Chapter
26
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Chapter
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THEFT
[A] General Rule – Common law larceny is the trespassory taking (caption) and carrying away (asportation) of the personal property of another with the intent to permanently deprive the possessor of the property. Larceny is a specific-intent crime.
Real property is not the subject of larceny law. Moreover, only tangible forms of personal property are encompassed in the offense.
Grand and petty larceny were felonies at common law, with grand larceny being punishable by death. Today, grand larceny is a felony and petty larceny is a misdemeanor.
[B] Trespass – A "trespass" is the dispossession of another’s property without his consent, or in the absence of justification for such nonconsensual dispossession. Dispossession by fraud also constitutes a trespassory taking.
[C] "Of
Another"
[1] Common law – Because larceny involves the trespassory taking of possession of another person’s property, a person may be convicted of larceny of property he owns, e.g., if a landlord, who leases out furnished apartments, enters a tenant’s apartment and takes and carries away the furniture in violation of the lease agreement, he has taken the personal property "of another" for purposes of larceny law.
[2] Model Penal Code – The Code defines "property of another" broadly to include "property in which any person other than the actor has an interest." [MPC § 223.0(7)] This definition includes a possessory or ownership interest.
[D] "Custody" versus "Possession" – Larceny involves the trespassory taking of personal property from the possession of another. Ownership is not the key. A person has possession of property when he has sufficient control over it to use it in a reasonably unrestricted manner. Possession can be actual or constructive. It is actual if the person is in physical control of it; it is constructive if he is not in physical control of it but no one else has actual possession of it, either because the property was lost or mislaid or because another person has mere "custody" of it. All non-abandoned property is in the actual or constructive possession of some party at all times.
A person has mere custody of property if he has physical control over it, but his right to use it is substantially restricted by the person in constructive possession of the property. A person in physical control of property has mere custody of the property in any of the following situations:
| 1.) | He has temporary and extremely limited authorization to use the property. | |
| 2.) | He received the property from his employer for use in the employment relation. However, an employee who obtains property from a third person for delivery to the employer takes lawful possession upon delivery, and thus cannot be convicted of larceny of the property if he carries it away. | |
| 3.) | He is a bailee of goods enclosed in a container. When a bailee is entrusted with a container for delivery in unopened condition, he receives possession of the container but mere custody of its contents. When the bailee wrongfully opens the container and removes the contents, i.e., when he "breaks bulk," a trespassory taking of possession of the contents results. | |
| 4.) | He obtained the property by fraud. When one receives property from another based on a false promise to return it, he receives only custody of the property, and is guilty of larceny if he appropriates it. On the other hand, if one has an honest intent when he receives the property (and, thus, no fraud is involved), he receives possession of the property, and any subsequent misappropriation constitutes embezzlement or no offense. |
[E] Carrying
Away (Asportation)
[1] Common law – A person is not guilty of larceny unless he carries away the personal property that he took trespassorily from another. However, virtually any movement of the property away from the point of caption is sufficient, e.g., larceny, rather than attempted larceny, occurs even if a shoplifter is caught with the merchant’s property in his possession inside the premises.
[2] Model
Penal Code – The Code does not require proof of asportation.
[MPC § 223.2(1)] This feature of
the Code has been incorporated into most states’ revised theft laws.
[F] Personal
Property
[1] Land and Attachments Thereto – The common law of larceny does not protect land because by its nature it is immovable. Items attached to the land, e.g., trees, crops, and inanimate objects affixed in the earth also fall outside the scope of the offense. Once they are severed from the land, however, they become personal property and subject to larceny law.
In contrast, the Model
Penal Code and many modern theft statutes cover all property ("anything
of value"), [MPC § 223.0(6)] including "immovable" property,
such as real estate, and "movable" property, "including things
growing on, or found in land." [MPC § 223.0(4)]
[2] Animals – At common law, animals in the state of nature or ferae naturae (e.g., wild deer, wild birds, fish in an open river) were not "property" within the meaning of larceny law. However, once an animal was confined by a person on his land or killed, it became his personal property, subject to the law’s protection.
