Larceny

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Larceny

Larceny is a form of theft. In order for one to be found guilty of larceny, the prosecution must prove each of the following elements:

the trespassory taking
and carrying away
of the personal property
of another
with the intent to permanently deprive the owner of the property.

The act of taking personal property from the possession of another is always a trespassunless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property. The intent to steal or animus furandi is the intent, without a good faith claim of right, to permanently deprive the owner of possession. And if the taking has begun, the slightest movement of the property constitutes a carrying away or asportation.

The court in People v. Davis, 19 Cal. 4th 301 (1998), provided discussion of the three categories of larceny cases as follows:

A. The "sale" cases

The classic case of the first category is Regina v. Hall (1848) 169 Eng.Rep. 291. The defendant, an employee of a man named Atkin who made candles from tallow, took a quantity of tallow owned by Atkin and put it on Atkin's own scales, claiming it belonged to a butcher who was offering to sell it to Atkin. The jury were instructed that if they found the defendant took Atkin's property with the intent to sell it back to him as if it belonged to another and appropriate the proceeds, he was guilty of larceny. The jury so found, and the conviction was upheld on further review.

The defendant contended that his assertion of temporary ownership of the property for a particular purpose was not enough to constitute the required intent to permanently deprive. The justices expressed two rationales for holding to the contrary. First, one justice stressed that the deprivation would in fact have been permanent unless the owner had agreed to the condition imposed by the defendant, i.e., to "buy" the property: Baron Parke reasoned, "The intention was that the goods should never revert to the owner as his own property except by sale. They were therefore severed from the owner completely unless he chose to buy back what was in truth his own property." (Regina v. Hall, supra, 169 Eng.Rep. at p. 291.)

The second rationale was that the defendant's claim of the right to sell the property was an assertion of a right of ownership and therefore evidence of an intent to permanently deprive: Chief Justice Denman reasoned, "The only question attempted to be raised here is as to the animus furandi, the intent to deprive the owner of his property. What better proof can there be of such intent, than the assertion of such a right of ownership by the prisoner as to entitle him to sell it." (Regina v. Hall, supra, 169 Eng.Rep. at p. 292; accord, Regina v. Manning (1852) 169 Eng.Rep. 619 [defendant took bags owned by a potato-bag dealer, presented them to the dealer as new bags, and demanded payment for them; held, larceny].)

The latter rationale—that an intent to permanently deprive is shown by the assertion of a right of ownership in the property—was again invoked when Regina v. Hall, supra, 169 Eng.Rep. 291, was distinguished from a case in which a pieceworker sought to increase his pay by adding goods produced by other workers to those produced by him: in that case Justice Erie explained, "The distinction between the two is sufficiently clear. The test is, whether the person who takes the property assumes to exercise dominion over it as owner. In R[egina] v. Hall, the offer to sell the property to the owner was one of the strongest acts of dominion." (Regina v. Poole (1857) 7 Cox Crim. Cas. 373, 374.)

Perkins offers yet another rationale for the rule that a defendant who takes property for the purpose of "selling" it back to its owner has the requisite intent to permanently deprive: by so doing the defendant creates a substantial risk of permanent loss, because if the owner does not buy back his property the defendant will have a powerful incentive to keep it in order to conceal the theft. As Perkins explains, "in the type of case suggested there is also a very considerable risk that [the owner] will not get back the property at all. If, for example, he should decide that his supply was ample and decline to pay the price, the trespasser would take away the property in order to conceal his own wrongdoing."

B. The "reward" cases

The cases in the second category hold that a defendant who takes property for the purpose of claiming a reward for "finding" it has the requisite intent to permanently deprive. Again the courts invoke differing rationales for this holding. One line of these cases is exemplified by Commonwealth v. Mason (1870) 105 Mass. 163. The defendant took possession of a horse that had strayed onto his property, with the intent to conceal it until the owner offered a reward and then to return it and claim the reward, or until the owner was induced to sell it to him for less than its worth. The court affirmed a conviction of larceny on the theory that the requisite felonious intent was shown because the defendant intended to deprive the owner of "a portion of the value of the property." (Id. at p. 168.) The court did not explain this theory further, but later cases suggested that the "portion of the value" in question was the right to claim a reward—ordinarily less than the property's full value—for its return.

