Intent to Permanently Deprive

Intent to Permanently Deprive

The elements covered so far describe what the defendant does: obtains control of the property, carries it away, and does so without the possessor's consent. Larceny also asks what the defendant means to do with the property. That second inquiry is the mental element, and the common law calls it specific intent, a purpose directed at a result beyond the physical act itself. The defendant must perform the wrongful taking and carrying away and, in addition, must intend to steal.¹ The content of that purpose is the intent to permanently deprive: at the time of the taking, the defendant must intend to deprive the person from whom the property is taken of that person's interest in it permanently.² The label specific intent has caused confusion because the phrase is used in several senses, and modern codes tend to speak of purpose instead, which corresponds loosely to the older idea.³ For larceny the content of the requirement matters more than the label, and the content is a particular intended outcome for the owner.

The requirement exists because the physical acts of larceny look the same whatever the taker has in mind. Lifting an object out of someone else's possession and moving it away could be the work of a thief, of a person who borrows without asking, or of a person who believes the object is his own, and nothing in the movement itself tells these takers apart. Only the defendant's purpose separates them, so the law has made that purpose the part of the offense that turns a wrongful act into theft. The seriousness of the offense explains the choice. Stealing and its variants are among the oldest offenses the law knows, they invade property rights in a way that unsettles the whole community, the penalty is high, and a conviction for a sufficiently valuable theft carries the stigma of a felony.⁴ A punishment of that weight is reserved for a taker who means to steal, which is why state courts of last resort have consistently kept the intent requirement in larceny-type offenses.⁵

The intent requirement is an inherited feature of common-law theft, so it travels with the word stealing into statutes that never mention it. In Morrissette v. United States the Supreme Court considered a federal statute, 18 U.S.C. § 641, that punished stealing and related conduct involving government property without saying anything about the defendant's mental state, and held that the omission would not be read to eliminate the element of intent.⁶ The reasoning was that a legislature borrowing a term of art with a long history is presumed to adopt the whole cluster of ideas attached to the term unless it directs otherwise.⁷ A statute that uses the common-law word for theft without addressing mental state is therefore read to carry the intent requirement along with it. State formulations follow the same pattern. Maryland, for example, defines common-law larceny as the taking and carrying away of another's personal property with intent to deprive the owner permanently.⁸

The formulation reaches somewhat beyond the literal word permanently. It also covers an intent to keep the property for so long that the deprivation becomes unreasonable, and an intent to deal with the property in a way that creates a substantial risk the owner will never get it back. Those extensions make sense only once the baseline is clear, so the sections below first mark the line between borrowing and stealing. They then take up the substantial-risk extension, the rule that the intent must exist at the moment of the taking, and the effect of an honest belief that the property is the defendant's own. Students lose this element when they treat an unauthorized taking as larceny without asking what the taker meant to do with the property, since the same movement of the same object is larceny for one taker and not for another.

Borrowing Versus Stealing

The intent requirement does its most frequent work at the line between a taker who means to keep the property and one who means to give it back. An intent to use another's property temporarily and then return it is not an intent to steal, so a taking carried out with that purpose is not larceny, however unauthorized the use may be.¹⁰ The result can feel wrong at first, because everything visible in a borrowing case looks like theft. The property left the owner's hands without permission, the owner never agreed, and the owner may have been seriously inconvenienced. Those facts make up the physical side of the offense, and they are present for the borrower and the thief alike. What the borrower lacks is the one element that depends on the taker's plan, which is the intent to deprive the owner of the property permanently.

Two reasons support drawing the line at permanence. The first concerns what a larceny conviction punishes. Larceny is a serious offense, and it answers the loss of an owner's property to someone who has taken it as their own.¹¹ A taker who plans to return the property is not claiming it, and the owner's expected outcome is to get it back. The second reason concerns the neighboring offenses. If larceny reached every unauthorized use, it would absorb the lesser offenses that legislatures created for the borrower, and the difference in penalty between a thief and a joyrider would disappear. Holding the line at permanence leaves each kind of wrongdoer with the offense that fits the harm.

