UNIT TWENTY-TWO - Larceny (Possession/Custody; Larceny & Embezzlement; Trespassory Taking & Asportation; Intent to Deprive; Concurrence of Conduct & Culpable Mental State); Texas Theft Skip a line, new topic for this unit. The new subject is property crimes (1 -investigation), (2 - 9,080,788 of 'em in 2006). Property is in our blood here in America. Our economy is a jungle where the law is eat or be eaten, a place where you have to move fast just to stand still, a place with an insatiable appetite for tomorrow and the pursuit of happiness, a place where the American dream is the dream of accumulating more material possessions than the guy next door, a place where we don't own things and they do own us. Greed seems to be the operative moral value. The unscrupulous Enron & World Com crowd capitalized on that human trait in the late 90's. In the first decade of the twenty-first century it was banks and investment houses that wrecked the American economy with a Wall Street crash heard round the world in late 2008 and early 2009. There were some real huckleberries involved - from so-called "Texans" Bush2 and Phil Gramm to New Yorker Bernie "Ponzi Scum" Madoff, who preyed off his own kind, the greedy rich. See Bullets IV for a list of the morlocks who caused the economic meltdown of 2008-09 and further explanation. Shrewd Wall Street money managers, investment bankers and financiers coupled with governmental mismanagers laid it to us common folk. [My fellow students who'll be looking for jobs in the next few years and superannuated oldsters who are too old to work will take this recession/depression in the keister.] American crooks have matured with the society. Now we are blitzed with fraud crimes like telemarketing fraud, money laundering, insurance fraud, computer crimes, elder fraud, identity theft, bank and credit card fraud, etc. Check out cybercrime. Sometimes I wonder if life in a small seaside village, e,g., Matagorda, Texas, wouldn't be preferable, even if the marsh mosquitos are the size of hummingbirds. Maybe I'll pack it in and move to a Gulf Coast beach shack or, better yet, a thatched hut on the cliffs above La Jolla Cove. Life ain't supposed to be fair, is it? If it was, Elvis would still be alive and all the impersonators would be dead. The major emphasis in this unit is the C/L crime of larceny. (The FBI reports 5,971,647 cases of larceny/theft in 2006.), the legislatively enacted extensions (embezzlement and false pretenses) of property crimes in the C/L days, and the modern day derivations of those property crimes from the C/L days, e.g., TPC Sec. 31.03 and MPC Article 223. From the historical standpoint, in the ages prior to the rise of the English C/L, advanced societies, such as the Romans and Greeks, apparently treated interference or infringement with most property rights (theft at night and stealing of livestock were two notable exceptions) as civil torts with civil damages as the remedy. The English judges changed the equation when they created larceny and made it a capital offense with death as the only punishment. The professor gave us some short-answer questions re property crimes on one of the quizzes. If he gives you this quiz I'm probably ruining it for you by giving you the answers, but so what. Here's my take on them. The first question involves A borrowing B's car with permission and subsequently deciding to permanently keep the car. Is it C/L larceny? I say "No." In the original taking, there was no trespass to B's possession. The taking was done consensually and without any fraud and, thus, was done by legal right. Remember, larceny is the trespassory taking and carrying away of personal property of another with intent to steal. A trespassory taking means a wrongful taking or a taking without legal right. A taking may be trespassory even though it was done with innocent intent, e.g., the old bromides of mistakenly taking someone else's umbrella or briefcase. In the prof's hypo, the crime might be embezzlement - the unlawful conversion of another's property by one in lawful possession. The second question about the fraudulent renting of the car is C/L larceny, in my opinion. It seems like it would be larceny by trick under the approach first recognized by the old English C/L Pears case; consensual possession does not pass. The C/L courts said that the possession that A got was trespassory. It's clearly not false pretenses because the car rental company did not intend to convey title to the crook.