Larceny

In the United States, larceny is a common law crime involving theft. Under the common law, larceny is the trespassory taking (caption) and carrying away (asportation, removal) of the tangible personal property of another with the intent to deprive him or her of it permanently. In English law, the common law offense was codified into the Larceny Act 1916. In turn, the terminology and substance was converted into theft by the Theft Act 1968.

Larceny in the U.S.

The elements of larceny are as follows:

Take

Larceny is a crime against possession. The taking or caption element requires that the offender take actual physical control of the property, if but for a moment. Under the common law, it was not sufficient if the offender merely deprived the victim of possession; the offender must have gained control over the property. Thus merely knocking an article from a person’s hand was not larceny if the defendant did not thereafter find it.

The control must be complete. In a famous case the defendant removed an overcoat from a department store mannequin and began to walk away with it. The overcoat was secured to the mannequin by a chain; a fact the defendant first discovered when the chain drew taut. These actions were held not to be larceny because defendant never had complete control over the disposition and use of the coat. ["People v. Meyer", 75 Cal. 383 (1888).]

The taking may be only momentary. In another famous case, ["King v. Lapier", 1 Leach 320, 168 Eng.Rep. 263 (1784).] the defendant snatched an earring from the victim which immediately became entangled in the victim’s hair. The court held that the defendant's control over the property, although momentary, was sufficient to constitute a taking.

The equivalent term "deprive" is also sometimes used:

Carry away

The thief must not only gain dominion over the property he must move it from its original position. The slightest movement, a hair's breadth, is sufficient. [West Virginia v. Chambers, 22 W. Va. 779 (1883)] However, the entirety of the property must be moved. As one commentator noted critically this requirement is the difference between rotating a doughnut (larceny) and rotating a pie (not larceny) [Lafave, Criminal Law 3rd ed. (West 2000) 804 n. 11 ] citequote|Where's this from?. The movement must also be a carrying away movement rather than simply a movement preparatory to carrying the property away. For example [Boyce & Perkins, Criminal Law, 3rd ed. (1992) at 324. ] , in one case the victim had left his wheelbarrow in his yard. As was his custom he turned the wheelbarrow upside down to avoid water collecting in the tub. The defendant intending to steal the wheelbarrow turned it over but was apprehended by the owner before he could push the wheelbarrow away. The court held that the defendant's acts did not satisfy the asportation element of larceny because the movement of the wheelbarrow had merely been preparatory to the carrying away.

Personal property

From its creation the subject matter of larceny has been tangible personal property; property with a physical existence; things you can see, hold, and feel. To use the legal jargon, property that has a “corporeal presence”.

A. This limitation means:a. You can’t steal real property - land [ 4 Blackstone at 232] (by steal, commit common law larceny)b. You can’t steal items attached to or forming part of land [ Id. ] i. Buildings [ Joshua Dressler, Understanding Criminal Law, 3rd ed. (Lexis 2001) ISBN 0-8205-5027-2] ii. Trees [Id.] iii. Shrubsiv. Growing crops [Id.] v. Mineralsc. You can’t steal “ things of or from the environment”i. Water from the oceanii. Airiii. Sand from a public beachiv. Seashells from the seashored. You can’t steal love or affection.e. You can’t steal informationf. You can’t steal a person’s identity.g. You can’t steal services. [Joshua Dressler, Understanding Criminal Law, 3rd ed. (Lexis 2001) ISBN 0-8205-5027-2] h. You can’t steal labor. [Id.] i. You can’t steal intangible personal property (incorporeal rights) [Joshua Dressler, Understanding Criminal Law, 3rd ed. (Lexis 2001) ISBN 0-8205-5027-2] i. contract rightsii. choses in actiona. stock certificatesb. bondsc. checks j. You can’t steal intellectual propertyi. ideasii. wordsiii. thoughtsiv. images and soundsk. You can’t steal wills, codicils or other testamentary documents.l. You can’t steal wild animals. [Joshua Dressler, Understanding Criminal Law, 3rd ed. (Lexis 2001) ISBN 0-8205-5027-2] n. You can’t steal human corpses and body parts.o. You can’t steal things that have no economic value. [Boyce & Perkins, Criminal Law, 3rd ed. (1992)ISBN 0-88277-067-5 ]

Note: All states have enacted statutes to expand the coverage of larceny to include the items mentioned above. For example, North Carolina has statutes that make it a crime to steal choses in action, growing crops and so on.