A reported example comes from United States v. Trinder, where a group of boys took a government automobile without permission for a joyride, fully intending to return it when they were through, and the car ended up against a telephone pole.¹² The account of that decision comes from a footnote in Morrissette v. United States, where the Supreme Court traced the history of the federal statutes behind 18 U.S.C. § 641 to show that guilty intent was part of each of those crimes. The passage reports a district judge's reasoning and is not a holding of the Supreme Court. The district judge dismissed the complaint, reasoning that the boys' conduct was "merely trespass; secret borrowing," because a federal statute that uses the word stealing adopts the common-law meaning of larceny, which includes the intent to permanently deprive the owner of the property.¹³ The wreck did not alter that analysis, since the test looks to the taker's intent at the time of the taking and not to what later happens to the property.¹⁴

The taker who has the intent larceny requires differs in a single respect. A person who takes a neighbor's bicycle intending to sell it in another town and never return it intends to deprive the owner permanently, and the taking is larceny.¹⁵ Change one fact and the answer changes with it.

Only the taker's plan moved the answer. The boys in the footnote and the neighborhood borrower fall on one side of the line, and the person who takes the bicycle to sell it falls on the other.

Escaping larceny does not leave the borrower unpunished. Most jurisdictions have a separate, less serious statutory offense of unauthorized use of an automobile, commonly called joyriding, which reaches the person who takes a vehicle without authority and means to return it.¹⁶ The existence of that offense shows that the law treats borrowing as a lesser wrong than theft, and it tells a prosecutor and an exam answer alike which charge fits: the joyrider is charged under the unauthorized-use statute and the thief under the larceny statute. Students lose this issue when they reason that a taking without consent must be larceny because it was wrongful, when the controlling question is whether the taker intended to keep the property or to return it. The wrongfulness of the taking is already built into the trespassory-taking element and cannot stand in for the separate mental element.

The label of borrowing protects the taker only when the intent to return is genuine and the return is realistic. The intent requirement as stated above also reaches a taker who plans to keep the property for so long that the deprivation is unreasonable, and one who plans to deal with it in a way that creates a substantial risk the owner will never get it back. A person who takes a car without permission hoping to enter it in a demolition derby may think of the car as borrowed, yet some courts treat that plan as enough for larceny and do not leave the taker with the joyriding charge.¹⁷ The next section takes up that extension.

Substantial Risk of Loss

Read literally, the word permanently would excuse any taker who says the property was always meant to come back, and some courts refuse to read it that way. In those courts the intent element is also met when the defendant plans to deal with the property in a way that creates a substantial risk that the owner will lose it.¹⁹ The rule widens the ordinary meaning of permanence, and because only some courts and sources state it, an answer should present it as an extension those courts recognize and should not announce it as a rule every jurisdiction follows.²⁰ A car taken without permission shows the extension at work, because a single change in the taker's plan moves the case across the line.

The extension rests on what the owner actually stands to lose. An owner whose car is entered in a derby has not been promised its return in usable condition. The taker has replaced the owner's judgment about risk with the taker's own, and has done so with property that belongs to someone else. That makes the harm equivalent in substance to a permanent taking, because the owner's chance of recovering the thing depends on a gamble the owner never agreed to. An incentive reason supports the rule as well. The mental element lives in the taker's head, and nearly every taker who is caught can say the plan was to return the property eventually. If that statement ended the inquiry, it would defeat larceny at no cost to the speaker, and the offense would reach only takers candid enough to admit they meant to keep what they took. Looking at what the plan does to the owner's prospects, rather than at what the taker says he hoped, removes that escape.

The same logic covers a taker who intends to sell the goods back to the owner or to pledge them. A taker with either plan has the required intent, because selling goods back to the owner is the substantial equivalent of a permanent loss and pledging them creates a high risk of permanent loss.²¹ Each limb has its own reason. In a sell-back, the taker intends to return the property only on terms the owner never accepted, so the owner can recover what is already the owner's only by paying for it. What looks like a return is really a ransom, and the taker is treating the owner's property as the taker's own to price. In a pledge, the taker hands the goods to a lender as security for a loan, and the owner's chance of seeing them again depends on whether the taker later repays and whether the lender waits, matters entirely outside the owner's control. A taker may sincerely hope to redeem the goods, but a sincere hope does nothing to change the fact that the plan itself places the property where it can be lost.

