Theft

Larceny, not an original common law felony, must have emerged as the royal courts extended their jurisdiction beyond robbery to reflect increasing central concern for property security generally and to control the imposition of capital punishment, a sanction often employed in the illusory hope of repressing theft. As might be expected, the initial excursion of the royal courts into the law of theft was sharply limited. Larceny was defined as taking and carrying away tangible personal property of another by trespass and without his consent with the purpose of stealing or permanently depriving the owner of possession. Consideration of the technical limits that the courts derived from, or built into, this seemingly simple definition will throw light on the way law evolves and on the process that ultimately made it necessary for Parliament and other legislatures to take up the task of extending the law of theft.

A property offense. Larceny deals with tangible property. There are many ways of inflicting pecuniary injury on another apart from taking his tangible property. For example, one can cheat another out of services due him, as where a municipal or corporate officer causes underlings to labor for the officer's private benefit on time paid for by the municipality or corporation. One can cause an actor, physician, architect, or other professional to provide valuable service by false promises or representations. One can bypass the electric meter or obtain power service without paying for it. One can plagiarize another's book or music, or "steal" technical information that has been entrusted in confidence. Only much later and by explicit legislation did such frauds become punishable, usually as offenses distinct from larceny.

Personal versus real property. Only certain forms of property were covered by larceny law, namely, tangible personal property. In legal parlance, personal property means assets other than "real property," that is, real estate. The distinction is underlined by the specification in the definition that the stolen property must be "carried away." Obviously, real estate cannot be carried away. The general distinction made between real and personal property was not all arbitrary. Precisely because real estate cannot be carried off, purloined, or hidden away, there is no danger that it will disappear. Controversies over entitlement to the use and enjoyment of the land will normally be between persons having colorable title, such as co-owners or landlord and tenant. The civil law affords remedies uniquely adapted to restore possession of real estate to the persons entitled and to reimburse for lost profits. But the rationality of the basic distinction does not extend to many of the refinements invented by the courts over the course of centuries in the interpretation of the definition of larceny. (For example, a quite movable document evidencing title to real estate could be excluded from the category of "personal property.") Notably, the exclusion of real estate from larceny extended to crops, turf, mineral deposits, or lumber taken from the land, despite the obvious mobility and concealability of these assets and their susceptibility to stealthy removal. One can see here either the traces of a medieval casuistry whereby the mysterious essence of land is somehow infused into materials that were once a part of the land, or, more functionally in the modern spirit, a desire to avoid imposing the harsh sanctions prescribed by larceny law for minor peculations in the agricultural countryside. Other rationalizations must be found to explain why products of the land were transmuted into personal property if they were assembled in stacks or heaps before removal; it was said, for example, that manure spread upon a field was real estate, but that a manure pile was personal property within the law of larceny.

Tangible property. The requirement that the personal property be "tangible" served to exclude many forms of interpersonal economic claims from the larceny offense, including debts, contract rights, promissory notes, trade secrets, and patents. Controversies over such commercial interests, like controversies over land, were generally between identifiable rivals, not with sneak thieves, the prime target of larceny law, and these controversies could ordinarily be resolved by civil law suits. Perhaps one can see here also the beginnings of that special tolerance for what was later to be identified as white-collar crime, that is, middle-class nonviolent peculation, often by persons of the same social class as the legislators, judges, and prosecutors.

Take and carry away; attempted larceny. The requirement of proof that the property had been "taken and carried away" had to do with the pervasive concern of Anglo-American criminal law to avoid penalizing persons who may be thinking about or tempted to commit crime but who take no unequivocal steps toward committing an offense. Antisocial action, not bad character or evil impulse, is in principle the proper domain of the criminal law. As late as the twentieth century, however, the law of theft as supplemented by the law of vagrancy included a petty offense that consisted of being "a common thief," so identified by repute, by want of an obvious source of legitimate income, and by a tendency to loiter in public places where potential victims congregate (Levine v. State, 110 N.J.L. 467, 166 A. 300 (1933)). But latter-day constitutional principles invalidate such vague laws that subject people to police action on the basis of status rather than present misconduct (Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)).

