# 1911 Encyclopædia Britannica/Larceny

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​LARCENY (an adaptation of Fr. larcin, O. Fr. larrecin, from Lat. latrocinium, theft, latio, robber), the unlawful taking and carrying away of things personal, with intent to deprive the rightful owner of the same. The term theft, sometimes used as a synonym of larceny, is in reality a broader term, applying to all cases of depriving another of his property whether by removing or withholding it, and includes larceny, robbery, cheating, embezzlement, breach of trust, &c.
Larceny is, in modern legal systems, universally treated as a crime, but the conception of it as a crime is not one belonging to the earliest stage of law. To its latest period Roman law regarded larceny or theft (furtum) as a delict prima facie pursued by a civil remedy—the actio furti for a penalty, the vindicatio or condictio for the stolen property itself or its value. In later times, a criminal remedy to meet the graver crimes gradually grew up by the side of the civil, and in the time of Justinian the criminal remedy, where it existed, took precedence of the civil (Cod. iii. 8. 4). But to the last criminal proceedings could only be taken in serious cases, e.g. against stealers of cattle (abigei) or the clothes of bathers (balnearii). The punishment was death, banishment, or labour in the mines or on public works. In the main the Roman law coincides with the English law. The definition as given in the Institutes (iv. 1. 1) is “furtum est contrectatio rei fraudulosa, vel ipsius rei, vel etiam ejus usus possessionisve,” to which the Digest (xlvii. 2. 1, 3) adds “lucri faciendi gratia.” The earliest English definition, that of Bracton (150b), runs thus: “furtum est secundum leges contrectatio rei alienae fraudulenta cum animo furandi invito illo domino cujus res illa fuerit.” Bracton omits the “lucri faciendi gratia” of the Roman definition, because in English law the motive is immaterial, and the “usus ejus possessionisve,” because the definition includes an intent to deprive the owner of his property permanently. The “animo furandi” and “invito domino” of Bracton’s definition are expansions for the sake of greater clearness. They seem to have been implied in Roman law. Furtum is on the whole a more comprehensive term than larceny. This ​ difference no doubt arises from the tendency to extend the bounds of a delict and to limit the bounds of a crime. Thus it was furtum (but it would not be theft at English common law) to use a deposit of pledge contrary to the wishes of the owner, to retain goods found, or to steal a human being, such as a slave or filius familias (a special form of furtum called plagium). The latter would be in English law an abduction under certain circumstances but not a theft. One of two married persons could not commit furtum as against the other, but larceny may be so committed in England since the Married Women’s Property Act 1882. As a furtum was merely a delict, the obligatio ex delicto could be extinguished by agreement between the parties; this cannot be done in England. In another direction English law is more considerate of the rights of third parties than was Roman. The thief can give a good title to stolen goods; in Roman law he could not do so, except in the single case of a hereditas acquired by usucapio. The development of the law of furtum at Rome is historically interesting, for even in its latest period is found a relic of one of the most primitive theories of law adopted by courts of justice: “They took as their guide the measure of vengeance likely to be exacted by an aggrieved person under the circumstances of the case” (Maine, Ancient Law, ch. x.). This explains the reason of the division of furtum into manifestum and nec manifestum. The manifest thief was one taken red-handed—“taken with the manner,” in the language of old English law. The Twelve Tables denounced the punishment of death against the manifest thief, for that would be the penalty demanded by the indignant owner in whose place the judge stood. The severity of this penalty was afterwards mitigated by the praetor, who substituted for it the payment of quadruple the value of the thing stolen. The same penalty was also given by the praetor in case of theft from a fire or a wreck, or of prevention of search. The Twelve Tables mulcted the non-manifest thief in double the value of the thing stolen. The actions for penalties were in addition to the action for the stolen goods themselves or their value. The quadruple and double penalties still remain in the legislation of Justinian. The search for stolen goods, as it existed in the time of Gaius, was a survival of a period when the injured person was, as in the case of summons (in jus vocatio), his own executive officer. Such a search, by the Twelve Tables, might be conducted in the house of the supposed thief by the owner in person, naked except for a cincture, and carrying a platter in his hand, safeguards apparently against any possibility of his making a false charge by depositing some of his own property on his neighbour’s premises. This mode of search became obsolete before the time of Justinian. Robbery (bona vi rapta) was violence added to furtum. By the actio vi bonorum raptorum quadruple the value could be recovered if the action were brought within a year, only the value if brought after the expiration of a year. The quadruple value included the stolen thing itself, so that the penalty was in effect only a triple one. It was inclusive, and not cumulative, as in furtum.