[Note: This exact question was on the 2008 final; half the class said it was false pretenses. One group always makes it possible for the others to be in the top half of the class.] On the third question about the building, I say there probably wouldn't be C/L larceny because the object is too heavy to be moved. Since asportation is an element of C/L larceny, it would be virtually impossible to prove that element. Asportation is the core concept of the "carrying away" requirement. Personal property needs to be movable. Also, one might even argue the the statue is real property in the sense that it is permanently affixed to the land. Even if you could budge it - you cannot exercise dominion and control over it. Real property, of course, could not be the subject of C/L larceny. (We saw that real property can be the subject of theft under TPC 31.03.) On the fourth question, about the car wash and tire rotation, I say that would not be C/L larceny. My reason is that UCL says that services were not considered to be subject to larceny at C/L. Personal property had to be tangible. Legal documents and choses-in-action such as contracts, deeds and legal causes in action, were not tangible property; they were merely evidence of property rights. Taking advantage of services (a taxi-ride or a wild night in a Motel Six) was not considered taking personal property under the C/L. Of course, theft of services is a crime under MPC Section 223.7 and TPC 31.04. The fifth and sixth questions, about larceny of animals, take us again into the issue of what is personal property. I had to look this one up in UCL5th Section 32.06[A] p. 563. My answer is "Yes" to the cow and "No" to the dog. Property is typically of two types - (1) Real and (2) Personal. It seems that, normally, personal property is anything of value which is movable and capable of being carried away. At C/L, this would include animals, but not wild animals (those which belong to no one) or animals of a base nature. Base animals such as dogs and cats (household pets) and wild animals, such as foxes, fall into the non-personal property category. [I wonder what those C/L folks thought about a law that said the family dog was an animal of base nature. I'd be mighty upset at anyone who tried to steal Merle, my dog.] My answer to the seventh question about theft from a thief is "Yes." There is still a trespass to possession when a thief steals stolen property from another thief. [Note that the definition of owner under TPC Section 1.07(35)(A) includes a person in unlawful possession of property.] I noticed that stolen property and contraband (drugs) were also considered as personal property for purposes of larceny. The eighth question about the borrowing of the car without permission seems to be the trickiest. Unlike the first question, I think this is larceny. Under the C/L doctrine of "continuing trespass," borrowing the car without permission was a trespassory taking (unlawful interference with the right to possession) even though it wasn't larceny at the time the car was borrowed without permission. Under this continuing trespass doctrine, the trespass to the property (the car) was deemed to continue as long as the trespasser had the property without permission. Thus, when A subsequently decided to keep the car permanently, a required element of C/L larceny, his intent to permanently deprive, i.e., intent to steal, was deemed to be contemporaneous with the trespass. Voila, you have larceny! Remember that the C/L required the mens rea (intent to permanently deprive) to occur contemporaneously with the actus reus (the trespassory taking). The ninth question about finding the lost wallet was not C/L larceny in my opinion. My reason is that for the finder of lost property to be liable for C/L larceny, the finder, must have formed the intent to keep (and thus deprive the owner of) the lost property when he found it. [Remember that UCL tells us that in the case of lost, as opposed to mislaid, property there's got to be some indicia of ownership that would help the finder trace down the owner.] On the tenth question, I concluded that it was not C/L larceny because B intended to transfer title and possession to his money to A, rather just possession. So, A obtained title and possession to the money. At C/L, the victim of the crime of false pretenses must intend to pass title or both title and possession for false pretenses to exist. The professor told us that C/L courts held that there was no larceny when both title and possession or just title to the property was obtained by the con-man based on a material misrepresentation of a presently existing fact of monetary significance. Instead, this was deemed to be the statutory offense of obtaining property by false pretenses. However, if A had induced B to part with the property, e.g. $, for a specific purpose, e.g., to bribe another particular person (C), it might be held to be C/L (trespass to possession) larceny rather than false pretenses because title to the property was intended by B to pass only if the purported and conditional goal, e.g., the actual bribing of C, was actually achieved.
I noticed a couple of other things that might come up. As the C/L developed, if the value of the stolen property was less than 30 pence (the value of a sheep), no death penalty could be imposed for larceny. Otherwise, death was the punishment for larceny. Wow! On the question of the punishment level for the modern day offense of theft, in most states the actual or replacement value of the stolen property is used to determine the grade of punishment. If I am understanding the reading correctly, in Texas and under the C/L, it is not what the thief thinks the value of the property is, but what its actual value is that counts. Under the MPC, it looks like mistake of fact can work to the benefit of the thief when the thief thinks he is getting something worth less than it actually is, because the thief is liable for the value of what he thinks he is taking.
