§ 32.11 Consolidation of Theft Offenses

§ 32.11 Consolidation of Theft Offenses

As the preceding chapter sections demonstrate, many legal fictions complicate the law of larceny, embezzlement, and false pretenses, and the lines between the offenses are often exceedingly thin. And the view of legal reformers has been that there is no meaningful difference between the offenses in terms of the culpability of the actors, their dangerousness, or the seriousness of the harm caused.

Making matters worse, the key distinctions between the offenses often depend on the hidden intentions of the parties. The line between larceny and embezzlement, for example, depends on whether the defendant formed the wrongful mental state prior to, or after, the property was delivered to him. The line between larceny-by-trick and false pretenses, on the other hand, depends on whether title passed in a property transaction; yet this critical fact depends largely on the victim's intent at the time of transfer.

These distinctions served as encumbrances in the prosecution of wrongdoers. At one time, a prosecutor of a theft offense was required to prove commission of the form of theft alleged in the indictment. Thus, if the indictment charged larceny, the prosecutor could not obtain a conviction for embezzlement or false pretenses. Even when a prosecutor was allowed to allege alternative offenses in an indictment, this was only a slight benefit: He still had to convince all of the jurors as to which crime was committed. As a result, thieves sometimes escaped punishment because the prosecutor was unable to prove beyond a reasonable doubt whether the wrongdoer had a felonious intent at the time he took possession of property (larceny) or later (embezzlement), or whether the wrongdoer's admitted fraud resulted in transfer of title (false pretenses) or only possession (larceny).

As the result of difficulties of proof, most states have sought to ease the prosecutor's burden by consolidating the three theft crimes (and other property crimes, such as extortion, blackmail, and receiving stolen property) into a single theft offense. However, lawyers in jurisdictions that have reformed the law in this manner need to be wary of what consolidation does and does not do...