Brief Fact Summary. The Defendant, Davis (Defendant), was charged with the crime of petty theft (larceny) in connection with his attempt to take a shirt from a Mervyn’s department store and return it as his own to that same store.
Synopsis of Rule of Law. The general rule is that the intent to steal required for larceny is an intent to deprive the owner permanently of possession of property. However, larceny may still be found, absent intent to permanently deprive, when: (1) the defendant intends to sell the property back to its owner; (2) the defendant intends to claim a reward for finding the property and (3) the defendant intends to return the property to its owner for a refund.
Facts. The Defendant entered the Mervyn’s department store carrying a Mervyn’s shopping bag. As he entered the store a security agent placed him under camera surveillance. The Defendant went to the men’s department and took a shirt from its hanger. The Defendant then went to the women’s department and attempted to return the shirt, claiming that it was a gift for his father and that it did not fit properly. The Defendant told the cashier that because the shirt was a gift, he did not have a receipt. The security agent telephoned the cashier and told her to issue a store voucher. The cashier prepared the voucher and the Defendant signed it under a false name. As the Defendant walked away from the counter, the security agent detained him.
Issue. Can the Defendant be found guilty of larceny when he did not expressly intend to permanently deprive the property owner of possession because he intended to return the property for a refund?
Held. The Defendant’s intent to claim ownership of the shirt and to return it to Mervyn’s only on condition that the store pay him a refund constitutes an intent to permanently deprive Mervyn’s of the shirt within the meaning of the law of larceny and hence an intent to feloniously steal within the penal code. As a result, the Court of Appeals was correct to affirm the judgment of conviction made in the lower court.
Discussion. The court bases its decision upon suspect rationale. The court noted that, as a practical matter, there is a risk that a taking, such as occurred in this case, will become permanent. This is so because if the transaction to obtain a refund for the return of merchandise fails, the taker will be more inclined to keep the property permanently rather than try again and possibly, draw attention to his activities. This rationale provided by the court is quite attenuated. In fact, even the court admits that this case can be seen as an attempt to connect the sufficient policy that had existed for the result with ample and correct legal rationale consistent with the basic principles of the law of larceny.