Theft Offenses

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I. CRIMES AGAINST PROPERTY

A. Theft Crimes
1. Theft crimes are crimes that involve some taking of property from the victim by the defendant.
a. The first key to analyzing theft crimes and to distinguishing among them often depends on whether
the defendant acquired custody, possession, or title to the property: larceny requires that the
defendant obtain possession unlawfully, false pretenses that the defendant obtain title falsely;
and embezzlement requires that the defendant convert (misuse) property that has already been
entrusted to him.
b. The second key to analyzing theft crimes is the defendant’s state of mind (criminal intent).
c. The third key factor is analyzing when the defendant formed the requisite intent.
d. The fourth key factor is whether the defendant believed he had a right to take the property
(mistake of fact).
2. The four main theft crimes are:
a.
b.
c.
d.
B. Larceny
1. At common law, larceny is defined as:
a. the unlawful taking;
(1) The taking requires the assertion of dominion and control over the property by a defendant
who does not have lawful possession, generally through trespass (i.e., without consent). When
the taking is accomplished by trickery (i.e., where the victim consents to the defendant taking
possession, but such consent is induced by misrepresentation), the crime is larceny by trick.
(2) There are three types of control by defendant:

(a) Custody:

EXAMPLE:
Test-driving a car with the car dealer.
(b) Possession:

EXAMPLE:
Test-driving a car over the course of a weekend.
(c) Title:

EXAMPLE:
Purchase of a car and obtainment of title.
b. and carrying away (asportation);
(1) The carrying away (asportation) is complete upon even the slightest movement (e.g., six
inches will suffice).

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c. of the tangible personal property;

(1) Common law larceny was limited to tangible personal property.
(2) Modern statutes have expanded the kinds of property to include theft of services and other
intangibles (such as gas and electrical power and written instruments that represent property
rights).
(3) Abandoned property cannot be the subject of larceny, although lost or mislaid property can.
(a) In order to be guilty of larceny for lost or mislaid property, there are two requirements.
The finder:
1) must intend to permanently deprive the owner of it; and
2) must either know who the owner is or have reason to believe (from earmarkings
on the property or from the circumstances of the finding) that he can find out the
owner’s identity.
d. of another;
(1) Because the property must be “of another,” a good faith claim of right is a:

(2) Larceny is a crime of possession as opposed to ownership. Therefore, under certain
circumstances, an owner can be guilty of larceny of his own property, such as when another
is in lawful possession of the owner’s property.
(a) Generally, employees are said to have custody over their employer’s property; however,
the employee has possession, and thus could commit embezzlement, if:
1) a third party gives property directly to an employee for the benefit of its employer; or
2) the employee is in a high-level position (e.g., office manager, bank president,
corporate official).
(b) A bailee generally has possession.
1) When a bailee opens closed containers and then misappropriates property, under
the breaking bulk doctrine, constructive possession is said to exist in the bailor,
and the bailee, thus having only custody of the property, is guilty of larceny.
e. with the intent to permanently deprive the owner thereof.
(1) Larceny, a specific intent crime, requires that the intent to permanently deprive accompany
the taking. Note that the intent to keep, destroy, or hold property for ransom will suffice to
prove this element.
(a) Where a defendant recklessly exposes property to loss or deals with property in a
manner involving a substantial risk of loss, the intent to permanently deprive is satisfied.
(2) A defendant’s honest/good-faith mistake that the property is his destroys specific intent
(subjective standard).
(3) If, at the time of taking, the defendant intends to return the property to the victim
unconditionally and within a reasonable time, there is no intent to permanently deprive. The
defendant must have the ability to return the property, even if something unanticipated stops
the actual return of the property.
(a) Intent is not conclusively disproved by proof that a defendant actually returned the
property to the victim. If the taking occurred with the requisite intent to permanently
deprive, a defendant will not be relieved of liability for larceny because the defendant
later returns the property or if the victim later forgives the defendant (change of heart).
(b) Difference between joyriding and grand theft auto. Joyriding involves an intent to return
the property to the rightful owner (not larceny). Whereas, grand theft auto involves the
specific intent to permanently deprive the owner of possession (larceny).