Two limits keep the extension from swallowing the baseline rule. The first is that the risk must be substantial. Every use of property carries some chance of damage, and a taker who borrows a car for a short errand exposes it only to the ordinary hazards of driving, which falls short of a plan to put the car where the owner is likely never to recover it. The second is that the intent is measured at the time of the taking. A derby plan formed before the taking counts even if the taker's nerve fails and the car comes back unscratched, and a wreck on an innocent errand cannot supply an intent the taker never had.²² The baseline rule still governs when no such plan exists, since a taker who intends to return the property with no plan that exposes it to loss lacks the intent to deprive.²³

Students lose this issue when they stop at the taker's announced intent to return the property and never ask what the plan does to the owner's chance of getting it back. A promise to return that is tied to a ransom, a pawnshop, or a demolition derby is not the temporary borrowing the intent requirement excuses.

Concurrence With the Taking

The intent requirement has so far been described by what the taker plans to do with the property. It also has a timing component, because the plan must exist at the moment of the taking.²⁵ The law calls this requirement concurrence: the guilty act and the guilty mind must occur together, so the trespassory taking and the specific intent to permanently deprive the owner coincide in time.²⁶ A defendant who comes into possession of property lawfully and only afterward decides to keep it has therefore not committed larceny, because the necessary intent was absent when the taking occurred.²⁷

The standard illustration is a borrowed laptop. A friend lends a laptop to the borrower, who means to give it back, and after a few days the borrower decides to keep it. The borrower held the laptop with the owner's consent from the start, and the change of heart came only after possession had already passed, so the act and the intent never coincided and no larceny has occurred.²⁸ Move the intent earlier and the answer changes. A borrower who decides at the moment of picking up the laptop never to return it has the intent at the moment of the taking, and concurrence is satisfied.²⁹ Everything else about the transaction is the same, and only the timing of the decision to keep the laptop has moved.

Concurrence is necessary but does not settle the whole offense, because the friend in the second version handed the laptop over willingly, and larceny still requires a trespassory taking. Where the borrower obtained the laptop by concealing the plan to keep it, the law treats the owner's consent as ineffective, and the case becomes larceny by trick, which a later section develops. The doctrine began with Rex v. Pear, an English case of 1779 in which a man rented a horse by saying he was going to Surrey, rode to Smithfield instead, and sold it; the jury apparently found that he intended to sell the horse when he rented it, and he was held guilty of larceny.³⁰ Courts later explained the result by treating his fraudulent intent at the hiring as supplying the trespass at that same moment, so the larceny was complete at the hiring, before any sale took place.³¹ What separates the lawful borrower from the thief in these cases is when the intent to keep first arose.

The rule follows from what larceny protects. Larceny is an offense against possession, so the wrongful act it punishes is taking possession away from someone who holds it and has not consented. When an owner voluntarily hands property over, possession passes at that moment and nothing wrongful has yet occurred. Once the defendant lawfully holds the property, a later decision to keep it no longer takes anything from anyone's possession, and the owner's remedy lies in a civil action.³² Two reasons support drawing the line there. The first is that the offense needs a wrongful act to which the guilty mind can attach, and by the time the borrower formed a guilty mind, the only act left was keeping what was already in hand. The second is that relaxing the rule would turn ordinary breaches of trust into thefts: if an intent formed at any later time sufficed, every renter, borrower, or customer who failed to return or pay would face a larceny charge, and the line between a debt dispute and a crime would disappear. The common law answered the resulting gap in stages. Courts first stretched the concept of possession to reach some trusted holders, and legislatures later created embezzlement and false pretenses as separate crimes.³³

The same timing logic governs finders. At common law, a person who found lost or mislaid property was guilty of larceny if, at the time of the finding, the finder intended to appropriate it rather than return it, at least when the owner was known or could reasonably be identified.³⁴ The critical moment is the finding, because that is when the finder takes the property from the owner, who is treated as still holding it.³⁵

Property delivered by mistake follows the same pattern. It can be the subject of larceny only if the recipient is aware of the mistake at the time of receiving it, and a recipient who discovers the error later, such as on opening a pay envelope at home, has committed no larceny.³⁶ Modern law has narrowed the later-intent finder's protection from another direction. Most states make it an offense to fail to register or publicly disclose unidentified found property, and the Model Penal Code punishes a failure to make a reasonable effort to return found property regardless of the finder's initial intent.³⁷

Defendants sometimes try to manufacture a gap between the taking and the intent, and the courts look past the split. In People v. Davis a customer lifted a shirt from its hanger in a department store, carried it to a sales counter, and said he wanted to return it for a refund, finally accepting a store credit voucher that he signed with a false name.³⁸ He argued that picking up the shirt was not larceny because he intended only to exchange it for a refund, and that accepting the voucher was not trespassory because the store, through its security agent, knowingly approved it.³⁹ The California Supreme Court rejected the two-act division. The question was whether the store consented to his taking the shirt in the first instance, and a self-service store consents to a customer picking up an item and carrying it to the counter only when the customer means to buy it, so whether the taking was trespassory depended on his intent when he took possession.⁴⁰ The case shows the timing rule at work: the intent that counts is the one the defendant held when first taking the property, and it decides whether the apparent consent was genuine.