The restriction of the scope of larceny to personal property is not merely a matter of academic interest. It can have serious real world consequences. For example, a person "steals" your central air conditioning unit by cutting the connections to the house, removing the unit from its concrete pad and hauling the disconnected unit away in a truck. This certainly sounds like larceny. However in most jurisdictions a central air conditioning unit would be considered a fixture; part of the realty. Severance of a fixture from the realty would convert the fixture from real to personal property. However, the common law had a rule that said if the severance and carrying away of a fixture was one continuous act there was no larceny. Thus in the example the defendant would not be guilty of common law larceny merely damage to real property. Compounding this affront to common sense is the fact that the offender could not be charged with possession of stolen property because the property had not been stolen. Most jurisdictions have filled this gap in common law larceny; although there are a few that have not.

Of another

The victim of larceny can be a real person or a legal entity such as a corporation. However, you cannot steal property in which you have a joint interest. Thus, under the common law, a partner could not steal partnership property.

This limitation in the scope of larceny has been eliminated by statute in most jurisdictions.

The "owner" must be "another person" than the defendant "who has a right to possession thereof superior to that of the taker, obtainer, or withholder." [N.Y. Penal L. §§ 155.00, 155.05, found at [http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS NY Assembly website] . Retrieved October 2, 2008.]

Without consent

The taking must be without the consent of the owner. This means that the taking must have been accomplished by stealth, force, threat of force, or deceit. If the offender obtained possession lawfully then a subsequent misappropriation is not larceny.

Intent to steal ("animus furandi")

The offender must have taken the property with the intent to steal it. Traditionally intent to steal is defined as the intent to deprive the owner of the property permanently. However, intent to steal includes other states of mind such as the intent to recklessly deprive the owner of the property permanently. A person who takes property of another under the mistaken belief that the property belongs to him does not have the requisite intent to steal. Nor does a person "intend to steal" property when he takes property intending to make temporary use of it and then return the property to the owner within a reasonable time. [Lafave, Criminal Law 3rd ed. (West 2000) 812 citing Impson v. State, 47 Ariz. 573, 58 P.2d 523 (1936)]

The thing stolen must have value

Larceny protects the possession of goods – things that have economic value. A good has economic value if has a price; that is, the property can be sold in a market. There are objects that have no economic value and thus are not subject to larceny. Some goods are "free", such as the air we breathe, objects that could not sell at any price, or could not be given away. Examples abound - leaves that have fallen from trees, garbage, the contents of a septic tank. There are few rational people who have a desire to buy such things. In fact, you usually have to pay someone to remove them.

Under NY law, written instruments, utility services, and items of unascertainable value have special rules, [See N.Y. Penal L. § 155.20 (2), (3), (4), found at [http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS N.Y. state Assembly website] . Retrieved October 2, 2008.] and for grand larceny in the fourth degree, a motor vehicle must have value of $100 or greater. [N.Y. Penal L. § 155.30 (8), found at [http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS N.Y. state Assembly website] . Retrieved October 2, 2008.] Otherwise, value is defined generally as:

Other factors

Trespass

Trespass limits right of possession—that is, lawful possession prior to the act negates trespass (see embezzlement). Even if the prior owner did not have possession (as in, lost or misplaced), then he is deemed to still have constructive possession. At common law, this restriction of larceny to trespassory takings was encompassed in the doctrine of possessorial immunity. Simply put, the doctrine stated that an appropriation of personal property by a person who had lawful possession of the property was not larceny.

