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VOLUME 7 - CHAPTER 103
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103.1 Theft/Larceny By Taking

    103.1.3 Theft/Larceny: Defenses And Defense Theories

    103.1.3.1 Claim Of Right As Defense Theory To Theft/Larceny
    103.1.3.2 Theft/Larceny: Claim Of Right On Behalf Of Another
    103.1.3.3 Theft/Larceny: Consent As Defense Theory
    103.1.3.4 Theft/Larceny: Good Faith Belief In Consent
    103.1.3.5 Theft/Larceny: Temporarily Using Or Borrowing Property As Defense Theory
    103.1.3.6 Theft/Larceny: Abandoned Property
    103.1.3.7 Theft/Larceny: Lost Property
    103.1.3.8 No Theft/Larceny Where Property Was Lawfully Obtained And Intent To Steal Was Formed Later
    103.1.3.9 Theft/Larceny: Defense Theory That Property Had No Value
    103.1.3.10 Theft/Larceny: Delivery Of Property By Mistake As Defense Theory
    103.1.3.11 Theft/Larceny: From The Person -- Inapplicable To Property Obtained By Deception
    103.1.3.12 Theft/Larceny: Defense Theory That Taking Was Not From The Possession Of Another
    103.1.3.13 Theft/Larceny By Taking: Additional Defenses And Defense Theories

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    103.1.3.1    Claim Of Right As Defense Theory To Theft/Larceny

RATIONALE: If the defendant has a good faith belief in a claim of right to the property, taking of that property is not done with criminal intent.

POINTS AND AUTHORITIES: Claim of right may be a defense to theft or larceny. (See FORECITE National™ 252.5.1 [Recapture Of Personal Property: Basic Principles].) For example, in People v. Butler (CA 1967) 65 C2d 569, 573 [55 CR 511], the court held that "a bona-fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent" and precludes a finding of robbery or theft. (See also FORECITE National™ 252.5.3 [Claim Of Right: Applicability To Unlawful Taking Offenses].) So long as the claim is made in good faith, it need not be objectively reasonable and it may be based upon either a mistake of fact or a mistake of law. (Ibid.)

    However, the defense may not be available if the claim is based on illegal activities (see FORECITE National™ 252.5.9 [Claim Of Right: Collection of Proceeds of Illegal Transactions]), is founded on revenge (see also FORECITE National™ 252.5.10 [Claim Of Right: For The Purpose Of Revenge]) or involves the use of force (see also FORECITE National™ 252.5.8 [Claim Of Right: Use Of Force Or Violence]).

Annotation, Robbery, Attempted Robbery, Or Assault To Commit Robbery, As Affected By Intent To Collect Or Secure Debt Or Claim, 88 ALR3d 1309.

See also generally, FORECITE National™ 305.3.6 [Claim Of Right].

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].

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    103.1.3.2    Theft/Larceny: Claim Of Right On Behalf Of Another

RATIONALE: The claim of right defense is applicable when the defendant has "a subjective belief, he or she has a lawful claim on the property." (People v. Romo (CA 1990) 220 CA3d 514, 519 [269 CR 440].) Logically the defense also applies when the defendant is acting as an agent for another party who the defendant believes has a valid claim to the property.

POINTS AND AUTHORITIES: This logic is reflected in the case law analysis. "The principle that larceny is not predicable on a good-faith taking under claim of right also applies in the case of one acting under the belief ... that one whom he assists in the taking has a right thereto ...." (50 Am.Jur.2d "Larceny" Section 41; Dean v. State (FL 1899) 26 SO 638, 639 ["[The intent to steal] cannot be where the taker honestly believes the property is ... that of another, and that he has a right to take possession of it ... for another, for the protection of [the other]"]; Ambrose v. Commonwealth (VA 1921) 106 SE 348, 349].)

    See also generally FORECITE National™ 252.5 [Claim Of Right].

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

See generally, FORECITE National™ 305.3.6 [Claim Of Right].

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].