Thus in Slaughter v. State (Ga.1901) 113 Ga. 284, 38 S.E. 854, the defendants were private detectives who induced an employee to steal merchandise from a store, then returned the merchandise to the store owner 301 *301 as "evidence" of the thefts and persuaded him to pay them a reward if they could catch the thief. The court affirmed a conviction of larceny, reasoning that "It is not necessary to constitute larceny, that the property should be itself permanently appropriated. It is sufficient if the property be taken and carried away with the intent to appropriate any pecuniary right or interest therein, as where it is taken with the expectation of claiming a reward for its return." (Id. at p. 855; accord, Fort v. State, supra, 82 Ala. 50, 2 So. 477 ["... deprivation of the ownership of property is one of the essentials of larceny. But is it necessary that the intent shall be to deprive the owner of the whole property taken? Is not the animus furandi as manifestly shown when the intent is simply to deprive him of a partial, though unsevered, interest in the property?"].)

Another line of cases in this category also noted the taker's intent to appropriate "part of the value" of the property, but went on to emphasize a different rationale, i.e., that the taker had made the return of the property contingent on the offer of a satisfactory reward, and if the contingency did not materialize the taker would keep the property. A leading case of this type is Berry v. State (1877) 31 Ohio St. 219. The defendants took two horses from a stable without their owner's consent, with the intent to conceal them until the owner offered a reward, and then to return them and claim the reward. The court affirmed a conviction of larceny, rejecting the defendants' contention that their intent was to deprive the owner only temporarily of his property. As its principal reason, the court stressed that the defendants' intent to return the horses was contingent on the offer of a reward: "in this case there was an utter absence of intention to restore the property unless money was paid for its restoration. There was no evidence tending to show a purpose to return the property unless a reward was offered therefor. A return, at all events, was not designed. It is true, that all parties concerned in the taking contemplated and expected that the owner would offer such reward; but the purpose to return was founded wholly on the contingency that a reward would be offered, and unless the contingency happened the conversion was complete." (Berry v. State, supra, at p. 227, italics added; accord, Dunn v. State (Tex.Crim.App.1895) 34 Tex.Crim. 257, 30 S.W. 227 [defendant took horse from corral with intent to conceal it until owner offered reward].)

The same rationale has been invoked when the defendant sought not a reward but a ransom. Thus in State v. Hauptmann (N.J. 1935) 115 N.J.L. 412, 180 A. 809, the defendant kidnapped the, infant son of Charles Lindbergh. The child was wearing a sleeping suit when he was abducted. In preliminary negotiations with Condon, Lindbergh's representative, the defendant agreed to send Condon the sleeping suit as evidence that Condon was dealing with "the right party"; the negotiations continued, the defendant sent the sleeping suit to Condon, and Condon thereupon accepted the defendant's ransom terms. The child was later found dead. The defendant was convicted of murder and of larceny of the sleeping suit, and the New Jersey high court affirmed.

On appeal, the defendant contended inter alia that there was no larceny because his intent was not to keep the sleeping suit permanently but to return it in order to advance the ransom negotiations. The court's rationale for rejecting the claim was the same as that of the "reward" cases discussed above: "the intent to return should be unconditional; and, where there is an element of coercion or of reward, as a condition of return, larceny is inferable." (State v. Hauptmann, supra, 180 A. at p. 819.) The court acknowledged that the sleeping suit "was surrendered without payment; but, on the other hand, it was an initial and probably essential step in the intended extortion of money, and it seems preposterous to suppose that it would ever have been surrendered except as a result of the first conversation between Condon and the holder of the suit, and as a guaranty that there was no mistake as to the `right party.' It was well within the 302 *302 province of the jury to infer that, if Condon had refused to go on with the preliminaries, the sleeping suit would never have been delivered. In that situation, the larceny was established." (Id, at pp. 819-820, italics added.)

The only relevant California cases we have found are two that fall into the reward/ransom category. They contribute little, however, to the rationales articulated in the prior cases.