In England theft or larceny appears to have been very early regarded by legislators as a matter calling for special attention. The pre-Conquest compilations of laws are full of provisions on the subject. The earlier laws appear to regard it as a delict which may be compounded for by payment. Considerable distinctions of person are made, both in regard to the owner and the thief. Thus, by the laws of Æthelberht, if a freeman stole from the king he was to restore ninefold, if from a freeman or from a dwelling, threefold. If a theow stole, he had only to make a twofold reparation. In the laws of Alfred ordinary theft was still only civil, but he who stole in a church was punished by the loss of his hand. The laws of Ina named as the penalty death or redemption according to the wer-gild of the thief. By the same laws the thief might be slain if he fled or resisted. Gradually the severity of the punishment increased. By the laws of Æthelstan death in a very cruel form was inflicted. At a later date the Leges Henrici Primi placed a thief in the king’s mercy, and his lands were forfeited. Putting out the eyes and other kinds of mutilation were sometimes the punishment. The principle of severity continued down to the 19th century, and until 1827 theft or larceny of certain kinds remained capital. Both before and after the Conquest local jurisdiction over thieves was a common franchise of lords of manors, attended with some of the advantages of modern summary jurisdiction.
Under the common law larceny was a felony. It was affected by numerous statutes, the main object of legislation being to bring within the law of larceny offences which were not larcenies at common law, either because they were thefts of things of which there could be no larceny at common law, e.g. beasts ferae naturae, title deeds or choses in action, or because the common law regarded them merely as delicts for which the remedy was by civil action, e.g. fraudulent breaches of trust. The earliest act in the statutes of the realm dealing with larceny appears to be the Carta Forestae of 1225, by which fine or imprisonment was inflicted for stealing the king’s deer. The next act appears to be the statute of Westminster the First (1275), dealing again with stealing deer. It seems as though the beginning of legislation on the subject was for the purpose of protecting the chases and parks of the king and the nobility. A very large number of the old acts are named in the repealing act of 1827. An act of the same date removed the old distinction between grand and petit larceny. The former was theft of goods above the value of twelve pence, in the house of the owner, not from the person, or by night, and was a capital crime. It was petit larceny where the value was twelve pence or under, the punishment being imprisonment or whipping. The gradual depreciation in the value of money afforded good ground for Sir Henry Spelman’s sarcasm that, while everything else became dearer, the life of man became continually cheaper. The distinction between grand and petit larceny first appears in statute law in the Statute of Westminster the First, c. 15, but it was not created for the first time by that statute. It is found in some of the pre-Conquest codes, as that of Æthelstan, and it is recognized in the Leges Henrici Primi. A distinction between simple and compound larceny is still found in the books. The latter is larceny accompanied by circumstances of aggravation, as that it is in a dwelling-house or from the person. The law of larceny is now contained chiefly in the Larceny Act 1861 (which extends to England and Ireland), a comprehensive enactment including larceny, embezzlement, fraud by bailees, agents, bankers, factors, and trustees, sacrilege, burglary, housebreaking, robbery, obtaining money by threats or by false pretences, and receiving stolen goods, and prescribing procedure, both civil and criminal. There are, however, other acts in force dealing with special cases of larceny, such as an act of Henry VIII. as to stealing the goods of the king, and the Game, Post-Office and Merchant Shipping Acts. There are separate acts providing for larceny by a partner of partnership property, and by a husband or wife of the property of the other (Married Women’s Property Act 1882). Proceedings against persons subject to naval or military law depend upon the Naval Discipline Act 1866 and the Army Act 1881. There are several acts, both before and after 1861, directing how the property is to be laid in indictments for stealing the goods of counties, friendly societies, trades unions, &c. The principal conditions which must exist in order to constitute larceny are these: (1) there must be an actual taking into the possession of the thief, though the smallest removal is sufficient; (2) there must be an intent to deprive the owner of his property for an indefinite period, and to assume the entire dominion over it, an intent often described in Bracton’s words as animus furandi; (3) this intent must exist at the time of taking; (4) the thing taken must be one capable of larceny either at common law or by