B. Larceny

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

B. Larceny

1. Introduction: Elements and Lesser Included Offenses

The basic South Carolina larceny statute does very little to define the offense; the statute primarily provides penalties for the different categories of the offense, depending upon the value of the property taken. S.C. Code Ann. § 16-13-30 (Supp. 2012). See subsection 4., Property, infra.

South Carolina continues to use the standard common law definition of larceny as a trespassory taking and carrying away of the property of another with the intent to steal. E.g., State v. Sweat, 221 S.C. 270, 70 S.E.2d 234 (1952). This section will analyze the offense of larceny by focusing on each of these common law elements.

Larceny used to be considered a lesser included offense of robbery, and therefore a person could not be convicted of and sentenced for each offense. State v. Lawson, 279 S.C. 266, 305 S.E.2d 249 (1983). In Lawson, the defendant attacked the victim, beat him severely and fled with property the victim had been carrying. He was convicted of, and given consecutive sentences for, robbery, grand larceny and aggravated assault and battery. Given statutory distinctions between grand and petit larceny, however, grand larceny is no longer considered to be a lesser included offense of robbery. State v. Parker, 344 S.C. 250, 543 S.E.2d 255 (Ct. App. 2001). Robbery could be committed by taking an amount less than that requisite to grand larceny. Therefore grand larceny is not a lesser included offense of robbery because is not a necessary element. Id.

Because aggravated assault and battery is not a lesser included offense of robbery, separate sentences for each of these crimes does not offend either state or federal constitutional protection from double jeopardy. Convictions of both robbery and petit larceny were again held constitutionally impermissible, and the latter was reversed in State v. Austin, 299 S.C. 456, 385 S.E.2d 830 (1989).

Even though one offense may be a lesser included offense of another, there is no need to instruct on the former unless there is some evidence indicating that the accused committed only the lesser offense and not the greater. For example, there was no error in the trial court's not charging larceny in an armed robbery murder situation in State v. Plemmons, 286 S.C. 78, 332 S.E.2d 765 (1985), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (abrogation of doctrine of in favorem vitae).

The Court found harmless error in convictions for both larceny and armed robbery because a ten-year sentence for the former was concurrent with a twenty-five year sentence for the latter. State v. Pressley, 288 S.C. 128, 341 S.E.2d 626 (1986). Consequently, the Court did not modify or overrule its decision in Lawson even though the State had been granted permission to argue against precedent. Less than a week after Pressley, however, the Court reversed a larceny conviction because of a robbery conviction based on the same facts, relying on Lawson. State v. Harkness, 288 S.C. 136, 341 S.E.2d 631 (1986). In Harkness, the sentences were consecutive. These decisions must be reconsidered in light of the Court of Appeals holding in Parker that grand larceny is not a lesser included offense of robbery.

Receipt of stolen goods is not a lesser included offense of grand larceny because the former offense requires receipt of the goods by someone other than the thief, an element not required for a larceny conviction. State v. McNeil, 314 S.C. 473, 445 S.E.2d 461 (1994) (vacating plea of guilty to possession of a stolen vehicle on an indictment of grand larceny of a vehicle). Use of a vehicle without permission as per S.C. Code Ann. § 16-21-60 (2003), however, is a lesser included offense of larceny. Kerrigan v. State, 304 S.C. 561, 406 S.E.2d 160 (1991). Purse snatching, S.C. Code Ann. § 16-13-150 (2003), is not a lesser included offense of robbery. State v. Bland, 318 S.C. 315, 457 S.E.2d 611 (1995). Robbery is discussed in Chapter II.E., supra.

2. Trespassory

While the South Carolina court often uses "felonious" for "trespassory," it is clear that the thrust of the two words is the same in this context: that is, the taking is from the possession of the owner and without proper authorization. "[L]arceny, at common law, is an offense against the possession of property . . . ." State v. Posey, 88 S.C. 313, 317, 70 S.E. 612, 615 (1911).

One of the simplest examples of a taking from the possession of the owner involves the taking of property from his person either by force, State v. Haynie, 221 S.C. 45, 68 S.E.2d 628 (1952), or by surprise. State v. Watson, 7 S.C. 63 (1876). The former situation, taking by force from the person, may also be robbery, a more serious offense; the offense of larceny is always included in the offense of robbery. Haynie, 221 S.C. 45, 68 S.E.2d 628 (1952). Of course goods need not be on the person of the owner to be the subject of larceny. Indeed, even if the owner has relinquished possession to a third party, a trespassory taking of the goods will still support a larceny conviction. State v. Philips, 73 S.C. 236, 53 S.E. 370 (1906).

