CRIMES AGAINST PROPERTY & HYBRID CRIMES
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 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 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 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.
The Armed Robbery Page
Preventing Crime at Places
Uniform Crime Reports
Gardner, T. & T. Anderson (1996) Criminal Law. St. Paul: West.
Samaha, J. (1999) Criminal Law. Belmont, CA: West/Wadsworth.
Webb, G. (1981) Plain Language Law: Criminal Wrongs. Atlanta: Prof. Impressions.
Last updated: 06/19/03
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