Asportation

Asportation and taking involving physical movement of the property. Larceny under common law is never applied to real property (land), or services. However, in the U.S., the Model Penal Code (MPC) states that services can be the subject of theft. Wild animals ("ferae naturae") are deemed to not be the property of the owner of whatever land they are found on, so takings of wild animals are also not subject to larceny.

Intent for larceny

The intent required is that one intended to deprive the possessor of the property "permanently." Courts have held that "permanence" is not simply keeping forever; it can include the intent to deprive the possessor of economic significance, even if there are plans to return the property later. Although the "mens rea" of larceny is the intent to steal, the focus is on the loss to the possessor, not the gain to the defendant.

In most of the United States the common law definitions of certain crimes have been modified. New York law retains the common law elements. [See, "e.g.", N.Y. Penal law sections 155.00-155.45, found at [http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS NY Assembly official web site] . Accessed March 17, 2008.] Quite often the general crime of theft has replaced larceny, and most related common law and statutory crimes such as embezzlement, false pretenses, robbery, and receipt of stolen property.

Larceny by trick

Larceny by trick is not an offense separate and distinct from common law larceny. The name is descriptive of the method used to obtain possession. The concept arose from Pear’s Case decided 1779. [King v. Pear, 1 Leach 212, 168 Eng.Rep. 208 (1779). ] The issue was whether a person who had fraudulently obtained possession of personal property (a horse) could be convicted of larceny. The chief impediment to conviction was the doctrine of possessorial immunity which said that a person who had acquired possession lawfully, that is with the consent of the owner, could not be prosecuted for larceny. Clearly the owner of the horse had given the defendant possession of the animal – she had agreed that the defendant could borrow the horse to ride to Surrey. The case would seem to be have been cut and dried – the doctrine of possessorial immunity applied and the defendant was therefore not guilty of larceny. The court held that consent induced by fraud was not consent in the eyes of the law. The fraudulent act that induced the owner to transfer possession “vitiated” the consent. This concept of consent broadened the scope of larceny. Before, consent meant the voluntary relinquishment of possession and thus property was wrongfully taken only if the defendant acquired possession by stealth, force or threat of force.

The problem with the ruling in Pear’s is that it requires the prosecution to determine the defendant’s state of mind at the time she was given actual possession of the property. What a person is thinking is not the subject of direct evidence. One must resort to indirect, circumstantial evidence to determine the defendant’s intent. Unfortunately, the circumstantial evidence is often ambiguous. For example, a young man appears at a used car lot and says he is interested in buying a particular car. He tells the salesperson that his invalid father will be paying for it and asks if he can drive the car to his home to show it to his father. The salesperson agrees, gives the young man the keys, slaps on a dealer’s tag and writes a permit that allows the young man to have the car for three hours. The young man does not return after three hours; in fact, he does not return at all. The salesperson finds out that the young man did not take the car to his father’s home and that his father knows nothing about his son’s interest in buying a car. A few weeks later the car and is discovered abandoned on the side of U.S. 1 in Florida. The problem is that the prosecutor must determine whether to charge the defendant with larceny, false pretense or embezzlement. He can rule out false pretense immediately because the salesperson intended to transfer possession of the car not title. The choice between larceny and embezzlement is more difficult because under Pear’s the choice depends on whether the defendant obtained possession by deceit – if so the crime is larceny (by trick); if not, the crime is embezzlement. Has the defendant deceived the dealer? It is possible that the defendant made up the entire story because he needed a car to get out of town. In that case the defendant would be guilty of larceny (by trick). However, there are many other possibilities to consider. It is possible that the defendant sincerely believed that he father would pay for the car and that his father would have paid for the car if he had known of his son’s plans. It is also possible that his decision not to return the car is innocent – he could have been carjacked and forced to drive the carjacker to Florida. It is also possible that his statement to the salesperson was true but young man loved the car so much he was determined to have it regardless of whether his father was willing to pay for it and he drove the car to Florida. In that case, the defendant is guilty of embezzlement not larceny because he did not deceive the salesperson to gain possession of the car. His decision to convert the car to his own use occurred after he had gained lawful possession of the car.

