If M a manager at a restaurant had duties to gather money at the end of the day and deposit at the bank, one day mananger realized that she is not carrying her credit card and had no cash, she took $50 from the cash to be deposited at bank for the purpose of filling gas in her and her and with an intent to return the money the next day. Is M guilty of embezzlement?

my answer would be no for lack of permanent intent

The question isn't about intent to permanently deprive. Doesn't matter.

It's about whether the employee had custody or possession. That's the key to the answer.

A clerk has mere custody when he is charged with taking the money and depositing into the cash register or safe on the premises, for example.

A manager has legal possession when they have the right to control it, etc. (Don't rely on that definition! It's meant for contrast only.)

So when you ask if the person who was delivering the money to the bank committed embezzlement, you MUST find that he had legal possession of the money, else it's not embezzlement. Authorized possession and not just mere custody is the required element.

Does an employee merely have custody or do they have legal possession? That's the key to answering the question. Figure that out and you have your answer. This would be much easier as an essay question so you could just say that. Good luck as a MBE question trying to choose.

I would say that the manager committed embezzlement. Embezzlement requires an element of "converting" other's property for the interest of the embezzler, irrespective of whether it actually benefitted her or not. Provided the manager had legal possession of the money (which I think was the case as he was the manager), he converted the restaurant owner's money for her gas, as well meeting the specific intent element of the crime. Whether she intended to return the money next day won't matter, as the conversion already occurred. As a side note, her intent to return the money is a trap to confuse you, as it relates to larceny, which is a crime against possession, not for conversion. Hope this helps.

I'd like to add to Kurio's good explination is that the rational that courts tend to disregard the intent to use (convertion) to replace later is because of the risk of not been able to replace the EXACT property. WIth money the defendant would argue the property is the SAME. However, courts would not make this distintion. It would be embezzlement.

I disagree. Embezzlment is the fraudulent conversion of property of another by a person in lawful possession of that property.

Fraudulent conversion is the requires the intent to permanently deprive. Thus, no intent = no fraudulent conversion. No fraudulent conversion = no embezzlement.

Definitely Embezzlement. Embezzlement is one of those hard to differentiate from Larceny. The best way I have tried to remember it was to look to see who is giving and who is taking. Any employee who receives property from the employer is and mishandles it is embezzlement. For example if you are an employee at a Pizza Place and you are delivering the pizza to a customer but right before that you decide to eat the pizza instead, that is embezzlement. On the other hand if you receive property from a customer for the employer than it is Larceny. For example, same pizza situation, but instead you actually deliver the pizza and are given money for the pizza by the customer but when you get back to work instead of turning in the money you decide to keep it and lie that you were robbed, well then that is Larceny. But watch out for those tricky ones where they say that you take the money and put it in the register but right before you close it you decide to keep the money and take it out, well that is embezzlement, but technically, you have put the money back into the "employer's possession" by putting it in the cash register. Hope it helps!

No embezzement- there were no fraudulant intent and no loss to owner.

"Fraudulant intent means witholding information from the owner that he was coverting the property. Knowledge that the conversion would create substantial risk of loss to the owner."

Here, it doesn't look like M embezzled, as she didn't hide it from the owner that she took $50 and there was no substantial loss to the owner, as the store was closing, and M would replace it next morning

Da Vinci, hold our horses
it is PMBR/ MBE word, pure theory:
manager was entrusted with possession of the money
he took the money (the particular $10. or $20 bills) with intent to replace the RESTAURANT money with HIS OWN money, all elements of embez't are met. the crime is complete
You answer otherwise, you will not get point on MBE, trust me on that

I even remember the same fact pattern in PMBR question (it was banker instead)-->crime of embez't completed banker/manager took the money from the safe for his own need.
Moreover, if a future lawyer, you take money of your client for temporary use, you are guilty, why?
b/c we do not want you take chances and commingle funds, keep money separate or it is strict liability
Hai capito? Capish?

I picked this one from PMBR but changed the facts (little) In PMBR, the manager took the money for gambling with an intent to return the next morining. The answer and the explaination focussed more on gambling and thats the reason I changed the facts to make it more favorable to M. But the key to MBE's is not get personal or emotional. Keep it mechanical. The crime is completed once M took the money and even if M intends to replace the money he is guilty of embezzllment because there is no element of "intent to permenanatly deprive" in Embezzlement. Once the crime is completed, it does not matter what M does later, he may keep the money along with interest. Who cares!!

I guess "intent to steal" doesn't come into play in embezzelment then, from what Belanderi said! We get caught up in thinking just because it is money, it must be embezzelment. What if it had been just an umbrella belonging to the manager, who told M to keep it safe so no one takes it, and M took it to return home, as it was raining so hard that night? M would bring it back next day. Is that an embezzlement?

Theft crime requires intent (period)! There was none in this question. But, if there were no better choices to pick from the 4 answer sets, then picking embezz would be best. We are choosing the closest answer by comparing with the other 3, not necessarily the most correct answer in a MBE.

Is there a fraudulent conversion of umbrella. If she took the umbrella, sold it and replaced it with a new one, she has committed embezzlement. If she intends to place the same umbrella there is no fraudulent conversion, but if she intends to replace it or never return it, she is guity of embezzlement, provided she was in lawful custody of the umbrella.

Embezzelment is a specific intent crime (doing the act + intent to steal). Crim law is heavy into "intent", that the person had at the time the crime was committed. Embezzlement requires an intent to steal. Whether it is the $50 or the umbrella, M had no intent to steal when she took the item. So, one element of a specific intent crime is missing, negating the crime of embezz.

In an essay one has to address that there was no intent to steal. In a MBE, choose the closest answer.

Embezzlement is fraudulent conversion of personal property of another by a person in lawful possession of that property (where did you see intent to steal) Defendant must intend to defraud, so the specific intent required for embezzlement is fraudulent intent. Fraudulent intent is satisfied if defendant intend to replace something else and not the EXACT property.

Try and understand, if defendant intends to restore the exact property (same unmbrella) it is not embezzlement, but if defendant intends to restore similar or substantially identical property, it is EMBEZZLEMENT!!!! if you choose "no crime", you will not get points. Try and learn everday, dont think you know everything, dont get stuck to that "embezzlement is act + intent to steel", pick up the barbri book or whatever book you are relying on and read the section of embezzlement, if it comes on MBE/essay, you will thank me. Try and learn from each and every MBE, even if you get it correct.

I am moving on to next topic.

I did not pick up on the fact that the money M intended to replace is not the exact same money. Therefore I change my answer above for that reason alone.