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  • What Are the Legal Elements of Larceny?

    Posted on by JACK MKHITARIAN

    A man planning to steal.Every New Mexico criminal offense has two or more elements. An element is a fact or circumstance that the prosecution must prove before a judge or jury can legally convict the defendant of a crime. More specifically, the prosecution’s burden is to present evidence of each element and to prove those elements beyond a reasonable doubt.

    If evidence of any element is lacking, the finder of fact has no choice but to acquit the defendant. Thus, it is important for those facing larceny charges to understand the elements of larceny, as this can help them defend against the allegations.

    Larceny is the legal word for theft. Under our system of government, every state is responsible for creating its own criminal law. In addition, the federal government also has criminal laws. The exact definition of what constitutes larceny will, therefore, vary slightly between jurisdictions. Usually, larceny refers to the theft of personal property, as opposed to embezzlement or fraud.

    Elements of larceny

    What Are the Elements of Larceny?

    Under federal law, larceny has four elements:

    • The defendant wrongfully took property;
    • The property did not belong to them;
    • They did not have consent from the property owner; and
    • They had the intent to permanently deprive the owner of their property.

    Below is a brief discussion of each of the elements of larceny.

    Elements of larceny

    The Wrongful-Taking Element

    The first element of larceny is that the defendant wrongfully took an item. This implies the physical act of removing an item from where the defendant found it, through illicit means. Thus, a defendant who takes another’s property after fraudulently obtaining their permission is not guilty of larceny, because, technically, the defendant had the owner’s permission. Of course, that isn’t to say that the defendant would be safe in this case, as they would likely face charges of theft by deception or theft by false pretenses.

    The Ownership Element

    The next element of larceny requires the prosecution to prove that the defendant did not own the property they unlawfully took and that it belonged to someone else. Thus, taking your own item or taking an item that is not owned by anyone (such as abandoned property) cannot form the basis of a larceny charge.

    Most people know that you cannot steal your own property. However, some nuances can arise, making it a bit more complex. For example, consider the following: John and Perry are neighbors. Perry is repairing his fence and, one day, asks John to borrow a post hole digger. John happily lets Perry borrow the tool. By the following week, Perry still hasn’t returned the post hole digger. John’s father-in-law asks to borrow the post hole digger. John, assuming Perry is finished using the tool, walks into Perry’s garage and grabs his post hole digger.

    In this example, while John may have trespassed on Perry’s property, he did not commit larceny, because he simply took back his own tool.

    The Permission Element

    The third element of larceny requires proof that the defendant did not have the owner’s permission when they physically removed the property. To illustrate how this could play out in real life, we can modify the above example of John, Perry, and the post hole digger.

    Assume that instead of going into Perry’s garage himself, John told his father-in-law that Perry had his post hole digger and instructed him to go into Perry’s garage and retrieve the tool. In this situation, John’s father-in-law would not be guilty of larceny because he was removing the tool with the owner’s permission.

    The Intent-to-Permanently-Deprive Element

    The final element of larceny is that the defendant must remove property with the intent to permanently deprive the owner of their interest in the property. Thus, if someone takes an item to borrow it, and plans to return it, they cannot be guilty of larceny. Similarly, a defendant who mistakenly takes an item is not guilty of larceny. This element gets a bit confusing, but again, an example may help.

    Going back to our previous example, assume that John decides to get his post hole digger back from Perry. John calls Perry, but he is not home. John decides to go into Perry’s garage to grab the tool. As it turns out, Perry was so enamored with the tool that he went to the hardware store and purchased an identical one for himself. Thus, when John enters Perry’s garage, he sees two post hole diggers. John mistakenly grabs the wrong one. Here, John cannot be guilty of larceny because he reasonably believed that he owned the property and lacked the intent to permanently deprive Perry of his ownership interest in the tool.

    Larceny Is a Specific Intent Crime

    The final element illustrates that larceny is a crime of specific intent. This means that a person can be found guilty only if they intended to commit larceny. Thus, the following could not be the basis for a larceny offense:

    • A defendant who took the property with the honest belief they had permission;
    • A defendant who took the property with the honest belief that the item belonged to them;
    • A defendant who took the property with the intent to return it to its rightful owner;
    • A defendant who inadvertently took another’s property without knowing it; and
    • A defendant who took property that they reasonably believed was abandoned.

    Of course, to establish that any of these situations apply, the defendant may need to testify to explain the mistake or their intent.

    Have You Been Arrested for a New Mexico Larceny Offense?

    If you have recently been arrested and charged with a New Mexico theft crime, such as larceny, reach out to the dedicated criminal defense legal practitioners at the New Mexico Criminal Law Offices. At our firm, we aggressively defend the rights of our clients, relying on decades of hands-on criminal law experience. We recognize that having pending criminal charges hanging over your head is incredibly stressful, and we can create a compelling defense to even the most challenging cases. To learn more, give us a call or connect with us through our online form.