Chapter 10

THEFT CRIMES AND OTHER CRIMES AGAINST PROPERTY

Introductory note: The principal focus of this chapter is on the three basic theft crimes: (1) larceny (including “larceny by trick”); (2) embezzlement; and (3) obtaining property by false pretenses. Other property crimes briefly discussed are: (4) receiving stolen property; (5) burglary; (6) robbery; (7) arson; and (8) extortion (blackmail).

I. HISTORICAL OVERVIEW

A. Larceny was judge-made crime: Much of this chapter is devoted to the distinctions between the three major theft crimes, larceny, embezzlement and false pretenses. There could easily have developed one consolidated crime of “theft,” but historically things did not work out that way. First, the crime of “larceny” was developed by English judges (rather than Parliament). This crime punished the unconsented-to taking of another’s property from his possession.

1. Need to expand “possession”: The requirement that for a taking to be larcenous, the property must be taken without consent from the owner’s possession, was a severe limitation. To expand the crime to meet the requirements of trade, judges made several farfetched manipulations of “possession.”

a. Employees: For instance, suppose an employer voluntarily gave his employee or servant goods or money to use on the former’s behalf. Under the original, common-sense idea of possession, the employee could not be guilty of larceny if he subsequently appropriated the property for his own purposes—his original possession was con-sented-to. Therefore, the judges decided that, at least where the employee was a minor one (e.g. a clerk), the employer never voluntarily gave him possession, but merely “custody”; possession remained in the owner until the wrongful appropriation (which was thus larceny).

b. Breaking bulk: Similarly, if a carrier was given bales or other wrapped goods, and he appropriated them to his own use, this would normally not be larceny, since he obtained possession lawfully. But if he “broke bulk” by breaking open the bales and taking the contents, the judges instituted the fiction that at the moment of breaking open the bales and taking the contents, the possession flew back to the owner; the taking of the contents thus constituted an unlawful re-taking of possession by the carrier, and it was therefore larceny.

2. Statutes on embezzlement and false pretenses: Other stretching of the concept of possession occurred through the years, as will be discussed below. Finally, however, Parliament created an embezzlement statute (1799), to deal with employees who received property not directly from the employer, but from a third person for the employer. Similarly, the statutory crime of false pretenses was created (1757) to deal with one who acquires not only possession, but title, without the owner’s consent.

a. No overlap with larceny: Since these statutes were attempts to “plug the holes” in the definition of larceny, they were construed so as to have no overlap with larceny. That is, if the defendant’s acts fit within the definition of larceny, they could not constitute embezzlement or false pretenses, and vice versa.