Domesticated animals of a "base nature" also fell outside the scope of the common law definition of larceny. Horses and cattle were subject to larceny laws; dogs were "base." Today all domesticated animals and birds are protected by theft statutes.
[3] Stolen Property and Contraband – It is larceny for a person to take and carry away the property of another, even if the "victim" also had no right to possess the property in question.
[4] Intangible Personal Property – Because common law larceny involves the wrongful taking and carrying away of personal property, property without a corporeal existence, i.e., intangible property, is excluded from its coverage. Today the vast majority of states follow the Model Penal Code and prohibit the unlawful transfer of intangible personal property rights. [MPC § 223.2(2)]
[G] Intent
to Steal
[1] In General – Courts commonly state that a person is not guilty of larceny unless he takes and carries away the personal property of another with the "specific intent to steal" the property. However, courts have construed reckless behavior to constitute intent if the defendant knew that his conduct would create a substantial risk of permanent loss, i.e., that the defendant was guilty of recklessly exposing the property to permanent loss.
[2] Continuing-Trespass Doctrine – When a person takes possession of another person’s property by trespass, every moment that he retains possession of it constitutes a new trespassory taking that continues until he terminates possession of the property.
[3] Claim
of Right – A person is not guilty of larceny if he takes property belonging
to another person based on the good faith belief that he has a right to possess
the property. The defendant’s belief
negates the specific intent to steal.
[H] Lost and Mislaid Property – An owner of property retains constructive possession of his lost property if there exists a reasonable clue to ownership of it when it is discovered. A reasonable clue to ownership exists if the finder: (1) knows to whom the lost property belongs; or (2) has reasonable ground to believe, from the nature of the property, or the circumstances under which it is found, that the owner can be ascertained. If there is no reasonable clue to ownership of the lost property, the finder may use the property as he wishes; the act of picking up the property and using or disposing of it is not a "taking" (trespassory or otherwise). However, if there is a reasonable clue to ownership of the property, the finder’s state of mind upon discovery becomes critical.
With mislaid property, the same two factors – the possessory interest of the owner in the property, and the finder’s state of mind upon discovery – apply. An object is "mislaid" if it is intentionally placed in a location for a temporary purpose and then inadvertently left there.
Embezzlement is not a common law offense and thus is a legislative creation. Most embezzlement statutes set forth the following elements:
| 1.) | that the defendant came into possession of the personal property of another in a lawful manner; | |
| 2.) | that the defendant thereafter fraudulently converted the property; and | |
| 3.) | that the defendant came into possession of the property as the result of entrustment by or for the owner of the property. |
[A] In General – At common law, a person who "knowingly and designedly" obtains title to property by false pretenses is guilty of the offense of false pretenses. A "false pretense" is a false representation of an existing fact.
[B] Elements
of the Offense
[1] False Representation – False pretenses requires a false representation, whether in the form of writing, speech, or conduct. Generally, nondisclosure of a material fact does not constitute false pretenses, even if the omitter of the information knows that the other party is acting under a false impression. However, nondisclosure constitutes misrepresentation if the omitter has a duty of disclosure, such as when he has a fiduciary relationship to the victim.
[2] Existing
Fact
[a] Common and Statuory Law – At common law, the expression of an opinion, uttered with the intent to defraud another, does not constitute false pretenses. According to the modern majority rule, the offense of false pretenses also does not apply to misrepresentations regarding future conduct, although many states have recently expanded their theft laws to encompass false promises.
[b] Model Penal Code – Section § 223.3 provides that a person is guilty of "theft by deception" (the Code’s equivalent offense) if he creates or reinforces a false impression regarding the value of property. However, the Code expressly immunizes puffing, if the statement would not deceive an ordinary listener.
The Model Penal Code prohibits deception regarding a person’s "intention or other state of mind." The Code expressly provides, however, that deception regarding the intention to fulfill a promise cannot be inferred solely from the fact that the promisor did not perform as guaranteed. [MPC § 223.3(1)]
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Chapter
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