Theft

MBEMax wiki article — paired with the Criminal Law question set on mbemax.com.

One-line summary

"Theft" is the modern consolidation of larceny, embezzlement, false pretenses, larceny by trick, receiving stolen property, and related offenses — each of which the bar still tests by element.

Mnemonic

L-T-F-E-R — Larceny, larceny by Trick, False pretenses, Embezzlement, Receiving stolen property.

Picture five fingers grabbing a wallet: each finger is a different way to take.

Larceny

Rule. Trespassory taking and carrying away (asportation) of the tangible personal property of another with the intent to permanently deprive at the time of taking.

• Trespassory taking — without consent.
• Asportation — any movement, however slight.
• Personal property of another — possession, not legal title, controls; an owner can steal from a bailee.
• Intent to permanently deprive — must exist at the moment of taking. Later-formed intent = no larceny (but may be conversion or embezzlement).
• Continuing trespass doctrine — if initial taking is wrongful but without intent, and intent to steal forms later, courts treat the original trespass as continuing and larceny complete.

Larceny by trick

Rule. Defendant obtains possession (not title) of property by misrepresentation, intending to convert.

• Victim retains constructive title; only possession passes.
• Classic example: borrowing a car under false pretenses intending to keep it.

False pretenses

Rule. Defendant obtains title (not merely possession) of property of another by a knowing false representation of a material past or present fact, with intent to defraud.

• Must be representation of past or present fact (future promises insufficient at common law; modernly, statutory "defraud" catches promises made without intent to perform).
• Reliance by victim required.
• Title passes — distinguishing it from larceny by trick.

Embezzlement

Rule. Fraudulent conversion of the property of another by a person already in lawful possession (e.g., a trustee, agent, employee with custody).

• Possession vs. custody. An employee usually has mere custody of employer's property; taking it = larceny. But where the employee has been given possession (e.g., received property from a third party for the employer), conversion = embezzlement.
• Intent to deprive formed after lawful possession.

Receiving stolen property

Rule. Receiving property known to be stolen, with intent to permanently deprive the true owner.

• Knowledge at the time of receipt; substantial likelihood satisfies in many jurisdictions.
• Property must have been stolen at time of receipt. If police recover and return to owner, the "stolen" character ends.

NCBE loves to test

• Title vs. possession. Title transfers = false pretenses. Only possession transfers = larceny by trick. No transfer = larceny (trespassory).
• Claim of right. Honest (even unreasonable) belief in ownership defeats specific intent to steal.
• Lost vs. mislaid property. Finder who knows owner and takes with intent to keep = larceny. Finder of truly abandoned property = no larceny.
• Continuing trespass. Initial trespass without intent + later decision to keep = larceny.
• Breaking bulk doctrine. Bailee takes part of bulk property (breaks seal) — larceny, not embezzlement (original possession was only of the container, not contents).
• Valuation. For grading (grand vs. petty), use market value at time and place of taking.
• Joyriding vs. larceny. Intent to use temporarily = not larceny at common law (but is joyriding under modern statutes).
• Consolidation. Modern theft statutes treat all these as one offense — but bar still tests by element.

Fast hypos

Hypo 1. D asks V for a short test drive of V's car. D drives off and never returns, planning the whole time to keep the car. Larceny by trick — obtained only possession, intent to convert at taking.

Hypo 2. D, a bank teller, pockets a $500 bill from the drawer. Larceny — employee has custody, not possession, of employer's till.

Hypo 3. D, a financial advisor, receives $10,000 from client for investment, deposits in own account, spends. Embezzlement — lawful possession, fraudulent conversion.

Hypo 4. D lies about owning a business to induce V to sell D a rare coin for cash. Title transfers. False pretenses — obtained title by fraudulent representation of material present fact (ownership/business).

Hypo 5. D finds a wallet with $500 on a bench. ID inside. D takes, keeps, spends. Larceny — known owner, intent to permanently deprive at finding. Asportation complete.

Case anchors

• Rex v. Chisser, 83 Eng. Rep. 142 (1678) — early larceny by trick.
• People v. Phebus, 323 Mich. App. 34 (2018) — continuing trespass for later-formed intent.
• Morissette v. United States, 342 U.S. 246 (1952) — mens rea presumption survives in conversion offenses.
• Regina v. Hands, 16 Cox Crim. Cas. 188 (1887) — coin-in-machine as larceny.
• United States v. Turley, 352 U.S. 407 (1957) — "stolen" as used in federal statutes includes all felonious takings.

See also

• Burglary
• Homicide
• Inchoate Crimes

Sources

Model Penal Code §§ 223.0–223.9; Morissette v. United States, 342 U.S. 246 (1952); United States v. Turley, 352 U.S. 407 (1957); classic common-law authorities collected in LaFave & Scott, Substantive Criminal Law §§ 19.1–19.10 (describing elements, referred to for outline only — no verbatim quotations).