Just as all modern crimes against habitation have their
origins in the ancient law of trespass, all modern theft laws have their origins
in the ancient law of larceny. Trespass was designed to protect real property
(items of possession affixed to the ground) from invasion, damage, and
destruction. Larceny was designed to protect personal property (items of
possession that were moveable) from MISAPPROPRIATION and STEALING. Up until the
Industrial Revolution, larceny was the only kind of theft on the books, and a
felony punishable by death (a "hanging offense").
Modern theft law recognizes many different kinds of crimes
against property as well as hybrid crimes (both against
person AND property, like robbery). Under federal law, for example, there are
well over 100 different kinds of larceny-thefts recognized. The states don't
often recognize as many offenses, and not all of them follow the federal
"consolidated" (UCR) approach of using the hyphenated phrase "larceny-theft".
About 30 of the states use a consolidated "theft" approach, dropping the word
larceny, and listing thefts by the type or value of property involved; e.g.,
theft of goods, theft of services, grand theft, petty theft. About 20 of the
states use a "larceny" approach, subdivided into larcenies by trick and
larcenies by force, relying upon common law definitions. Most larcenies and
thefts are specific intent crimes (extortion is the
exception as a general intent crime) which means that the mental state is
precisely spelled out in criminal statutes.
Any discussion of Theft Law is generally a discussion about
the following crimes: (1) Larceny-Theft; (2) Embezzlement-Theft; (3) False
Pretenses-Theft; (4) Receiving Stolen Property; (5) Robbery; and (6) Extortion.
Numbers 1-3 are typical of crimes consolidated into general theft statutes.
ELEMENTS OF LARCENY
Larceny is the wrongful taking and carrying
away of personal property which is in the possession of another with the intent
to convert it or permanently deprive the owner thereof.
1. Wrongful taking -- The state
must show that there was an element of control, however brief, over someone
else's property by the defendant. Control doesn't mean touching. If you sell
someone else's bicycle to a passerby, even if you didn't touch it, you have
taken it. The same with financial transactions; you don't need to actually
handle money to take it. A common defense to this element is "borrowing". Since
larceny is a specific intent crime, the law requires considering whether there's
an intent to steal or a genuine intent to return something.
There's no such thing as "finder's keepers" for lost or
mislaid property under Theft Law. All states have little-known statutes
establishing the standards by which a reasonable effort must be made to find the
true owner. However, if there's no real way of ever finding the true owner (like
finding a dollar bill on the sidewalk), the taking does not constitute larceny.
Many states have constructed three levels of taking:
-
larceny (theft) by trick -- con games, schemes, and swindles
-
larceny (theft) by deception -- stings, scams, price altering
-
larceny (theft) by fraud -- inside trading, telemarketing, credit card
2. Carrying away -- In legal
jargon, this is called asportation. It means that the property was
completely moved (however slightly) from the place it was taken. Partial, or
incomplete, movements, such as shuffling or rearranging an object does not
count. Carrying away can be done by an innocent third person, if say, the item
was stashed on them without their knowledge. A common defense in shoplifting
occurs when the shoplifter senses they will be stopped, and therefore drops or
abandons the item before leaving the store. Some state laws will say this is
still carrying away since the item left it's merchandise area; other states will
require the shoplifter have passed beyond the final point of purchase. The
element of asportation is settled on the basis of common sense.
The above two elements are often decided on the basis of
something called trespassory taking, which looks at whether the person
involved has "larceny in their heart". There are four rules (exceptions)
associated with this, and the following types of persons cannot take
anything in legal sense:
-
Employees cannot normally possess their employer's property because they have custody over it (thus, employees are not usually charged with shoplifting, but with pilfering or embezzlement)
-
People normally consent to "loan" their property to repairmen but do not relinquish possession (thus, repairmen can only be charged with larceny by trick or false pretenses if there's a transfer of title)
-
Bank tellers (or others authorized to handle money) are involved in transfers of custody, not possession (thus, cashiers can only be charged with larceny by trick or false pretenses)
-
Parking lot attendants (who have their customer's keys) cannot wrongfully take and carry away property because they possess it.
