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103.2 Theft/Larceny By False Pretenses

    103.2.3 Theft/Larceny By False Pretenses: Defenses And Defense Theories

    103.2.3.1 Applicability Of Defense Theories Relating To Theft/Larceny By Taking
    103.2.3.2 False Pretenses: Knowledge Of Falsity Required
    103.2.3.3 Larceny/Theft By False Pretenses: Victim Must Rely On False Pretense
    103.2.3.4 Larceny/Theft By False Pretenses: Does Not Include Statements Which Are Insignificant Or Unlikely To Deceive
    103.2.3.5 Larceny/Theft By False Pretenses: Fraudulent Intent Must Be Present When The False Pretenses Were Made
    103.2.3.6 Larceny/Theft Of Real Property By False Pretenses: Requires False Representation To The Owner
    103.2.3.7 Theft/Larceny By False Pretenses: Additional Defenses And Defense Theories

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    See FORECITE National™ 103.1.3 [Theft/Larceny: Defenses And Defense Theories].

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    103.2.3.2    False Pretenses: Knowledge Of Falsity Required

PRACTICE NOTE: The crime of false pretenses requires that the defendant know of the falsity. (See Perkins & Boyce, Criminal Law (Foundation Press, 1982) Chap. 4, sec. 4, p. 364; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.7 (1)(f)(1) pp. 399-401; OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-40 [False Pretense (Felony, Section 1541.3) -Elements] pp. 290-93 (Oklahoma Center for Criminal Justice, 2nd ed. 1996); Ross v. State (OK 1977) 572 P2d 1001.)

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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    103.2.3.3    Larceny/Theft By False Pretenses: Victim Must Rely On False Pretense

PRACTICE NOTE: An essential element of theft by false pretenses is that the owner "must have been induced to part with [the] property in reliance on the false representation." (People v. Lorenzo (CA 1976) 64 CA3d Supp 43, 46 [135 CR 337].) Absent reliance on the pretense -- e.g., where the owner was not actually deceived -- the offense can be no more than attempted theft. (Perkins & Boyce, Criminal Law (Foundation Press, 1982) 378; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.7 p. 382; Lorenzo, 64 CA3d Supp at 47; see also Blackledge v. U.S. (DC 1982) 447 A2d 46, 48; People v. Shively (MI 1998) 584 NW2d 740, 742; People v. Flaherty (MI 1988) 418 NW2d 695, 697; Allred v. State (MS 1992) 605 So2d 758, 761; but see People v. Davis (CA 1998) 19 C4th 301, 304 [79 CR2d 295] [attempt to return unpurchased merchandise for refund is theft]; OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-40, comments [Felony, 1541.3-Elements] p. 293 (Oklahoma Center for Criminal Justice, 2nd ed. 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].

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RATIONALE: In a theft by deception case it is a defense theory upon which the jury should be instructed, that the deception was pecuniarily insignificant.

POINTS AND AUTHORITIES: See State v. Roche (NE 1994) 511 NW2d 195, 202 [theft by deception statute applies to wide variety of acts of deception except those amounting to mere puffing]; Linne v. State (AK 1983) 674 P2d 1345, 1351 [practical effect of misrepresentation, and not merely its literal meaning, is crux of exception, contained in theft by deception statute, for matters having no pecuniary significance].

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

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

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

    Deception does not include [falsity as to matters having no pecuniary significance] [or] [puffing by statements unlikely to deceive ordinary persons in the group addressed].

[See generally Linne v. State (AK 1983) 674 P2d 1345, 1351; State v. Roche (NE 1994) 511 NW2d 195, 202; cf. ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d 3601(3) [Theft-Definitions For Chapter 36-- "Deception" Means"] para. 6, 2d sent. (Lexis, 2nd ed. 1997).]

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PRACTICE NOTE: Conviction for larceny based on false pretenses requires that the defendant had a fraudulent intent at the time the false pretenses were made. (VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 36.700 [Larceny By False Pretenses] p. II-72, comment (Lexis, 2000); see also Orr v. Commonwealth (VA 1985) 329 SE2d 30, 31.)

    See also FORECITE National™ 43.5 [Requirement That Criminal Intent And Requisite Mental State Concur With Criminal Act].

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: Real property is subject to theft or larceny if title or right to the property was obtained by fraud or misrepresentation. (See generally Wharton’s Criminal Law (West, 15th ed. 1993) § 373.)

    For example, in People v. Sanders (CA 1998) 67 CA4th 1403, 1411 [79 CR2d 806] the defendant was convicted of grand theft of real property after forging deeds purporting to convey title to several parcels of property to him. In reversing the conviction, the Sanders court concluded that theft of real property by false pretenses requires the prosecution to establish (1) that the defendant made a false pretense or representation; (2) the defendant did so with the intent to defraud the owner of the property, and (3) the owner must, in fact, be defrauded.

    Further, the false pretense or representation must have materially influenced the owner to part with his property, even though the false pretense need not be the sole inducing cause. (Sanders, 67 CA4th at 1412; see also Callan v. Superior Court (CA 1962) 204 CA2d 652, 668-69 [22 CR 508].) Without a false pretense or representation, there was no theft as the recording of a forged deed does not convey title. (Sanders, 67 CA4th at 1413.)

    See also FORECITE National™ 103.5.2.2 [Applicability Of Embezzlement To Real Property].

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: 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].

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