Consolidated Theft Statutes

Consolidated Theft Statutes

The four offenses covered in this chapter, larceny, larceny by trick, embezzlement, and false pretenses, exist as separate crimes because of how English law grew. Judges created larceny by trick within the common law, and Parliament added embezzlement and false pretenses by statute to reach conduct that larceny, with its focus on a trespassory taking from another's possession, could not.¹ A defendant who lawfully received property and then kept it fell outside larceny, and one who obtained both possession and title by lying committed no crime at all until Parliament acted in 1757.² The categories that resulted turn on narrow questions the earlier sections taught: whether the victim surrendered possession or only custody, whether the victim passed title, and when the intent to keep arose. A prosecutor who chose the wrong category therefore risked losing against a defendant who plainly stole, because proof of a neighboring offense does not satisfy the elements of the one charged.

Legislatures answered by merging the categories. In the early twentieth century many states folded larceny, false pretenses, and embezzlement into one crime, usually called theft, to relieve prosecutors of the burden of keeping them apart.³ Most American jurisdictions now have such a statute, and its practical payoff is that a prosecutor who charges theft does not risk dismissal for having picked the wrong crime.⁴ New York's former Penal Law § 1290 shows the technique: the legislature declared a policy of abolishing the distinctions among larceny by asportation, larceny by trick, false pretenses, and embezzlement, and the larceny section made it no defense that the accused first obtained possession or title lawfully if the property was later wrongfully withheld.⁵ The Model Penal Code takes the same path with a single theft offense that can be committed by any of those methods, on the view that thieves are equally dangerous and the harm equally serious however the property was obtained.⁶ That view supplies the reason for merging. The method of acquisition, which the common law used to sort crimes, says little about how culpable the actor is or how much the owner lost, so sorting by method produces acquittals that blame does not justify.

A jurisdiction that keeps the categories separate treats the same gap as dangerous. In a standard illustration, the defendant persuades the person holding trust money to hand it over by falsely promising to carry it to a named third person, and then keeps it. The holder meant to pass only possession, so the defendant committed larceny by trick, and false pretenses, which requires that title pass, was not committed.⁷ A prosecutor who had charged false pretenses in such a jurisdiction would have charged the wrong crime, even though the defendant's guilt of some theft offense is clear. The deceit is the same in the box above and in this illustration. What changes is whether the legal system tolerates a mismatch between the label charged and the method proved.

Consolidation changes the label and removes the pleading risk, but the elements of the underlying methods stay in place. The Supreme Court of California said so in People v. Williams, observing that merging larceny, false pretenses, and embezzlement into theft did not change the elements of those offenses.⁸ The defendant there bought store gift cards with re-encoded credit cards and shoved a security guard on the way out after an employee noticed that the card numbers did not match the receipt.⁹ Robbery requires a felonious taking, which the court read as larceny, so the question was whether theft by false pretenses could serve. It could not, for two reasons the earlier sections explain. Larceny carries an asportation element that continues until the thief reaches a place of temporary safety, so force used in escaping turns larceny into robbery, while false pretenses has no asportation and is finished the moment title passes. Larceny also requires a trespassory taking, while false pretenses rests on the victim's consent to the transfer.¹⁰ The shove therefore came after the theft was complete and was not robbery.

The Model Penal Code shows the other possibility, a consolidated statute that rewrites some elements along with the labels. It replaces the taking and asportation requirements with unlawfully taking or exercising unlawful control over movable property, treats movement as criminologically insignificant, and looks to deprivation of economic value instead of permanent deprivation.¹¹ Consolidated statutes also commonly grade the single offense by the value taken, as in the California charge of felony grand theft of personal property worth more than $400 in Ewing v. California.¹² Because statutes differ, the old vocabulary remains necessary, since consolidated statutes and many newer theft crimes continue to rely on the common-law distinctions.¹³

On an exam stem, the usual error is to treat consolidation as the end of the analysis. Students lose this issue when they conclude that the old categories no longer matter as soon as a stem mentions a theft statute, overlooking a robbery count or an element that still depends on how the defendant acquired the property.¹⁵ The opposite error insists on matching the exact common-law label in a consolidated jurisdiction, where a charge of theft suffices if the proof shows conduct within the statute.¹⁶