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Thursday, December 8, 2011

MBE Fast Fact: Larceny by Trick vs. False Pretenses

The distinction between larceny by trick and false pretenses is a subtle one. Both crimes require the taking of personal property from another by an intentional false statement of past or existing fact, with the intent to defraud the other. The distinction is based entirely on exactly what is received due to the fraud. False pretenses requires that title to the property is obtained, while larceny by trick requires that mere possession of the property is obtained. These subtle distinctions are exactly the type so often tested on the MBE, and generally the fact that provides the key information will be hidden somewhere within a rather long fact pattern. As an aside, the crime of larceny can be distinguished from the crime of larceny by trick in that larceny does not require a misrepresentation and usually occurs when one takes the property from another. In larceny by trick, however, the property is given to another as a result of the other's misrepresentation.



10 comments:

  1. Subtle question re: larceny & intent. (Doesn't go perfectly with this post, but it was the closest-related I could find.) I am having a specific problem where three well-known MBE resources seem to disagree re: a specific aspect of the intent required for larceny. The basic question is if someone decides to steal something, (i.e a purse in a store, a friend's wallet fallen out of her purse,) picks it up, conceals it in her own belongings, carries it a short distance, but then changes her mind and puts the item back roughly where she found it, is that larcency? Both the PMBR Red Book and Walton's Strategy & Tactics book have a question that deals with this exact sequence, and they both say yes, it is larcency once the asportation occurs, even though the property stays in the store/is given back to the friend. But the BarBri 2/10 class handout says that "the intent to steal ... must be a permanent intent. If D intends to give the property back, the taking is not larceny." I can provide you wuth the specific Walton and PMBR questions if you like. Which is it?

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    1. I realize your post is very old, but hopefully this answer helps someone else looking for an answer to this.
      The nuance here is frustrating at times. Let's say I take your wallet from you, but before I actually make it out of your house, I decide to return it to you. Is it larceny? Yes. Here's why: at the time of the taking, I actually intended to deprive you of your personal property permanently. It does not matter that seconds or minutes later I changed my mind and returned it. It is still a larceny because I possessed the requisite intent for larceny at the time I took your wallet. Compare: I take an umbrella from a store when it is pouring outside. I just want to get to my car without getting soaked. I fully intend to return the umbrella one it has stopped raining. Here, I have taken something, carried it away, from another, without consent, BUT I do not possess any intent to keep the umbrella permanently. So, as crazy as this is, that is not a larceny. The key is to look at the intent of the D at the time of the actual taking. I hope this helps.

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  2. given your explanation, is the following list of elements correct for each of the offenses?

    Larceny by trick:
    1) use of fraud (knowing representation of false material fact)
    2) to procure temporary delivery of POSSESSION
    3) of another’s property
    4) with the intent to PERMANENTLY DEPRIVE


    False pretenses:
    1) use of fraud (knowing representation of false material fact)
    2) to obtaining TITLE
    3) to the personal property of another
    4) with the intent to DEFRAUD

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  3. That's correct. The distinction most often tested is between title and possession.

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  4. Would obtaining cash/check use of fraud be considered larceny by trick or false pretenses (i.e. can you 'take title' to cash/check?

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  5. The determinative factor here is whether the fraud causes the innocent party to transfer title or merely possession of the property. If title, the crime is false pretenses, but if property the crime is larceny by trick.

    For purposes of the MBE, when someone through fraud obtains cash or a check, title is passed, so the crime is false pretenses.

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    1. unless, of course, it was a bailment.

      Jeff gets on a rollercoaster - has two $20s he doesn't want to lose on the ride.

      Jeff tells her girlfriend out loud, that he'd like to leave it.
      Another "S" standing next to ride operator hears this, tells Jeff' he works there and will hold it for him, and offers to hold the $20s till he gets off the ride. Jeff hands the 2 $20s to S. Jeff rides, S leaves. Jeff disembarks to discover he is the victim of larceny by trick.

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  6. My mistake. "If property" in my comment was supposed to read "if possession." Good catch. :)

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  7. Okay, the difference is pretty obvious in the definitions, mere possession v. title. But I do not get it when doing MBE questions! How don't know to actually tell that it is false pretenses and not larceny by trick. If anyone answers this.. please please please do not use a car or house as an example. Pretty obvious title verses possession. I just got a question wrong because the defendants obtained the title to the gasoline.. WHAT?

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    1. A helpful way to think about this is to think about the perspective of the person who was tricked into giving up the property. Did that person intend to transfer title to the person who made the false statement, or did that person intend to merely transfer possession of the property.

      In your gasoline example, it is unlikely that the tricked person thought he was merely giving up the gasoline temporarily and that it would later be returned (in which case he would expect to merely be transferring possession and the crime would be larceny by trick). His expectation was that he was transferring ownership of the gasoline in which case title would pass and the crime is false pretenses.

      But assume that someone, through false statements, convinces another to loan a car temporarily, and then the car is never returned. In the mind of the person who was tricked, only possession to the car was being transferred, and so the crime would be larceny by trick.

      It's not an easy distinction but with that analytical approach (putting yourself in the mind of the person who was tricked), it's easier.

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