What, then, is the quantum of actual misbehavior that will suffice for a larceny conviction? The answer was found in the definition of larceny insofar as it requires proof that the actor did "take and carry away," that is, exercise physical dominion over the property, thus interfering with the possession of the true owner. Such interference constitutes the "trespass" discussed below, but more is required. The actor must move the property, however slightly; that is, begin to move it or carry it away. A culprit, observing a packing case on the loading platform of a warehouse, might go so far as to tip the case up on one corner without actually committing larceny; only if there was additional movement resulting in the displacement of "every atom" of the object would the offense be complete.

On the other hand, the significance of these intriguing technicalities is diminished by the fact that the suspect may be convicted of attempted larceny if he has not gone far enough to "complete" the crime. The law of attempt has its own requirements with regard to how far criminal action must proceed in order to cross the line between "mere preparation," which is not criminal, and criminal attempt. One may therefore be guilty of attempted larceny although the larceny requirement of carrying away is not satisfied. Grave consequences turn on whether there has been a completed larceny or only an attempt. In the eighteenth century, when some larcenies were capital offenses, life or death might depend on whether the suspect had merely tipped the case on end or had moved it entirely. In modern law, criminal codes frequently set lower sentence maxima for attempts than for completed offenses.

Making important differences in potential sentence turn on nice distinctions between attempted larceny and completed larceny is additionally curious when one perceives that many "completed" larcenies prove, on analysis, to be frustrated, rather than successful, efforts to steal—in other words, attempts. Our culprit of the warehouse loading platform, having indeed moved the case a few inches, may desist from his nefarious purpose upon observing the arrival of a policeman. A pickpocket, having the victim's wallet already in his grasp and having partly removed it from the pocket, may find that the alert victim has grasped him firmly by the wrist. Abandoning the tempting wallet, the pickpocket seeks only to escape. The law would hold this to be larceny rather than attempt.

Confusion is further confounded when it is observed that the "aggravated larcenies," robbery and burglary, are analytically attempts, although centuries of treatment as distinct substantive offenses obscure this analytic truth. Assaults for the purpose of larceny are robbery. The slightest intrusion into a building for the purpose of larceny is burglary, although the burglar has succeeded only in inserting his screwdriver or crowbar under the window. Activity that has not accomplished its purpose falls logically into the category of attempt. There may be good reason to treat these particular inchoate larcenies more severely than the ordinary "completed" larceny, since the culprit manifests special dangerousness by embarking on larceny in especially frightening circumstances. Moreover, since the preliminary steps taken for the purpose of larceny, that is, assault and trespass, are themselves criminal offenses, it is possible to regard the purpose to steal as merely an aggravating circumstance attending the commission of those "completed" offenses. But these explanations leave undisturbed the perception that the mere distinction between attempt and completed larceny hardly suffices to justify special leniency toward culprits who do not fully accomplish their larcenous purposes.

By trespass and without consent. Extraordinary extensions of larceny law were accomplished by daring judicial pronouncements in the eighteenth century with regard to the central concept of larceny—that an owner's possession must be shown to have been disturbed without his consent, a disturbance known in law as "trespass" (Rex v. Pear, 168 Eng. Rep. 208 (Crown Cases 1780)). The one thing the old English judges did not want to be involved in as administrators of the criminal law was quarrels between an owner and one to whom the owner had entrusted his property for such purposes as to sell, store, transport, repair, process, or invest. These relationships, known in law as bailments, were perceived as quintessentially civil matters of contract. A merchant must take his chances and could minimize his risks by care in selecting those to whom he entrusted goods. Moreover, if criminality were to depend on the bailee's having done something not authorized by the contract of bailment, there was the difficulty of proving exactly how far that authority went. This would depend on customs of the trade and, frequently, on verbal understandings of ambiguous import. The circumstances, in short, were altogether different from the typical larceny involving a thief without a shadow of claim of right.

