Theft and Burglary

Theft

Derived from the old English word for thief, theft is a general term used to describe the many different forms of stealing. It is one of the oldest crimes known to humans.

The modern American law of theft still shows its English origins. Using a crude notion of stealing that covered only the most obvious and direct deprivations, [Page 1479]English law in the 1200s punished takings by force as robbery and takings of movable things by strangers as larceny. Addressing the typical thefts of a rural, agricultural society—the stealing of such things as cows, horses, and household items, larceny meant taking from the owner or rightful possessor without permission.

As commerce increased, important new kinds of theft evolved. By the late 1400s, trade often depended on wagon haulers—the truckers of the day. Thefts by carriers, however, did not fit the larceny definition. Because owners willingly entrusted their goods, carriers acquired possession without a trespass against the owners' interests. Ingeniously stretching the boundaries of larceny, the English judges in 1473 found a way to punish many thefts of this kind. A half century later, first the judges and then Parliament expanded larceny again—this time to cover thefts of things entrusted by masters to servants.

With the beginning of banking and the Industrial Revolution, development became more rapid. In the late 1600s and the 1700s, Parliament acted to impede receivers of stolen goods (1691 and later), to create the first general crime against fraud (false pretenses, 1757), and to combat embezzlement (1742 and later). Doing their part, the judges extended larceny to cover deceitful takings not involving transfers of title.

The law of theft developed incrementally over centuries as a series of separate crimes. Its patchwork character created many problems. Not only were the boundaries between the various crimes often arbitrary, but if charged with the wrong crime, defendants could not be convicted. Even if a later proceeding cured the difficulty, the problem cried out for reform. Consolidated theft statutes, building on 1860s English legislation, answered the call—making it possible to charge “theft” in general terms rather than perilously choosing from the specific theft crimes.

Although a step forward, the consolidated statutes still required proof of one of the basic theft crimes. In 1967, the American Law Institute recommended further integration. Its Model Penal Code sought to combine blackmail, extortion, and receiving stolen property as well as larceny, false pretenses, and embezzlement into a single, unitary crime. Breaking down the definitional walls even further is the English Theft Act of 1968.

The modern law of theft continues to change. Like the medieval law, it must respond to technological advances and new societal needs. Is electricity “property” within the meaning of larceny? Does the presentation of a stolen ATM card involve a false representation? How should one treat Internet or identity theft? Although courts often solve problems of this kind without new legislation, increasingly, legislatures seek solutions in new, highly particularized statutes.

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