Pleading for Theft Consolidation in Virginia:Larceny, Embezzlement, False Pretensesand § 19.2-284

I. Introduction Section 19.2-284 of the Virginia Code of Criminal Procedure1 addresses proof of property ownership in theft offenses.2 The statute provides: In a prosecution for an offense committed upon, relating to or affecting real estate, or for stealing, embezzling, destroying, injuring or fraudulently receiving or concealing any personal estate it shall be sufficient to prove that when the offense was committed the actual or constructive possession, or a general or special property, in the whole or any part of such estate was in the person or entity alleged in the indictment or other accusation to be the owner thereof.3 Section 19.2-284 has remained virtually unchanged for a century and a half.4 Over that period, very few cases have relied on the statute or its predecessors, and none have suggested that the statute might serve as a vehicle for the consolidation of the theft crimes in Virginia. Yet, theft consolidation is exactly what (sec)19.2-284 can achieve. The Commonwealth of Virginia has always purported to treat the three basic theft crimes of larceny, embezzlement, and false pretenses as separate and distinct offenses.5 Virginia maintains separate statutes for each crime.b However, over the past 130 years, court decisions and statutory amendments have blurred the distinction among the theft offenses. Some older court cases suggest a trend toward consolidation,7 while more recent decisions reaffirm the distinctions.8 Likewise, some older versions of Virginia's theft statutes codified rules that caused the crimes to overlap.9 These rules are now absent from the current version of Virginia law.10 These conflicting authorities create ambiguity in Virginia's body of theft law. Some jurists assert that the theft crimes overlap;11others view them as separate and distinct.12 Section 19.2-284 may resolve these inconsistencies. This statute eliminates - if not completely, at least substantially-the elements that distinguish larceny, embezzlement, and false pretenses from one another. The end result is most likely the effectual consolidation of larceny, embezzlement, and false pretenses. Thus, 19.2-284 brings Virginia into conformity with the majority of American jurisdictions, which have already consolidated these crimes.13 Part II of this Note provides the general background of Virginia's theft statutes and the circumstances giving rise to the suggestion that 19.2-284 is a consolidation vehicle.14 Parts III through V analyze the relationship between 19.2-284 and larceny, embezzlement, and false pretenses. Part III traces the historical development of larceny and contends that 19.2-284 is consistent with Virginia's interpretation of common law larceny.l5 Part IV describes the origin and development of embezzlement. 6 This Part highlights the elements that distinguish embezzlement from larceny and concludes that 19.2-284 sufficiently blurs these elements to the point that embezzlement and larceny merge." Similarly, Part V discusses the evolution of false pretenses and the characteristics that distinguish it from larceny by trick.18 Part V contends that larceny and false pretenses merge in all but one circumstance.'9 Part VI synthesizes the foregoing analysis and concludes that 19.2-284 completes the consolidation of the three basic offenses against property.zo II. Background Throughout history, larceny, embezzlement, and false pretenses have converged several times.2' The element of possession inherent in common law larceny has often become so ambiguous that it threatens to blur the distinctions among the three crimes. Tracking this evolutionary process, most American states now have unitary theft statutes that consolidate, at a minimum, the three basic theft crimes of larceny, embezzlement, and false pretenses.23 Virginia is not among that majority. The Commonwealth maintains separate offenses for each of the three basic theft crimes.24 Larceny retains its common law definition. …