Thus in People v. Stay (1971) 19 Cal. App.3d 166, 96 Cal.Rptr. 651, the defendant made a business of taking shopping carts from streets and sidewalks near supermarkets where they had been left by store customers, and then offering to return the carts if the stores paid him a "finder's fee" of 10 times the going rate charged by legitimate cart retrieval services; when a store refused to pay—as most did—the defendant removed all indicia of ownership from the carts and sold them to smaller stores. Convicted of grand theft, the defendant argued on appeal that the evidence showed no intent to deprive the stores permanently of the carts because his purpose was to take them only in order to collect the "reasonable charge" to which a "finder" is entitled by statute for saving and preserving "lost" property. (Civ.Code, § 2080.) Affirming the conviction, the Court of Appeal held that (1) the carts were not "lost" within the meaning of the finder's statute, and (2) the evidence supported the trial court's finding that the defendant "`intended to permanently deprive the owners of these carts if they didn't pay his expenses, plus a reward.'" (19 Cal.App.3d at p. 175, 96 Cal.Rptr. 651.)

The case is not helpful, however, because the Court of Appeal does not state a rationale to support its holding on the intent issue. Instead, it simply reiterates the facts (People v. Stay, supra, 19 Cal.App.3d at p. 176, 96 Cal.Rptr. 651) and concludes broadly that "His intent to permanently deprive the markets of their property is reflected in defendant's high-handed method of operation and obvious lack of good faith in acting under the finder's statute." (Ibid.) Yet one of the facts emphasized by the Court of Appeal— that the defendant "well knew the markets would not pay" the exorbitant finder's fee he demanded (ibid.)—made a sham of the defendant's claim that he took the carts only to collect the fee.

The second California case is In re Albert A. (1996) 47 Cal.App.4th 1004, 55 Cal.Rptr.2d 217. The minor defendant took the bicycle of a minor named Ali by threat of force, saying he intended to keep it until his own bicycle, which had allegedly been stolen, by a relative of Ali's, was returned to him. The juvenile court believed that was in fact the defendant's motive, but also believed he intended to keep Ali's bicycle "`for as long as it would take'" to recover his own bicycle. (Id. at p. 1007, 55 Cal.Rptr.2d 217.) For this reason the court found the defendant intended to permanently deprive Ali of the bicycle; the court concluded that the defendant had therefore committed robbery, and ruled that a prior order of wardship would continue in effect.

Affirming the order, the Court of Appeal agreed that the defendant had the requisite intent to permanently deprive. The court's theory appears to have been an extension of the "contingency rationale" of the prior cases. The court reasoned not just that the return of the property was contingent on a future event—the recovery of the defendant's own bicycle—but that the contingency was so "remote" and unlikely to occur—the court analogized it to "winning the lottery"—that it could be disregarded as a matter of law: "The intent to return property under these circumstances is tantamount to an intent to permanently deprive the victim of his or her property because the intent to return the property is too tenuous and illusory to have any legal effect." (In re Albert A., supra,. 47 Cal.App.4th at p. 1009, 55 Cal.Rptr.2d 217.) Whatever its theoretical validity, this seems an exaggerated view of the facts of the case.

303 *303 Finally, Perkins again proposes the rationale of a substantial risk of permanent loss. He reasons that a taking with intent to hold for reward creates such a risk because "the intent will result in a permanent loss to the owner if he fails to offer or give a reward for the return of the property." (Perkins, supra, at p. 330.) Indeed, even the offer or payment of a reward may not eliminate the risk because the defendant still has an incentive to keep the property rather than expose himself to detection by returning it.

C. The "refund" cases

The third category comprises a substantial number of recent cases from our sister states affirming larceny convictions on facts identical or closely similar to those of the case at bar: in each, the defendant took an item of merchandise from a store display, carried it to a sales counter, claimed to own it, and asked for a "refund" of cash or credit. Although the cases are thus factually in point, the reasoning of their opinions is, ironically, of less assistance than the "sale" or "reward" cases in our search for a satisfactory rationale on the issue of the intent to permanently deprive. This is so for three reasons.

First, many of the opinions in the "refund" cases offer no rationale at all on the issue of intent. Instead, in each case the defendant contends the evidence is insufficient to support the conviction of larceny, and the appellate court simply reviews the facts and concludes otherwise without further analysis. (E.g., Gunn v. State (Ala.Crim.App.1980) 387 So.2d 280, 282; Warsham v. State (Ga.Ct. App.1991) 200 Ga.App. 322, 408 S.E.2d 122, 123; Marshall v. State (Ga.Ct.App.1991) 199 Ga.App. 678, 405 S.E.2d 893, 894; State v. Manus (Ohio Ct.App. Aug. 6, 1982, No. C.A. H-82-9) 1982 WL 9177, p. *5; see also State v. Cravanas (Ohio Ct.App. Mar. 20, 1996, No. 17398) 1996 WL 122016, p. *3 ["theft by deception"]; State v. Gibson (Ohio Ct.App. Oct. 22, 1986, No. C.A. 12621) 1986 WL 11923 [same].)

