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Some people always want what the other person has. And they’ll do anything to get it: take it, trick the owner into giving it up, hide it, perhaps even destroy the property if they can’t have it.

These unhappy facts of life have given rise to one of the most arcane areas of criminal law: property offenses. The doctrines of the various crimes that constitute property offenses—larceny, embezzlement, taking under false pretenses, extortion, and others—are laced with rules and a host of exceptions to the rules. Courts have created fictional devices to reach the “right results” when the rules would not allow such a result. The doctrines also reflect tension between courts and legislatures about the reach of the criminal law and the impact of the death penalty.

There are three “major” property offenses: larceny, embezzlement, and taking under false pretenses. At the risk of grossly oversimplifying, one might say that the characteristics that distinguish these crimes from each other are as follows:

  1. Larceny is a taking out of the possession of another.
  2. Embezzlement is the conversion to the defendant’s use of another’s property lawfully obtained.
  3. False pretenses—unlike the previous two, which are offenses against possession—is a taking of title by deceit.

These simplifications hide a vast array of interlocking and overlapping requirements and fact patterns. The ingenuity of persons who want someone else’s property is vast and unlikely to be hemmed in by specific differences among the “elements” of various crimes. Nevertheless, it may help if you keep your eye on these skeletal definitions.


The Death Penalty

Prior to the common law,[1] most legal systems, including both Greek and Roman law, had treated most infringements against property as torts, with only damages as a remedy.[2] In sharp contrast, however, the common law punished larceny with death, as it punished all felonies, until the early part of the nineteenth century.[3] However, many judges, opposed either to the penalty itself or to its imposition for “mere” invasions of property, gave restrictive readings of the “elements” of larceny so as to avoid imposing the death penalty. In the eighteenth century, as the death penalty became more discretionary, the need to restrict the reach of property offenses ebbed, and courts upheld liability in larceny (most notably in Pear’s Case, infra). And when, in the nineteenth century, the death penalty was removed as a possible penalty for most property offenses unconnected with potential physical violence, courts gave increasingly broad readings to the elements of larceny. Similarly, legislatures enacted a wide range of new statutes proscribing other interferences with property, but not punishable by death.

[1] No group of crimes so reflects the various tensions in the centuries during which they were developed as do property offenses. For an extraordinary in-depth analysis of the historical development, see J. Hall, Theft, Law and Society (1952).
[2] There were some exceptions: Stealing a bather’s clothes and theft of livestock were criminally punishable in Rome. Housebreaking and theft at night, which indirectly involved the potential threat to persons, were also treated criminally (under the common law scheme, they would be dealt with as burglary).
[3] There is some suggestion that “larceny” was initially (1000-1250 A.D.) limited to forcible takings (what we now call robbery), but the history is somewhat cloudy.

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