Larceny in Context Distinguishing Between Larceny and Other Stealing Crimes

Stealing is a crime so old that it can be traced back at least as far as the Eighth Commandment. The law has managed to categorize the types of stealing into a confusing taxonomy of terms: burglary, embezzlement, extortion, larceny, robbery, theft, and so on.
Burglary and robbery are distinct from theft. (See Model Penal Code 221, 222). Extortion is a means of theft by threatening harm to the propertys rightful owner. See Model Penal Code 223.4. Embezzlement is a misappropriation of funds by a person to whom they have been entrusted. See Embezzlement.
The remaining theft offenses are roughly divided into theft by stealth and theft by deceit. False pretenses is theft by deceit whereas [l]arceny by trick is theft by stealth. R. Pearce, Theft by False Promises, 101 U. Pa. L. Rev. 967, 987 (1953).
A person who shoplifts by switching pricetags from less-expensive items onto more expensive ones commits theft by false pretenses if the seller relies on the phony prices to transfer the product to the putative buyer. See, e.g., People v. Lorenzo, 135 Cal. Rptr. 337 (1976).
A person commits theft by larceny when that person: (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with the intent to steal the property, and (6) carries the property away. People v. Davis, 965 P.2d 1165, 1167 (Cal. 1998).
As the cases show, the elements of larceny can be applied in a wide array of creative ways.
Taking Possession
Girard, a former DEA agent, conspired with James Bond to smuggle marijuana into the U.S. Girard offered, for $500 a name, to find out whether or not any of the other people considered for the operation were government informants. Girards accomplice, Lambert, was a DEA agent who looked through the departments databases to get the information. Unfortunately for Mr. Girard, Bond himself became an informant and disclosed his conversations with Girard to the DEA. U.S. v. Girard, 601 F.2d 69 (2nd Cir. 1969).
Girards conviction for converting the governments property was upheld. He had taken possession of the information merely by learning it. Its owner, the DEA, was never deprived of possession of its information; but its property interest was violated once the private data were disclosed.
Personal Property
After Jayne broke up with Karl, he repeatedly called to harass her. Jayne changed her number to an unlisted one and intended that Karl would not learn it. In search of the phone number, Karl climbed through a window into her trailer. While inside, he copied the phone number, Jaynes social security number, and her insurance policy numbers.
Karls conviction for burglary, which entails unlawfully entering anothers property with the intent to commit a crime, was upheld. The crime that Karl intended to commit was the larceny (or theft) of the unlisted phone number. The court pointed out: Phone numbers have been recognized in different contexts as property, and a persons interest in keeping their unlisted number private has also been recognized. Dreiman v. State, 825 P.2d 758, 762 (Wyo. 1992).
The same reasoning with respect to social security, insurance policy, and credit card numbers underlies the concept of identity theft.
Owned or Possessed by Another
William Rose walked into a bar and ordered a 10 glass of soda water. William laid a $50 greenback onto the bar and expected to receive $49.90 in change. Instead, the bartender put down a few coppers upon the counter, and when asked for the change, he took [William] by the neck and shoved him out doors, and kept the money. Hildebrand v. New York, 56 N.Y. 394, 395 (1874).
The bartenders conviction for larceny was upheld even though he claimed that William had surrendered possession of the greenback. The court noted that the delivery of the bill was conditioned upon the return of the change. Thus, until the transaction was complete, William was legally in possession of the money.
Means of Trespass
When Kenneth Davis entered the Mervyns store, a security agent placed him under camera surveillance. Security watched as Kenneth took a shirt from its hanger and placed it inside a Mervyns bag, which he had brought with him. He then walked to a cashier at the other end of the store and asked to return the item, which he claimed that he had bought as a gift.
Appealing his conviction for theft by larceny, Davis argued that he had not trespassed because a self-service store like Mervyns impliedly consents to a customers picking up and handling an item displayed for sale. People v. Davis, 965 P.2d 1165, 1168 (Cal. 1998). Rejecting the argument, the court wrote, Because Mervyns cannot be deemed to have consented to defendants taking possession of the shirt with the intent to steal it, defendants conduct . . . constituted a trespassory taking within the meaning of the law of larceny. Id., 965 P.2d at 1176.
Intent to Steal the Property
An intent to return anothers property can be a defense to theft charges if the property retains its value and if the return is unconditional. Conditional returns constituting theft fall generally into 3 categories: (1) when the defendant intends to sell the property back to its owner, (2) when the defendant intends to claim a reward for finding the property, and (3) when . . . the defendant intends to return the property to its owner for a refund. People v. Davis, 965 P.2d 1165, 1169 (1998).
Consider a hypothetical. A Pomeranian wanders into Walters back yard. Walter knows that the dog belongs to his neighbor Wendy, who loves the dog but is scatterbrained at times. Anticipating a frantic search, Walter secludes the Pomeranian in his house until a reward is offered. These actions constitute larceny because Walter is depriving the owner of a portion of the value of the property. Commonwealth v. Mason, 105 Mass. 163, 168 (1870).
Carrying the Property Away
The asportation element, or carrying away someone elses property, is the least important aspect of larceny. Some states have done away with it altogether. Courts in other states merely interpret the requirement broadly so that it can easily be satisfied.
In People v. Alamo, 34 N.Y.2d 453 (1974), the court held that the asportation requirement was met when the defendant got into a strangers car, turned on the lights, and started the engine. The court reasoned that the purpose of the carrying-away element is to establish the actions needed to gain possession and control. Id. Similar reasoning has made the last element of larceny the easiest to prove.
Denouement
Theft is one of several species of stealing. Larceny is theft by stealth, as opposed to false pretenses. Although the offense of larceny has very specific elements, courts have found creative ways to apply those elements in order to criminalize a wide array of conduct.
The prosecutions creativity must be matched by that of the defense attorney. An effective defense can restrict the expansion of the scope of larceny and can ensure that a defendant is charged under the correct statute to avoid an unduly harsh sentence. Because theft can result from desperation or even accident, it is important that the defense attorney understand the defendants situation so that it can be related to the jury.