Larceny by trick is often confused with theft by false pretenses, but the two are separate and distinct crimes.

In the crime of larceny by trick or device, the use of trickery or fraud in obtaining possession (and only possession) is deemed to vitiate any purported consent by the rightful possessor to yielding possession of the property, and thus satisfies the requirement for a larcenous taking.

Theft by false pretenses, however, differs from larceny in that there is no trespassory “taking” and no “carrying away” of the property. In theft by false pretenses, both possession and title to the property are consensually delivered by the victim to the perpetrator; the act is criminal in that the delivery is induced by fraud or false pretense committed by the perpetrator and relied upon by the victim.

The distinction between acquisition of possession only of the subject property and the acquisition of both title and possession is a crucial distinction between larceny and theft by false pretenses.

In People v. Ashley, 42 Cal. 2d 246 (1954), for instance, the California Supreme Court explained:

Although the crimes of larceny by trick and device and obtaining property by false pretenses are much alike, they are aimed at different criminal acquisitive techniques. Larceny by trick and device is the appropriation of property, the possession of which was fraudulently acquired; obtaining property by false pretenses is the fraudulent or deceitful acquisition of both title and possession.

Id. at 258.

The Court added that, though larceny by trick and theft by false pretenses – along with other larcenous crimes – “have been consolidated into the single crime of theft… their elements have not been changed  thereby.” Id.   As Professor Witkin explains, “when the victim transfers title there is no common law larceny, and the crime of obtaining property by false pretenses was created by English and American Statutes to fill the gap.” (2 Witkin & Epstein, California Criminal Law (3d ed. 2000), Crimes Against Property, § 43, pp. 67-68.)

Thus, in larceny – even “larceny by trick,” in which a victim is deceived into yielding possession of his property to the perpetrator – the victim does not intend to part with title or ownership to the property. It is essential in such cases larceny by trick]that the owner shall intend to part with the possession only, and not to pass the title as well. If he intends to pass both the possession and the title, the transaction, though it may amount to the crime of obtaining property by false pretenses, will not constitute larceny.

The distinction between larceny and theft by false pretenses remains controlling and may not be ignored.

People v. Curtin, 22 Cal. App. 4th 528 (1994), a California court of appeal opinion, is illustrative. There, the defendant entered a bank and presented a check made out to a Dan Hart, a customer of the bank. He presented a photographic identification that had Hart’s name on it and the defendant’s picture. The check was purportedly drawn on the account of another person, but was in fact a forged check that had been stolen from that person. The bank teller cashed the check and gave the money to the defendant.  The defendant was convicted of forgery and of theft, based on the theory of larceny by trick or device. Quoting People v. Ashley, supra, that the distinction between obtaining possession only as compared to possession and title is controlling, the court of appeal reversed. The court concluded:

Defendant’s misrepresentation of himself as a depositor, Dan Hart, was certainly a trick or device. But he used it to acquire possession and title to the money, not merely possession. The bank did not give defendant the money on any understanding as to its limited use; rather, believing he was Dan Hart, the bank gave defendant the money to keep or use as he would. That the bank might ultimately be contractually responsible to Hart for the unauthorized payment of his deposits to defendant does not affect the teller’s intent at the time she cashed the check.  The conviction for grand theft must therefore be reversed.

Id. at 532.

Reference Desk:

State v. Robington, 137 Conn. 140 (1950):

The state was attempting to establish the crime of larceny by trick. This crime is committed when one obtains ‘the possession of personal property of another by deception, artifice, fraud, or force, with the intent on the part of the person obtaining it to convert it to his own use and permanently to deprive the owner of his property.’ It should be added, however, that ‘if the owner intends to part with the title to the property as well as possession, whatever other crime may have been committed, it will not be theft.’  The importance of the finding that the owner did not part with title is obvious. If support for this was lacking, the defendant was improperly convicted of larceny even though the evidence established, as it did, the other essential elements of the crime.

St. Paul Fire & Marine Ins. Co. v. Veal, 377 So. 2d 962 (Ala. 1979):

“Larceny” is a technical term, while “theft” is one of common usage. It is widely and broadly stated that the two are synonymous in construing insurance contracts of this character.”

Where an owner intends to transfer, not the possession merely, but also the title to the property, although induced thereto by the fraud or fraudulent pretenses of the taker, the taking and carrying away do not constitute theft or larceny.  Larceny by trick is not committed unless the party injured parts with the property with the intent to part with possession only and not with title.

If the possession of such property is obtained by fraud, and the owner intends to part with his title as well as his possession, the offense is that of obtaining property by false pretenses, provided the means by which they are acquired are such as, in law, are false pretenses.

People v. Kagan, 264 Cal. App. 2d 648 (1968):

In this case, however, we think that the evidence could support a conviction of theft based on any of the three foregoing theories. First, as to larceny by trick or device, the elements of this offense are a taking of something belonging to another and an asportation of the thing taken with an intent permanently to deprive the owner of his property.  If the taker of the property obtains title as well as possession, the crime is not larceny by trick; however, where money is given for a particular purpose and is not used for that purpose, title does not pass by reason of the fraud, and the crime is larceny by trick.  Here the evidence is susceptible of the inference that Miss Shaber gave the money to defendant for a particular purpose, that is, to buy letters of credit, and that he never intended to do so but instead transferred most of the money into his personal accounts. Such evidence suffices to constitute larceny by trick.

Second, as to embezzlement, the gist of this offense is the appropriation to one’s own use of property delivered for devotion to a particular purpose other than one’s own enjoyment of it.  Although it is true, as defendant argues, that some sort of fiduciary relationship is necessary, and likewise true that if title passes to the taker then the crime is not embezzlement, there is evidence in this case from which the jury might have inferred an entrustment of the funds to defendant. [8] Since there was evidence from which it could be inferred that defendant was to use Miss Shaber’s funds for purchasing letters of credit and for no other purpose, the inference could be drawn that defendant took these funds impressed with a trust. His diversion of the funds into his personal accounts would thus constitute embezzlement.

Third, as to theft by false pretenses, it must be shown that the defendant made a false representation or false promise with the intent to defraud the owner of his property, and that the owner was in fact defrauded in that he parted with his property in reliance upon the representation.  Where, as here, the alleged false pretense is testified to only by the complaining witness, then there must be corroboration in the form of a written note or memorandum of the pretense, or alternatively, corroborating circumstances. (§ 1110.)

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