ifthere is an important difference between the perpetrator who firesthe fatal shot and the accessory who supplies the weapon, the dis-tinction should be articulated and defended in principle If thereare good reasons for recognizing excuses, such as mistake of law,the claims should be recognized openly in the criteria defeating li-ability, not covertly in the process of prosecutorial or sentencingdiscretion If determinate sentencing is going to work, then wemust pay closer attention to the criteria that justify prescribed sen-tences

This book does not propose a detailed set of criteria definingcriminal liability; rather it provides the groundwork for others tocarry forward the enterprise If there is a contribution, it lies in re-working the apparatus with which we think about criminal liabil-ity

Two methodological guidelines shape the argument of thebook First, as often as possible, the method of analysis is com-

parative, with primary attention to German law German legal ory suggests alternatives to Anglo-American law; first, because thedominant strain of the German literature has remained relativelyinsulated from utilitarian legal theory, and secondly, because thesystem has long regarded prosecutorial discretion as an impermis-sible solution to substantive legal issues Ironically, as the mood ischanging in the United States, so it is in West Germany As we re-discover the virtues of retribution, younger German scholars pressfor rehabilitation as the proper focus of the criminal law As Kantand Hegel are exhumed in the United States, they are interred inthe land of their birth These ebbs and flows of intellectual history

the-do not undermine the lessons we can derive from the German perience and they, from ours But the two legal cultures' being out

ex-of phase requires us to be conscious ex-of our historical situation.The next step for us, as for the Germans, may be to cultivate ideasthat are in eclipse in their country of origin

The second methodological premise reveals my debt to theAnglo-American legal tradition As the common-law judge es-chewed abstract principles for concrete precedent, we begin byembracing the details of the law —concrete and technical detailsabout larceny, burglary, attempts and homicide General proposi-tions emerge from these details, but slowly The first set of generalclaims seeks to organize the major criminal offenses in three pat-terns of liability—the patterns of manifest criminality, subjectivecriminality and of harmful consequences The thesis of the firstfive chapters is that the criminal law is a polycentric body of prin-ciples Each of the major patterns of liability must be appreciated

on its own terms We must resist the temptation to reduce thecriminal law to a single formula for determining when conductought to be treated as criminal

It is only in the second half of the book that we take up eral themes that cut across the three patterns of liability In Chap-ter Six, we explore the conceptual bases for formulating generalprinciples of criminal liability and then seek to defend the dis-tinction between wrongful acts and personal accountability forwrongdoing What we find, however, is that the theory of

This book builds heavily on the work of common law as well

as Continental theorists My regret is not being able to documentmore fully my debts to prior writers Early in my work on thebook, Susan Laemmle Fletcher made me realize that I was writingneither a hornbook nor a treatise, but a reformist, critical work.The titling of the book is her doing From this conception of theenterprise, one can derive, with some charity, a policy of foot-noting that leaves some important sources unmentioned

I am indebted to many people for helpful suggestions aboutthis draft of my ideas as well as earlier papers reworked in thebook, specifically, to Hans-Heinrich Jescheck and Albin Eser, foruseful critical suggestions about German law; Pat Hanlon, then of

the Harvard Law Review, for insights about the history of larceny;

Bruce May and Cole Durham, for valuable assistance and criticism

in the summer of 1977; Fred Parnon, for working on the index;Paul Brest, for thoughtful comments about Chapter Six The manu-script would not have taken shape without the assistance of PaulKahn, Susan Krinsky, Irene Jensen, Sandra Mullings, FranRichtman and Antonia Turman Above all, I am indebted to mystudents without whose audience and patient criticism these ideaswould never have matured Neither they nor my colleagues

could save me from the mistakes that careful readers will discoverand which I trust they will call to my attention.

