Introduction
Friday turns to the classic property crimes. These offenses are among the most heavily tested subjects in Criminal Law because their distinctions often depend on facts that appear minor in ordinary conversation but are legally decisive.
A person who dishonestly acquires someone else’s property may casually be described as having committed “theft.” Traditional Criminal Law demands much greater precision.
The correct classification frequently turns on questions such as:
- Did D obtain custody or possession?
- Did the victim intend to transfer title?
- Was D already lawfully entrusted with the property?
- Was the taking trespassory?
- Did fraud induce the transfer?
- Was force or an immediate threat used?
- Was the property taken from the victim’s person or presence?
- Did D enter a protected structure unlawfully?
- When did D form the criminal intent?
- Was the falsehood about the contents of a document or about its authenticity?
Do not use the generic word “theft” until the exact traditional offense has been identified.
Modern statutes often consolidate several common-law property offenses into broad theft crimes. Nevertheless, the historical distinctions remain essential because professors and bar-style questions routinely use them to test possession, title, fraud, force, and timing. Property-crime analysis is therefore less about memorizing isolated definitions and more about classifying what happened to the victim’s property interest at each stage of the transaction.
I The Foundational Distinction: Custody, Possession, and Title
Before studying individual crimes, students should understand three concepts that recur throughout the entire chapter. These terms are not interchangeable. The distinction can determine whether the offense is larceny, embezzlement, larceny by trick, or false pretenses.
Custody
Custody generally refers to limited physical control over property while another person retains legal possession. An employee may physically handle an employer’s property without necessarily possessing it in the legal sense required for embezzlement.
Suppose Store Owner hands Employee a cash register drawer and instructs Employee to operate the register during the shift. Depending on the governing doctrine, Employee may have physical custody while Store Owner retains possession. If Employee wrongfully takes the money, the classification may therefore differ from the case in which Employee had already been entrusted with lawful possession.
Possession
Possession involves a more substantial right of control over the property. A person who has lawful possession and later fraudulently converts the property may commit embezzlement.
That is why the distinction from custody matters so much. If D never had lawful possession and wrongfully obtains possession through a trespassory taking, larceny is a stronger possibility. If D already had lawful possession because the owner entrusted the property to D and D later converts it, embezzlement becomes more likely.
Title
Title concerns ownership. This becomes critical in fraud-based property crimes.
If the victim is deceived into transferring possession only, the traditional offense may be larceny by trick. If the victim is deceived into transferring title, false pretenses may apply. Thus a property-crime problem can turn on what the victim intended to give away. The physical object may move in exactly the same way in both cases. The legal interest transferred is what changes the offense.
Exam Tip
Before analyzing any traditional theft offense, write three questions: Who had custody? Who had possession? Who had title? Then ask what changed because of D’s conduct.
II Larceny
Common-law larceny consists of:
- Trespassory taking.
- And carrying away.
- Of personal property.
- Of another.
- With intent permanently to deprive the owner.
Each element matters. A student should not write simply: “D stole the property.” Instead, identify how possession changed, whether the taking was wrongful, whether movement occurred, whose property interest was affected, and when D formed the intent to permanently deprive.
Trespassory Taking
The taking ordinarily must be without the owner’s consent or otherwise wrongful. The defendant must obtain possession of the property. This makes the defendant’s status before the taking especially important. If D already possesses the property lawfully, the subsequent misconduct may be embezzlement rather than larceny.
Suppose D sees V’s phone on a table and, without permission, picks it up intending to keep it. D has wrongfully acquired possession. That is the classic larceny structure. Now suppose V had previously entrusted the phone to D for safekeeping, giving D lawful possession, and D later decides to sell it. The initial possession was not trespassory. Embezzlement may therefore fit better.
Carrying Away (Asportation)
Larceny traditionally requires asportation, meaning movement of the property. The movement need only be slight. D does not need to escape successfully.
Suppose D picks up a valuable watch from V’s desk and moves it several inches toward D’s bag before being stopped. If the other larceny elements are satisfied, the minimal movement may satisfy carrying away. The law therefore does not require the thief to reach a place of safety.
