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Theft Crimes: A Survey Under the Common Law and Modern Codes

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Theft Crimes

Under the common law (which means the historic definitions, dating back to the British rules on the subject), what we consider today as “theft” was broken up into several different types of crimes. Many states now treat most forms of theft as equally culpable and punishable. The Federal Sentencing Guidelines, a document that dictates sentencing procedure for people convicted of federal crimes, follows this approach. Some states, however, continue to treat different types of theft as different crimes. [1]

Either way, all states incorporate the common law elements of the various theft crimes and all states incorporate theft crimes in their criminal codes. Therefore, we will look at the various common-law theft crimes and discuss their elements.

Theft crimes punish the stealing of personal property, which refers to money or movable items.[2] It is distinguished from real property, which means land and structures attached to land and from intellectual property which means ideas, inventions or processes that have been memorialized in tangible forms. While stealing real estate or intellectual property may invoke other crimes (such as trespass), the theft crimes we are discussing in this presentation are limited to personal property.


    Larceny is a common law property crime. Some jurisdictions, such as Virginia, have codified the punishment for larceny into their criminal code, but have left the elements for the courts to interpret.[3] The courts in that state would likely look to the common-law for guidance. Under the common law, the required elements of larceny are:

-          A taking and carrying away;

-          of the personal property;

-          that belongs to another;

-          with the intent to deprive the person of that property permanently.[4]

The “taking and carrying away” element requires the physical separation of the item from its owner without the owner’s permission. To “carry away” an item, the defendant must move it, though there is no requirement that this be a long distance. In fact, the movement can be inches. Taking property off a store shelf with the intent to shoplift it can be considered larceny even if the defendant was still in the store and had not even passed the cash registers. Proving intent to steal could be difficult in such a case, but could happen if, for example, the defendant surreptitiously put store property in an inner jacket pocket in a clear attempt to avoid detection as he moved towards the exit.

The “of another” element requires that larceny can only be committed against the person with rightful possession of the personal property. Taking one’s own property back after having lent it to another, for example, would not be larceny.

Finally, the defendant must take the property with the intent to deprive the true owner of the property. Under the common-law, intent to “borrow” property without permission was insufficient to be considered larceny. Even hotwiring a car to take a joyride would not fit the common-law definition of larceny. The defendant would have to intend to keep the car or, for example, to sell to a chop shop, to meet the element of intending to deprive the owner of the property. Today, many states have extended the definition of theft to include depriving the owner of the property even for a short period of time, thus rendering unauthorized borrowing as theft.


“Embezzlement” is a common law “theft” category crime that means wrongfully keeping property that one acquired lawfully but is legally required to return or give to a third party. As with larceny, some states still define embezzlement as its own crime, while others follow the modern trend in combining all “theft” crimes into one crime.[5] Because embezzlement, by definition, involved property that the defendant obtained lawfully, it is unique among property crimes because its defining characteristic is a violation of trust.[6]

The required elements of embezzlement are:

-          Fraudulently embezzling or converting;

-          personal property of another;

-          by someone who has been entrusted with that property;

-          with the intent to deprive the owner of that property.[7]

As with all theft crimes, embezzlement is a specific intent crime. This means that the defendant must have intended to deprive the owner of the item to be guilty. A person who wrongfully keeps property temporarily, but intends to return it later, is not guilty of common-law embezzlement.

            For something to be done fraudulently, it must be done with intent or deceit.[8] Embezzlement occurs, for example, when a person borrows an umbrella during a rain storm but then fails to return, it, choosing to sell it instead and keeping the proceeds.

            Embezzling and converting have similar definitions and the same legal effect. Embezzlement occurs merely by keeping property one was supposed to return. Conversion occurs when someone interferes with someone else’s property to either gain the item or a benefit from that item; i.e., he “converts” it to his own use.[9] An auto mechanic who has custody of a car to repair it, but who drives the car to a neighboring town has “converted” the car to his own use. If he does so with the intent to keep or dispose of the car, thereby depriving the owner of it, he has committed the crime of embezzlement.

