A. Introduction

LibraryThe Criminal Law of South Carolina (SCBar) (2014 Ed.)

A. Introduction

1. Relationship Between Traditional Theft Offenses

The basic common law property offense of larceny has changed little over the centuries. It is an offense against possession and consists of the taking and carrying away of the property of another with the intent to steal. This definition finds support in eighteenth, nineteenth and twentieth century South Carolina case law. State v. Self, 1 S.C.L. (1 Bay) 242 (1792); State v. Garvin, 48 S.C. 258, 26 S.E. 570 (1897); State v. Sweat, 221 S.C. 270, 70 S.E.2d 234 (1952).

However, as larceny focuses on a taking from the owner's possession, the offense affords little protection to property converted by a person who already has lawful possession, or to property to which the thief acquires title as well as possession by means of fraudulent dealings with the rightful owner. Because the common law offense of larceny seemed incapable of dealing effectively with either situation, two statutory offenses appeared, embezzlement and false pretenses, to fill the gaps. If a person unlawfully obtains possession with the intent to steal, he has committed larceny; if he converts property already in his lawful possession, he has committed embezzlement. If he obtains title as well as possession on the basis of his fraudulent misrepresentations, he has committed the offense of false pretenses. Nonetheless there still have been numerous instances of cases of obvious theft falling through the cracks, sometimes because it was not clear whether the thief had possession or merely custody at the time of conversion, or it was not clear when he developed the intent to steal or it was unclear whether he obtained title as well as possession. Consequently, some jurisdictions have consolidated these and related offenses into a generic offense of theft. E.g., Ga. Code Ann. §§ 16-8-1 to -22 (1988); Model Penal Code § 223.

A brief account of the evolution of property offenses can be found in Bell v. United States, 462 U.S. 356 (1983). In Bell, the Court construed 18 U.S.C. § 2113(b) quite broadly. The statute proscribes theft from banks and uses some language of the common law such as "takes and carries away." Nonetheless, the Court concluded that Congress intended the statute to cover the activity in question, which was essentially acquisition of money through false pretenses, an offense which has traditionally involved receiving property by trickery rather than by a physical taking from its owner.

South Carolina has not attempted to deal with this problem by...

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