One qualification softens the timing rule without abandoning it. Where the original taking was itself unauthorized, many jurisdictions treat the trespass as continuing, so an intent to steal formed while the trespass continues can be enough for larceny.⁴¹ The qualification depends on a taking that was wrongful from the start, so it does not help the prosecution against the laptop borrower who received the property with the owner's consent.

That lawful borrower is not without a crime. A person who lawfully holds property and then fraudulently converts it is the target of embezzlement, the offense the law created to fill the gap that larceny's timing requirement leaves, and the next major section takes it up.⁴²

Students lose this issue when they treat a defendant's eventual refusal to return property as proof of larceny, when the controlling question is what the defendant intended when possession first passed.

Claim of Right

Concurrence fixes the moment at which the intent to steal must exist, and the remaining question is what that intent must be about. Larceny punishes a purpose to deprive another person of that person's property, so the taker must at least believe that the property belongs to someone else. A taker who removes personal property while honestly believing that she owns it, or that she has a right to possess it, lacks the specific intent to steal and is not guilty of larceny.⁴⁴ This claim of right defense holds even when the belief is unreasonable and mistaken.⁴⁵ An observer would see the same physical act in an honest claimant and in a thief, but the mental state that makes the act a crime is missing in the claimant.

The defense has two parts, and each has its own logic. The honesty requirement ties the defense to the element it negates: the question is the taker's actual state of mind, and a belief the taker never held cannot undo a purpose the taker did have. The absence of a reasonableness requirement follows from the same point. Larceny is a specific-intent offense, and if a taker could be convicted whenever a careful person would have avoided the mistake, the law would be punishing carelessness as theft. Unreasonableness still matters in practice, because the fact-finder decides whether the belief was genuine, and a story that no sensible person would credit is strong evidence that the taker invented it. The verdict therefore rests on the jury's judgment of sincerity, which is the safeguard against a thief who adopts the label after the fact.

The English Larceny Act of 1916 wrote the idea into its definition of stealing, which required a taking "fraudulently and without a claim of right made in good faith" and with intent permanently to deprive the owner.⁴⁶ Because the good-faith requirement sits inside that definition, the absence of a claim of right belongs to the offense itself, which is the same place the honest-belief rule puts it in the common-law formulation of the intent element.

Self-help debt collection is the most common setting. When one person owes another money or an item, and the creditor takes a different item or sum of equal or lesser value as a way of collecting, the creditor's honest claim of right negates the intent to take property of another, and that remains true even if the creditor is wrong, though sincere, in believing the debt exists.⁴⁷ The creditor takes the item as payment of what he believes is his due, and a purpose of collecting what one is owed is a different purpose from stealing.

The same logic covers mistaken ownership, where no debt is involved at all. The question is again what the taker believed when taking the property, and a genuine belief of ownership leaves no purpose to deprive another person of what is theirs.

The pole on the other side is the taker who knows the property belongs to someone else.

A taker who knows that the property belongs to another and takes it to sell has the intent to steal, because no honest claim of right stands in the way.⁴⁸ The honest-belief rule also concerns a right to the particular property, so a general feeling that a victim is wealthy or deserves the loss is not a claim of right. Students lose this issue when they ask whether the taker was right about the debt or the ownership, when the question is whether the taker honestly believed in the right to the property.

The defense removes the criminal intent and leaves civil liability to be judged separately. In Morissette v. United States, a footnote explains that a person who clearly assumes the rights of ownership over another's property can be held liable for civil conversion without proof of intent to convert, even where the person reasonably supposed that he had a legal right to the property.⁴⁹ Civil liability thus looks to what the defendant did with the owner's property, while larceny looks to what the defendant meant to do, so the honest mistake that defeats the criminal charge leaves the owner's civil remedy available.