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    103.1.3.3    Theft/Larceny: Consent As Defense Theory

RATIONALE: A taking with consent is not larceny unless the consent was obtained by fraud.

POINTS AND AUTHORITIES: Not every taking of personal property of another is a felonious taking constituting larceny. Larceny requires a taking that is either against the owner's will (in other words, without consent) or accomplished by fraud (as in larceny by trick.) (Perkins & Boyce, Criminal Law (Foundation Press, 1982) pp. 302-07.)

    Hence, unless fraud is shown, the taking of property with the consent of the owner cannot amount to theft.

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

RESEARCH NOTES:

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

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

    Larceny is not committed if the property was taken with the owner's consent unless such consent was obtained by fraud. If you have a reasonable doubt whether the prosecution has proven that the taking was without consent or by fraud you must acquit the defendant of theft.

[Source: FORECITE National™.]

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RATIONALE: A good faith belief that the owner of the property consented to the taking is a defense theory requiring special instruction when appropriate.

POINTS AND AUTHORITIES: It is well settled that the felonious intent required for theft and robbery may be negated by the defendant's good faith belief that it was the defendant's property. (See FORECITE National™ 252.5 [Claim Of Right].) A logical corollary to this principle is that the defendant's good faith belief that he/she had a legal right to the property, such as permission of the owner, also negates felonious intent. (See e.g., People v. Navarro (CA 1979) 99 CA3d Supp 1, 5-11 [160 CR 692].)

    Hence, because the defendant has the right to pinpoint the theory of the defense (see FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues]), it would be error to refuse an instruction such as the one set forth below when appropriate.

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

NOTES: The instruction below was erroneously refused in Navarro (99 CA3d at Supp 3) and People v. Williams REPUBLISHED (CA 1992) 9 CA4th 209 [11 CR2d 772].

OPINION AVAILABLE: To read the Williams opinion, click here. [Opinion Bank # O-145].

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

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

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RATIONALE: In jurisdictions where larceny requires an intent to permanently deprive the owner of the property, it may be a defense theory that the intent was to only borrow the property.

POINTS AND AUTHORITIES: An intent to borrow or temporarily use property is not larceny where intent to permanently deprive is required. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.5(b) pp. 359-62 (2d ed. 1986); see also State v. Langford (LA 1986) 483 So2d 979, 985 ["to counter inferred or proven intent to permanently deprive, a defendant must show both that he had the intent to return the property within a reasonable time, and that he had a reasonable ability to do so"]; State v. Bautista (HI 1997) 948 P2d 1048, 1054 [theft statute inapplicable where defendant used vehicle for one weekend and returned it after driving 592 miles]; but see State v. Anderson (CT 1989) 561 A2d 897, 904 [intent to permanently deprive sufficiently proven even though "moments after [defendant] relieved [victim] of her property he returned it to her"]; Griffin v. State (TX 1981) 614 SW2d 155, 158; Thomas v. State (TX 1988) 753 SW2d 688, 691.)

    "There is no larceny where the defendant, by actual or constructive trespass, takes the property of another with the intent to use it temporarily and thereafter return it to the owner. (Wharton’s Criminal Law (West, 15th ed. 1993) § 351, pp. 396-98.)

    Moreover, intent to return the property is not necessarily required to negate an intent to permanently deprive. If the circumstances support an inference that the defendant only intended to temporarily use the property (e.g., a vehicle was driven a short distance and abandoned) the jury should be required to resolve the issue of whether the intent was to permanently deprive or temporarily use: "If the defendant intends to abandon the property instead of returning it to the owner, there may or may not be a larceny. There is no larceny if the intended abandonment is under such circumstances that it is likely the owner will be reunited with his property; but there is a larceny if the intended abandonment is under such circumstances that it is unlikely the owner will be reunited with his property. This kind of intended abandonment is the equivalent of an intent to steal, i.e., an act calculated permanently to deprive the owner of his property." (Wharton’s Criminal Law (West, 15th ed. 1993) § 351, pp. 396-98.)