A more difficult issue is posed if the goods are converted by one who already had some lawful control over them at the time he developed the intent to steal. Here the law has developed a distinction between custody and possession, typically concluding that an agent or employee of the owner often has only custody and that the owner retains possession. Consequently, when a stable boy, charged with the care of a hotel guest's horse, unlawfully converted the animal, he was properly convicted of larceny. He had only custody of the horse; his conversion was against the owner's right of possession. State v. Self, 1 S.C.L. (1 Bay) 242 (1792). The same reasoning has been applied in the case of a sharecropper who converted the crops before settlement had been made with the landowner. State v. Sanders, 110 S.C. 487, 96 S.E. 622 (1918).

Even though possession of the goods has been delivered to the thief by the owner and the thief subsequently converts the goods, he may nonetheless be guilty of larceny if he had the fraudulent intent to steal the goods at the time he received possession. State v. Thurston, 27 S.C.L. (2 McMul.) 382 (1842). This is known as larceny by trick. It is distinguished from the offense of false pretenses by the fact that in larceny by trick the owner transferred only possession, and not title, to the thief. If the owner were fraudulently induced to part with title as well, the thief would have committed the offense of false pretenses. But see State v. Dickinson, 339 S.C. 194, 528 S.E.2d 675 (Ct. App. 2000) (holding that passage of title is not an essential element of false pretenses in South Carolina. Dickinson is discussed in section E. False Pretenses, infra). Typically the larceny by trick thief tells the owner that he wants possession of the item for a limited time and for a limited purpose, all the while intending to steal the item. E.g., State v. Lindenthall, 39 S.C.L. (5 Rich.) 237 (1852); State v. Gorman, 11 S.C.L. (2 Nott and McC.) 90 (1819).

Larceny by trick is distinguished from breach of trust in that in the latter offense the thief already has lawful possession at the time he develops the intent to, and does, convert the property to his own. In larceny by trick the fraudulent intent must exist at the time the owner transfers possession, unaware, of course, of the other's deception.

In Thurston, the defendant was a boat owner who agreed to deliver some cotton from Orangeburg to Charleston but who, during the course of the voyage, stole the cotton and had it transferred to another. The court affirmed the larceny by trick conviction, concluding that the defendant had the intent to steal at the time that he received possession of the goods and that consequently prosecution was properly brought at the place of delivery.

The requirement of the offense of larceny by trick that the felonious intent and the act of taking must coincide is also a requirement of regular larceny and, indeed, of the criminal law in general. Even though at a given time one might intend to murder another but then later kill him in good faith self-defense, he has not committed the offense of murder. The act and the intent must co-exist. See LaFave, 993-95 (larceny) and 341-50 (in general) (5th ed. 2010).

Some confusion on this requirement of concurrence of act and intent in South Carolina larceny law stems from State v. Davenport, 38 S.C. 348, 17 S.E. 37 (1893), in which the court cited two earlier South Carolina cases, among others, for the proposition that in larceny the felonious intent need not have existed at the time the thief obtained possession of the property. The cases cited, however, State v. Butler, 21 S.C. 353 (1884), and State v. Shirer, 20 S.C. 392 (1884), both involved convictions for breach of trust with fraudulent intent. As will be developed in the next section, this offense involves conversion by one already in lawful possession of the goods in question. This South Carolina statutory offense, now S.C. Code Ann. § 16-13-230 (2003 and Supp. 2012), is the counterpart of the statutory embezzlement offense of other jurisdictions. That offense was enacted to plug the gap left by the long-standing requirements of larceny, a trespassory taking from the possession of the owner with the intent to steal co-existing with the taking. On the other hand, breach of trust with fraudulent intent, or embezzlement in the case of public funds, involves conversion by one already in lawful possession. In this situation the intent to steal need only exist at the time of the conversion, not at the time that the person who converted first came into possession of the goods.

Unfortunately, the language of Davenport (actually from 12 Am. § Eng. Ency. L, 772 and taken out of context), cropped up again in State v. Craig, 116 S.C. 440, 442, 107 S.E. 926, 928 (1921): "The intent...