There is one situation where a matter that has the appearance of consent by the owner does not bar conviction of larceny. That is where the owner of goods, suspecting that his employees are stealing, purposely exposes the goods to easy taking while concealed law enforcement officers keep the scene under surveillance in order to apprehend the thief. The owner obviously does not consent to be deprived of his goods; indeed, he has taken effective measures to prevent loss of the decoy. Although the case can thus be disposed of under substantive larceny law, it is closely intertwined with an independent problem of law enforcement procedure, that of entrapment. It is lawful for police to "provide an opportunity" to commit crime, but not to "induce" by methods that would overcome the resistance of an ordinary law-abiding citizen, the commission of an offense by one not shown to be predisposed to commit the offense. The police have on occasion conducted large-scale enterprises in which, with appropriate publicity in the underworld, they engage in buying stolen goods, while a secret camera photographs the sellers. The encouragement to theft given by this ready market supplied by law enforcement officers does not constitute illegal entrapment.

"Custody" versus "possession." Consider, then, what is to done with the butler who, while polishing his master's silver, is overcome by the temptation of illicit gain and absconds with the family plate. Is this to be regarded as "bailment"? Has milord, who may reside in distant London, voluntarily transferred "possession" to the trusted butler, so that the butler's misappropriating what is rightfully in his own possession cannot amount to a "trespass" against his master's possession? As early as the sixteenth century, the lordly gentlemen of the bench sought to find their way past such obstacles so as to convict the butler of larceny. They did so by perceiving or inventing a distinction between "possession" and mere "custody." A servant had mere custody; he held the master's belongings only as a proxy for the master. Thus the master retained "possession," and the servant committed trespass against the master's possession when he carried off the plate. A similar extension was easily made in favor of merchants, whose clerks and apprentices in stores, banks, and factories were treated as holding mere custody of goods that remained in possession of the employers.

Trespass by bailee in possession. Economic and social pressures mounted in favor of applying theft sanctions to bailees. With increasing specialization of labor and increasing nationalization of the market, more and more goods were unavoidably entrusted to other participants in the process of production, transportation, and marketing—participants who most certainly were not servants but "independent contractors," that is, bailees. Theft law began to respond as early as the fifteenth century, but fitfully. A hauler entrusted with a case of goods was convicted of larceny when he broke the case open and helped himself to the contents (The Carrier's Case, Y. B. Pasch. 13 Edw. IV, f. 9, pl. 5 (Star Chamber 1473)). The judges could bring themselves to say that the case, but not the contents, had been delivered into the possession of the hauler by consent of the owner. The contents thus remained in the possession of the owner, against which possession the hauler had committed trespass.

Larceny by trick. A famous prosecution in the eighteenth century involved an accused who hired a coach and horses for a specified trip and duration, although his real purpose was to make off with the coach and dispose of it. There could be no question that the transaction began as a bailment. But the court was willing to say that "possession" reverted to the lessor upon breach of the bailment contract, so that the lessee trespassed on the lessor's possession. Moreover, in the court's view, the voluntary aspect of the initial delivery of the car to the bailee was vitiated by the bailee's fraudulent misrepresentation of his intentions. Fraud in inducing a transfer of possession vitiated the apparent "consent" of the bailor to the change of possession. This was the famous "larceny by trick," a far cry from the archetypal covert snatch, and ancestor of the legislation to come that would penalize obtaining property by false pretenses even when the transaction induced was a transfer of money or other property, a change of ownership rather than merely possession as in larceny—in short, a sale.

