Monday, January 11, 2016

Larceny vs Embezzlement

Some distinctions come up time and again on the MBE. One such distinction is that between two theft crimes: larceny and embezzlement. You'll see quite a few of these questions as you work through Criminal Law, and here I'll outline the important differences to note:

Larceny is the taking and carrying away of tangible personal property of another by trespass with the intent to permanently deprive the other of his/her property.

Determine first whether the person charged with larceny had possession of the property at the time it is claimed that the person took and carried away the property. Because if the person had legal possession of the property at that time, then larceny is not the proper charge. The reason for this stems from the definition above; larceny requires taking and carrying away the property of another and if a person is deemed to have possession of the property that he takes, then it can't be said that the person is taking the property of another, and as such not all essential elements of the crime have been satisfied.

Further, larceny requires that at the time of the taking and carrying away of the property of another, the person taking the property intends to permanently deprive another of the property. For purposes of the MBE you should also have an understanding of "continuing trespass larceny" in which the intent to permanently deprive is not formed until after the property has been taken. This too is deemed larceny, provided that all other elements have been satisfied.

Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property. Unlike with larceny, to be charged with embezzlement, one needs to have been in lawful possession of property prior to misappropriating that property.

In determining if a person is in possession of property for purposes of analyzing embezzlement consider the following definition for guidance: A person has possession of property when he has sufficient control over it to use it in a reasonably unrestricted manner (in which case consider embezzlement). A person lacks possession if he has physical control over it, but his right to use it is substantially restricted by the person in lawful possession of the property (in which case consider larceny).

This distinction outlined here is a tough one as the line between the two crimes is rather thin. But like so many legal concepts on the MBE, the best way to understand the type of distinction that might be tested is to work through many practice questions. The MBE should be thought of as a game, and like many games the best way to improve is through dedicated practice and training. The outlines will start you on your way, but practice will take you to where you need to be.


  1. Hi,

    I understand that the "continuing trespass" doctrine will apply when the original taking was wrongful (i.e. without permission), and the taker intended at the time to return it (i.e. no intent to permanently deprive), but later decided to keep the property = LARCENY.

    However, if the original taking was NOT wrongful (i.e. taker had permission to borrow for example), and at the time did not have the intent to permanently deprive the owner, but later formed the intent to keep = NO LARCENY (b/c the original taking was not wrongful).

    What I am confused about is the distinction between the latter example and EMBEZZLEMENT. Is the difference in that having permission/consent is simply physical (custody) versus in embezzlement where you need to be in lawful possession?

    Could you please clarify the difference between having permission (i.e. original taking was NOT wrongful) and being in lawful possession (for embezzlement)?

    Sorry if I sound confusing!

    1. I think you've got it exactly right, and the analysis wouldn't change in your hypothetical above. In other words, simply because a person has been given permission to use an item of property does not necessarily put that person in possession of the property and without possession there can be no embezzlement. So, in the situation where a person is given permission to use an item of property and does not have the intent to deprive, assuming the the permission to use to the property is such that it does not amount to possession, then there can be no larceny or embezzlement. For guidance, see the definition above regarding possession; when a person is given permission to use the property they are restricted as to that use (they are expected to return it immediately after, etc.). This is definitely a fine line (custody vs possession), but it does show up on the MBE.

  2. Thank you for the clarification!