A grant from the American Council of Learned Societies vided me with the free time necessary for thinking through thisbook and writing the first draft

pro-George P Fletcher

Santa Monica, Calif

March, 1978

Table of Abbreviations and Short-Form Citations

Decisions of the High State Court

(Oberlandes-gericht) in Bavaria, Criminal Cases

German Civil Code (Burgerliches Gesetzbuch) Decisions of the German Supreme Court (Bund-

esgerichtshof), 1951 to present

W Blackstone, Commentaries on the Law ofEngland (1765-69) (4 volumes)

P Bouzat & J Pinatel, Traite de droit penal et

de criminologie (2d ed 1970) (2 volumes)Bracton on the Laws and Customs of England(S Thome trans 1968) (4 volumes)

Decisions of the German Supreme Court in

Constitutional Cases

(Bundesverfassungsge-richt), 1952 to present

California Jury Instructions: Criminal (3d ed.1970)

E Coke, Third Institute (1644)

First Report from His Majesty's Commissioners

on Criminal Law, 26 Parliamentary Papers:

Merle & Vitu

M Hale, History of the Pleas of the Crown(1736) (2 volumes)

J Hall, General Principles of Criminal Law (2d

ed 1960)

W Hawkins, Pleas of the Crown (1716) (2 umes)

vol-O W Holmes, The Common Law (1881)

H H Jescheck, Lehrbuch des Strafrechts: gemeiner Teil (2d ed 1972)

All-Juristische SchulungJuristenzeitungCriminal Law: The General Part (eds H.Belaev & M Shargorodsky 1968) (in Rus-sian)

Course in Soviet Criminal Law: The CriminalOffense (eds A Piontovsky, P Romashkin

& V Chkhikvadze 1970) (volume 2 in ries) (in Russian)

se-Soviet Criminal Law: The General Part (eds

M Gel'fer et al 1972) (in Russian)Soviet Criminal Law: The General Part (eds

V Men'shagin et al 1974) (in Russian)Criminal Law: The Special Part (eds I Zago-rodnikov & V Kirichenko 1968) (in Russian)Course in Soviet Criminal Law: The SpecialPart (ed M Shargorodsky 1973) (in Rus-sian)

L Lambert, Traite de droit pe"nal special(1968)

W LaFave & A Scott, Criminal Law (1972)

R Maurach, Deutsches Strafrecht: AllgemeinerTeil (4th ed 1971)

R Maurach, Deutsches Strafrecht: BesondererTeil (5th ed 1969)

Monatsschrift fur deutsches Recht

R Merle & A Vitu, Traite de droit criminel(2d ed 1973)

Table of Abbreviations and Short-Form Citations

Smith & Hogan

Model Penal Code (Proposed Official Draft1962)

Neue Juristische Wochenschrift

H Packer, Limits ,,of the Criminal Sanction(1968)

R Perkins, Criminal Law (2d ed 1969)

S 1437, 95th Cong., 1st Sess (1977)

W Prosser, Law of Torts (4th ed 1971)Reichsgesetzblatt (German session law prior

to 1945)Decisions of the German Supreme Court

(Reichsgericht) in Criminal Cases, 1880 to

1944Decisions of the German Supreme Court

(Reichsgericht) in Civil Cases, 1879 to 1944

ment of the Kommentar cited to the author

responsible for that segment)

Soviet State and Law (periodical in Russian)Siiddeutsche Juristenzeitung

H J Rudolphi, F Horn, E Samson, H L.Schreiber, Systematischer Kommentar zumStrafgesetzbuch (1975) (each segment of the

Kommentar cited to the responsible author)

J Smith & B Hogan, Criminal Law (3d ed.1973)

H Welzel, Das Deutsche Strafrecht (llth ed.1969)

G Williams, Criminal Law (2d ed 1961)Zeitschrift fur die gesamte Strafrechtswissen-schaft