The reading for this time centered on larceny. It looks to me like larceny at C/L focused on the concept of a trespassory taking of (tangible) personal property out of the possession of another with intent to permanently deprive the owner of the use or benefit (value or enjoyment) of the property. Notice that larceny happens very quickly! Even though larceny is designed to protect against permanent deprivation, as evidenced by the fact that intent to temporarily use property without intending to permanently deprive is not larceny, the law doesn't wait around to see if, in fact, the owner is permanently deprived of his property. Otherwise we might have to wait until the owner died or the property was used up. So larceny exists even though the goods are not permanently kept from the victim. Indeed, they may be restored to the owner very rapidly if the larcenist is apprehended shortly after the larceny. Apparently, if the D has obtained lawful possession of V's property, D's later use or conversion of the property can't be a trespass to V's possession and, thus, cannot be C/L larceny. We'll talk more about the statutory crime of embezzlement, first created in England in 1799, in the next unit (23), but this statutory crime created back in the C/L days seems to involve the conversion to the defendant's use of another person's (the owner's) property, possession of which has been lawfully obtained by the defendant. There's also a distinction between C/L larceny by trick and a third statutory crime, false pretenses, which was also created by English statute back in 1757; false pretenses appears to be a property crime involving the obtaining of property by deceit. I got the impression that false pretenses differs from larceny by trick in that in cases of false pretenses the owner intends to give up title or title and possession; whereas, in cases of larceny by trick the owner intends to give up only possession of the property.
As to C/L larceny, the reading involved some fictions that C/L judges entered into to stretch the concept of larceny. One of the doozies was the so-called "breaking bulk" doctrine which seems to a special rule employed against carriers (freight haulers akin to modern day truckers); the doctrine said that if the carrier broke into packages(containers) that had been delivered to the carrier for shipment, this breaking into the contents of the container would be considered as a trespass for purposes of larceny. Whereas, if the carrier took the whole unopened package and sold it unopened, it was not within this doctrine of breaking bulk. Another fictional concept had to do with servants (employees); servants were viewed as having only custody of property entrusted to them by the master (owner); "constructive possession" supposedly remained with the master (owner); so, a taking of the master's property by the servant was also viewed as a trespass to the master's possession. This is why larceny by servant was one of the ways C/L larceny could happen. [Note that when the servant received possession property from a third person and kept it for his own use, it was not considered larceny by the C/L judges; this was the reason why the Parliament passed the early 1799 embezzlement statute to plug the gap in larceny law; note that embezzlement was a misdemeanor in those days; so embezzlers didn't get the mandatory death sentence reserved for convicted felons.] The so-called larceny by trick was another of the ways one could commit C/L larceny. This offense, arising from Pears' Case in 1779, is where the larcenist uses trickery (fraud) in obtaining possession (only possession, not title) of the property; the trick (fraudulent misrepresentation) is used to induce the owner to consent to the transfer of possession to the larcenist, but the consent is ineffective because it is based on fraud. Since, the initial taking based on trickery is based on ineffective consent, C/L viewed the taking as a trespass to possession for purposes of larceny.
There is some material in UCL that I must read about lost, mislaid and misdelivered property. If at the time of finding, the finder of lost property knew or could reasonably determine who the owner of the property was, i.e., there was a reasonable indicia of ownership, and intended at that time to take the property and permanently deprive the owner of it, the taking was considered as trespassory, and the finder did not get lawful possession. Basically, the C/L viewed the owner in this situation to still have constructive possession of the lost property. On the other hand, if there was no indicia of ownership of the found property, the finder/taker of the lost property was not guilty of larceny (finders keepers). Also, even if there was evidence as to the identity of the owner, there was no larceny if the finder took the found property, intending at the time of the finding/taking to restore the property to the owner. This was true, even if the finder later decided to keep the found property and deprive the owner of it. Apparently, mislaid (misplaced) property is treated a bit differently. Since by definition the owner will come back for mislaid or misplaced property when he recognizes it is missing, the only issue is the taker's state of mind. As to misdelivered or mistakenly delivered property, where the deliverer suffers from a unilateral error in delivering the property to the wrong person, e.g., the laundry delivers V's shirts to D, or delivering too much, e.g., V, the bank teller, misreads D's check and gives D too much money, D is guilty of a tresspassory taking if at the time of the misdelivery D recognizes the mistake and takes the property, e.g., the shirts or excess money, with intent to permanently deprive the owner of the property. See more below re misdelivery.
The concept taking in C/L larceny required so-called "asportation," which seems to simply mean some movement of the property. I also read about something known as "caption," which seems be part of this concept of taking at C/L and means to exercise of control and dominion over property. [From what I can determine, the MPC does away with the requirement of asportation; it requires proof that D "exercise unlawful control" over the property. See Section 223.2(1) MPC. The TPC also seems to have eliminated the requirement of asportation; it substitutes the requirement that D "unlawfully appropriate" property. See Section 31.03(a)TPC.]