3. Personal property -- Under
the old common law, only moveable property counted as personal property, but
under modern statutes, almost anything qualifies as personal property. There are
generally seven categories of property:
-
Real property - real estate, trees, items attached to the land
-
Tangible property - moveable, anything not affixed to the land
-
Documents - money, tickets, paper, anything of value
-
Services - labor, utilities, lodging, food, transportation
-
Information - records, computer files, some services
-
Intellectual - skills, talents, abilities or products thereof
-
Contraband - illegal items, unlikely to be reported stolen
The value of the property stolen determines whether the
charge is a misdemeanor or felony. Grand larceny, a felony, involves property
generally worth more than $400 on average, but the dividing line differs in each
state. Petty larceny, a misdemeanor, generally involves anything worth less than
$400 on average. Some states also have particular interests in certain kinds of
property. In Texas, theft of oil, no matter how little, is automatically a grand
larceny; in California, it's avocados. Some states also use a "market value"
approach to determining worth; others use "replacement cost". Evidence rules
sometime require experts or appraisers to testify as to the worth of property.
4. In possession of another --
The law requires that the owner of the property testify that the taking was
without his or her consent and to identify the stolen property in open court.
Sometimes, as in the case of jewelry, it's difficult for the owner to make an
identification. For this reason, law enforcement investigators often have a
policy of marking objects of stolen property at the time of search & seizure. It
must also be proven that the owner did not abandon the property, leaving open
the honest belief that they did not care if it was taken. Things that are in a
wild state, like wildlife, cannot be the property of another.
5. With the intent to convert or
permanently deprive -- Larceny is a specific intent
crime. The intent may be proven by direct or circumstantial evidence, and at a
minimum, by a substantial risk of permanent loss, but more typically if the
thief is counting on, but not hoping for, some "reward" or gain by the sale or
return of the property. The substantial risk of loss is a fairly new element
intended to encompass cases like joyriding, where the thief plans to eventually
return the property, but the risk of permanent loss is present. If it turns out
the thief truly believes the property is theirs, this is called the claim of
right, a common defense to larceny.
EMBEZZLEMENT
Embezzlement is the conversion of lawfully acquired property
into something for unlawful purposes (personal use or profit). The property
converted must have come into the suspect's possession via a position of trust,
commonly called a fiduciary relationship. For example, employees, parking lot
attendants, dry cleaning services, auto shops, and bankers typically occupy such
positions of trust. The actus reus elements of embezzlement are the same as
larceny except that the element of taking is relaxed and the element of breach
of trust is added. All that's necessary to prove breach of trust is that the
property was handled in a manner inconsistent with the trust arrangement.
Embezzlement is a specific intent crime. The requisite mental
state is an intent to defraud and convert property. This mental state is
sometimes proven by considering what happened after the act of larceny. If the
person claims they intended to return the exact same property, it is false
pretenses. If the person intended to return similar or identical property
because they have already spent the profit, or covered up the losses in some way
because of the physical impossibility of returning the original property, it is
embezzlement.
FALSE PRETENSES
False pretenses is the crime of deceiving owners into
willingly giving up rightful possession of their property with an intent to
convert the property to personal use or profit. Persons who commit false
pretenses do not have any lawful right to possession or any trust relationship.
They simply lie, and this is the primary actus reus of false pretenses -- a lie,
some kind of actual misrepresentation of the truth. It also must be shown that
the victim relied upon the misrepresentation so much that they were willing to
give up their property, not just possession of it, but ownership as well. This
is the difference between larceny by trick and false pretenses -- in larceny by
trick, the owner just gives up possession. With false pretenses, there's usually
a transfer of title, deed, or ownership.