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

BRIEFING AVAILABLE: Click here. [Brief Bank # B-906.]

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

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

    The prosecution must prove beyond a reasonable doubt that the defendant took and carried away the property of another with an intent to steal that property by permanently depriving the owner of the use of the property. Borrowing property is not larceny even if the borrowing is done without the permission of the owner.

    Consider the defense theory that the property was borrowed in light of all the evidence when deciding whether the prosecution has proven beyond a reasonable doubt that the defendant intended to steal the property.

    If you have a reasonable doubt that the defendant had an intent to steal the property you must give the defendant the benefit of that doubt and return a verdict of not guilty.

[See generally LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.5(b) pp. 359-62 (2d ed. 1986); cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(D) inst. 1 [Definition Of Robbery] p. 154, para 4 (South Carolina CLE, 1994).]

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    103.1.3.6    Theft/Larceny: Abandoned Property

    See FORECITE National™ 252.5.4 [Claim Of Right: Honest Belief That Property Was Abandoned Or Lost].

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

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

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    103.1.3.7    Theft/Larceny: Lost Property

RATIONALE: The defendant is not guilty of theft of lost property unless he or she had criminal or larcenous intent.

POINTS AND AUTHORITIES: It is well established at common law that one who finds and appropriates lost property acquires a complete right thereto against all the world except the true owner. (Morgan and Bros. Manhattan Storage Co. v. McGuire (NY 1982) 452 NYS2d 986, 988; Campbell v. Cochran (DE 1980) 416 A2d 211, 221; Paset v. Old Orchard Bank & Trust Co. (IL 1978) 378 NE2d 1264, 1268; see also 36A Corpus Juris Secondum, Finding Lost Goods § 5 (1961); 1 Am.Jur.2d, Abandoned, Lost and Unclaimed Property, § 19 (1962).) Hence, a person should not be guilty of theft, on a lost property theory, unless he or she acts with criminal intent. (See e.g., People v. Devine (CA 1892) 95 C 227 [30 P 378].) "One cannot intend to steal property which he believes to be his own. He may be careless, and omit to make an effort to ascertain [the true owner]; but so long as he believes it is his own, he cannot feloniously steal it." (Devine, 95 C at 221.)

    Hence, the jury must be instructed on the necessary larcenous intent: to permanently deprive the owner of the property. (See State v. Evans (ID 1991) 807 P2d 62, 64 [it was essential to his defense that the jury be informed of the law concerning whether and when the appropriation of lost property constitutes theft, and that the court erred in refusing the instruction].)

    See also FORECITE National™ 252.5.4 [Claim Of Right: Honest Belief That Property Was Abandoned Or Lost].

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

NOTES: Definition of "Lost." The term "lost" as used in California Penal Code § 485 appears to have its ordinary legal sense which simply means that the true owner doesn't know where to find the property. (People v. Stay (CA 1971) 19 CA3d 166, 172-173 [96 CR 651].)

RESEARCH NOTES:

LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.2(f).

LaFave & Scott, Criminal Law 2 sec. 8.2 pp.341.

Wharton’s Criminal Law (West, 15th ed. 1993) pp 407-412.

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].

    Defendant is accused [in Count[s] _____] of having committed the crime of theft by appropriating lost property.

    Every person who finds lost property under circumstances which give [him] [her] knowledge of, or means of inquiry as to, the true owner, and who, with intent to permanently deprive the owner of the property, appropriates such property to [his] [her] own use, or to the use of another person not entitled to the property, without first making reasonable and just efforts to find the owner and to restore the property to [him] [her], is guilty of theft. The defendant may not be convicted of theft unless the prosecution proves beyond a reasonable doubt each of the following elements:

    1.    The defendant possessed property which had been lost by its owner;

    2.    The defendant knew the identity of the true owner of the property or had the means of identifying the true owner by the exercise of reasonable efforts;

    3.    The defendant failed to make reasonable efforts to find the owner and to restore the property to [him] [her]; and

    4.    The defendant appropriated the property to [his] [her] own use or to the use of another person not entitled to the property;

    5.    At the time the defendant appropriated the property [he] [she] had the specific intent to deprive the owner permanently of the property.