Pan One

Rethinking Specific Offenses

if we were so inclined Our objective will be to elicit the basicstructure of theft by focussing on three types of crime that havecrystallized in all Western legal systems The traditional pattern inFrance, Germany and the Soviet Union as well as Anglo-American

jurisdictions is to recognize a crime of larceny committed by taking the goods of another, a crime of embezzlement committed by im- properly keeping goods entrusted to the actor, and a crime of fraud

or false pretenses, committed by fraudulently inducing another to

part with his property

In general terms, we could identify the voluntary participation

of the victim as the source of the distinctions among these three

classic offenses Larceny is committed against an involuntary tim Embezzlement is committed against a victim who voluntarilyentrusts possession of his goods to the defendant, but who is aninvoluntary victim of the defendant's subsequent appropriation.The crime of obtaining property by false pretenses is committedagainst a victim who nominally consents to the transfer of hisgoods to the defendant Yet his nominal consent is induced byfraud and therefore does not reflect the owner's true preference In

vic-a fourth type of offense, extortion, the owner vic-agvic-ain nominvic-ally sents to the surrender of property But in this variation the consent

con-is induced by improper threats rather than fraud

One reason for concentrating our efforts on three core offenses

of larceny, embezzlement and fraud is that the working out of thecontours of these crimes, individually and in contrast with eachother, has proven to be a task with rich jurisprudential overtones

By studying the difficulties attendant to refining these offenses, wefind much to learn that is of general application to the theory ofcriminal liability

§1.1.1 Larceny and Embezzlement As we seek to be more

precise about larceny and embezzlement we should keep in mindthat larceny is one of the primordial crimes of Western culture.1 Itsroots extend back to the earliest stages of legal thought Embezzle-ment, in contrast, is almost always a later statutory refinement ofthe original common-law crime of larceny In English legal history,embezzlement is engrafted onto the crime of larceny in a series ofeighteenth-century statutory enactments,2 which typically took theform of extending larceny to encompass cases now called em-bezzlement In the early nineteenth century, the English courts be-gan to hold that the most far-reaching of these eighteenth-centurystatutes, that of 39 George III (1799), created a new offense of em-

§1.1 ' See Watkins, Studies in Indo-European Legal Language, Institutions, and

Mythology, in Indo-European and Indo-Europeans 321 (G Cardono et al., ed 1970);

D Daube, Studies in Biblical Law 235-305 (1947) See §2.2 infra.

2 15 Geo II, c 13, §12 (1742) (clerks of the Bank of England); 24 Geo II, c 11, §3 (1751) (clerks of the South Sea Company); 5 Geo Ill, c 25, §17 (1765) (clerks of the Post Office); 39 Geo Ill, c 85 (1799) (servants and clerks generally).

Introduction §1.1.

bezzlement.3 At about the same time, the French National bly recognized a comprehensive French crime of embezzlement inthe Napoleonic Penal Code of 1810.4

Assem-This basic difference in historical genesis accounts for severalproblems in defining larceny and embezzlement In Anglo-Ameri-can law, larceny received its first authoritative definition in theEnglish Larceny Act of 1916.5 In the course of history, judges havepunished larceny on the assumption that they knew what it was.6When the common-law writers and judges turned to a definition

of larceny, the terms that most often appear in their accounts are

(1) a trespassory taking and (2) animus furandi Today we would

say that the former was an objective element; the latter a jective dimension of the offense The term "trespassory taking"stood for a complex of three elements:

sub-a a physical movement of the object,7

b a taking from the possession of another,8 and

3 Regina v Headge, 168 Eng Rep 613 (1809) (held that the essence of the fense was "breach of trust"; therefore indictment properly founded on statute rather than common law).

of-4 Code Penal §408.

5 Larceny Act 1916, 6 & 7 Geo V, c 50, §1; the act defines the offense of ing" to apply to anyone "who, without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof." This definition has been super- ceded by Theft Act 1968, c 60, §1 ("dishonestly appropriates property belonging to another").

"steal-6 See §2.2 infra.

1 This element was known at common law as the requirement of asportation;

the indictment had to allege that defendant felonice cepit & asportavit See 3 Coke

108; 4 Blackstone 231; Perkins 263-65 It followed from this requirement that larceny could not be committed against immovable property The element is carried for- ward in the Larceny Act 1916, as the requirement of "carrying away." See note 5

supra.