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(4) Under the doctrine of continuing trespass, one who takes another’s property (without
authorization) intending only to use it temporarily before restoring it unconditionally to its
owner (i.e., one who normally is found not to have an intent to steal) may nevertheless be
guilty of larceny if he later changes his mind and decides not to return the property after all.
(a) As a general rule, the initial taking must be wrongful (i.e., without the owner’s
authorization). If the initial taking was wrongful, the trespass is said to continue until the
time the intent to steal is formed.
(5) The intent element will be satisfied where a defendant intends, when taking the property, to
recklessly use it temporarily, and then abandon it, hoping someone will return it to the victim,
even if the property somehow does return to the victim.
(6) Defendants who pawn property may negate the intent to permanently deprive element by
proof that, at the time of taking, they intended to redeem the property and return it to the
victim.
(7) When the defendant takes property with intent to later pay for it or later replace it, such intent
may negate the intent to permanently deprive element if, for example, the property is easily
replaceable (i.e., not unique).

EXAMPLE:
Bill broke into Steve’s home and took a computer. Bill took the computer and dumped it in a
nearby alley, smashing it to pieces. Bill is guilty of larceny.

EXAMPLE:
Same case, but Bill left the computer in his yard where it got rusted and dirty. One year later,
Bill, feeling remorse, returned the computer to Steve. Bill will be guilty of larceny.
(8) Where a defendant, at the time of the taking, has a good-faith belief that he is entitled to
possession, there is no intent to permanently deprive, even if that belief is both incorrect and
unreasonable.

EXAMPLE:
You accidentally take someone else’s umbrella upon leaving a restaurant. You are not guilty
of larceny because you honestly (even if unreasonably) believed that it was not the property
of another.
2. The unlawful taking (no consent) and carrying away (asportation) must concur in time with the intent to
permanently deprive (animus furandi).
C. Embezzlement
1. Embezzlement is a statutory crime defined as:
a. the fraudulent conversion or misappropriation;
(1) Conversion is some action toward property such as selling, consuming, pledging, donating,
discarding, heavily damaging, or claiming title to it, which seriously interferes with the rights
of the owner. Slight movement or limited use, for instance, would not suffice, but use that
deprives the owner of a significant portion of the usefulness of the object would be sufficient.
Conversion is not fraudulent if the defendant honestly believed he had a right to so use the
property.
(2) No direct personal gain need result to the defendant.
(3) The specific fraudulent intent required may be negated by a claim of right or by an intent to
restore the exact property.
(4) A defendant who converts property but intends to later substitute it for equivalent property is
guilty of embezzlement.

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b. of the property of another;

(1) Embezzlement deals with tangible personal property, not services, although some modern
statutes include real estate.
c. by one who is already in lawful possession.
2. In contrast to larceny, embezzlement involves misappropriation by a defendant who has lawful
possession (as opposed to custody). So defined, embezzlement could not overlap with larceny.
3. Embezzlement is an abuse of:

4. Many embezzlement statutes require that the property be entrusted to the defendant. Such statutes
have been construed as not applicable to defendants who come into lawful possession of property by
finding it or by mistaken delivery (i.e., the property was not entrusted to the defendant because it was
never intended that he be given possession). Fraudulent conversion by a co-owner of property is not
embezzlement.
D. Robbery
1. Robbery was a common law felony consisting of all the elements of larceny, plus two additional
elements:
a. the taking must be from the person or presence of the victim (meaning an area within his control);
and
b. the taking must be accomplished either by:
(1)
(2)
(a) If robbery is based on the threat of violence, the threat must place the victim in actual
fear at the time of the taking.
(b) If the victim is placed in fear, though baseless, there may still be a robbery. In other
words, fear based on lies qualifies as threats for constituting robbery.
(c) The use of force must be:


(d) This element will be satisfied by slight force, but must be something more than what is
required to just move the property.
2. If any of the elements of larceny are not met, a robbery did not occur.
3. Larceny, assault, and battery are all lesser-included offenses of robbery (which means that all of the
elements of the lesser offense are included within the greater offense).
E. Obtaining Property by False Pretenses
1. In general, the defendant obtains title to property by:

2. The statutory crime of obtaining property by false pretenses consists of:
a. a false representation of:
(1) a present or past material fact by the defendant;
(a) The representation must relate to a material fact, not opinion; puffing is insufficient.
(2) that causes the victim to pass title to his property;
(a) The victim’s reliance upon the representation must cause him to pass title. However, it
does not need to be the only reason that the victim passes title.
(b) The distinguishing characteristic of false pretenses is that title passes to the defendant
even though it is voidable due to the defendant’s fraud.