Lost or abandoned property. If an owner abandons or loses, that is, loses possession of, his property, another's taking of it is not a trespass against the owner's possession; hence no larceny. However, the interests of property losers eventually received some criminal law protection. It had long been recognized that an owner possessed goods, in the sense that he asserted continued dominion over them even if he were far from them and thus in no position to exert immediate physical control. Ingenious judges availed themselves of this idea by drawing a distinction between lost and "mislaid" property. Thus, a cab driver who appropriates a wallet that a passenger has inadvertently left on the seat or dropped to the floor takes "mislaid" rather than "lost" property, trespassing against the owner's continued "possession." Nevertheless, there was reluctance to extend the harsh penalties of larceny to finders, who do not aggressively act against the property security of others. Their misbehavior, if it be such, consists of a failure to take steps to restore property to its true owners. Anglo-American law has traditionally been adverse to penalizing inaction, and in the lost-property situation, to make a thief out of a finder runs counter to the folk wisdom of "finders, keepers." Special legislation has been passed to define the affirmative action required and to penalize only egregious departures from ordinary standards of behavior, as where the property has substantial value, the identity of the owner is manifest, and the property can be restored to the owner without disproportionate effort and expense. Violation of such a duty of affirmative action would not ordinarily be characterized as theft, and the maximum authorized sentence would be much lower.

Larceny within the family. The ideas of trespass and consent played a special role in determining the criminality of theft from a spouse. Before the "separate property" legislation of the nineteenth and twentieth centuries, the husband's plenary power to dispose of his wife's personal property made it technically difficult to regard any action of his as a trespass against her property. Accordingly a husband could not be convicted of larceny of his wife's belongings. The wife had a corresponding immunity against prosecution for stealing from the husband. This immunity would be rationalized on the theory of the "unity" of husband and wife or on the theory that, since her property was in any event subject to his dominion, her "taking" was not a trespassory disturbance of his possession. But behind these fictions lay substantive psychological considerations. In most households the stock of commonly held available belongings is regarded by the spouses as being in their joint possession; presumably they consent to each other's appropriations, at least for the common ménage. Even if such consent is explicitly withdrawn in a particular situation, criminal prosecution of one spouse on the testimony of the other hardly seems an appropriate remedy for the underlying marital discord.

Moreover, it would be perceived by prosecutors, judges, and the public that a "thief" whose disregard of others' ownership is manifested only by taking something belonging to his or her consort is hardly a threat to the general security of property. Police experience has long recognized that prosecution under these circumstances will probably be abortive, for the complaining party frequently repents of hasty invocation of official intervention and refuses further collaboration with the prosecution. If willingness to carry through with prosecution is rare, the cases that do occur are likely to be manifestations of vengefulness or blackmail, in which it is hardly right that officialdom should aid. Such an analysis leads to the conclusion that neither wife nor husband is liable to conviction for larceny from the other. In modern times some of the states recognize bispousal immunity, whereas others follow the logic of the separate-property legislation by abolishing all interspousal immunity for theft. Prosecutions remain rare.

A sensitive legislator or judge will see the spouse-theft problem as only one example of a set of situations that seem to call for consistent treatment. What is to be done with couples who live together without being legally married? What about theft by children from parents, or among brothers, sisters, and other members of the family living in a common household? What about non-family-related joint living arrangements? In all these situations there is likely to be considerable tolerance for, if not actual consent to, some appropriation of one another's goods, the miscreant does not show himself as generally thievish merely by taking what seems to him part of a commonly held stock of goods, and a complainant is likely to desert the prosecution once it has been initiated. Nevertheless, the law that declares such peculations to be punishable larceny has been only rarely and marginally changed. It is left to the discretion of prosecutors to decline to bring charges, or to the discretion of judges to impose only lenient sentences upon proof of the mitigating circumstances that the goods were temptingly available as part of a household of which the defendant was a member.

Much is learned about criminal law generally by reflecting on the reasons for a seemingly arbitrary distinction between immunity for interspousal larceny and discretionary leniency for other intrafamily larceny. The basic reason is that it is virtually impossible to draw a defensible line anywhere along the spectrum of increasingly attenuated personal relationships: too many cases would be swept into the immunity category. For example, a son at the culmination of a series of quarrels with his father leaves home with the family car and his mother's life savings. An orphaned youth taken into the family quickly departs with Grandma's jewelry. Moreover, even the most generous immunity rule would exclude some cases that necessarily must be handled by discretionary leniency, for example, the young clerk who, in a moment of personal crisis, appropriates the wallet that a customer has left on the counter. If temptation and availability should be a defense to prosecution for larceny, the law would be sending very ambiguous signals to those whom it would like to deter, and the security of property might be substantially impaired.

