General Concepts and Larceny

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Terms:


Larceny:
The taking and carrying away of the personal property of another with the intent to permanently deprive the owner of the property.

Possession:
The status of holding property within one's power and within one's discretion to exercise complete control over.

Custody:
The holding of control over an object for the purposes of preservation, inspection or security of the object.

Personal Property:
Property that is movable (as opposed to real property).


Crimes against property are those that involve the defendant’s wrongful acquisition of property that belongs to someone else. There are six crimes against property and they are: larceny, embezzlement, false pretenses, robbery, extortion, and receipt of stolen property.

Larceny is defined as the wrongful taking of someone else’s property with the intent of permanently depriving the owner of the property.

Embezzlement is where the defendant legally has the victim’s property in his possession and then misappropriates the property with the intent of defrauding the victim.

False pretenses is where the defendant tricks the victim into giving him actual title (ownership) to the property.

Robbery is the taking of property from either the victim’s person or immediate presence through the use of force or the threatened use of force.

Extortion is where the defendant obtains property from the victim by using threats that do not amount to robbery.

Receipt of stolen property is where the defendant accepts property from a third person who has wrongfully taken it from a victim.

Larceny

The common law definition of larceny is a wrongful taking and carrying away of the personal property of someone else with the intent to permanently deprive the owner of that property.

Any tangible property can be the subject of larceny. Anything physically attached to the ground, such as a house, cannot be the subject of larceny. However, if something becomes severed from the ground it becomes tangible property and can thereby become the subject of larceny. For example:

Jack is hunting for firewood one day and decides to take a look around Kate’s property to see what he can find. Jack finds an old oak tree that has been blown over in a recent storm. The oak tree is completely severed from the ground and Jack cuts it into cords of wood and hauls the wood away. In this situation, Jack can be convicted of larceny because, although the tree was originally attached to the ground, it had become detached from the ground and thus is considered tangible property. Therefore, when Jack took the wood, he committed larceny against Kate’s property.

However, if the defendant severs something from the ground in order to take it, the severed property must come into the owners possession and then be taken from the owner in order for it to be larceny. If the severed property does not come into the possession of the owner, it is not considered tangible and will not give rise to a crime of larceny. For example:

EXAMPLE (1): Jack enters Kate’s property, picks an apple off of a tree on Kate’s land and eats it. In this case, Jack has not committed larceny because the apple never came into Kate’s possession after it was severed from the tree.

EXAMPLE (2): Jack enters Kate’s property, picks an apple off of a tree on Kate’s land and puts it on the ground while he gets a bottle of water out of his bag. Jack then eats it. In this case, Jack has committed larceny because the apple came into Kate’s possession when Jack put it on the ground.

Animals can also be the subject of larceny as long as they are livestock or other kinds of animals that have domestic value. However, house pets cannot be the subject of larceny.

Intangible property cannot be the subject of larceny. Things like records and documents are considered merged into the things that they represent and are not considered property on their own. For example:

Frasier steals the title to Niles’s car. In this situation Frasier cannot be convicted of larceny for stealing the car because he has only stolen the deed of ownership and not the actual car itself. The deed is considered intangible property and therefore cannot be the subject of a larceny. See People v. Caridis, 29 Cal. App. 166 (1915).

Modern statutes have expanded the list of properties that can be the subject of larceny. For example, under modern statutes, both real and intangible property can be the subject of larceny. Therefore, documents, records and stock certificates can be the subject of larceny. In addition, services, which are not considered property for larceny purposes under common law, can be the subject of a larceny under modern statutes.

In order to be convicted of larceny the defendant must have carried the property away. Please note that even the slightest movement of the property from one location to another is adequate for larceny purposes. However, the movement must be part of the act of carrying the property away. If the movement is made in preparation for carrying the property away it will not suffice. For example:

Flounder, a freshman at Faber College, is applying for membership in the Delta fraternity. As part of his hazing, Flounder must steal a keg of beer and bring it to the next Delta party. One night Flounder slips into the local liquor store and finds a keg of beer to steal. To avoid being seen, he plans on leaving the store through the back door. However, the keg that he wants to steal is sitting up against the door and blocking it. Flounder takes the keg of beer and moves it over a few feet so that he can open the door, but, before he gets a chance to take the keg and leave, he is caught. In this case, Flounder cannot be convicted of larceny because he never carried the keg away. We said before that even a very slight movement of property from one place to another will satisfy the carrying away requirement. However, the movement of the property must be part of the act of carrying the property away. In this case, Flounder’s moving the keg of beer was in preparation for carrying it away. Therefore, it does not satisfy the carrying away requirement and he cannot be convicted.

In order to be convicted of larceny the defendant must have actually taken the property. This means that he must have acquired possession of the property. Usually, proof that the defendant carried the property away will also suffice to prove that he gained possession of it. Also, the taking can be accomplished directly by the defendant, or constructively, as in a scenario where the defendant causes an innocent agent to take the property for him.