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1) Where money is delivered to the defendant in a sale or trade situation by the person
defrauded, title generally passes, and the crime is false pretenses.
2) If defendant gets title through a fraud, it is:

3) If defendant only acquires possession, it is:

EXAMPLE:
Renting a car knowing you will never bring it back.
a) A defendant who pays for property with a worthless check is guilty of larceny by
trick, since title does not pass until the check is cashed.
b) Where money is exchanged by cheating at cards or betting, the defrauding
party is receiving possession, not title, so the crime is larceny by trick.
4) The modern scope of false pretenses includes written instruments, stocks, bonds,
notes, and deeds, as well as money and credit cards.
(3) to the defendant;
(4) who knows his representation to be false; and
(a) The defendant must know that his representation is false at the time the victim transfers
title to him.
(5) intends thereby to defraud the victim.
F. Larceny by Trick
1. Larceny by trick is a form of larceny whereby the defendant obtains possession of the personal
property of another by means of a representation or promise that he knows is false at the time he
takes possession.
2. In larceny by trick, the defendant’s fraud is used to cause the victim to convey possession, not title, as
in false pretenses.
a. In some states, there must be an intent to steal at the time of the induced delivery; a defendant
who has some lesser (but still wrongful) intent and then subsequently converts the property to his
own use may be guilty of embezzlement. In other states, the fraud will be construed as a trespass,
which continues until the time of taking and, therefore, a later misappropriation would still be
considered larceny by trick.
3. Factual misrepresentations and false promises are typically deemed sufficient for the fraud element of
larceny by trick.
G. Bad Checks Statutes
1. Checks do not pass title until:

2. All jurisdictions have enacted bad check legislation to deal with no-account or insufficient funds
checks given with the intent to defraud. The giving of the check is an implied representation of
sufficient funds, absent postdating or some other means of notification of inadequate credit by the
drawer.
3. Bad check statutes generally do not require that any property be obtained from the victim as a result of
issuing the bad check.
4. However, the requisite mental state of the drawer is often required to be that of knowledge of the
insufficient funds and intent to defraud.

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H. Credit Card Fraud

1. Obtaining property by means of a stolen or unauthorized credit card is also a statutory crime in most
jurisdictions.
I. Extortion
1. Extortion is similar to robbery without:

2. Property is gained by threatening:

3. Extortion was a common law misdemeanor involving the corrupt demand or receipt of an unlawful fee
by a public official under color of his office.
4. Under modern statutory law, extortion is commonly called blackmail. Blackmail is defined as obtaining
the property of another by the use of threats of future harm to the victim or his property.
a. The threat is the essence of extortion and includes threats to expose a person or his family to
disgrace and threats to accuse the victim of a crime.
5. Unlike robbery, extortion does not require threats of immediate or imminent physical harm, and
property does not need to be taken from the victim’s person or presence.
J. Receiving Stolen Property
1. Receiving stolen property was a common law misdemeanor. In modern jurisdictions, whether it is a
misdemeanor or a felony will turn on:

2. Defendant receives stolen property, knowing it to be stolen, with the intent to:

3. As a modern statutory crime, it is defined as:
a. the receiving of stolen property;
(1) The receiving of physical possession of the property element is satisfied as long as the
defendant exercises control over the goods (e.g., arranging for a sale, having the thief place
the goods in a designated place, or receiving the goods from another).
b. known to be stolen;
(1) The defendant must either know or actually believe that the property is:

(2) An honest but unreasonable belief that the property is not stolen would likely prevent a
conviction for receiving stolen property.
c. with the intent to permanently deprive the owner.
(1) Intent to permanently deprive the owner is often proved:

(2) The defendant must, at the time he receives the stolen property, have the specific intent to
permanently deprive the owner of that property. Where a defendant intends, at the time of
receipt, to unconditionally return property to its owner, that defendant is not guilty of receiving
stolen property. However, conditioning return—such as upon payment of a reward—may
evidence intent to permanently deprive. The defendant does not have to be acting for
personal gain.