RECEIVING STOLEN PROPERTY
Receiving, concealing, possessing, buying, or transferring
stolen property are typically the behaviors associated with the crimes of
fencing or trafficking in stolen goods. Receiving is generally defined as a
single act, while concealing, possessing, buying, and transferring are conceived
of as continuing acts. Fencing or trafficking are the continuing acts of being a
middleman or distributor. The crime of receiving stolen property is a specific
intent crime requiring proof that the person gained control over an item, knew
that the item was obtained in a criminal manner, and (at any level of intent)
intended to permanently deprive the rightful owner of his or her interest in the
property. Control of the property can be actual or constructive, and it's the
material fact of the item being stolen that matters, not the belief that it's
stolen. If someone hides something they think is stolen, but it is not in fact
stolen, then they have not received anything stolen. The level of mens rea is
lessened in this crime to include negligence because a person should know, for
example, that when they get "too good" a deal on something, it's probably
stolen. This lowered culpability requirement is aimed at junk dealers and
pawnbrokers.
ELEMENTS OF ROBBERY
Robbery and extortion are hybrid crimes, both against person
and property. It's also sometimes said that these are "aggravated" forms of
larceny. Robbery is forceful stealing and extortion is blackmail. Robbery is the
most common crime in the United States. The elements of robbery are:
1. Taking -- The general rule is
that victim and offender must confront one another. There must be immediate
possession and direct control, not "control" in the looser sense associated with
larceny.
2. Carrying away -- The offender
must gain immediate possession of the property and retain it in such a way as to
make it immediately impossible for the rightful owner to regain possession. Only
a slight movement of the property is necessary to fulfill this requirement if
the element of impossibility is present or the threat of harm accompanies the
taking. Victims must relinquish their property because they honestly and
reasonably fear the robbers' threats. The victim is compelled to acquiesce in
the taking of the property.
3. Property of others -- Actual
ownership of the property by the victim does not matter; mere possession
is sufficient.
4. From their person or in their
presence -- The general rule is that the property must be on the person
or in the immediate vicinity. Other rooms in the house in which the victim is
located is considered within their presence.
5. By immediate or threatened force
-- This is the key element in robbery. There must be forceful intimidation
(force or threat of force to inflict harm to the person, property, or rights of
another). The threat can be to the victim, the victim's family, the victim's
dwelling, or another person present. Threats to dwellings don't count in some
jurisdictions. If there is no force or threat of force, the crime is larceny,
not robbery. If there is a struggle, the force must be sufficient to overcome
the victim's resistance; otherwise, the crime is attempted robbery. Some states
don't require force at the time of taking, only at the time of escape.
6. With the intent to permanently
deprive -- The intent required for robbery is the same as for larceny.
Most states have divided robbery into degrees:
-
1st degree robbery -- also called strong-arm robbery or mugging. This requires the presence of a deadly weapon (play weapon suffices), serious injury, or the intent to create serious injury. A variant, called Home Invasion Robbery, occurs when the robber follows the victim home, knocks on the door to gain entry, or lies in wait after a break-in.
-
2nd degree robbery -- this requires the presence of an accomplice or accomplices, any display of weapon, any injury or threat of injury.
-
3rd degree robbery -- also called simple robbery, unarmed robbery, or forcible stealing. This simply requires use or threat of force.
EXTORTION
Extortion is the only general intent crime against property.
It's synonymous with the term blackmail. It's the unlawful taking of property
from another by threats of future harm. The element of time is what
distinguishes extortion from robbery. Extortion is the threat of some future
harm rather than immediate harm. There's also no need for victim and offender to
confront one another. Extortion can be committed over the phone, by mail, or by
e-mail (but this of course makes it a federal crime). As a general intent crime,
the motives for it don't really matter. It also doesn't matter if the victim
cooperates (i.e., there's no such thing as attempted extortion). Here's some
typical extortions:
-
threats to drive someone out of business
-
threats to destroy somebody's good name
-
threats to expose somebody's family or personal secret
-
threats to kidnap or injure somebody's friends or family
-
threats to collect a debt by illegal means
-
threats to hurt somebody if they don't do something
-
threats to tamper with something that belongs to somebody
Extortion is the most common criminal charge against corrupt
police officers. Other than filing false statements/reports, Larceny-Theft is
the most common reason for de-certification of police officers.