Criminal Law Newsletter

Distinguishing Among Criminal Law Property Offenses

In general, criminal law offenses can be broken into broad categories, including offenses against the person, offenses against the habitation (e.g., residence or dwelling), sex offenses, and property offenses. Among the property offenses are the common law theft crimes of larceny, embezzlement and false pretenses. Differentiating among these crimes is challenging, and the distinction essentially rests on the way the property is misappropriated, including whether or not title passes to the offender. Each of these three property offenses are typically separated into two degrees, grand and petty, depending on the value of the property taken. A “grand” offense is generally a felony, punishable by one or more years in prison, while a “petty” offense is a less serious misdemeanor.

Larceny

Larceny is the basic common law form of property theft and consists of the following elements:

1. The taking and carrying away (even a slight movement of the property suffices)


2. Of tangible personal property of value


3. Belonging to another person


4. By trespass (without consent of the owner)


5. With the intent to permanently deprive the owner of their interest in the property

The property must be personal property capable of possession and transportation. Real estate or services cannot be stolen by larceny. Additionally, there is generally no larceny without an intent to permanently keep the property (e.g., simply borrowing the property is not enough), nor if the individual honestly believes that the property they are taking is their own. Finally, if the owner consents to their property being taken, but the consent was only given after the offender lied or misrepresented some fact, the consent is invalid and the crime is “larceny by trick.”

Embezzlement

Embezzlement is sometimes referred to as a “larceny of assets” (money or property), and was not originally a common law crime. One of the fundamental differences between embezzlement and larceny is that the person taking the property already has lawful possession. The elements of embezzlement are as follows:

1. The fraudulent conversion


2. Of property


3. Belonging to another person


4. By someone in lawful possession

Individuals guilty of embezzlement are often found in positions where they have at least a temporary lawful right to use and possess the property of the true owner. Such positions of trust and confidence include fiduciaries, such as estate trustees, and also some employees. A typical embezzlement scenario is where an employee improperly takes company funds. However, unlike larceny, it is possible to embezzle real property.

Larceny vs. Embezzlement

Perhaps the best way to understand the fundamental differences between larceny and embezzlement is to provide an illustration. For example, where an individual walks onto a construction site, takes a tool, and leaves the property, they have committed a petty larceny. This is because they had no right to take the tool, knew it was not theirs, and had no intent to return it. However, if a construction worker intentionally takes a tool off of the site after work, they have committed a petty embezzlement. This is because they had lawful possession of the tool during the day, but later “converted” it to their own use when they took it from the site.

False Pretenses

The crime of false pretenses is most similar to “larceny by trick,” which is gaining the possession of another’s property by the use of fraud. The difference is that false pretenses allows the offender to obtain actual title to the property rather than mere possession. False pretenses consists of the following elements:

1. Obtaining title


2. To the property of another person


3. By making an intentionally false statement of past or existing fact


4. With the intent to defraud the other person

There are some limitations on the misrepresentations required for the crime of false pretenses. First, the misrepresentation must be the cause of obtaining the property. In other words, the victim must actually rely on, or be deceived by, the false information when they give title to the offender. Second, a misrepresentation regarding something which will occur in the future is insufficient to constitute a false pretense.

Larceny by Trick vs. False Pretenses

As with larceny and embezzlement, the best way to demonstrate the difference between larceny by trick and false pretenses is through an example. When an individual drives to a full-service gas station, asks the attendant to fill up the gas tank, and intentionally drives away before the attendant may collect payment, the driver has committed larceny by trick. This is because the driver was given possession of the gas on the assumption that they would pay for it. However, if an individual were to switch the price tags on items at a store in order to pay less money for their item, once they actually pay the lesser price, they have committed false pretenses. This is because the person gained legal title to the item when they purchased it. However, even though they have legal title, they are not entitled to keep the item, since it was obtained through fraud by switching the price tag.

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