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K. Forgery
1. Forgery is defined as:
a. fraudulent making;
(1) The making element will be satisfied by the creation of a new document, the altering of an
existing document (including improperly filling in a form), or inducing someone to sign a
document knowing that the person is unaware of the document’s significance. Note that
completion of the making element completes the crime; the defendant does not have to actually
use the forged document to be found guilty of forgery. A defendant who actually acquires
property by use of the forged document may be guilty of another crime, such as false pretenses.
b. of a false writing with apparent legal significance; and
(1) Forgery is not merely including false information in an otherwise genuine document, but must
involve a writing that is itself false.
(2) To qualify as an element of forgery, the alteration must be:

(a) In other words, it must change the legal meaning or effect of the document.
(3) For a writing to be one with apparent legal significance, the writing must have purpose or
value beyond the document’s own existence (such as a contract, will, negotiable instrument,
deed, or mortgage).
c. with the intent to make wrongful use of the forged document.
(1) The defendant must act with intent to make wrongful use but not necessarily for monetary
gain. (Note that acting with an intent to reimburse the victim or to collect on a good faith claim
of debt does not negate the intent element.)
L. Crimes Against the Habitation
1. Burglary
a. The common law crime of burglary consists of the breaking and entering of the dwelling house of
another at night with the intent to:

(1) the breaking;
(a) This element typically required some use of force to create an opening. At common
law, it was not a breaking if the defendant gained entry by an opening that was already
open. Today, most burglary statutes have either relaxed the breaking element to include
even the slightest expanding of an opening, and some have even deleted the breaking
element altogether.
(b) The breaking element is also satisfied where a defendant is in the dwelling lawfully and
then enters another room with intent to commit a felony therein.
(2) and entering;
(a) Entry is achieved by placing any portion of the body through the opening/inside the
structure.
(b) Insertion of a tool is sufficient for an entry if it is used to accomplish the felony, but
insufficient if it is used merely to gain entry. At common law, inserting a tool merely to
unlock the door is not an entry. However, modern statutes allow for burglary if defendant
uses a tool to accomplish entry.
(c) Breaking to exit, rather than to gain entry, is insufficient.
(d) The breaking and entering are two elements that may occur at different times but must be:

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1) Thus, if the defendant breaks a window with his gun, then sees an open window,
and climbs in, there would be no breaking and entering. However, if that defendant
breaks the window with his gun, then goes to buy a blanket to put over the broken
glass so it will not hurt him, and comes back and climbs through the same broken
window, there would be a breaking and entering.
(e) The breaking and entering must both be done without the occupant’s consent (must be
trespassory). Where someone with authority to enter breaks and enters, this element will
not be met.
(3) of the dwelling house;
(a) At common law, this element was interpreted literally; only a home where people resided
or a structure on the cartilage (garage, greenhouse) would satisfy the requirement. The
dwelling could be occupied or unoccupied at the time of entry. Modern statutes, however,
extend this element to include most any structure regardless of whether it’s a dwelling, and
in some jurisdictions, regardless of whether it has a roof, such as a fenced lumberyard.
(4) of another;
(5) in the nighttime; and
(a) At common law, burglary had to be done at night between sunset and sunrise; however,
modern statutes have largely eliminated this element. Modern statutes allow for:

(6) with the intent to commit a felony therein.
(a) Burglary requires that the breaking and entering be accompanied by a simultaneous felonious
intent. An intent formed after entry is insufficient, absent an additional entry once inside (e.g.,
a defendant who has no intent to steal when entering a house, but forms intent once inside
and then opens the bedroom door with the intent to steal items inside the bedroom).
2. Arson
a. At common law, the crime of arson consists of:
the malicious burning of the dwelling house of another
(1) the malicious;
(a) Malicious means:
intentional

(b) The defendant need not have intended to burn the dwelling. Malice requires only that
the defendant intentionally took an action that involved a substantial risk of burning.
(2) burning;
(a) With respect to the burning requirement, it was not necessary that the dwelling be
substantially or totally damaged. Although a mere blackening of the surface was not
enough, there must have been some:
charring

(b) Additionally, mere burning of the furniture or other contents of the dwelling without fire
damage to the structure itself is not arson.
(3) of the dwelling;
(a) Like burglary, the common law requirement of a dwelling has been expanded in a
majority of states to include virtually:
any structure

(4) of another.
(a) The “of another” requirement has been expanded to include finding guilt for arson where
an owner maliciously burns his own structure (such as for insurance fraud).