8 This requirement is fundamental, but it is not mentioned in the common-law texts as part of the definition of larceny Bracton 150b; 3 Coke 107; 1 Hale 504; 1 Hawk- ins 134; 4 Blackstone 229 Nor is it in the definition given by the Larceny Act 1916,

supra note 5 The requirement of a taking from possession tends to be discussed in the

context of the rule that if the actor receives possession by delivery, he cannot commit larceny in subsequently appropriating the goods E.g., 1 Hale 505-06; 4 Blackstone 230-31.

c an act contrary to the will of the owner.9

Though the first element of physical movement is as forward as the law can be,10 the second issue of "taking from pos-session" has posed innumerable conundrums The problem is thatexcept in very early stages of the common law, possession hassometimes been more and sometimes less than what meets theeye A person may look as if he has possession of an object andnot have it Someone else, who is not even near the object, mighthave legal possession The concept of possession has matured (ordegenerated, depending on your taste) from a natural to a legalfact When someone looks as if he has possession but does not,under the law, we say that he has mere custody over the object Itmay be some consolation to know that all leading Western legalsystems have struggled with the metaphysics of custody and pos-session, and later we shall look at these efforts in abundant de-tail.11

straight-In addition to these three standard objective elements of atrespassory taking, a major dispute arose in the nineteenth centuryabout the intangible quality of trespass in the act of taking Thequestion was whether the word "trespass" meant the same thing

in larceny as connoted by the early common law of trespass vi et

armis 12 Did the act of stealing have to be tinged with stealth or

force? Or could one steal in a harmless, unobtrusive sort of way?This dispute, as we shall see, has never been completely resolvedand, indeed, invites us to consider the deeper underpinnings ofthe law of larceny

9 The element invito domino is mentioned continuously after Bracton 150b E.g.,

3 Coke 107; 1 Hale 504 Yet it is abandoned in the Theft Act 1968, c 60, §1 which omission generates problems in distinguishing larceny from false pretenses See

note 37 infra Note that the Model Penal Code also fails to mention this self-evident

element of larceny MFC §223.2.

10 Some complications are possible See Williams v State, 63 Miss 58 (1885) (D

shot a hog and turned it over, but this was insufficient for asportation).

11 See §§1,2.5, 2.2.1 infra.

12 The phrase vi et armis became standard after the Statute of Gloucester in 1278.

Yet there are doubts whether the phrase imparted any specific meaning See S som, Historical Foundations of the Common Law 247 (1969).

Mil-Introduction §1.1.

The requirement of animus furandi13 meant that in the course

of the trespassory taking, the actor have the "spirit of one ing." The common-law writers, Coke, Hale and Blackstone,14 werenever more precise about the intent required for larceny In thenineteenth century, we begin to find courts referring to "an intent

thiev-to steal"15 as a specification of the animus furandi and sometimesmore precisely to "an intent to deprive the owner permanently ofhis property."16 This latter set of words found its way into the 1916Larceny Act which, as noted, proposed the first legislative defini-tion of larceny in the English-speaking world.17

While the common law of larceny builds on a shared standing of what larceny is,18 embezzlement is a creature of legis-lative will that varies from jurisdiction to jurisdiction The legisla-tive schemes typically require (1) that the offender have beenentrusted with the object by the owner, or at least have possession

under-at the time of the offense, and (2) a subsequent act of deprivunder-ation,usually termed conversion or fraudulent appropriation The differ-ences among legislative schemes turn primarily on whether theyare comprehensive or whether they are limited to specified rela-tionships of trust The generative English Statute of 1799 was lim-

13 The phrase animus furandi is introduced in Bracton 150b as a substitute for the Roman lucri causa faciendi Blackstone later revived the phrase lucri causa (for the sake of gain) and said it was the equivalent to acting feloniously 4 Blackstone

231-32 This caused some difficulty in nineteenth-century litigation, until the courts

returned to the view that the motive of pecuniary gain was irrelevant to animus

fu-randi See, e.g., The Queen v Jones, 169 Eng Rep 205 (1846) (defendant stole letter to

suppress report regarding his character; held, guilty of larceny, but the opinion is muddled by the question whether this was a motive of gain); Rex v Cabbage, 168 Eng Rep 809 (1815) (defendant took horse and killed it in order to destroy evi- dence against friend; held, motive sufficient for larceny).