In addition, the defendant can only be convicted of larceny if the taking was wrongful. Taking will be wrongful if it is done without the consent of the property’s owner. Therefore, if the victim consents to having his property taken the defendant cannot be convicted of larceny even if the defendant later changes his mind and demands his property back.

Even if the victim consents to having his property taken, the defendant can be convicted of larceny if he obtained the victim’s consent through deception. Such a conviction would be for the crime of "larceny by trick." Typically, larceny by trick requires that the defendant gain the victim’s consent through a misrepresentation of a past or present fact. However, a false promise to do something in the future in exchange for the receipt of goods now would not result in a larceny by trick conviction even if the defendant never had the intention of carrying out his original promise. However, some courts allow a false promise to be the basis for a larceny by trick conviction if the prosecution can prove that when the defendant made the promise, he misrepresented to the victim his present intent to keep the promise. For example:

Jake has just bought a new Cadillac SUV which Dylan absolutely loves. Dylan asks Jake if she can borrow the car to go on a day trip and promises Jake that she will return the car that night. In fact, Dylan actually intends to keep the car. According to the general rule, Dylan cannot be convicted of larceny because, even though she obtained Jake’s consent to borrow the car through deception, the consent was concerning a future fact (that Dylan would return the car). However, under the modern rule, Dylan can be convicted if the prosecution can prove that at the time she made the promise she never intended to keep it. The reason this would result in a larceny conviction is because it would demonstrate that Dylan made a misrepresentation as to a present fact (i.e. that when she made the promise to return the car she did not intend to keep the promise).

It should be noted that in a case where a person makes a promise he or she does not intend to keep for the purpose of tricking someone into giving him or her something, even if a larceny charge would not be sustainable, there are various federal fraud statutes that could criminalize such an act.

In addition, a conviction for larceny requires that the property that the defendant takes must belong to another person. Please note that this does not mean that the other person must own the property. All it means is that the victim must have a right to possess the property that is greater than the defendant’s right to possess the property. Thus, a person can actually be convicted for taking his own property back from the victim if the victim has a greater right to possession than the defendant does at the time of the taking. For example:

Jake asks Dylan if she will rent him her new Cadillac SUV for a day trip that Jake wants to take. Dylan agrees to rent the car to Jake for $350 for the day. Jake pays Dylan and Dylan gives Jake the keys. However, before Jake departs for his day trip, Dylan takes a spare key and drives off in the car. In this case, Dylan can be convicted of larceny even though she is the owner of the car. The fact that Dylan rented the car to Jake for the day means that Jake has the right to possess the car for the day and this right is greater than Dylan’s right to possess the car. That being the case, Dylan’s actions constitute larceny.

As we have said before, since larceny requires the taking of the property of another, if the property is lawfully in the hands of the defendant already, he cannot be charged with larceny. However, if the defendant only has custody over the property then he can be convicted of larceny. The difference between possession and custody is a factual one which turns on how much control the defendant is given over the property when the victim first gives it to him. If the defendant is given significant control over the property, he has possession of it and thus any taking and carrying away of the property with the intention of depriving the owner of it is not larceny. However, if the defendant is only given limited authority over the property, he only has custody of it and any taking and carrying away of the property with the intent of depriving the victim of it is considered larceny. For example:

EXAMPLE (1): Fred works for the First National Bank of Bedrock. His position at the bank is General Manager of Financial Affairs and his job is to manage and invest the bank’s money. As such, Fred is the only bank employee, other than the president, that is trusted with the code to the bank’s vault. Late one night when no one else is around Fred lets himself in to the vault and steals $250,000 of the bank’s money. In this case, Fred cannot be convicted of larceny. The fact that Fred controls the bank's financial affairs and had the code to the vault demonstrates that he had enough authority over the bank’s money at the time he took it so that it cannot be considered that Fred took the money from the possession of the bank. Therefore Fred cannot be convicted of larceny.

EXAMPLE (2): Fred works as a security guard at the First National Bank of Bedrock. His job is to guard the vault. As part of Fred’s job description, he is in charge of monitoring who and what enters and exits the vault. In addition, Fred is allowed into the vault to make whatever security checks he feels are necessary. One night, after everyone else has left the bank, Fred lets himself into the vault and steals $250,000. In this case, Fred can probably be convicted of larceny. Fred only had limited authority over the contents of the vault and, therefore, all he had was custody over the money. Thus, Fred’s actions can be construed as the taking and carrying away of the property of the bank and, therefore, his actions can result in a larceny conviction. See Morgan v. Commonwealth, 47 S.W.2d 543 (Ky. 1932).

As far as the mens rea requirement for larceny is concerned, the defendant must act with the intent to permanently deprive the owner of the property. Please note that, as long as the defendant intended for the victim to be permanently deprived of the property, he can be convicted even if the victim is not permanently deprived of the property. That being the case, if the defendant took and carried away the property of another with the intent of returning it, he cannot be convicted of larceny. See People v. Brown, 105 Cal. 66 (1894). For example:

Buzz is a very big advocate of space exploration and settlement and he firmly believes that, within ten years, the first human settlements on the Moon will be built. Buzz believes that these settlements will be an excellent investment opportunity, but he has no money with which to invest. To solve this problem Buzz sneaks into the First National Bank of Houston one night and slips away with $250,000 of the bank’s money. Buzz takes the money with the intent of investing it in these Moon settlements and with the intent of repaying the bank from returns he believes he will earn on the investment. In this case, Buzz cannot be convicted of larceny because he did not intend to permanently deprive the bank of its money when he committed the theft.

