FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103
Go to Volume 7 Table of Contents - Go to Chapter 103 Table of Contents

103.1 Theft/Larceny By Taking

    103.1.2 Theft/Larceny: Miscellaneous Issues

    103.1.2.1 Theft/Larceny: "Taking From The Person" Must Be From Immediate Possession And Control
    103.1.2.2 Theft Of Spouse's Portion Of Community Property
    103.1.2.3 Theft/Larceny: Taking By Partner Who Possessed An Undivided Interest Is Not Larceny
    103.1.2.4 Theft/Larceny: Taking Of Property Held As Security Where Lien Has Not Been Perfected
    103.1.2.5 Theft/Larceny: Not Applicable To Use Or Occupation Of Land
    103.1.2.6 Failure To Pay Use-Fee Is Not Larceny Or Theft
    103.1.2.7 Theft/Larceny: Alternate Theory Of Theft Cannot Support Conviction Without Instruction On That Theory
    103.1.2.8 Multiple Theft Convictions Improper Based On Multiple Takings During Single Course Of Conduct
    103.1.2.9 Theft/Larceny: Challenge To Use Of Defendant's Poverty Or Financial Condition As Evidence Of Motive
    103.1.2.10 Theft/Larceny, Retail: Intent To Defraud Defined
    103.1.2.11 Theft/Larceny, Retail: "Stolen" Defined
    103.1.2.12 Theft/Larceny, Retail: "False" Defined
    103.1.2.13 Theft/Larceny, Retail: Definition Of “Corrupt”
    103.1.2.14 Theft/Larceny: Definition Of Owner
    103.1.2.15 Theft/Larceny: Use of the Term “Appropriates” May Be Unclear
    103.1.2.16 Theft/Larceny: Requirement Of Asportation (“Carrying Away”)
    103.1.2.17 Theft/Larceny With A Prior Conviction: Cautionary Instruction

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

RATIONALE: Without an explanation the jury may not understand that the taking must be from the immediate possession and control of the victim.

POINTS AND AUTHORITIES: By definition, grand theft from a person involves direct physical contact between the perpetrator and the victim; the thief must not only come near the victim; he or she must reach out and touch that victim. (See U.S. v. Wofford (9th Cir. 1997) 113 F3d 977, 983.)

    Larceny "from the person" requires property to be in possession and immediate custody and control of victim. (See Saunders v. Commonwealth (VA 1994) 447 SE2d 526, 528; see also Commonwealth v. Monroe (PA 1996) 678 A2d 1208, 1212 [obtaining money by false pretense was not theft from a person]; but see In re George B. (CA 1991) 228 CA3d 1088, 1091-93 [279 CR 388] [theft from a shopping cart being pushed by the victim is grand theft from the person]; but see dissent, relying on People v. McElroy (CA1897) 116 C 583, to argue that the property must be 1) manually fixed or attached to the body and 2) personally carried by the victim.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Wharton’s Criminal Law (West, 15th ed. 1993)) § 465, pp. 44-47.

Annotation, What Constitutes Larceny "From A Person," 74 ALR3d 271.

See also generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

PRACTICE NOTE: It has been held that a defendant may be convicted of the theft of property in which he or she holds a community-property interest if there was an intent to permanently deprive the other community-property interest holder of his or her interest. (People v. Llamas (CA 1997) 51 CA4th 1729 [60 CR2d 357]; see also LaParle v. State (1998 AK) 957 P2d 330 [spouse may commit theft of marital property by concealing marital assets from wife during divorce proceedings]; State v. Winkelmann (MO 1988) 761 SW2d 702 [defendant who was separated from his wife properly convicted of stealing her car while divorce proceedings pending].)

    However, there should be an intent to take the spouse's portion of the community property. For example, if a husband takes community property funds from his wife's purse to buy food for the household, can it really be said that a crime has been committed if the wife did not consent to the taking? (See e.g., State v. Krinitt (MT 1991) 823 P2d 848, 854 [appropriation of household and personal effects or other property normally accessible to both spouses is theft only if it occurs after the parties have ceased living together].)

BRIEFING AVAILABLE: Click here. [Brief Bank # B-715].

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

PRACTICE NOTE: The sole owners or partners, who possess an undivided interest in the partnership at the time the property is stolen, cannot be convicted of larceny. (Patterson v. Bogan (SC 1973) 198 SE2d 586, 588; see also People v. Zinke (NY 1990) 555 NE2d 263, 267 [partner may not be convicted of theft of partnership property].) However, there may be limitations on the right to use force to "claim" one’s property. (See FORECITE National™ 252.5.8 [Claim Of Right: Use Of Force Or Violence].)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

PRACTICE NOTE: If a person’s property is in the lawful possession of another as a pledge, lien or security, to secure a debt, a person may commit theft by unlawfully taking the property. (LaFave & Scott, Substantive Criminal Law (West, 1986)) § 8.4(c), pp. 355-56; see also People v. Sheldon (MI 1995) 527 NW2d 76, 77 [defendant committed larceny by taking his own car from wrecker service, which by statute was entitled to possession of vehicle until towing and storage charges were paid].)

