LARCENY BY CHECK

LARCENY BY CHECK

This post will answer the following legal questions on larceny by check:

  • What is the legal offense of “larceny by check” and what does Commonwealth law say on the crime?
  • How does the Commonwealth prove a defendant GUILTY of larceny by check?
  • Legally speaking, what is “credit”?
  • What are some of the other applications and additional information on the statute forbidding larceny by check?
  • What are some important court cases related to the offense of larceny by check?
  • Are there any potential civil penalties associated with the crime of larceny by check?

What is the legal offense of “larceny by check” and what does Commonwealth law say on the crime?

Larceny by check involves obtaining goods or services by writing a check with knowledge of insufficient funds and with intent to defraud. Note that “larceny by stealing” is a different legal offense than larceny by check.

Commonwealth law states:

“Whoever, with intent to defraud, makes, draws, utters or delivers any check, draft order for the payment of money upon any bank or other depository, with knowledge that the maker or drawer has not sufficient funds or credit at such bank or other depository for the payment of such instrument, although no express representation is made in reference thereto…if money or property or services are obtained thereby shall be guilty of larceny.”

In other words, a person with intent to (ONE OR MORE):

  • Defraud
  • Make
  • Draw
  • Utter
  • Deliver

…ANY (ONE OR MORE):

  • Check
  • Draft order

…for the payment of money to any bank or other place to deposit money—with knowledge that the maker or drawer does not have enough money or credit to withdraw the money—and successfully withdraws the money, property, or services from a bank, is GUILTY of larceny.

How does the Commonwealth prove a defendant GUILTY of larceny by check?

In order to prove a defendant GUILTY of the offense of larceny by check, the Commonwealth must prove four elements of the offense beyond a reasonable doubt (ALL):

  • That the defendant (ONE OR MORE):
    • Wrote a check
    • Cashed a check drawn
    • Passed a check drawn
    • Delivered a check drawn

            …upon an account at the bank in question

  • That by doing so the defendant obtained (ONE OR MORE):
    • Money
    • Property
    • Services
  • That when the defendant (ONE OR MORE):
    • Wrote
    • Cashed
    • Passed
    • Delivered

…the check, he or she knew that he or she or the person who wrote the check did NOT have sufficient funds or credit at the bank on which the check was drawn to cover the check

  • That the defendant did so with the intent to defraud (ONE OR BOTH):
    • The bank
    • Someone who received the check

Legally speaking, what is “credit”?

The word “credit” in the context of the offense of larceny by check means an arrangement or understanding with the bank in question to pay the check in question, such as a line of credit.  

What are some of the other applications and additional information on the statute forbidding larceny by check?

The statute forbidding larceny by check also applies to larceny by means of a draft, or order for the payment of money, which includes reference to other depositories as well as banks, and permits conviction of attempted larceny if no money, property or services are obtained.

What are some important court cases related to the offense of larceny by check?

  • Commonwealth v. Klein (1987) ruled that the definition of the offense of larceny by check is NOT unconstitutionally vague or overbroad.

 

  • Commonwealth v. Solari (1981) ruled that a defendant who ordered a secretary to make out a check was legally considered to be the “drawer”. An overdrawn account before and after the check in question was presented, along with repeated unfulfilled promises to cover it, supported inference of fraudulent intent.

 

  • Commonwealth v. Ohanian(1977) ruled that a defendant who signed a depositor’s name with his consent was legally the “drawer”. The alleged intent to repay the money later was not accepted by the court as a defense. The case also clarified that the statute refers to the bank of the withdrawer, NOT the bank at which the check in question was cashed.

 

  • The Massachusetts Supreme Judicial Court ruled in Commonwealth v. Littles (2017) that failure to make required payment on a bad check within two days of notice constitutes prima facie evidence (i.e. evidence sufficient to establish a fact or raise a presumption unless disproved or rebutted) of the defendant’s intent and knowledge. The Court additionally held that this statutory provision is unconstitutional as it impermissibly lowers the Commonwealth’s burden of proof.

Are there any potential civil penalties associated with the crime of larceny by check?

YES, there are potential civil penalties associated with the crime of larceny by check. In addition to any criminal penalties, a civil suit to recover the face amount of a bounced check and for additional damages, as determined by the court, is permissible.

The prosecution can make a written demand for additional damages, that must be answered by the defendant within 30 days, if the amount in additional damages requested is no less than $100 and no more than $500.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH LARCENY BY CHECK, 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.

 

Source: Instruction 8.460

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