What is larceny by stealing?
There are different types of larceny crimes. Under Massachusetts General Laws Chapter 266, Section 30 a person who intentionally takes the personal property of another can be convicted of Larceny by Stealing.
What is larceny?
Larceny or “stealing” is the criminal taking, obtaining or converting of personal property, with intent to defraud or deprive the owner permanently of the use of it.
The offense of larceny includes all forms of larceny, criminal embezzlement (i.e. theft or misappropriation of funds placed in a person’s trust or belonging to the employer of another) and obtaining by criminal false pretenses.
The purpose of merging the before separate offenses of “larceny,” “criminal embezzlement,” and “obtaining by criminal false pretenses” into the single offense of “larceny by stealing” was to reduce, if not eliminate, opportunities for “fatal variance” (i.e. a fatal defect in an indictment) whenever an indictment charged one offense and the proof disclosed a different one.
What does the law say on larceny?
Commonwealth law states that:
“Whoever steals…the property of another…shall be found guilty of larceny.”
In other words, stealing the property of another is a crime in Massachusetts and it is punishable as an offense called larceny.
Stealing is legally considered to be the wrongful taking of the personal property of another person, with the intent to deprive that person of such property permanently.
What does the government need to show to prove someone guilty of larceny by stealing?
In order to prove a defendant guilty of the offense of larceny, the Commonwealth must prove ALL of the following three elements of the offense beyond a reasonable doubt:
- That the defendant took and carried away property
- That the property was owned or possessed by someone other than the defendant
- That the defendant took and carried away the property in question with the intent to deprive the owner of the property permanently
What does it mean to "take and carry away property?"
A defendant is legally considered to be “taking and carrying away” property if the defendant physically transferred the property from the alleged victim’s control to his or her own. It does not matter if the transfer involved only a slight movement or it lasted for only a short time. Even if the defendant has control of the property for an instant, he or she is legally considered to have transferred and carried away the property, assuming the defendant had perfect control of it. A literal “carrying away” is not required in establishing this element of the offense.
What is the legal definition of property?
Legally speaking, the term property includes ANY of the following:
- Movable items of personal property
- Bank notes
- Public records
- Anything that is part of or attached to real estate
- Apartment security deposits
- Electronically processed or stored data, either tangible or intangible
- Domesticated animals, including dogs, birds and other animals ordinarily kept in confinement
How does the government prove that the property did not belong to me?
In order to convict a defendant of the crime of larceny, the Commonwealth must prove that the property was owned or possessed by a person other than the defendant.
This can by proved by doing EITHER or both of the following:
- Providing direct evidence that someone else owned or possessed the property in question
- Inferring that someone else owned or possessed the property in question from the surrounding circumstances
Note that the Commonwealth is NOT required to prove who owned or held the property, as long as it describes the property with sufficient certainty and it proves that the defendant did NOT own or hold the property.
The “owner” of some property includes anyone in actual or constructive possession. In other words, an “owner” is considered to be anyone with a possessory or property interest.
Note that a person who orders goods is considered to be in constructive possession of the goods once they are delivered to a common postal carrier unless a shipping agreement exists stating they are not.
What does it mean to deprive someone of their property?
It is the burden of the Commonwealth to prove that a defendant intended to deprive the owner of the property in question permanently.
The Commonwealth can prove this by EITHER:
- Direct evidence that the defendant intended to deprive the owner of the property in question permanently
- Inferring from the surrounding circumstances that the defendant intended to deprive the owner of the property in question permanently
An example of “inferring from the surrounding circumstances” would be if a person takes the property of another and disposes of it with complete indifference to whether the owner recovers its possession.
Is there a difference between larceny and “use without authority?”
YES, there is a legal difference between “larceny”and “use without authority.”
That difference is “intent to deprive permanently”. Larceny assumes in taking property intent to deprive the owner permanently of his or her property. Use without authority implies an eventual returning of the stolen property or at minimum abandoning it where it may be recovered.
What happens if I am convicted of larceny?
If jurors determine that the Commonwealth has proved beyond a reasonable doubt that the defendant is guilty of the offense of larceny by stealing, they must go on to determine whether the item or items stolen were worth more than $250 or less than $250.
Regardless of whether or not the value of the property stolen is alleged in the complaint, jurors must make a determination of the value of the stolen property themselves. The value of the stolen property does not need to be alleged in the complaint, since the value of the property is considered to be an element of the punishment and not an element of the offense of larceny.
Jurors can use their general knowledge to evaluate the value of a piece of property. It is not required that expert evidence be used to assess the value.
If jurors cannot or do not determine the value of the stolen property, the judge will be required to sentence as if the value did not exceed $250.
What happens if the property is worth more than $250?
According to Commonwealth law, if the value of the property stolen exceeds $250, the offense of larceny by stealing becomes a felony
Note that the offense automatically becomes a felony if the property stolen is a firearm.
Also note that the value of the property must be treated as an element of the felony of malicious destruction of property.
Can I go to jail for larceny if I thought I had a legal right to the property?
If a defendant takes another person’s property in an honest and reasonable belief that he or she or another person on whose behalf he or she was acting had a legal right to it, then that person CANNOT be convicted of larceny by stealing. Even if the defendant’s belief was mistaken, the defendant cannot be convicted because he or she lacked the intent to steal.
Is breaking and entering the same as larceny by stealing?
NO, larceny by stealing and breaking and entering are different offenses.
However in the past, they were combined into one, called so by such names as “breaking and entering and stealing therein” or “breaking and entering with intent to steal”. During this time when the offense was charged in a compound form, the actual larceny could not also be charged as a separate count, and no separate sentence could be imposed for the larceny.
When the breaking and entering and the larceny are charged on separate counts, rather than merged in a single count, separate convictions and sentences are permissible for both.
Since there is no better proof of “intent to steal” than actual larceny, the allegation of actual stealing is legally regarded as equivalent to alleging the intent to steal.
Can I be convicted of both stealing AND receiving stolen property?
NO, a defendant cannot be convicted BOTH of stealing and receiving the same goods. A defendant can be charged with one of these crimes but not both at the same time. Each crime is required to be charged in a separate count or complaint.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH LARCENY, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.