Further, if the defendant takes the property without intending to permanently deprive the owner he can still be convicted of larceny if he took the property with the intent of doing something with it that would create a substantial risk of its permanent loss to the owner. See State v. Langis, 444 P.2d 959 (Or. 1968). For example:

Dylan takes Jake’s new Cadillac SUV with the intent of using it in a demolition derby and then returning it to Jake afterwards. In this case, Dylan can be convicted of larceny even though she did not intend to permanently deprive Jake of the property because she has taken the property with the intent of doing something with it that would create a serious risk of its permanent loss to Jake.

Additionally, some jurisdictions hold that the defendant can be convicted, even if he does not intend to permanently deprive the owner of the property, if he takes the property without caring one way or another whether the owner gets it back.

Further, if the defendant takes property from the victim with the intent of returning it after the victim pays a ransom price for it, the defendant can be convicted of larceny despite the fact that he does not technically intend to permanently deprive the owner of the property.

If the defendant takes property from the victim with the intent of returning equivalent, but not identical, property to the victim, he cannot be convicted of larceny if the property is of a type where it will not make a difference to the victim whether the original property or its equivalent is returned to him. For example:

Michael wants a bowl of cereal but he has no milk in his refrigerator and is a little bit short on cash at the moment. Michael goes over to Sonny’s house, rummages through the fridge, and finds a bottle of milk which he takes home with him, intending to buy Sonny a replacement bottle of milk the next time he goes to the supermarket. In this case, Michael cannot be convicted for larceny because he took the milk with the intent of replacing it with an equivalent, and this is the kind of product where it would not make a difference to Sonny whether he gets the original bottle back or a replacement bottle.

Further, it is not considered larceny if a defendant takes property from the victim that he believes that the victim owes him. See People v. Gallegos, 274 P.2d 608 (Colo. 1954).

Under the Model Penal Code, which combines the various common law crimes against property into one larger crime called theft, the defendant can be convicted if he acted with the intent of depriving another person of the property that he has taken. According to the Model Penal Code, depriving a person of his property includes 1) withholding the property either permanently or for a long enough period of time that it has lost most of its economic value, 2) withholding property with the intent of returning it after the victim has paid a ransom price, or 3) getting rid of the property in a way that makes it unlikely that the owner will ever get it back.

However, the Model Penal Code does provide the defendant with three affirmative defenses with which to avoid a conviction for theft. If the defendant is charged with theft, he can avoid a conviction by showing that, 1) he was unaware that the property belonged to someone else, 2) he took the property under an honest claim of right to the property; or 3) the property was put up for sale and he took it with the intent of immediately buying it or reasonably believing that, had the owner been there, he would have consented to the defendant taking the property.

The fact that it is not considered larceny to take someone else’s property if the defendant intends to return it raises a special problem in regard to the recreational activity known as joyriding, which consists of a group of people breaking into someone’s car, taking it for a drive and then returning it to the exact spot where they found it. Since the joy riders do not intend to permanently deprive the owner of his property, and driving around the neighborhood does not constitute an action that creates a high risk that the property will be damaged or destroyed, joyriding is technically not larceny. For this reason, the Model Penal Code has eliminated the mens rea requirement for larceny so that no intent to permanently deprive the owner of his car is necessary in order to convict joyriders.

Please note that, under the common law, in order to be convicted for larceny, the defendant must have intended to permanently deprive the owner of his property at the time he took it. If the defendant takes the property and then later formulates the intent he is not guilty of larceny. For example:

Dylan asks Jake if she can borrow Jake’s new Cadillac SUV to take a day trip to the mountains. Jake agrees and gives Dylan the keys. As Dylan is driving to the mountains she decides to keep the car for herself rather than returning it as promised. In this case, Dylan cannot be convicted of larceny because the requisite intent was not present at the time she took the car from Jake. See Ennis v. State, 167 P.229 (Okla. 1917).

However, if the defendant’s initial taking of the property was wrongful, then he can be convicted of larceny even if he formulated the intent to permanently deprive the victim of the property after he had taken it. See State v. Coombs, 55 Me. 477 (1868). For example:

Dylan asks Jake if she can borrow his new SUV to take a day trip to the mountains. Jake agrees and gives Dylan the keys. However, Dylan has lied to Jake and she really intends to drive the car to Las Vegas and spend the next four days there. While Dylan is driving to Las Vegas she decides to keep the car for herself instead of returning it to Jake after her trip. In this case, even though Dylan only formulated the intent to permanently deprive Jake of the car after she had taken it from him, Dylan can be convicted of larceny because her initial taking of the car was wrongful.



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