Lapas attēli
PDF
ePub

Section 1715.

but disregarded a risk that the circumstances existed. The purposive element of an intent to obtain transportation is self-explanatory.

4. Jurisdiction

There is Federal jurisdiction over this offense if it is committed within the special jurisdiction of the United States or if in the commission or consummation of the offense the defendant moves across a State or United States boundary. The special jurisdiction of the United States is defined in section 203 and includes, among other things, the high seas and certain vessels thereon and certain aircraft while in flight. The overall jurisdiction of this section is intended to be consistent with that found under present law.48

5. Grading

An offense under this section is graded as a Class A misdemeanor, punishable by up to one year in prison. This reflects the relative seriousness of the offense the commission of which can endanger the safety of other passengers through inadvertent damage to some of the equipment which operates the vessel or aircraft. The penalty is consistent with that under existing law.

1. In General

SECTION 1715. POSSESSING BURGLAR'S TOOLS

There is no existing Federal provision prohibiting the possession of "burglar's tools." However, the great majority of States,1o as well as the District of Columbia, has provisions prohibiting the possession of such tools.50 The purpose of such provisions is to deter or prevent the commission of burglary and related offenses by enabling the authorities to apprehend the would-be burglar before he has had the opportunity to carry out the offense.51 Although the language of the statutes differs widely, three essential elements are generally found to comprise the offense: (1) the adaptation and design of a tool or implement for criminal purposes (usually breaking and entering); (2) the possession thereof by one with knowledge of its character; and (3) the intent to use or employ such tool or implement for criminal purposes.52

In a number of States, challenges have been made against "burglar's tools" statutes on the ground that they are vague and indefinite. However, courts have uniformly rejected such arguments, holding that the provisions convey sufficient and definite warning as to the conduct prohibited when measured by common understanding and practice.53

47 See section 302 (c) (1).

48 See United States v. Menere, 145 F. Supp. 88 (S.D.N.Y. 1956), sustaining jurisdiction as to a stowaway on a foreign ship destined for American waters, who was aboard at the time the vessel docked in an American port.

49 Every State, except Alaska. Delaware, Hawaii, Kentucky, Maine, Maryland, and West Virginia, has such a provision.

50 While most State statutes use the term "burglar's tools," some jurisdictions, such as the District of Columbia, use a term like "implements of crime" which covers a broader spectrum of items. See 22 D.C. Code 3601.

51 See generally 13 Am. Jur. 2d, Burglary §§ 74-77.

52 The United States Court of Appeals for the District of Columbia has held that intent to use an implement to commit a crime is a constitutionally essential element of this kind of offense. Benton v. United States, 232 F. 2d 341, 343-344 (D.C. Cir. 1956); see also State v. Heflin, 338 Mo. 236. 89 S.W. 2d 938 (1935), and State v. Lorts, 269 S.W. 2d 88 (Mo. 1954), in which the Missouri Supreme Court construed its statute in such a way as to make intent an essential element of the offense.

53 See, eg, McKoy v. United States, 263 A. 2d 649 (D.C. App. 1970); Hogan v. Atkins, 224 Ga. 358, 162 S.E. 2d 395 (1968); State v. McDonald, 74 Wash. 2d 474, 445 P. 2d 345 (1968).

[blocks in formation]

2. The Offense

A. Elements

Section 1715 makes it an offense to possess an object which is designed for, or commonly used for, the facilitation of a forcible entry, with intent to use such object in the course of conduct constituting an offense under section 1711, 1712, 1713, or 1714. Thus, in order to prove an offense under this section the government must show that the defendant: (1) possessed an object designed for, or commonly used for, the facilitation of a forcible entry; (2) with intent that such object be used in a course of conduct constituting an offense under this subchapter.

In regard to the first element, such things as explosive devices, drills, lockpicks, false keys, wirecutters, crowbars and jimmys would fall within the category of objects designed for or commonly used for the purpose of a forcible entry. It is the second element, however, which is the crucial factor limiting the scope of the offense. It requires the person to possess such an object with an intent to use it during the commission of an offense under section 1711, 1712, 1713, or 1714. If a person possesses such an object with no intent to use it for criminal purposes or even if he intends to use it for an offense other than the aforementioned offenses, his possession would not constitute an offense under this section.