14 But cf Blackstone's view on lucri causa, supra note 13.

15Rex v Holloway, 172 Eng Rep 1082 (1833) (jury acquitted on ground

defend-ant had "no intention of appropriating [the gun] to his own use"); State v South,

28 N.J.L 28 (1859) ("felonious intent to convert [the goods] to his own use and make them his property, without the consent of the owner").

16 People v Brown, 105 Cal 66, 38 P 518 (1894); Delk v State, 64 Miss 77 (1886).

17 See note 5 supra.

18 The comparative analysis of larceny is postponed to §1.2 infra.

ited to "servants and clerks";19 the French Code of 1810, to twospecific types of entrustment.20 Persons not included under theseheadings were simply not criminally liable for misappropriating anentrusted object Yet the inclusion of some and the exclusion ofothers, particularly in Anglo-American jurisdictions, has neverseemed to be backed by convincing arguments of principle, andtherefore the historical pattern has been to expand the categories

of persons subject to liability In the English Statute of 1812, erage was extended to bankers, merchants, brokers, attorneys and

cov-"agents of any description whatsoever."21 Parliament fashioned thenew crime of larceny by a bailee22 which encompassed all personsreceiving chattels by delivery Similarly, in the development ofFrench law, the pattern of development has proceeded by statutoryaccretion;23 the number of protected entrustments has increasedfrom two to at least six, now including relationships generated byleases, deposits, commissions, pledges, lending for use, and unsal-

aried as well as salaried employment.24

The California Statute of 1872 represents one of the earlyAnglo-American efforts to define embezzlement comprehensively

to include all persons "fraudulently appropriating property whichhas been entrusted to [them]."25 The provision of the GermanCriminal Code, also enacted in the 1870s, applies comprehensively

to anyone who has possession of the object.26 When embezzlement

is defined comprehensively, without regard to the particular status

26 StGB §246 The German provision divides the crime of Unterschlagung in two

degrees The lesser crime, punished by a maximum of three-year imprisonment, quires only that the defendant have had possession of the object prior to the appro- priation; the more serious, punished by a maximum of five years, requires in addi-

re-tion that the chattel be "entrusted" (anvertraut) to the defendant.

27 Theft Act 1968, c 60, §1 This reform was inspired, in part, by the recurrent

demand in the literature for statutory simplification See, e.g., Edwards, Possession

and Larceny, 3 Current Legal Prob 127 (1950); Goodhart, The Obsolescent Law of ceny, 16 Wash & Lee L Rev 42 (1959); Turner, Larceny and Trespass, 58 L.Q Rev.

Lar-340 (1942); Williams, Reform of the Law of Larceny: An Urgent Task, 21 Mod L Rev.

43 (1958).

28 For commentary on the concept of "dishonest appropriation," see E Griew, The Theft Act 1968, 19-22 (2d ed 1974); J C Smith, The Law of Theft 8-33 (2d ed 1972).

29 Crimes (Theft) Act 1973, No 8425, §72(1) (Victoria, Australia) See Elliott, Three

Problems in the Law of Theft, 9 Melb Univ L Rev 448 (1974).

30 MFC §223.2 This provision has been adopted in a number of states See, e.g., Colo Rev Stat §18-4-401; Del Code Ann tit 11, §841.

31 The concept of Zueignung appears both in the definitions of larceny and

em-bezzlement StGB §§242, 246.

32 Soviet criminology distinguishes carefully between pokhishchenie and

khishch-enie; the former is characteristic of larceny in its various forms; the latter term

ap-plies to all offenses of dishonest appropriation See Ugol kod (RSFSR) §§89, 90, 92,

93, 93 1 3 Kurs (SP 1973) at 344-49 The distinction is of great practical importance;

§93', enacted in 1962, imposes the death penalty for crimes of khishchenie of state

property in "especially large quantities." As to whether this provision could be properly applied to the attempted hijacking of a state-owned airplane, see T Taylor (with Dershowitz, Fletcher, Lipson and Stein), Courts of Terror 152-54 (1976).