[Source: FORECITE National™.]

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    103.1.3.8    No Theft/Larceny Where Property Was Lawfully Obtained And Intent To Steal Was Formed Later

PRACTICE NOTE: "To constitute larceny, the intent to steal must exist at the time of the initial taking." [Footnote omitted.] (Wharton’s Criminal Law (West, 15th ed. 1993) § 350, p. 395; see also generally FORECITE National™ 43.5 [Requirement That Criminal Intent And Requisite Mental State Concur With Criminal Act].)

    However, under the doctrine of continuing trespass a defendant may be guilty of larceny based on a later acquired intent to steal. (Wharton’s Criminal Law (West, 15th ed. 1993), supra, at pp. 395-96.)

    "Needless to say, the doctrine of continuing trespass applies only if the initial taking is trespatory. Accordingly, if the defendant obtains the property of another lawfully and, at some later time during possession, decides to appropriate the property to his own use, no larceny is committed; at best, the defendant is guilty of embezzlement." (Wharton’s Criminal Law (West, 15th ed. 1993) § 350, p. 396.)

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

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

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    103.1.3.9    Theft/Larceny: Defense Theory That Property Had No Value

PRACTICE NOTE: To constitute theft the property must have some value. (See Wharton’s Criminal Law (West, 15th ed. 1993) § 372 pp. 440-41, § 466, pp. 50-51; see also Stackowitz v. State (MD 1986) 511 A2d 1105, 1107 [no attempted theft where object was without any value and thus was not "property" under the theft statute].)

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

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

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    103.1.3.10    Theft/Larceny: Delivery Of Property By Mistake As Defense Theory

PRACTICE NOTE: There is no larceny where the defendant mistakenly believed he or she had title or ownership of the property. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.2(g).) For example, no larceny is committed when the defendant mistakenly believed that excess money in her bank account was hers. (See Schertz v. State (NV 1993) 849 P2d 1058, 1059.)

    See also FORECITE National™ 252.8 [Mistake Of Fact].

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

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

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PRACTICE NOTE: See Commonwealth v. Monroe (PA 1996) 678 A2d 1208, 1213 [because the higher penalty for theft or larceny from the person is justified by the potential for physical violence, the crime is not committed when the property is obtained by deception, e.g., by "short changing"].

RESEARCH NOTES:

Annotation, Attempts To Commit Offenses Of Larceny By Trick, Confidence Game, False Pretenses, And The Like, 6 ALR3d 241.

Wharton’s Criminal Law (West, 15th ed. 1993) § 342-344; § 348.

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].

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PRACTICE NOTE: Courts have consistently interpreted theft statutes to require proof that the property be taken from the possession of another person to constitute larceny. (See e.g., U.S. v. Delillo (DC 1976) 421 FSupp 1012, 1015 [stealing is an offense against possession, except where by statute it has been defined to also include conduct which transgresses only beneficial ownership]; Reed v. U.S. (DC 1968) 239 A2d 156, 158; Clark v. City (AL 1978) 357 So2d 675, 679; People v. Shannon (CA 1998) 66 CA4th 649, 653 [78 CR2d 177] [the element of asportation is not satisfied unless it is shown that the goods were severed from the possession or custody of the owner]; State v. Rhea (NM 1974) 523 P2d 26, 27; see also FORECITE National™ 100.1.3.2 [Robbery: Possession Requires Ownership, Actual Possession Or Representative Capacity].)

    See also FORECITE National™ 100.1.4.1 [Robbery: Taking Must Be From Victim's Immediate Presence].

RESEARCH NOTES:

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

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

VOLUME 7 - CHAPTER 103

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

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

RELATED FEDERAL MODEL INSTRUCTIONS:  

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