AndrewCNJ
Elite Member
I'm studying for the NJ Bar Exam and came across an interesting multiple choice question that I think this forum will benefit from reading. I've changed the facts around slightly to mimic a situation where a MD'er could be in a legal "dilemma".
Question: A metal detector and his friend are in a public park. The metal detector finds a gold ring two inches below the ground. The friend asks, "What have you found?" The metal detector replies, "I found a gold ring. It is engraved with 'Joe Schmoe, License Plate # 1234567'". The friend asks to see the ring, but the metal detector says, "No way. This ring is mine now, finder's keepers; losers weepers."
If the metal detector is charged with a theft crime, he will be found:
A: not guilty because he committed no trespassory taking.
B: not guilty because it's finder's keepers; losers weepers
C: guilty of larceny, because there were clues to the identity of the owner
D: guilty of embezzlement, because he was in proper possession of the ring when he formed the intent to permanently deprive the true owner
The correct answer is:guilty of larceny, because there were clues to the identity of the true owner of the ring.
Discussion of correct answer:The owner of a lost object continues in "constructive possession" of it until someone finds it. Thus, if the finder forms an intent to permanently deprive the owner at the moment the object is found, there is a sufficient trespassory taking to support a conviction for larceny. If there are sufficient clues to ownership through which the true owner could be found by using reasonable diligence, the trespassory taking is larceny. Here, the guitarist formed the intent to keep the ring immediately on discovering it. He claimed ownership instantly and asserted that anyone who found something was entitled to keep it. The true owner's surname was engraved on the ring, plus a driver's license number that would have facilitated identification. Under these circumstances, the MD'er is guilty of larceny.
Discussion of incorrect answers:
Incorrect. not guilty, because he committed no trespassory taking of the ring. This choice is incorrect on these details. The owner of a lost object continues in "constructive possession" of it until someone finds it. When the finder of a lost object immediately forms an intent to permanently deprive the true owner of the object despite there being a possibility of identifying the owner, he violates the owner's constructive possession. That violation is a trespassory taking.
Incorrect. not guilty, because it's "finders, keepers; losers, weepers." This choice is an inaccurate statement of law. Only if there are no clues to ownership that could, with reasonable diligence, permit the finder to locate the true owner, is the finder of a lost object entitled to keep it without criminal liability. Since the ring in the problem has good clues to ownership, the guitarist was not entitled to keep it without exercising due diligence to find the true owner.
Incorrect. guilty of embezzlement, because he was in proper possession of the ring when he formed the intent to permanently deprive the true owner. Whether a finder obtains rightful possession of an object is determined by his mental state at the time of the finding. If he has an immediate intention to permanently deprive the true owner, he immediately violates the owner's constructive possession, and the finder's possession is wrongful. (However, such a finder is only guilty of larceny, if there are sufficient clues to ownership.) If at the time of finding, the finder has not formed any intent to keep the object for himself, his possession thereafter is rightful. If there are clues to ownership, and if the finder subsequently formed a wrongful intent, he would be guilty of embezzlement. Here, the MD'er formed the intent to deprive immediately upon finding the ring, so his possession was wrongful, and he committed larceny rather than embezzlement.
Question: A metal detector and his friend are in a public park. The metal detector finds a gold ring two inches below the ground. The friend asks, "What have you found?" The metal detector replies, "I found a gold ring. It is engraved with 'Joe Schmoe, License Plate # 1234567'". The friend asks to see the ring, but the metal detector says, "No way. This ring is mine now, finder's keepers; losers weepers."
If the metal detector is charged with a theft crime, he will be found:
A: not guilty because he committed no trespassory taking.
B: not guilty because it's finder's keepers; losers weepers
C: guilty of larceny, because there were clues to the identity of the owner
D: guilty of embezzlement, because he was in proper possession of the ring when he formed the intent to permanently deprive the true owner
The correct answer is:guilty of larceny, because there were clues to the identity of the true owner of the ring.
Discussion of correct answer:The owner of a lost object continues in "constructive possession" of it until someone finds it. Thus, if the finder forms an intent to permanently deprive the owner at the moment the object is found, there is a sufficient trespassory taking to support a conviction for larceny. If there are sufficient clues to ownership through which the true owner could be found by using reasonable diligence, the trespassory taking is larceny. Here, the guitarist formed the intent to keep the ring immediately on discovering it. He claimed ownership instantly and asserted that anyone who found something was entitled to keep it. The true owner's surname was engraved on the ring, plus a driver's license number that would have facilitated identification. Under these circumstances, the MD'er is guilty of larceny.
Discussion of incorrect answers:
Incorrect. not guilty, because he committed no trespassory taking of the ring. This choice is incorrect on these details. The owner of a lost object continues in "constructive possession" of it until someone finds it. When the finder of a lost object immediately forms an intent to permanently deprive the true owner of the object despite there being a possibility of identifying the owner, he violates the owner's constructive possession. That violation is a trespassory taking.
Incorrect. not guilty, because it's "finders, keepers; losers, weepers." This choice is an inaccurate statement of law. Only if there are no clues to ownership that could, with reasonable diligence, permit the finder to locate the true owner, is the finder of a lost object entitled to keep it without criminal liability. Since the ring in the problem has good clues to ownership, the guitarist was not entitled to keep it without exercising due diligence to find the true owner.
Incorrect. guilty of embezzlement, because he was in proper possession of the ring when he formed the intent to permanently deprive the true owner. Whether a finder obtains rightful possession of an object is determined by his mental state at the time of the finding. If he has an immediate intention to permanently deprive the true owner, he immediately violates the owner's constructive possession, and the finder's possession is wrongful. (However, such a finder is only guilty of larceny, if there are sufficient clues to ownership.) If at the time of finding, the finder has not formed any intent to keep the object for himself, his possession thereafter is rightful. If there are clues to ownership, and if the finder subsequently formed a wrongful intent, he would be guilty of embezzlement. Here, the MD'er formed the intent to deprive immediately upon finding the ring, so his possession was wrongful, and he committed larceny rather than embezzlement.