Personal Property
Traditional larceny focused on personal property. Modern statutes may broaden theft liability significantly, but when an examination asks for common-law larceny, students should use the traditional formulation supplied by the course.
Property of Another
The property must belong to, or be lawfully possessed by, someone other than D. This does not necessarily mean the victim must hold perfect legal title. A person with superior lawful possession can be the victim of larceny even if ownership is disputed. Thus property-crime analysis should not become unnecessarily trapped in abstract ownership questions when another person clearly possessed a superior lawful interest.
Intent to Permanently Deprive
Larceny is traditionally a specific-intent crime. D generally must intend to permanently deprive the owner at the time of the trespassory taking.
- Keeping the property permanently.
- Destroying it.
- Selling it.
- Abandoning it under circumstances making recovery unlikely.
- Keeping it until the owner pays a reward.
- Using it in a manner creating a substantial risk of permanent loss.
The law therefore does not require D literally to say: “I will keep this forever.” The question is whether D’s intended treatment of the property is sufficiently inconsistent with the owner’s permanent rights.
Temporary Borrowing
Temporary borrowing ordinarily is not enough. Suppose D takes V’s bicycle without permission intending to ride it around the block and return it immediately. The taking is wrongful, but traditional larceny requires intent permanently to deprive. If D genuinely intends prompt return, that element may be absent.
The analysis may change if D intends to retain the bicycle for such a long period, abandon it in a dangerous place, or use it in a way that creates a serious risk that V will never recover it. The outline notes that extended-deprivation doctrines may treat some forms of temporary use as sufficiently serious.
Hypothetical: Permanent Deprivation
"D takes V’s laptop without permission. D plans to use it for ten minutes and put it back before V notices."
Traditional intent to permanently deprive is weak.
"Now change the facts. D takes the laptop intending to leave it outside in a public parking lot after using it, knowing it will probably disappear."
D may never intend to keep the laptop personally, but abandoning it under circumstances making recovery unlikely can support the required intent.
III. Concurrence and Continuing Trespass
The intent to permanently deprive generally must exist at the time of the trespassory taking. This connects Friday’s material directly to Tuesday’s concurrence doctrine. A wrongful taking followed by later criminal intent can create a special issue: continuing trespass.
Suppose D wrongfully takes V’s property without permission but initially intends only a temporary use. While D continues to possess the property, D later decides to keep it permanently. Under continuing-trespass doctrine, the original trespassory taking may be treated as continuing long enough for the later intent to permanently deprive to coincide with the wrongful possession. The doctrine may therefore supply concurrence.
Innocent Initial Taking
But the outline cautions that the original taking must have been wrongful. Suppose D accidentally takes V’s umbrella, honestly believing it belongs to D. Several hours later D discovers the mistake and decides to keep it. The original taking was innocent rather than trespassory. That creates a different concurrence problem from the case in which D knowingly took V’s umbrella without permission but initially intended only temporary use. Students should therefore ask: Was the original acquisition wrongful or innocent?
Common Trap
Do not use continuing trespass whenever intent arises late. The doctrine is especially relevant when the initial taking was wrongful but the intent to permanently deprive formed afterward.
IV Larceny by Trick
Larceny by trick occurs when D obtains possession, but not title, through fraud and intends permanently to deprive.
This is one of the most important title-versus-possession distinctions in the entire property-crimes unit. The victim appears to consent to handing over the property, but that consent is induced by fraud. Because the victim intends to transfer only possession rather than ownership, the offense retains the larceny structure.
Laptop Repair Example
D tells Owner: “I need your laptop for one hour so I can repair it.” D has no intention of repairing it. D plans from the beginning to sell it. Owner hands D the laptop believing D will temporarily possess it for repair. Owner intends to transfer possession only.
If the other elements are satisfied, larceny by trick may apply. The fraud undermines the apparent consent to possession, while title remains with Owner.
Exam Tip
For fraud-based acquisition, ask one question before naming the offense: What did the victim intend to transfer—possession or title? Possession points toward larceny by trick. Title points toward false pretenses.
V. Embezzlement
Embezzlement involves:
- Fraudulent conversion.
- Of property of another.
- By a person in lawful possession.
