theft

theft and larceny

Theory

Unlike the civil law of trespass to chattels and conversion, the purpose of the criminal law of theft is not to return property to its rightful owner but to punish wrongdoers. The essential additional element of theft over civil wrongs is the mens rea of the person wrongfully taking property. The mens rea additional requirement thus covers the entire field of possible theft.

Practice

Theft of small items without the use of force (that is, theft without robbery) are typically handled outside of the criminal system. In contrast, fraud and larceny face much more consistent scrutiny. Private actors can also set up ex ante measures to protect against theft or fraud through screening requirements and the like.

Notice that the C17 law of larceny provided no difficulty in most cases of theft, which typically involved direct theft by a stranger.

Note that the necessity exception applies to the crime of theft.

Larceny

At common law, larceny was (1) a trespassory taking and carrying away of a chattel (2) from the possession of another with (3) the intent to permanently deprive the owner of that property. The original motive of criminal property law was to protect against breaches of the peace, not to restore wrongfully appropriated property to its rightful owner. (see above).

As a result, at common law for example the witholding of a debt is the breach of a contract and not a criminal offense. [People v Mitchneck] (employer refusing to pay employees' withheld wages that were promised to store at which employees making purchases). Furthermore, there could be no such thing as the theft of land; rather, alternative writs (such as the writ of novel disseisin) were required to regain possession of wrongfully held real property.

Furthermore, any voluntary transfer of possession would bar prosecution for larceny. [Topolewski v State] (no larceny of goods in factory where owner learned of planned theft and made goods prominent and easy to steal so as to catch the thieves). Another problem under the common law was that a person could not be convicted of larceny for the theft of services. [Lund v Commonwealth] (grad student who stole time on mainframe computer).

Courts responded first by distinguishing between possession and custody, [Sheriff of London v Anon] ("breaking bulk" case); [R v Chisser] (customer in store ran away with goods in store handed to him by clerk for his examination), so as to stress that a person could be guilty of felony for using a chattel placed in his custody outside the scope of the bailment relationship.

Second, courts held implicitly that a voluntary transfer of possession could still constitute larceny if the transferee had the intent at transfer to wrongfully appropriate the chattel transferred, on grounds that the transferee's fraud vitiated the transferor's consent to the transfer. [R v Pear] (defendant rented horse for a day, then promptly sold it and ran away). As a result, the crime of larceny was committed as soon as transfer of possession occurred. This legal fiction led to the new crime of "larceny by trick."

Theft by false pretenses, on the other hand, is the material misrepresentation of fact in order to gain title to a chattel.

Statutes (such as MPC 223) now often provide for a conviction of theft for any misappropriation of property.

Cases

[People v Mitchneck] (employer refusing to pay employees' withheld wages that were promised to store at which employees making purchases).

[alias: larceny]