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Multiple Choice Questions
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 Theft Offenses Answer Grid

BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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Question 1
A woman and her best friend went out to lunch at a local
restaurant. During their lunch, the friend received several
calls on her cell phone, and the woman grew increasingly
frustrated at the constant interruptions. When the friend
stepped out to use the ladies’ room, leaving her cell
phone on the table, the woman took the phone, turned it
off and put it in her purse, planning to return it at the end
of lunch. However, the woman forgot to return the phone
to her friend and ended up taking it home with her.
If the woman is charged with larceny, should she be
convicted?
(A) No, provided the woman eventually gave the
phone back to her friend.
(B) No, because the woman did not intend to
permanently deprive her friend of the phone.
(C) Yes, because the woman knowingly deprived
the friend of her phone.
(D) Yes, because the woman purposely took and
kept the friend’s phone.
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Question 2
A plumber had a dispute with a homeowner about the
amount owed on a plumbing job. The homeowner paid
what the plumber demanded, but the plumber believed
that the homeowner stole his drill as a way to get back
at him. The plumber asked his attorney if it was illegal
to enter a house to take something that he believed
belonged to him.
The attorney incorrectly told him that it was not. The
plumber then entered the homeowner’s home one night
without permission and found a drill, which he quickly
realized was not the drill that belonged to him. The
plumber then left without taking anything, locking the
door behind him. This jurisdiction follows the common
law without modification.
Is the plumber guilty of burglary?
(A) No, because the plumber made a reasonable
mistake of law.
(B) No, because the plumber made a reasonable
mistake of fact.
(C) Yes, because larceny is a felony.
(D) Yes, because ignorance of the law is not a
defense.

Question 3
A boyfriend stole a diamond necklace that he gave to
his girlfriend as a birthday present. At the time that the
boyfriend gave the necklace to his girlfriend, she did not
know that it was stolen. Three weeks later, while she and
her boyfriend were passionately kissing, she whispered in
his ear, “Darling, I really love the diamond necklace you
gave me. It must have cost you a fortune.” The boyfriend
responded, “Honey, the necklace didn’t cost me a dime.
I stole it.” Startled by her boyfriend’s confession, the
girlfriend broke down and started crying. However, after
regaining her composure, the girlfriend decided to keep
the necklace.
The girlfriend is guilty of which, if any, of the following
crimes?
(A) Receiving stolen property.
(B) Larceny.
(C) Larceny by trick.
(D) No crime.
Multiple Choice Questions
Question 4
A robber walked into a jewelry store, fired a gun into the
air, and told everyone to get down on the ground. While
the robber cleared out the jewelry displays and the cash
register, an employee tripped the silent alarm. The police
soon surrounded the store. While the robber was trying
to figure out how he was going to get out of the store,
an elderly female hostage panicked, running to the front
door of the store. The robber fired at the elderly woman
but missed. However, the defendant’s gunfire caused the
police to respond by firing their weapons into the store,
accidentally killing the woman. The police apprehended
the robber. This jurisdiction follows the proximate cause
theory of felony murder.
Should the robber be convicted of murder for the elderly
woman’s death?
(A) No, because the robber did not intend to kill the
elderly woman.
(B) No, because the elderly woman was killed by
the police.
(C) Yes, because the robber’s wanton indifference to
human life led to the elderly woman’s death.
(D) Yes, because the elderly woman was killed
during the commission of a felony by a robber.
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Question 5
A businessman asked to see an expensive watch in
a jewelry store. In conversation with the clerk, the
businessman falsely claimed to be the son of the city’s
district attorney. When handed the watch, he asked if he
could put it on, walk around a bit so he could see how it
felt on his wrist, and then briefly step outside to observe
it in natural light. The clerk agreed, saying, “I know I
can trust someone like you with the merchandise.” The
businessman walked out of the store wearing the watch
and never returned. A week later, the clerk was at a
gathering when she spotted the businessman wearing the
watch. She told him that he must either pay for the watch
or give it back. The businessman pulled back his jacket
to reveal the handle of a pistol that was tucked inside his
waistband. The clerk immediately walked away.
Of which of the following crimes should the businessman
be convicted?
(A) Robbery.
(B) Larceny.
(C) False pretenses.
(D) Embezzlement.

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 Theft Offenses Answer Key

BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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