The key distinction from larceny is lawful initial possession. D does not trespassorily obtain possession. The owner entrusts possession to D. The criminal conduct occurs later when D converts the property.
Employee Example
Company entrusts Employee with company funds to manage as part of Employee’s job. Employee later transfers the money into Employee’s personal account and uses it for personal expenses. If Employee possessed the funds lawfully rather than merely holding custody, the later fraudulent conversion may constitute embezzlement. The initial acquisition is innocent. The later treatment of the property creates the offense.
Conversion
Conversion means serious interference with the owner’s rights. Examples include: spending entrusted money, selling entrusted property, using property contrary to authorization, destroying property, claiming ownership.
The property does not need to be physically carried away. That distinction separates embezzlement from larceny’s asportation requirement.
Larceny vs. Embezzlement
The comparison should become automatic.
- Larceny: D wrongfully obtains possession.
- Embezzlement: D lawfully possesses the property and later fraudulently converts it.
The crucial question is not: “Did D eventually misuse the property?” It is: “What legal relationship did D have to the property before the misconduct began?”
VI. False Pretenses
False pretenses traditionally requires:
- False representation of a material existing or past fact.
- Knowledge of falsity.
- Intent to defraud.
- Victim reliance.
- Transfer of title.
The final element distinguishes false pretenses from larceny by trick.
False Representation: The defendant must make a false representation fitting the governing doctrine. The outline focuses on a material existing or past fact. The representation must be significant enough to induce the victim’s transfer. D must know the representation is false and act with intent to defraud. The victim must actually rely on it.
Transfer of Title: The victim must intend to transfer ownership. Suppose D falsely tells Seller that D is an authorized purchasing agent for a wealthy company. Seller believes D and sells D a laptop, intending to transfer ownership in exchange for payment that D never intends to provide. If Seller intends D to become owner, false pretenses may apply. The fraud induces transfer of title.
Larceny by Trick vs. False Pretenses
This comparison is perhaps the most frequently tested property distinction.
Larceny by Trick
Fraud causes the victim to transfer possession only.
False Pretenses
Fraud causes the victim to transfer title.
The defendant’s dishonest conduct may be virtually identical. The victim’s intended legal transfer is what determines the traditional offense.
VII. Modern Theft Statutes
Many jurisdictions consolidate larceny, embezzlement, false pretenses, and related property offenses into a broader statutory offense of theft. Students should still learn the traditional distinctions. The outline gives three reasons: Professors test them, Bar-style questions rely on them, and They explain modern statutory concepts. A modern statute may make the ultimate conviction less dependent on the old labels, but the common-law classifications remain valuable analytical tools.
VIII Robbery
Robbery is generally:
- Larceny.
- From the person or presence of the victim.
- By force or threat of immediate force.
It is therefore essentially aggravated larceny. The robbery analysis begins with larceny. If the property-taking itself would not qualify as larceny under the applicable framework, calling the offense robbery may be premature.
From the Person or Presence
The property need not be physically attached to the victim. The outline gives examples such as cash in the victim’s hand, a wallet nearby, property in the victim’s vehicle, or a safe the victim is forced to open. The concept of presence extends beyond literal bodily contact. Property may be within the victim’s area of control or protection even if located several feet away.
Force or Threat of Immediate Force
Robbery requires force sufficient under the governing doctrine to overcome resistance or compel surrender. The student should identify what force D used and how it related to obtaining or retaining the property. The mere fact that some physical contact occurred does not automatically answer the robbery question.
A threat may substitute for physical force when it creates the type of immediate physical coercion required for robbery. The timing of the threatened harm matters. Threats of future harm may instead fit extortion.
Immediate physical threat → robbery.
Future or broader coercive threat → potentially extortion.
Timing of Force
The outline notes that jurisdictions may differ over force used before taking, during taking, or during immediate escape. Some jurisdictions may treat force used to retain property during immediate flight as sufficient for robbery. Others may use different formulations. Students should apply the rule supplied by the problem rather than assume one universal rule.
IX. Extortion
Extortion generally involves obtaining property through threats, often involving future harm. The outline identifies threats concerning: future violence, reputation, exposure of secrets, economic harm, official action.