B. Culpability

The conduct in this offense is the possession of an object. Since no state of mind is specified in the section, the state of mind that must be shown is, at a minimum, "knowing." 54 The fact that the object in question is designed or commonly used to facilitate a forcible entry in the course of a burglary, criminal entry, trespass, or stowing away offense is an existing circumstance. Because no culpability standard is set forth in the section with respect to this element, the applicable state of mind which must be proved is at least "reckless," ie., that the offender was aware of but disregarded a risk that the object possessed was so designed or commonly used. Thus, the unwitting possession of a lockpick, or its possession by one who had no inkling of its common use in criminal entry offenses would not be punishable under this section. The purposive element of an intent to use the object in the course of conduct constituting an offense under sections 1711 through 1714 is largely self-explanatory. It should be noted, however, that as in the burglary and criminal entry sections, the intent required does not necessitate a showing of an intent to commit a crime, but only of intent to engage in conduct that in fact constitutes a crime of the specified type.

3. Jurisdiction

55

There is Federal jurisdiction over an offense described in this section only if the offense is committed within the special jurisdiction of the United States (e.g., a Federal enclave) as defined in section 203. 4. Grading

An offense under this section is a Class A misdemeanor, punishable by up to one year imprisonment. The punishment level is designed to

See section303(b) (1).

55 See section 303 (c) (1).

Section 1721.

reflect the inchoate nature of the offense, and is consistent with the grading of the similar offense in the District of Columbia Code.56

SECTION 1716. DEFINITIONS FOR SUBCHAPTER B

This section contains definitions for the subchapter on Burglary and Other Criminal Intrusion Offenses. These definitions are discussed in the context of the sections in which they appear.

SUBCHAPTER C. ROBBERY, EXTORTION, AND BLACKMAIL
(SECTIONS 1721-1724)

This subchapter defines offenses that are essentially the same as those under present Federal law. Robbery, potentially the most violent of the three, requires that the property be taken from the person or presence of another. Extortion is similar to robbery, but the property need not be "taken" from the person or presence of another. Blackmail is a less violent form of extortion, including threats other than subjecting a person to physical harm or property to physical damage. The chief advantages achieved by this subchapter are: (1) elimination of the extensive overlap of existing statutes and a substantial reduction in the number of separate provisions in Federal law; (2) harmonization of the multiple and seemingly arbitrary standards of culpability and penalty levels that exist throughout the current statutes; (3) clarification of the offenses; and (4) the systematization of grading by treating these offenses without regard to other offenses, such as the endangerment of life. 1

1. In General

SECTION 1721. ROBBERY

At common law, robbery was the felonious taking of the goods or property of another of any value from his person or his presence, against his will, by violence or putting him in fear.2 Absent statutory modification the constituent elements of the offense were: (1) a felonious taking (2) accompanied by an asportation of (3) personal property of value (4) from the person of another or from his presence (5) against his will (6) by violence or by putting him in fear (7) with the intent to deprive him permanently of the property.

3

Section 1721 follows present Federal law in adopting the terminology of common law robbery and thus makes it a crime to take property from another by force, violence, or by threatening or placing

50 See 22 D.C. Code 3601.

1 With respect to this latter aspect, many existing robbery or extortion statutes contain an enhanced penalty where serious bodily injury or death results. Under S. 1. as reported, this conduct can be separately punished, as, for instance, homicide where death results from the act. See section 1601 (d) (4).

2 See Collins v. McDonald, 258 U.S. 416, 420 (1922); United States v. Baker, 24 Fed. Cas. No. 14501 (C.C.N.Y. 1861); United States v. Jones, 26 Fed. Cas. No. 15,494 (C.C. Pa. 1813).

32 Wharton, Criminal Law, section 545 (1957).

another person in fear. The property need not belong to the person from whom it is taken. It is enough that the property is such that the actor is not privileged to infringe upon it without consent by an authorized possessor and that the property is taken by the prohibited. means, i.e., force, violence, or by threatening or placing another in fear. If the taking is by threat or placing in fear, the fear need be only that any person, not necessarily the person from whom the property is taken, will imminently be subjected to bodily injury, unlike extortion where the threat may relate to the infliction of harm at some future time.

2. Present Federal Law

The major Federal provisions covering robbery are contained in 18 U.S.C. 2111-2114 and 1951.

18 U.S.C. 2111 applies within the special maritime and territorial jurisdiction of the United States and punishes by up to fifteen years in prison whoever, "by force and violence, or by intimidation, takes from the person or presence of another anything of value."

18 U.S.C. 2112 provides no definition of the term "rob" but simply provides that whoever "robs another of any kind or description of personal property belonging to the United States" may be imprisoned by up to fifteen years.