Second, in other cases in this category the opinion either states (e.g., State v. Brookover (Ohio Ct.App. Feb. 22, 1983, No. 82 X 19) 1983 WL 3129, p. *2; Moore v. State (Tex. App.1983) 659 S.W.2d 445, 447) or implies (e.g., State v. Webster (Mo.Ct.App.1994) 870 S.W.2d 450, 453; State v. Wynn (Mo.Ct.App. 1990) 794 S.W.2d 312, 315; Lewis v. State (Tex.App. Apr. 27-41989, No. 01-88-00079-CR) 1989 WL 40710, pp. *2-*3) that the defendant was charged with theft of the cash obtained as a refund, rather than theft of the property taken from the display counter. We are concerned with the latter: as noted at the outset, defendant in the case at bar was charged with theft of "personal property" of Mervyn's, i.e., the shirt.

Third, the remaining opinions in this category are statute-specific, i.e., each turns on the wording of the larceny statute in force in that particular jurisdiction. As noted above (fn.1, ante,) the California statute making larceny a crime is declaratory of the common law and is therefore to be construed by application of common law principles. By contrast, the cases now under discussion arise in jurisdictions that have modernized their larceny statutes by adopting, or enacting variations on, the provisions of the Model Penal 304 *304 Code governing theft. (Id., §§ 223.0-223.9.) Accordingly, to the extent these opinions provide any legal analysis at all, they do so in terms of the wording of their governing statutes rather than the common law.

For example, in State v. Martin, supra, 1996 WL 761215, the defendant took four shirts from a display in a department store, carried them to a sales counter and asked for a refund, saying they had been gifts to her sons; the clerk gave the defendant a receipt for a refund; and a store security agent who had observed the defendant's course of conduct detained her before she left the store. The defendant was convicted of violating an Ohio statute declaring guilty of theft whoever shall knowingly "obtain or exercise control over" the property of another, without consent and "with purpose to deprive" the owner of the property. (Ohio Rev.Code Ann. § 2913.02, subd. (A).) On appeal, the reviewing court held the defendant's conduct came within the terms of the statute: the court reasoned that "By claiming she had ownership of the shirts, [defendant] exercised control over the shirts in a manner which was contrary to the store's ownership. In effect, there was a verbal concealment and exertion of control by [defendant]." (1996 WL 761215 at p. *4.)

Turning to the issue of the defendant's intent to "deprive," the court stressed that the Ohio statutory definition of that term included the act of withholding property "with purpose to restore it only upon payment of a reward or other consideration" (Ohio Rev.Code Ann. § 2913.01, subd. (C)(1)). The court reasoned, "Under the foregoing definition, if the defendant takes the property of another and does not intend to give it back until consideration is paid, the defendant has `deprived' the victim first, of the property, and second, of the consideration." (State v. Martin, supra, 1996 WL 761215 at p. *4.)

Weaving these two themes together, the court concluded: "By telling the sales associate that the shirts had been given to her sons as gifts, [defendant] exercised verbal control and concealment, thus, exerting control over the shirts for the purpose of obtaining consideration from the store." (State v. Martin, supra, 1996 WL 761215, p. *4.)

We have set forth the Ohio court's reasoning in order to show how closely it follows the wording of the local statute—and, by the same token, how far it has moved away from the common law of larceny. The same is true, moreover, of the other cases in this category: their reasoning is often more conclusory than that of the Ohio case just discussed, but the statutes on which they rely are equally remote from the common law, and hence from the question before us. (E.g., Jones v. State (TexApp. Nov. 29, 1995, No. 04-95-00334-CR) 1995 WL 699987 [construing Tex. Penal Code, § 31.03, subds. (a) & (b) ("theft" is committed by one who "unlawfully appropriates" property of another without the owner's "effective consent" and with intent to "deprive"); § 31.01, subd. (2)(B) ("deprive" means "to restore property only upon payment of reward or other compensation"); and § 31.01, subd. (3)(D) ("effective consent" does not include consent "given solely to detect the commission of an offense")]; accord, Ashby v. State (Tex.Crim. App.1980) 604 S.W.2d 897, 900-901 (plur. opn.).)