This distinguishes extortion from robbery’s typical requirement of immediate physical force or threat.
Robbery vs. Extortion
Suppose D says: “Hand me your wallet now or I will shoot you immediately.”
That is classic robbery-type coercion.
Now suppose D says: “Pay me $10,000 next week or I will release damaging information about you.”
That threat does not center on immediate physical force. Extortion is a stronger classification. The difference is not simply that both involve threats. The nature and timing of the threat matter.
X Burglary
Common-law burglary is traditionally:
- Breaking.
- Entering.
- The dwelling.
- Of another.
- At night.
- With intent to commit a felony therein.
Modern burglary statutes have greatly expanded this offense. They may cover any building, vehicles, daytime entry, remaining unlawfully, intent to commit theft or another specified crime, and entry without a technical breaking requirement. Students should know the common-law formulation and then identify how a supplied modern statute changes it.
Breaking
Breaking may be actual or constructive. Actual breaking can be slight. Opening an unlocked door or window may satisfy common-law breaking. The defendant does not need to smash a door or window. The law focuses on creating or enlarging an opening sufficient for entry. Constructive breaking may occur through fraud, threat, use of an accomplice, or abuse of authority. The defendant may therefore commit a legally recognized breaking without physically damaging anything.
Entry
Any intrusion into the structure by part of the body may suffice. Insertion of a tool may also constitute entry if the tool is used to accomplish the intended felony. The outline notes that rules may vary when the tool is used solely to create the opening. Students should therefore distinguish tool inserted to commit the intended offense inside from tool inserted only to facilitate breaking.
Intent at Entry
For traditional burglary, the intent to commit the underlying felony generally must exist at the moment of entry. This is another concurrence question.
Suppose D lawfully enters a store intending to shop. After entering, D suddenly decides to steal merchandise. Traditional burglary may not exist because D lacked the required criminal intent at entry. A modern statute covering "remaining unlawfully" with criminal intent may produce a different result.
Exam Tip
For burglary, create a timeline: Before entry → moment of entry → after entry. Then identify exactly when D formed the intent to commit the underlying crime.
XI. Arson
Common-law arson is traditionally:
- Malicious burning.
- Of the dwelling.
- Of another.
Modern statutes often expand the offense considerably to commercial buildings, personal property, own property, explosive damage, etc. Students should therefore distinguish traditional arson from modern statutory arson.
Burning and Malice
Traditional doctrine required damage to the structure itself. Mere scorching or smoke damage might or might not qualify depending on the applicable rule. Malice may include intentional burning or reckless disregard of an obvious risk of burning. Specific intent to destroy the structure may not always be required. A person may maliciously burn property without personally hating anyone.
XII. Receiving Stolen Property
Typical elements include receiving, possessing, or controlling stolen property, with knowledge or belief that the property is stolen, and intent to deprive or assist in retaining the stolen property. The property generally must actually be stolen at the relevant time under traditional doctrine.
Receiving stolen property usually contains an important mens rea issue. The prosecution must establish the required knowledge or belief concerning the item’s stolen character. Willful blindness may become relevant where D deliberately avoids confirming obvious circumstances.
The Thief Cannot Receive from Oneself:
A person ordinarily cannot both steal property and then “receive” the same property from oneself under the traditional separate offense. The receiver is conceptually different from the original thief.
XIII. Forgery and Uttering
Forgery
Generally involves making or altering a writing with apparent legal significance so that it is false, with intent to defraud. The crucial concept is false authenticity.
Example: Signing another person’s name without authority in order to make the document appear genuinely executed by that person.
Uttering
Generally means offering as genuine a forged instrument while knowing it is forged and intending to defraud.
Forgery may be complete even if D never succeeds in using the document. Uttering focuses on the later presentation.
False Authenticity Versus False Content: Suppose D creates a genuine document in D’s own name containing false statements. The document may be used to commit fraud, but it is not necessarily forged merely because its contents are false. Forgery generally concerns a writing that falsely purports to be something it is not in terms of authorship, authority, or legal authenticity.