Why didn’t the court use the legal fiction of vitiated consent to include transactions in which the thief uses deceit to acquire both title and possession? According to Perkins, Pear’s case “made its appearance rather late in the common law of England.” [Boyce & Perkins, Criminal Law, 3rd ed. (1992) at 307 ] “Before the law had been well-settled ‘for generations’ that obtaining title by cheating was not larceny.” [Id. at 308] In fact, a false pretense statute had been passed by Parliament thirty years before the Pear's decision. However, courts had interpreted the statute to require the use of a false token to perpetrate the deceit - mere words were insufficient. Thus to expand the scope of larceny to include the obtaining or title by deceit the courts would have had to ignore “generations” of precedent to the contrary. The idea of using deceit to accomplish larceny was a new innovation; “there was no precedent to the contrary.” [Id.]

Types of larceny by trick

Larceny by trick or deception occurs when the victim of larceny is tricked by a misrepresentation of fact into giving up possession of property. This should not be confused with false pretenses, where the victim is tricked into giving up title to the property. However in New York State this class of larceny is broken down in statutes into two types.

*Larceny by false promise refers to where someone obtains property in exchange for a promise to do something when the person making the promise does not intend to fulfill that promise. An example would be individual A taking a down payment for doing work for individual B, and then A takes the money and runs off to the Bahamas with no intention to ever do the work.
*Larceny by false pretenses refers to obtaining property by misrepresenting facts relating to the promise. Here, an example would be where A offers to sell his car to B when A does not actually own the car.

Grand Larceny

Grand larceny is typically defined as larceny of a significant amount of property, in some cases, it can be less. In the U.S., it is often defined as an amount valued at $200 or more. In New York, Grand Larceny refers to amounts of $1,000 or more. Grand larceny is often classified as a felony with the concomitant possibility of a harsher sentence. Sometimes, the crime can be considered serious even for trivial theft. For example, in Virginia, petit larceny (a misdemeanor) occurs when the amount stolen is less than $5.00, if taken from the person (e.g. pickpocketing or robbery), or less than $200 if not taken from the person (e.g., stealing someone's property, or shoplifting) [ [http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-96 § 18.2-96] , Code of Virginia, 1950.] . Grand Larceny (a felony) occurs for a theft of only $5.00 or more from a person, or more than $200 if not taken from the person. [ [http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-95 § 18.2-95] , Code of Virginia, 1950.] The same penalty applies for stealing checks as for cash or other valuables. [ [http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-98 § 18.2-98.] , Code of Virginia, 1950.]

According to the general statutes, some states (such as North Carolina) have no formal Charge of Grand Larceny. There is, however Felonious Larceny, which is defined the same as Grand Larceny.

The classification of larceny as grand or petit larceny originated in an English statute passed in 1275. Both were felonies. However, the punishment for grand larceny was death while the punishment for petit larceny was forfeiture of property to the crown and whipping. The classification was based on the value of the property taken. The offense was grand larceny if the value of the property taken was greater than twelve pence, approximately the value of a sheep in the thirteenth century. [Boyce & Perkins, Criminal Law 3rd ed. (Foundation Press 1982) 335.]

Most jurisdictions have discarded the grand/petit terminology and use value to classify larcenies as felonies or misdemeanors. "Value" means the fair market value of the property at the time and place taken. Most jurisdictions also make certain larcenies felonies regardless of the value of the property taken. For example, North Carolina General Statutes Section 14 - 72 (b)(1) makes the crime of larceny a felony "without regard to value" if the larceny is (1) from the person (2) committed pursuant to certain types of breaking or enterings (3) of any explosive or incendiary device or (4) of any firearm. [N.C.G.S. 14 - 72(b)(1)- (6)] The modern spelling is "petty larceny" for the misdemeanor level.

References