         The third requirement of embezzlement is that the defendant must have been entrusted with the relevant personal property. Some jurisdictions require that there be a special fiduciary relationship between the defendant and the victim (such as accountant or attorney-client), [10] but this is the minority rule.[11] The more common rule is that somebody can be guilty of embezzlement regardless of her relationship to the victim, if the personal property came to her possession lawfully. If the property came to her possession unlawfully, she can still be guilty of a step crime such as larceny with false pretenses, but not of embezzlement.

While a special fiduciary relationship is not necessary in most states, embezzlement is most equally committed by people with fiduciary relationships. Employees keeping money that they were supposed to deposit into firm accounts, law firm employees wrongfully using money that is being held for clients and financial advisors keeping money that they were supposed to invest for clients are all common examples of embezzlement.

False Pretenses

Larceny covers the case in which a defendant steals and carries away property of another. Embezzlement covers the case in which the defendant received the property lawfully but failed to return it. Between the two, and arguably not covered by either, is the case where the defendant lied to convince another to give her personal property. Therefore, a third crime, usually called “false pretenses” was created to cover this scenario, in which the defendant obtained the property he intended to steal by fraudulent misrepresentation.

            The elements are substantially the same as those of larceny and embezzlement, as false pretenses requires wrongful acquisition of the property because of the misrepresentation and intent to deprive the owner of the property.

Model Penal Code’s Approach

None of these crimes are considered independent crimes under the Model Penal Code. The Model Penal Code is suggested statutory principles drafted by experts in criminal law, to help states codify criminal law.[12] The Model Penal Code does not create binding law on a jurisdiction unless it has been adopted by that jurisdiction. The extent to which the Model Penal Code has been adopted varies by state.[13] Under the Code, there is one criminal offense of “theft.”[14] The charge of theft can be supported in various ways, but they all boil down to wrongful acquisition or keeping of personal property with wrongful intent.[15]

Some states that have adopted the Code’s approach have further modified the traditional common-law elements of theft. For example, in Arizona theft can be shown when a person, without lawful authority, knowingly controls the property of another, with the intent to deprive her of that property.[16] In Arizona, the property only needs to be under the control of the defendant for theft to be committed.[17] Neither taking, nor movement, nor possessing the property is required. For example, somebody who turns on the ignition of another’s car with the intent to drive the car away can be held liable in Arizona for theft even though he did not move the car. All that is necessary is that he has controlled the car.

Other Crimes Related to Theft


            There are other crimes that frequently contain elements of theft. These include burglary, robbery, extortion and receiving stolen property. While extortion and receiving stolen property are often treated as theft and punished to roughly the same extent, crimes where there is an element of violence, such as robbery and burglary, are generally punished more severely. These are covered in other presentations.


             While the nuances and elements of theft crimes can be extremely important, especially to those charged with these crimes, the trend today, as evinced by the Model Penal Code and Federal Sentencing Guidelines, is to treat all forms of theft as equally culpable and to mete our punishments based not on the mechanism by which the theft was accomplished but by the amount stolen. For example, in many states, stealing less than a certain amount is a misdemeanor called “theft” whereas stealing more than a given amount is a felony called “grand theft.” The amount stolen is now the critical dimension upon which theft is punished.


[1] State v. Winter, 706 P.2d 1228 (Ariz. Ct. App. 1985).

[2] Terr. V. Maxwell, 2 N.M. 250 (1882).

[3] Va. Code Ann. § 18.2-95.

[4] Welch v. Commonwealth, 425 S.E.2d 101, 104-05 (1992).

[5] State v. Winter, 706 P.2d 1228 (Ariz. Ct. App. 1985).

[6] What is "Property of Another" Within Statute Proscribing Larceny, Theft, or Embezzlement of Property of Another, 57 A.L.R.6th 445.

[7] Id.

[8] State v. Archie, 123 N.M. 503, 508 (1997).

[9] Id.

[10] Wagner v. State, 445 Md. 404 (2015).

[11] State v. Moss, 83 N.M. 42 (1971).

[12] Model Penal Code FOREWARD

[13] For an example of this, see how the code has been adopted in Arizona and New York.

[14] Model Penal Code § 223.1.

[15] Model Penal Code  223.2.

[16] A.R.S. § 13-1802

[17] State v. Aro, 937 P.2d 711 **, 6-7 (Ariz. Ct. App. 1985).