Quantcast Wrongful Appropriation (Article 121(2), UCMJ)

 
  
 
46(c) (1) (c) (iii). The underlying inquiry is really who has more of a legal right to possession of the
property.
A necessary element of the offense of larceny is that the property in question must be shown to
be of a certain value or of some value. If government property has been stolen, the prosecutor may use
government price lists to establish general value. However, wear and tear must also be taken into
account in determining the value of the item when it was stolen. Part IV, MCM 1984, para 46(c) (g) (ii).
As a general rule, the value of other stolen property is its legitimate market value at the time and place
of the theft. Part IV, MCM 1984, para 46(c) (g) (iii). Value is a question of fact which must be
determined on the basis of all the evidence admitted. Part IV, MCM 1984, para 46(c) (g) (i). You
should note that if specific value cannot be established, the prosecutor must allege and prove the
property had some value.
In addition to the requirement for a specific intent to permanently deprive in larceny, there is a
separate requirement that the taking, obtaining, or withholding be wrongful. Part IV, MCM 1984, para
46(c) (1) (d). Generally, if someone takes or withholds the property of another, the taking is wrongful if
it was done without the owner's consent. Similarly, a taking would be wrongful if property was obtained
from a person under false pretenses. However, such an act is not wrongful if it was authorized by law,
as would be the case in a valid repossession action. A taking will not be wrongful if it is done by
someone who has a right of possession superior to that of the victim. For example, an owner of property
who takes or withholds it from the possession of another is doing so wrongfully if the victim has a
superior right, such as a lien, to possession of the property. Part IV, MCM 1984, para 46(c) (1) (d).
B. Wrongful Appropriation (Article 121(2), UCMJ). The elements are the same as larceny with
one exception. Larceny requires that the accused's intent is that the property never be returned to the
rightful owner, while wrongful appropriation requires an intent to temporarily deprive that person of his
property; i.e., that the property will be returned at some later time.
QUESTION: HOW CAN WE TELL WHETHER AN ACCUSED INTENDED TO PERMANENTLY
OR TEMPORARILY DEPRIVE ANOTHER OF THE PROPERTY?
ANSWER: THE INTENT OF THE ACCUSED WILL GENERALLY BE DETERMINED BY
LOOKING AT THE NATURE OF THE PROPERTY TAKEN, THE CIRCUMSTANCES OF HIS
TREATMENT OF THE PROPERTY, AND SOMETIMES BY HIS OWN STATEMENTS.  AN
EXAMPLE WOULD BE IF THE ACCUSED TAKES A STEREO AND SELLS IT TO A THIRD
PERSON. IT WOULD BE PRESUMED THAT HE INTENDED THAT IT NEVER BE RETURNED
TO ITS RIGHTFUL OWNER, SO HE WOULD BE FOUND GUILTY OF LARCENY. EXAMPLE
OF WRONGFUL APPROPRIATION WOULD BE OBTAINING A SERVICE WEAPON BY
FALSELY PRETENDING TO GO ON GUARD DUTY WITH THE INTENT TO USE THE
WEAPON ON A HUNTING TRIP AND TO LATER RETURN IT.  ANOTHER WOULD BE
WITHHOLDING  A  GOVERNMENT  VEHICLE  FROM  GOVERNMENT  SERVICE  BY
DEVIATING FROM THE ASSIGNED ROUTE, WITHOUT AUTHORITY, TO VISIT A FRIEND IN
A NEARBY TOWN. PART IV, MCM 1984, PARA 46(c) (2) (b).
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