§ 2-39 Breach of Trust with Fraudulent Intent
Library | South Carolina Requests to Charge - Criminal (SCBar) (2012 Ed.) |
§ 2-39 Breach of Trust with Fraudulent Intent
The defendant in this case is charged with breach of trust with fraudulent intent.
Section 16-13-230(A) of the South Carolina Code of Laws provides:
A person committing a breach of trust with a fraudulent intention or a person who hires or counsels another person to commit a breach of trust with a fraudulent intention is guilty of larceny.
Breach of trust with fraudulent intent arises where one is lawfully in possession of property or money of another, having been entrusted with the property or money, and breaches that trust with a fraudulent intention; that is to say, with the intent to defraud the owner of his property or money or with intent to steal the property or money.
A breach of trust is where personal property or money of appreciable value, and of which larceny may be committed, is put into the possession of another. When it is so placed into his possession, it becomes a trust. While it remains in his possession, if he conceives the purpose to convert that property to his own use and does it with the intention to deprive the owner of the use of that property, then that is a breach of trust with fraudulent intent.
The elements of the crime of breach of trust with fraudulent intent are:
(1) there must be a trust;
(2) there must be a breach of the trust; and
(3) there must be a fraudulent intent on the part of the defendant.
First, the State must prove the existence of a trust relationship. A "trust," for purposes of the offense of breach of trust with fraudulent intent, is an arrangement whereby property is transferred with intention that it be administered by the trustee for another's benefit. As such, it is a fiduciary relationship which arises as a result of a manifestation of an intention to create it. In most instances, a trust relationship is created by the express intent to do so, either through words or conduct. To establish existence of a trust relationship, the transferor of the property must intend that the trustee will act for the transferor's benefit instead of on his own behalf. A trust is an obligation upon a person arising out of a confidence reposed in him to apply and use property faithfully and according to such confidence. It is a holding of property, subject to a duty of using or applying the property according to directions given by the person from whom it is derived.
The mistaken transfer of money or property to another does not create a trust in the transferee in favor of the transferor. The fraudulent conversion of money paid or property delivered by mistake does not constitute a breach of trust because the person who mistakenly gave the money or property to another never reposed trust or confidence in that person.
Second, the State must prove that there was a breach of the trust by the defendant. In breach of trust cases, the central question is whether the defendant received the property in trust, which he later violated. Breach of trust can be found where the defendant received property in trust and afterwards fraudulently appropriated it. Absent the manifest intent to create a trust, there could be no trust or trust relationship to breach. The State must prove the exact trust which has been breached.
Third, the State must prove there was fraudulent intent on the part of the defendant. Proof beyond a reasonable doubt of fraudulent intention is necessary before the crime of breach of trust is complete. However, fraudulent intent is a condition of the mind beyond the reach of the senses, usually kept secret, and can only be proved by unguarded expressions, conduct and circumstances generally. The mental element requisite to a breach of trust conviction is one of fraudulent intention in regard to the conversion.
Time is not an element in the crime of breach of trust with fraudulent intent. It is not necessary for the State to prove either the precise time or the precise amount as charged in the indictment.
The offense of breach of trust with fraudulent intent consists of two major divisions:
(1) there must have been a fraudulent intent; and
(2) there must have been an appropriation of the property by the party charged with the trust to some other purpose than that for which it was entrusted to him.
First, there must have been a fraudulent intent. The mere fact that money or property held in trust was not paid over by the defendant to the owner is not sufficient. It must be further shown by the State beyond a reasonable doubt that the property was converted by the defendant with the fraudulent intention of appropriating it to his own use or of permanently depriving the owner of the use and possession of the property.
Second, there must have been an appropriation of the property by the party charged with the trust to some other purpose than that for which it was entrusted to him. There must be an appropriation accompanied by a fraudulent purpose to destroy the rights of the true owner. Thus, in order to prove breach of trust with fraudulent intent, the State must prove the defendant appropriated the goods or money entrusted to him and that the appropriation was accompanied by the fraudulent intent to destroy the rights of the true owner.
Fraud is unfair dealing. Fraud encompasses deceitful practices in depriving or endeavoring to deprive another of his known right by means of some artful device or plan contrary to the known rules of common honesty. Fraud has been defined as conduct that acts prejudicially as to the rights of another and is so intended. It is deception practiced to induce another to part with property or surrender some legal right, and which accomplishes the end desired.
The State must also prove criminal intent. What is criminal intent? Criminal intent is a state of mind which operates jointly with an act or omission in the commission of a crime. Criminal intent is a mental state of conscious wrongdoing. Criminal intent includes those consequences which: (a) represent the very purpose for which an act is done; or (b) are known to be substantially certain to result, regardless of one's desire. Intent may be shown by acts and conduct of the defendant and other circumstances from which you may naturally and reasonably infer intent.
Breach of trust is larceny after trust, which includes all of the elements of larceny or in common parlance, stealing, except the unlawful taking in the beginning.
Larceny is the felonious taking and carrying away of the goods of another against the owner's will or without his consent with the intent to appropriate them to one's own use and to permanently deprive the owner of possession of his property. The elements of larceny are:
(1) a taking;...
(2) the act of carrying the property away—this
To continue reading
Request your trial