Larceny by trick requires proof the defendant used fraud or deceit to obtain the owner’s consent to possess his or her property. Larceny by trick is committed without actual consent of the owner because the fraud vitiates the consent. Although a trespassory taking is not immediately evident when larceny occurs by trick because of the crime’s fraudulent nature, a property owner who is fraudulently induced to transfer possession of the property to another does not do so with free and genuine consent, so the one who fraudulently obtains possession commits a trespass. Though the taking in larceny must be against the will of the owner or a trespass to his possession, still an actual trespass or actual violence is not necessary. Fraud may take the place of force. In cases of larceny by trick the fraud vitiates the transaction, and the owner is deemed still to retain a constructive possession of the property.
Therefore, while the owner of the property may have provided the defendant with consent to possess it, that consent is deemed meaningless because of the fraud.
Elements of Larceny by Trick
The elements of the crime of larceny by trick are:
- Obtaining possession of and carrying away the property of another by some trick or device;
- The taking and carrying away must be with the intent, without claim or pretense of right, to deprive the owner of his property wholly and permanently; and
- The intent must exist at the time of the taking.
The trick or device may consist of a misrepresentation of some existing or past fact or of a promise made without intent to perform.
People v. Bailey, No. A147673 (Cal. App. 2017):
Larceny requires a trespassory taking, which is a taking without the property owner’s consent. “Larceny by trick” is a type of larceny that involves the appropriation of property, the possession of which is fraudulently acquired, but where the owner does not relinquish title. Larceny by trick qualifies as larceny because the “fraud vitiates the property owner’s consent to the taking.
State v. Harris, 35 N.C.App. 401 (1978):
“Larceny by trick” is not a crime separate and distinct from common law larceny, but the term is often used to describe a larceny when possession was obtained by trick or fraud. It is not necessary that the manner in which the stolen property was taken and carried away be alleged, and the words “by trick” are not required in an indictment charging larceny. Where the evidence tends to show that a defendant charged with larceny took or obtained possession of the property by trick or fraud, the burden is on the State to prove that defendant had a felonious intent at the time he took or got possession by trick or fraud.
In re Cedar Funding, Inc., No. 08-52709-MM (Bankr. N.D. Cal. 2011):
The elements of larceny by trick include: 1) a person who obtains possession of property of another by some trick or device, 2) intent by the person obtaining the property to convert the property permanently to his own use, and 3) the lack of the intent by the owner who parted with possession to transfer title to the person who obtained possession.