statute. One or two cases falling under the law of larceny are of special interest. It was held more than once that a servant taking corn to feed his master’s horses, but without any intention of applying it for his own benefit, was guilty of larceny. To remedy this hardship, the Misappropriation of Servants Act 1863 was passed to declare such an act not to be felony. The case of appropriation of goods which have been found has led to some difficulty. It now seems to be the law that in order to constitute a larceny of lost goods there must be a felonious intent at the time of finding, that is, an intent to deprive the owner of them, coupled with reasonable means at the same time of knowing the owner. The mere retention of the goods when the owner has become known to the finder does not make the retention criminal. Larceny of money may be committed when the money is paid by mistake, if the prisoner took it animo furandi. In two noteworthy cases the question was argued before a very full court for crown cases reserved, and in each case there was a striking difference of opinion. In R. v. Middleton, 1873, L.R. 2 C.C.R., 38, the prisoner, a depositor in a post-office savings bank, received by the mistake of the clerk a larger sum that he was entitled to. The jury found that he had the animus furandi at the time of taking the money, and that he knew it to be the money of the postmaster-general. The majority of the court held it to be larceny. In a case in 1885 (R. v. Ashwell, L.R. 16 Q.B.D. 190), where the prosecutor gave the prisoner a sovereign believing it to be a shilling, and the prisoner ​took it under that belief, but afterwards discovered its value and retained it, the court was equally divided as to whether the prisoner was guilty of larceny at common law, but held that he was not guilty of larceny as a bailee. Legislation has considerably affected the procedure in prosecutions for larceny. The inconveniences of the common law rules of interpretation of indictments led to certain amendments of the law, now contained in the Larceny Act, for the purpose of avoiding the frequent failures of justice owing to the strictness with which indictments were construed. Three larcenies of property of the same person within six months may now be charged in one indictment. On an indictment for larceny the prisoner may be found guilty of embezzlement, and vice versa; and if the prisoner be indicted for obtaining goods by false pretences, and the offence turn out to be larceny, he is not entitled to be acquitted of the misdemeanour. A count for receiving may be joined with the count for stealing. In many cases it is unnecessary to allege or prove ownership of the property the subject of the indictment. The act also contains numerous provisions as to venue and the apprehension of offenders. In another direction the powers of courts of Summary Jurisdiction (q.v.) have been extended, in the case of charges of larceny, embezzlement and receiving stolen goods, against children and young persons and against adults pleading guilty or waiving their right to trial by jury. The maximum punishment for larceny is fourteen years’ penal servitude, but this can only be inflicted in certain exceptional cases, such as horse or cattle stealing and larceny by a servant or a person in the service of the crown or the police. The extreme punishment for simple larceny after a previous conviction for felony is ten years’ penal servitude. Whipping may be part of the sentence on boys under sixteen.
Scotland.—A vast number of acts of the Scottish parliament dealt with larceny. The general policy of the acts was to make larceny what was not larceny at common law, e.g. stealing fruit, dogs, hawks or deer, and to extend the remedies, e.g. by giving the justiciar authority throughout the kingdom, by making the master in the case of theft by the servant liable to give the latter up to justice, or by allowing the use of firearms against thieves. The general result of legislation in England and Scotland has been to assimilate the law of larceny in both kingdoms. As a rule, what would be larceny in one would be larceny in the other.
United States.—The law depends almost entirely upon state legislation, and is in general accordance with that of England. The only acts of Congress bearing on the subject deal with larceny in the army and navy, and with larceny and receiving on the high seas or in any place under the exclusive jurisdiction of the United States, e.g. Alaska.
Alaska.—Stealing any goods, chattels, government note, bank note, or other thing in action, books of account, &c., is larceny: punishment, imprisonment for not less than one nor more than ten years if the property stolen is in value over $35. Larceny in any dwelling-house, warehouse, steamship, church, &c., is punishable by imprisonment for not less than one nor more than seven years. Larceny of a horse, mule, ass, bull, steer, cow or reindeer is punishable by imprisonment for not less than one nor more than fifteen years. Wilfully altering or defacing marks or brands on such animals is larceny (Pen. Code Alaska, § 45, 1899).