It should be remembered that in all these family cases the defendant may have a complete defense that the owner had actually consented to the particular taking. Consent need not be explicit, but may be implied from previous practices. Moreover, once the defendant has introduced some evidence of consent, the prosecution has the burden of disproving consent beyond a reasonable doubt, since nonconsent is an element of the offense.

The larcenous intent. Generally speaking, serious crimes such as larceny cannot be committed unknowingly or innocently. There is a requirement of mens rea (wickedness or evil intent). Three aspects of this psychological component of larceny are worth discussing here: (1) purpose to appropriate; (2) claim of right; and (3) permanence of intended deprivation.

Purpose to appropriate. Purpose to appropriate serves to differentiate acquisitive misbehavior from destructive behavior—that is, larceny from malicious mischief. The classic Latin formulation was lucri causa ("for the sake of gain"). Vandalism of property has always been regarded as a less serious offense, although that is by no means a self-evident proposition, considering that stolen goods remain part of the social stock, since they are merely redistributed, whereas destroyed things are irretrievably lost. On the other hand, temptation to acquire illicitly seems to be much more pervasive. Yielding to it leads readily to the adoption of thievery as a way of life. A clever thief can become a professional criminal and make a living without the labor endured by his honest and indignant fellow citizens. Accordingly, if I take my neighbor's vase meaning to make it my own or to sell it, I am guilty of the felony of larceny (or one of the modern composite theft offenses of which larceny becomes a component); but if I merely toss it to the floor, shattering it, that amounts only to the misdemeanor of property destruction or malicious mischief. Interesting variants can occur, as where the culprit first "appropriates"–that is, takes and carries away—and thereafter destroys. He is guilty of both offenses even if the original taking was with purpose to destroy.

Purpose to appropriate means that one cannot be guilty of larceny by taking what he believes, however unreasonably, to be his own, for one does not intend to "appropriate" what is already his own, or to deprive another. There is lacking the thievish state of mind that would identify the taker as a threat to the property of others. In some connections, such as homicide, the law recognizes "recklessness" as a sufficient mens rea; but in the case of larceny even the most careless mistake as to ownership will absolve the accused. In the jargon of the law, larceny is a crime requiring "specific intent," that is, the conscious purpose to trespass against another's right of possession.

Yet there is a class of situations involving "claim of right" where the accused's subjective good faith will not save him from conviction for larceny. If a man appropriates property that he knows to belong to another, he commits larceny even if he takes the property to satisfy a real or supposed obligation that is due from the owner. Thus an employee who believes that the employer has illegally withheld wages may not with impunity help himself to a corresponding amount of the employer's cash or goods. A farmer who thinks or, for that matter, knows that his neighbor has stolen one of his calves violates the larceny law if he helps himself to an equivalent calf belonging to the neighbor. In sum, the defense of claim of right requires a showing of belief that the actor owned (or otherwise had the right to possession of) the specific article, not merely that he was entitled to some form of compensation. It seems doubtful whether creditors' self-help is sufficiently analogous to the basic misbehavior condemned by the law of theft, or sufficiently identifies the actor as an egregious threat to the property interests of others, to warrant social castigation as a thief. Yet in the absence of alternative categories of minor crime into which creditor self-help might be fitted, society has chosen to leave to prosecutorial discretion whether such over-zealous creditors should be prosecuted as thieves.