Both of these enactments have been held to define the common law crime of robbery. It is clear that a taking by force and violence or by intimidation (i.e., threat) state alternative methods, so that it is not necessary to show both that force and violence were used and that the victim was placed in fear. "

18 U.S.C. 2113 is a complex statute covering various offenses against Federally insured banks, credit unions, and savings and loan associations. Section 2113 (a) punishes by up to twenty years in prison whoever, "by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or other thing of value belonging to, or in the care, custody, control, management, or possession" of one of the above institutions. 5

Although worded in terms very similar to those of 18 U.S.C. 2111, this section differs from the common law concept of robbery by punishing an attempt to take property by force and violence or by intimidation. In addition, the courts have held that in determining whether "intimidation" has occurred, actual fear of the victim need not be shown; rather, the test is whether the defendant's actions would have placed a reasonable man in fear of bodily harm. This statute has also been held to vary from the common law crime of robbery in that it does not require a specific intent by the offender to take property that does not belong to him.' As under 18 U.S.C. 2112, it is clear that "force and violence" and "intimidation" state alternative ways in which the offense can be committed.8

4 See Norris v. United States, 152 F. 2d 808, 809 (5th Cir.), cert. denied, 328 U.S. 850 (1946). 5 The penalty is increased if, during the offense, the actor assaults or puts in jeopardy the life of any person by means of a dangerous weapon, or if he kidnaps or kills any person during the commission of the offense. See section 2113 (d) and (e).

United States v. Alsop, 479 F. 2d 65, 66-67 (9th Cir. 1973); see also United States v. Jacquillon, 469 F. 2d 380 (5th Cir. 1972), cert. denied, 410 U.S. 938 (1973).

7 See United States v. Porter, 431 F. 2d 7, 9-10 (9th Cir. 1970), cert. denied, 400 U.S. 960 (1970): United States v. De Leo, 422 F. 2d 487, 490-491 (1st Cir.), cert. denied, 397 U.S. 1037 (1970).

8 United States v. Jacquillon, supra note 6.

18 U.S.C. 2114 punishes by up to ten years in prison whoever, inter alia, robs any person having lawful custody of mail matter, money, or other property of the United States of such mail matter, money, or property. The penalty increases if in the course of the robbery the robber wounds or places the life of the custodian in jeopardy by means of a dangerous weapon.

18 U.S.C. 1951, the so-called Hobbs Act, prohibits, inter alia, who-ever, in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or attempts or conspires to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section. The term "robbery" is defined' to mean the "unlawful taking or obtaining of personal property from the person or presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family, or of anyone in his company at the time of the taking or obtaining."9 The penalty is up to twenty years' imprisonment. This section intermingles the concepts of robbery and extortion by defining robbery to include future threats of force. It also expands the common law notion of robbery by its inclusion of threats or injury to property as well as of bodily harm. With these exceptions, however, the statute has been said to carry forward the common law robbery offense, including a specific intent to steal and permanently keep the property of another.10 In addition to these statutes, robbery is also proscribed in some little used sections of title 18.

18 U.S.C. 1652 punishes by imprisonment for life and defines as a "pirate" any citizen of the United States who commits, inter alia, robbery against the United States or a citizen of the United States on the high seas under color of any commission from any foreign prince or State.

18 U.S.C. 1661 also punishes by imprisonment for life and defines as a pirate whoever, being engaged in a piratical cruise or enterprise or being of the crew of any piratical vessel, lands from such vessel and commits robbery on shore. The meaning of "robbery" under this section is to be ascertained from the common law.1 11

18 U.S.C. 1153, the so-called Major Crimes Act, punishes thirteen. felonies committed by Indians in Indian country. One of these felonies is "robbery." Since the statute does not define the term, it probably refers to the common law definition. The punishment for the offense is the same as that under 18 U.S.C. 2111.12

3. The Offense

A. Elements

Subsection (a) provides that a person is guilty of an offense "if he takes property of another from the person or presence of another by force and violence, or by threatening or placing another person in fear that any person will imminently be subjected to bodily injury."

The definition comes from New York law. See United States v. Nedley, 255 F. 2d 350, 355-357 (3d Cir. 1958).

10 United States v. Nedley, supra note 9.

11 See United States v. Jones, supra note 2.

12 18 U.S.C. 1991 penalizes entry upon a train with intent to commit robbery. This statute is carried forward in section 1712 (Criminal Entry).

« iepriekšējāTurpināt »