MBE Tip of the Day: Criminal Law

Answer to the Criminal Law MBE Question

Subject: Criminal Law

Legal Issue: Theft crimes

Legal Rule and Analysis: Larceny is the trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof.  Robbery is a larceny plus the additional elements of taking from the other’s person or presence using force or threat of force.  The force or threat of force must be used to gain possession of the property.  Burglary is the breaking and entering the dwelling of another at night with the intent to commit a felony or larceny therein.

In this case, the man certainly committed a trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof.  The man grabbed a necklace belonging to the homeowner and escaped with it.  There is no indication that he intended to merely borrow the necklace or give it back.  However, the elements of robbery are not met.  While there was a larceny and the necklace was stolen from the owner’s presence, there was no force used to gain possession of the property.  The man merely picked it up off the coffee table.  He did use force to break the window, but it was not used to obtain the necklace.  The man never even saw the owner – he just panicked at the sound and broke a window to escape.  There was no force directed toward the owner in order to obtain the necklace.

Further, the elements of burglary also are not met.  We are told that this is a common law jurisdiction, and the common law definition of burglary requires that the breaking is done at night.  The facts specifically tell us that the man broke into the house during the day.

Conclusion: The only crime the man is guilty of is larceny.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. 

The answer choice (A) is therefore correct. (B) is incorrect because the elements of robbery are not met as no force was used to gain possession of the necklace. (C) is incorrect because the elements of burglary are not met as the theft occurred during the day.  (D) is incorrect because the elements of both robbery and burglary are not met.

MBE Tip: Read the facts closely to identify what kind of jurisdiction you are in!  This makes a big difference when trying to determine whether a defendant is guilty of a particular crime.  The elements of each crime can be different depending on whether you are in a common law jurisdiction, model penal code jurisdiction, or a jurisdiction where a specific statute is provided for you.  The examiners will likely leave clues to tell you what kind of jurisdiction you are in! A careful reading of the facts is necessary to make sure you are applying the right rules!