Intent to deprive permanently. This aspect of the definition of larceny serves to exclude unauthorized borrowing from larceny. In general, temporary takings ought to be excluded from larceny, although it is worth noting by way of anticipation that when the issue is embezzlement rather than larceny, even temporary misappropriation by a trustee, agent, or other fiduciary leads to conviction. The courts have shown no disposition to hear a lawyer or stockbroker say, "I took my client's securities or cash only briefly to meet an urgent need of my own and with full intent to return the property." Larceny borrowings, however, would ordinarily not involve large sums of liquid assets that can readily disappear, nor is there involved the aggravating circumstance that the culprit breached a strong duty of fidelity he owed to the owner who had entrusted property to him. The harm done when an ordinary tool, article of clothing, or bicycle is borrowed without permission is minimal if the object is returned promptly in good condition. The possibility of professional thievery based on illicit borrowing is remote.

Criminal borrowing. However, there are many situations in which borrowing without the owner's consent presents a serious enough risk of substantial loss as to warrant excluding a defense that the taking was without intent to deprive permanently. The courts readily convicted of larceny where the taker had only a conditional intent to restore the property, that is, if the owner would pay a reward. So also where the taker, although abjuring any purpose to appropriate permanently and, indeed, professing hope that the property will be regained by the owner, deals with the property in a way that reveals his essential indifference to returning the property. Having "borrowed" a shotgun from his neighbor's barn to go hunting, he abandons it in the woods. Such recklessness regarding restoration of the property was held sufficient mens rea for larceny.

A second category identified by modern reformers as appropriate for larceny conviction despite the alleged intention of the taker to restore the property is where the property is withheld "under such circumstances that a major portion of its economic value or its use and benefit has in fact been appropriated." This formulation was adopted in the Model Penal Code of the American Law Institute (§ 223.0) and in the Proposed New Federal Criminal Code of the United States National Commission on Reform of Federal Criminal Laws (§ 1741 (b)). Thus, the draftsmen sought to extend larceny to cases such as the prolonged "borrowing" of an art treasure or the surreptitious "borrowing" of a mowing machine precisely for the season in which the owner would need it.

"Joyride" statutes. A third category of criminal borrowing, of great practical importance, is dealt with by the so-called joyride statutes. These laws penalize unauthorized borrowing of automobiles or other vehicles. One of the commonest offenses committed by youths in an automobile civilization is to take an available car for a fast (and risky) drive, without any intention of keeping the vehicle. When abandoned, it will soon be restored to the owner by the police. The great risk presented by this activity—not only to valuable property but also to the lives of those encountered on the highway—led to penal legislation against it, sometimes by way of expanding larceny, and sometimes under a nonthievery designation. How far should the principle be extended? To boats, motorcycles, and airplanes, clearly. But should it also be extended to other motor-propelled vehicles, including snowmobiles, motor scooters, parachutes, and hang gliders? Should special laws be enacted to penalize unauthorized borrowing of dangerous machines, nuclear materials, or guns? Does the number of exceptions from the principle of penalizing only permanent deprivations multiply so uncontrollably that the principle itself should be abandoned except for the most trivial borrowing of personal belongings, thus leaving it to the discretion of prosecutors and judges which illegal borrowings should be prosecuted and punished?

Statutory dilution of intent requirement. It is not uncommon for legislatures to push the concept of larceny beyond its traditional boundaries, including the boundary of larcenous "intent." A notable example was the statute involved in Morissette v. United States, 342 U.S. 246 (1952). Here Congress, not content with providing up to ten years' imprisonment for "stealing" anything of value belonging to the United States, added that anyone who "knowingly converts" federal property should be dealt with similarly. The defendant, a junk dealer, had picked up spent air force bombing cases on an air force bombing range, believing, he claimed, that the air force had abandoned them. Such a defense would undoubtedly be valid against a charge of stealing or larceny. The prosecutor relied on the "knowing conversion," a term taken from civil law, where it refers to the owner's right to be reimbursed for property appropriated, whether or not with intent to steal. It could be argued plausibly that Congress must have intended to go beyond the traditional larceny intent when it explicitly added conversion to the theft statute. Nevertheless, the Supreme Court rejected the argument, pointing to the infamy of a conviction for theft, the long tradition of requiring specific intent in this offense, and the less-than-perfect clarity of Congress's will to weaken the traditional requirement.