On the element of larceny that requires taking of "property of another," it looks like a person could actually be guilty of larceny of property that he owns if someone other than the owner has lawful possession of the property and the owner has no right to possession at the time. I must remember that larceny is a crime that involves trespass to possession. So, if the law gives a mechanic the right to possession of my car (mechanics lien) until I pay for the mechanical work that she has done on it and I sneak in after closing time and take (trespass to possession of the mechanic) the car (the one I own) without paying the repair bill, I may be guilty of larceny of my own car. Also, since larceny is a trespass to possession and not ownership, it is possible to be guilty of larceny even if the trespassory taking is from a thief, i.e., a person without title to the property who herself stole the property in question.
Here's one I thought up. Suppose there is a bailment where D comes into possession of property by fraudulently representing the use that he is going to make of the property, but D does not intend at the time to permanently deprive the owner of the property. I'm thinking of a situation where D goes next door and asks his elderly next door neighbor if she wants him to take her car and change the oil in it. Assume, at the time, that D really intends not to change the oil but to use the car for a trip to the lake and then to return it to the elderly neighbor. After taking the car based on the fraudulent promise, D decides to keep the car permanently and does not return it. I think this would be C/L larceny, even though D did not intend to permanently deprive the neighbor of the car at the time of the original taking. I think it would be larceny because of the "continuing trespass doctrine." D, the bailee, obtained the property by trespass, i.e., the fraudulent misrepresentation re the use he was going to make of the car. Thereafter, he formed the mens rea of intent to steal, i.e., permanently deprive the neighbor of her car. The "continuing trespass doctrine" seems to say that the original trespass continues until the intent to steal occurs, and, thus, you could have larceny, even though D at first intended to return the car.
Consider the misdelivery of property. Suppose, for example, a new-on-the-job bank teller, V, mistakenly gave D too much money when D cashed his check because the teller misread the date on D's check as the amount. This is not the same as finding lost or mislaid property but there are some things in common. The reading I've done indicates that at C/L if too much property or the wrong property is delivered by unilateral mistake, the recipient (D) can be guilty of larceny if, at the time of the misdelivery, D knew of the mistake as to the misdelivery, i.e, the property is being delivered to the wrong person (recipient) or too much of it is being delivered (amount too much). But the person was not guilty of C/L larceny if the person received the property without this knowledge, and hence without trespass, even if he later discovered the mistake and kept the property with intent to permanently deprive the owner. Suppose the I go to the drive-in bank and send the teller a $100 check asking for 100 $1 bills. She sends me an envelope indicating that the package contains the 100 $1 bills. When I get home , I open the envelope and find that it contains 100 $100 bills. The teller mistakenly picked up a packet of $100 bills rather than $1 bills. If I keep the $10,000, am I guilty of C/L larceny? The mistake was the banks. I didn't know about it at the time the teller sent me the envelope. It looks like this wasn't C/L larceny. If I had known about the mistake at the time, it looks like it would have been C/L larceny.
There seems to be a different issue when the mistake relates to the deliverer being mistaken about how much he is supposed to deliver. Suppose I actually owe you $20 but I mistakenly think I owe you $25 and give (deliver) you $25. If I give you $25 instead of the $20 I actually owe, the C/L seems to say that you wouldn't be guilty of larceny if you took the $25, even though you knew I only owed you $20. Why? Because I actually intend to give you the $25, even though I'm mistaken as to the amount of the debt. There's no trespassory taking. On the other hand, if the deliverer is mistaken about what he is delivering, as where two $20's are stuck together, the C/L said that it would be larceny if you take the two $20's knowing that you were only supposed to receive one. (If this is right, in real life it could be a close question as to whether a deliverer was mistaken about how much he was supposed to deliver or whether he was mistaken about what was being delivered. I need to check to see if the UCL hornbook. discusses this issue)
I like what the MPC says about how the finder of lost or mislaid property or property that has been delivered under a mistake as to the nature or amount of the property or the identity of the recipient (misdelivered). Section 223.5 MPC says the person who knowingly comes into control of such property and who with the purpose of depriving the owner of it fails to take reasonable measures to restore the property to the person entitled to have it is guilty of theft. So, under the MPC, D may be convicted of theft even when the original taking was honest in that D then intended to restore the property, if D later changes his mind and decides to keep the property. The TPC has no corresponding definitions.
We've got a couple of more units on property crimes. So, I'm sure there will be more to learn - more feathers to catch in the tornado. For now though, I don't have anything more to say to myself. 86