upon the murky concept of appropriation33 as the criterion of inality.

crim-§1.1.2 Obtaining Property by False Pretenses Though the

generative statutes had little to say on the matter,34 the century English courts found that a necessary condition for thecrime of fraud was that the defendant's false pretense induce thevictim to part with title in his goods Thus in this judicial refine-ment, the offense does not apply where the pretense merely in-duces the owner to part with possession, but not title —as in atransaction of lease or pledge This restriction on the offense,coupled with some expansion of larceny,35 has generated particulardifficulties in distinguishing larceny from the crime of false pre-tenses A good example of problems at the intersection of the twocrimes is Graham v United States,36 in which the victim gave thedefendant, a lawyer, $2,000 that the lawyer was to use in bribingthe police on the victim's behalf In fact, the defendant was honestabout bribing but not about stealing; he kept the money for him-self On appeal from the defendant's conviction for larceny, thedispute was whether the victim had parted with title or merelypossession in the sum of money The appellate court affirmed theconviction on the ground that the owner had not intended to partwith title, but merely possession and that therefore, the appropri-ate charge was larceny rather than false pretenses It is obviousthat one could have maintained that the victim had parted withthe $2,000 with no intention of ever seeing it again, and that is anintent to pass title if anything is.37

eighteenth-33 The concept is defined in Theft Act 1968, c 60, §3(1) as "any assumption by a person of the rights of an owner " The Criminal Law Revision Committee iden- tified "appropriation" with the concept of "conversion" in tort, but this equation is

rejected by the commentators, Griew, supra note 28, at 19; Smith, supra note 28,

at 8.

34 33 Hen VIII, c 1 (1541), 30 Geo II, c 24 (1757).

35 The expansion is the development of "larceny by trick" considered infra in

§2.3.1.

36 187 F.2d 87 (D.C Cir 1950), cert, denied, 341 U.S 920 (1951).

37 Cf People v Noblett, 244 N.t 355, 155 N.E 670 (1927) (title to money held to have passed) The Model Penal Code maintains the distinction between theft by ap-

Introduction §1.1.

The German law of fraud (Betrug) has never shared this

limita-tion and therefore would apply in cases in which the victim tended merely to part with possession or use of the object.38 Thus

in-the kind of close distinction that troubled in-the court in Graham

simply would not arise under German law Graham would havebeen guilty of fraud rather than larceny Contemporary efforts atlaw reform in Anglo-American jurisdictions point as well towardlooser boundaries in the law of false pretenses The English TheftAct of 1968 casts the net of fraud wide enough to include anyonewho obtains "ownership, possession or control" of property by afraudulent deception.39 This definition would obviously include

Graham as well as many other cases of larceny The Model Penal

Code takes a more conservative line, insisting upon the transfer of

"property"40 as an element in theft by deception

Another area in which the Anglo-American law of false tenses is enjoying a relaxation of earlier restraints is in the re-quirement of the pretense itself The earlier rule was that the actorhad to induce the victim to transfer title by deception about theexternal world —about, say, the defendant's credit status or thequality of the goods offered for sale.41 In the 1954 case of People v.Ashley,42 the California Supreme Court boldly swept aside the re-quirement of an objective misrepresentation and held that a mis-

pre-propriation and theft by deception MFC §§223.2, 223.3 The nominal difference in the Theft Act 1968, c 60, between §1 and §16, has tended to collapse in litigation.

In Lawrence, a cab driver took an excessive amount from a foreigner who laid his

wallet open to the driver and allowed him to take out the appropriate fare The Court of Appeal argued that this could be either theft by appropriation (§1) or theft by deception (§16) Regina v Lawrence, [1971] 1 Q.B 373; the House of Lords affirmed with some reservations about the collapse of the two offenses into one Lawrence v Metropolis Police Commissioner, [1971] 2 All E.R 1253 See Elliott,

supra note 29, at 451-56.

38 German law in fact goes much further See §1.2, at note 3; §1.3.3 infra.

39 Theft Act 1968, c 60, §15(2) Cf additional crime of obtaining a "pecuniary advantage" by deception Id §16.