Introduction

Model Penal Code Theft

Introduction

The jeweler's two versions of the same loss show how the common law broke one wrong into separate crimes whose labels turned on technical facts. Larceny required a trespassory taking and carrying away of another's property, and the intent to steal had to exist when the taking occurred.¹ False pretenses, by contrast, required that the owner be tricked into passing title, so the charge depended on whether the jeweler meant to give up possession only or ownership as well. Embezzlement (conversion by someone already lawfully holding the property), extortion (obtaining property by threat), and receiving stolen property (acquiring goods known to be stolen) rounded out the list, each with its own elements. The categories also strained at their edges. A person who takes property meaning only to borrow it and later decides to keep it lacks the intent to steal at the moment of the taking, so courts invented the fiction of continuing trespass, which treats the wrongful taking as renewed for as long as the taker keeps the property.²

Article 223 of the Model Penal Code removes the need to choose among those labels. Section 223.1(1) gathers larceny, embezzlement, false pretenses, receiving stolen property, and extortion into one offense called theft, and the sections that follow organize the ways of committing that offense by how the actor comes to hold or control the owner's property.³ Section 223.2 covers the actor who takes or controls the property, which includes what was formerly larceny and embezzlement; § 223.3 covers the actor who obtains it by deception, formerly false pretenses and larceny by trick; § 223.4 covers the actor who obtains it by threat, formerly blackmail or extortion; and § 223.6 covers the actor who receives property already stolen, a route this chapter leaves to its own reading.⁴ On that map the jeweler's customer commits theft by deception on either set of facts, so the line between possession and title no longer decides the charge. The merger is defensible because each of these crimes is a way of misappropriating another's property, and the separate labels gave defendants an opening. Police who find someone holding recently stolen goods often cannot tell whether that person stole them or received them from the thief, so a defendant charged with larceny could claim to have received the goods, and one charged with receiving could claim to have stolen them.⁵

This chapter follows the Code's own map. After the consolidation rule, it takes up § 223.2(1), which reaches an actor who "unlawfully takes, or exercises unlawful control over" movable property of another with purpose to deprive, and § 223.2(2), which applies a parallel rule to transfers of immovable property.⁶ Theft by deception and theft by extortion follow, each with its own ways of committing the offense. Two further sets of rules then apply to every route. The first is the claim-of-right defense of § 223.1(3), under which an actor who believes the property belongs to the actor, or that the actor has a legal right to take it, lacks the intent to steal.⁷ The second is the grading scheme of § 223.1(2), which sets the seriousness of the offense by the amount involved and by the kind of property or manner of taking.⁸ Both sit in § 223.1 beside the consolidation rule, because that section collects the provisions that apply to theft generally.⁹ Robbery, which endangers a person as well as property, is a separate offense and falls outside this lesson.¹⁰ The first body section therefore teaches the consolidation rule, since every route described above depends on it.