Larceny vs. Larceny by Trick vs. False Pretenses on the MEE and MBE

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             One of the most common areas of confusion posed by my students in the subject of criminal law is differentiating the difference(s) between larceny, larceny by trick, false pretenses and embezzlement.  As such, this blog post is designed to break down these differences.

BAR EXAM NOTE – It would behoove you to place these definitions / differences on a note card and review said notecard every few days.  The best and easiest way to get any MBE question in this area correct is to be sure that you know your rule of law.

Larceny

Definition – The trespassory taking and carrying away of the personal property of another with the intent to permanently retain the property.  Mnemonic – Thieves Took Carmen’s Purse And Isaac’s Portfolio.

Note – It is beneficial to remember the “erroneous taking rule” which means that a taking under a claim of right is never larceny, even if the defendant erroneously believes that the property is his.

Note further – The rule about a “continuing trespass” – FREQUENTLY tested! If a defendant wrongfully takes property WITHOUT the intent to steal he will NOT be guilty of larceny.  If however the defendant FORMS the intent to steal?  The initial trespassory taking is considered to have “continued” and he will NOW be guilty of larceny!

The “taking and carrying away” element requires the physical separation of the item from its owner without the owner’s permission. To “carry away” an item, the defendant must move it, though there is no requirement that this be a long distance. In fact, the movement can be inches. Taking property off a store shelf with the intent to shoplift it can be considered larceny even if the defendant was still in the store and had not even passed the cash registers. Proving intent to steal could be difficult in such a case, but could happen if, for example, the defendant surreptitiously put store property in an inner jacket pocket in a clear attempt to avoid detection as he moved towards the exit.

           The “of another” element requires that larceny can only be committed against the person with rightful possession of the personal property. Taking one’s own property back after having lent it to another, for example, would not be larceny.

 Finally, the defendant must take the property with the intent to deprive the true owner of the property. Under the common-law, intent to “borrow” property without permission was insufficient to be considered larceny. Even hotwiring a car to take a joyride would not fit the common-law definition of larceny. The defendant would have to intend to keep the car or, for example, to sell to a chop shop, to meet the element of intending to deprive the owner of the property.

             Any tangible property can be the subject of larceny. Anything physically attached to the ground, such as a house, cannot be the subject of larceny. In order to be convicted of larceny the defendant must have carried the property away. Please note that even the slightest movement of the property from one location to another is adequate for larceny purposes. However, the movement must be part of the act of carrying the property away. If the movement is made in preparation for carrying the property away it will not suffice.

Embezzlement

Definition – A conversion of the personal property of another by a person in lawful possession of that property with the intent to defraud.

KEY Difference From Larceny – The defendant must already HAVE the lawful possession of the property before the taking can be considered an embezzlement.  For example, if your friend provides you with their car – and clearly they can lawfully do so – you are in lawful possession of that property.  If you THEN covert their property to yours, you are guilty of embezzlement.

BAR EXAM NOTE – Look to determine if the MBE or MEE fact pattern demonstrates that the defendant had lawful possession of the property BEFORE conversion.

False Pretenses

Definition – Obtaining tile to the property of another by an intentional false statement with the intent to defraud. 

KEY Difference From Larceny – With larceny, the defendant only gets CUSTODY of the property whereas with false pretenses, the defendant gets TITLE (ownership).

The crime of "false pretenses" is the obtaining of title to property by false representation with the intent to defraud the victim. Embezzlement as you'll recall, was the conversion of property without actually having title to that property. To commit the crime of false pretenses on the other hand, a defendant must actually obtain title to the property.

It is important to remember that in order to be convicted for false pretenses, a defendant must fraudulently acquire actual title to the property. It is not enough that the victim only gives over possession. If the defendant only obtains possession, but not title, he can be convicted of larceny but not false pretenses.

As with embezzlement, the property that can be the subject of false pretenses is broader than that which can be the subject of larceny so that real and intangible property can be the subject of false pretenses as well a personal property.

Larceny By Trick

Definition – If the defendant obtains only CUSTODY (and not TITLE) as a result of the false statement?  That would constitute larceny by trick and NOT false pretenses.

BAR EXAM NOTE – Look to determine if the MBE or MEE fact pattern demonstrates that the person obtained TITLE or mere CUSTODY.  If the former? False pretenses!  If the latter? Larceny by Trick!

Conclusion

          It is extremely important to understand the difference between larceny, larceny by trick, false pretenses and embezzlement.  Success on the likely 2-3 MBE questions in this area of law, and perhaps success on a criminal law MEE issue depends on your knowledge of the law. For more information concerning this section of Criminal Law, another area of Criminal Law, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com 


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