Arizona.—Appropriating property found without due inquiry for the owner is larceny (Penal Code, § 442). “Dogs are property and of the value of one dollar each within the meaning of the terms ‘property’ and ‘value’ as used in this chapter” (id. § 448). Property includes a passage ticket though never issued. Persons stealing property in another state or county, or who receive it knowing it to be stolen and bring it into Arizona, may be convicted and punished as if the offence was committed there (id. § 454). Stealing gas or water from a main is a misdemeanour.
Iowa.—It is larceny to steal electricity, gas or water from wires, meters or mains (L. 1903, ch. 132).
New York.—Larceny as defined by § 528 of the Penal Code includes also embezzlement, obtaining property by false pretences, and felonious breach of trust (People v. Dumar, 106 N.Y. 508), but the method of proof required to establish these offences has not been changed. Grand larceny in the first degree is (a) stealing property of any value in the night time; (b) of $25 in value or more at night from a dwelling house, vessel or railway car; (c) of the value of more than $500 in any manner; in the second degree (a) stealing in any manner property of the value of over $25 and under $500; (b) taking from the person property of any value; (c) stealing any record of a court or other record filed with any public officer. Every other larceny is petit larceny. “Value” of any stock, bond or security having a market value is the amount of money due thereon or what, in any contingency, might be collected thereon; of any passenger ticket the price it is usually sold at. The value of anything else not fixed by statute is its market value. Grand larceny, in the first degree, is punishable by imprisonment not exceeding ten years; in the second degree, not exceeding five years. Petit larceny is a misdemeanour (Penal Code, §§ 530–535). Bringing stolen goods into the state knowing them to be stolen is punishable as larceny within the state (id. § 540). A “pay ticket” for removing a load of snow may be the subject of larceny and its value the amount to be paid on it. (People v. Fletcher [1906] 110 App. D. 231).
Kansas.—The owner of goods who takes them from a railroad company with intent to defeat its lien for transportation charges is guilty of larceny. (Atchison Co. v. Hinsdell [1907] 90 Pac. Rep. 800).
Massachusetts.—Larceny includes embezzlement and obtaining money by false pretences. (Rev. L. 1902, ch. 218, § 40.) The failing to restore to or to notify the owner of property removed from premises on fire is larceny (id. ch. 208, § 22). It is larceny to purchase property (payment for which is to be made on or before delivery) by means of a false pretence as to means or ability to pay, provided such pretence is signed by the person to be charged. Indictment for stealing a will need not contain an allegation of value (id. § 29). A person convicted either as accessory or principal of three distinct larcenies shall be adjudged “a common and notorious thief” and may be imprisoned for not more than twenty years (id. 31). On second conviction for larceny of a bicycle, the thief may be imprisoned for not more than five years. Larceny of things annexed to realty is punishable as if it were a larceny of personal property (id. §§ 33, 35).
Ohio.—Stealing “anything of value” is larceny (Bates Stats. § 6856). Tapping gas pipes is punishable by fine or imprisonment for not more than thirty days. Stealing timber having “timber dealers’ ” trade mark, or removing it from a stream, is punishable by a fine of not less than $20.
Utah.—It is grand larceny to alter the mark or brand on an animal (L. 1905, ch. 38).
Wyoming.—For branding or altering or defacing the brand on cattle with intent to steal, the penalty is imprisonment for not more than five years. It is larceny for a bailee to convert with intent to steal goods left with or found by him (Rev. Stats. §§ 4986, 4989).
Washington.—A horse not branded, but under Code § 6861 an “outlaw,” the owner being unknown, can be the subject of a larceny, having been held to be property of the state. (State v. Eddy [1907], 90 Pac. Rep. 641). For the third offence of such a larceny the penalty is imprisonment for life (L. 1903, ch. 86).
See also Embezzlement; Cheating; False Pretences; Robbery; Stolen Goods.
* ↑ Thus destruction of a letter by a servant, with a view of suppressing inquiries into his or her character, makes the servant guilty of larceny in English law.
* ↑ This provision was most unnecessarily repeated in the Larceny Act of 1861.