    However, a charge of theft or larceny may be subject to challenge if the security interest in the property was not perfected. (See State v. Pike (WA 1992) 826 P2d 152, 155 [taking own car from mechanic without payment for repairs was not theft unless the statutory requirements for perfecting the lien had been complied with]; see also FORECITE National™ 103.3.3.2 [Defense Theory That Taking Of Impounded Vehicle Is Not Theft/Larceny].)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

PRACTICE NOTE: Although some jurisdictions apply theft to specific items related to real property such as minerals, trees, crops and fixtures (see LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.4(a) p. 350), the "mere use or occupation of land" has been held not to constitute larceny. (See State v. Garofola (NJ 1988) 599 A2d 954, 955.)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

PRACTICE NOTE: If there is merely use of property without paying the fees, the money owed does not constitute "property" within the law of larceny. (LaFave & Scott, Substantive Criminal Law (West, 2000 Supp.) § 8.4(a), fn 0.1; see also Commonwealth v. Rivers (MA 1991) 583 NE2d 867, 868 [use of town’s landfill without paying dumping fee].)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

    103.1.2.7    Theft/Larceny: Alternate Theory Of Theft Cannot Support Conviction Without Instruction On That Theory

APPELLATE PRACTICE NOTE: A theft conviction will be sustained when challenged for insufficiency of the evidence so long as any one of the several types of theft is shown. (People v. Smith (CA 1984) 155 CA3d 1103, 1145 [203 CR 196].) However, this rule is limited to a consideration of the theft theories which were presented to the jury. (Ibid.) Hence, even though a general verdict of theft can be sustained if the evidence proves any type of theft, "the offense shown by the evidence must be one on which the jury was instructed and thus could have reached its verdict." (People v. Curtin (CA 1994) 22 CA4th 528, 531 [27 CR2d 369].)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

    103.1.2.8    Multiple Theft Convictions Improper Based On Multiple Takings During Single Course Of Conduct

    See FORECITE National™ 274.3 [Multiple Counts Or Offenses: Multiple Takings].

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

    See FORECITE National™ 37.10 [Defendant’s Need For Money As Motive To Commit Crime].

VOLUME 7 - CHAPTER 103

PRACTICE NOTE: "Intent to defraud means an intent to deceive or cheat." (See U.S. v. Robinson (9th Cir. 1998) 147 F3d 851, 853 [instruction approved]; see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.17 [Intent To Defraud-Defined] (2000).)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

RATIONALE: The term "stolen" should be defined because it is a technical term with a particular meaning in the law.

POINTS AND AUTHORITIES: "The word "stolen" means acquired or possessed, as a result of some wrongful or dishonest act or taking, whereby a person knowingly obtains or retains possession of property which belongs to another, without or beyond any permission given, and with the intent to deprive the owner of the benefit of ownership or possession." (See O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 16.04 ["Stolen" - Defined] (West, 5th ed. 2000).)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

    Stolen property is property which has been taken without the consent of the lawful owner or possessor with the intent to permanently deprive the owner of its possession.

[Source: FORECITE National™.]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

PRACTICE NOTE: "Information is false if it was untrue when furnished and was then known to be untrue by the person furnishing it." (U.S. v. Olson (8th Cir. 1978) 576 F2d 1267, 1272; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 16.06 ["False" - Defined] (West, 5th ed. 2000); LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.7(b) (1986).)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See 5th Circuit Pattern Jury Instructions - Criminal 2.80.

    "Corrupt" means done with an intent to give some advantage inconsistent with the official duty and rights of others.

[Source: U.S. v. Reeves (5th Cir. 1985) 752 F2d 995, 998; see also Chronicle & Gazette Pub. Co., Inc. v. Attorney General (NH 1946) 48 A2d 478, 483 (Marble, C.J., dissenting); Black's Law Dictionary 345 (6th ed.1990).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

PRACTICE NOTE: Use of the term "appropriates" in a theft or larceny case my be confusing. (See REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL) RAJI 18.024 fn 1 [Theft Of Lost, Mislaid, Or Misdelivered Property] (CLE State Bar of Arizona, 1996) ["The statutory term 'appropriates' is not used because it may be confusing to a jury"].) Preferable language may be: "The defendant made the property available for [his] [her] own or another's use." (REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL) RAJI 18.024, Element # 3 Theft Of Lost, Mislaid, Or Misdelivered Property] (CLE State Bar of Arizona, 1996).)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

    103.1.2.16    Theft/Larceny: Requirement Of Asportation ("Carrying Away")

PRACTICE NOTE: As with robbery, asportation should be an essential element of larceny or theft. (See FORECITE National™ 100.1.13.1 [Robbery: Lack Of Asportation As Defense Theory].)

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 103

    See FORECITE National™ 27.3.2 [Prior Conviction Of Defendant].

See generally, FORECITE National™ 305.20.3 [Theft/Larceny].

See FORECITE National™ 103.1.1.2 [Theft/Larceny: Federal Circuit Model Instructions And Notes].