XIV. Integrated Property-Crimes Hypothetical
D works for Business Owner. Owner gives D a company vehicle for one afternoon and instructs D to deliver merchandise. D has permission to possess the vehicle for that task. During the trip, D decides to sell the vehicle and keep the proceeds. The initial possession was lawful. The later sale seriously interferes with Owner’s rights. Embezzlement is therefore a strong classification.
Now suppose instead D merely has custody of the keys while Owner retains possession, and D secretly drives away intending never to return the vehicle. Traditional larceny becomes stronger because D wrongfully acquires possession.
Next, assume D lies to Owner and says: “Give me your vehicle for one hour so I can have it inspected.” D always intends to sell it. Owner intends only to transfer temporary possession. That suggests larceny by trick.
Change the facts again. D lies and convinces Owner to sell the vehicle outright, and Owner intends to transfer ownership. False pretenses becomes stronger because fraud induced transfer of title.
Now suppose D obtains the vehicle by threatening: “Give me the keys right now or I will shoot you.” If the taking satisfies larceny and occurs through threat of immediate physical force from Owner’s person or presence, robbery is strongly implicated.
If instead D threatens: “Sign the vehicle over to me next week or I will expose your private financial information,” the threat resembles extortion rather than robbery.
Assume D later enters Owner’s home at night through an unlocked window, already intending to steal documents. Traditional burglary may apply because even opening an unlocked window can constitute breaking and D possessed the felonious intent at entry.
This single hypothetical demonstrates why property offenses must be classified separately. Small factual changes regarding custody, possession, title, force, and timing control the resulting offense.
XV. A Complete Friday Examination Method
Property-crime analysis is a classification problem. Use this step-by-step method:
Step 1: Identify the Property Interest
Ask: Who owns it? Who possesses it? Who merely has custody?
Step 2: Identify How D Obtained Control
Was possession obtained trespassorily, lawfully, through fraud, force, or threat?
Step 3: What did the Victim Intend?
Did the victim intend to transfer custody, possession, or title?
Step 4: Identify Relevant Intent
When did D form intent permanently to deprive, defraud, or commit a felony inside?
Step 5: Check Timing & Concurrence
Consider continuing trespass, intent at entry, or knowledge when receiving stolen property.
Step 6: Classify the Offense
Select the precise traditional offense based on the answers above. Apply modern statutory changes if supplied.
Common Trap
Do not confuse the eventual result with the initial transfer. Three defendants may all end up permanently keeping someone else’s property, yet one may have committed larceny, another embezzlement, and another false pretenses because each acquired the property differently.
Chapter Summary
Friday focuses on the classic property crimes and the distinctions among custody, possession, title, fraud, force, entry, and criminal intent. Traditional property crimes are classification offenses. Students should not use “theft” as a substitute for identifying the precise crime.
Larceny consists of a trespassory taking and carrying away of personal property of another with intent permanently to deprive. The required intent generally must exist at the time of the trespassory taking. Continuing trespass may solve a concurrence problem where D wrongfully takes property without an initial intent permanently to deprive but later develops that intent while the wrongful possession continues.
Larceny by trick occurs when fraud causes the victim to transfer possession, but not title, while D intends permanently to deprive. False pretenses traditionally requires fraud that causes the victim to transfer title. Embezzlement involves fraudulent conversion of property of another by a person already in lawful possession.
Robbery is generally larceny from the person or presence of the victim by force or threat of immediate force. Extortion involves obtaining property through threats, often including future harm, rather than immediate physical force.
Common-law burglary traditionally consists of breaking and entering the dwelling of another at night with intent to commit a felony therein. The intent to commit the underlying crime traditionally must exist at the moment of entry. Modern statutes commonly expand burglary to other buildings and daytime entry.
Common-law arson traditionally consists of malicious burning of the dwelling of another. Malice may include intentional burning or reckless disregard of an obvious risk of burning.
Receiving stolen property generally requires receiving, possessing, or controlling property that is actually stolen, with knowledge or belief concerning its stolen status. Forgery requires making or altering a writing with apparent legal significance so that it is falsely authentic. Uttering involves presenting or offering a forged instrument as genuine while knowing it is forged and intending to defraud.
Property crimes are classification problems. How D obtained possession, whether title transferred, and when criminal intent arose completely changes the offense.
Practice Quiz
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