Comparison with embezzlement
Embezzlement differs from larceny in two ways. First, in embezzlement, an actual conversion must occur; second, the original taking must not be trespassory. To say that the taking was not trespassory is to say that the person(s) performing the embezzlement had the right to possess, use, and/or access the assets in question, and that such person(s) subsequently secreted and converted the assets for an unintended and/or unsanctioned use. Conversion requires that the secretion interferes with the property, rather than just relocate it. As in larceny, the measure is not the gain to the embezzler, but the loss to the asset stakeholders. An example of conversion is when a person logs checks in a check register or transaction log as being used for one specific purpose and then explicitly uses the funds from the checking account for another and completely different purpose. It is important to make clear that embezzlement is not always a form of theft or an act of stealing, since those definitions specifically deal with taking something that does not belong to the perpetrator(s). Instead, embezzlement is, more generically, an act of deceitfully secreting assets by one or more persons that have been entrusted with such assets. The person(s) entrusted with such assets may or may not have an ownership stake in such assets.
In the case where it is a form of theft, distinguishing between embezzlement and larceny can be tricky. Making the distinction is particularly difficult when dealing with misappropriations of property by employees. To prove embezzlement, the state must show that the employee had possession of the goods "by virtue of her employment"; that is, that the employee had the authority to exercise substantial control over the goods. Typically, in determining whether the employee had sufficient control the courts will look at factors such as the job title, job description and the particular employment practices. For example, the manager of a shoe department at a store would likely have sufficient control over the shoes that if she converted the goods to her own use she would be guilty of embezzlement. On the other hand, if the same employee were to steal cosmetics from the cosmetic counter, so long as they did not convert the product, the crime would not be embezzlement but larceny. For a case that exemplifies the difficulty of distinguishing larceny and embezzlement see State v. Weaver, 359 N.C. 246; 607 S.E.2d 599 (2005).
Using confidence tricks (deception) to get possession of property is larceny.
Larceny by trick is descriptive of the method used to obtain possession. The concept arose from Pear's Case decided in 1779. The issue was whether a person who had fraudulently obtained possession of personal property (a horse) could be convicted of larceny. The chief impediment to conviction was the doctrine of possessorial immunity which said that a person who had acquired possession lawfully, that is with the consent of the owner, could not be prosecuted for larceny. Clearly the owner of the horse had given the defendant possession of the animal – he had agreed that the defendant could borrow the horse to ride to Surrey. The case would seem to have been cut and dried – the doctrine of possessorial immunity applied and the defendant was therefore not guilty of larceny. The court held that consent induced by fraud was not consent in the eyes of the law. The fraudulent act that induced the owner to transfer possession "vitiated" the consent. This concept of consent broadened the scope of larceny. Before, consent meant the voluntary relinquishment of possession and thus property was wrongfully taken only if the defendant acquired possession by stealth, force or threat of force.
An employee is generally presumed to have custody rather than possession of property of his employer used during his employment. Thus the misappropriation would be larceny. However, officers, managers and employees who have significant authority over the disposition or use of the employer's property have possession rather than custody and the misappropriation of the property would likely be embezzlement rather than larceny. Determining whether an employee has custody or possession can be difficult. A careful examination of the employee's duties and responsibilities, his authority over the property and the actual business practices is required.
If a third party transfers possession of property to an employee for delivery to his employer, the employee has possession of the property and his conversion of the property would be embezzlement rather than larceny. For example, if a customer of a bank delivers money to a teller to deposit in the customer's account, the teller had possession of the property and his misappropriation would be embezzlement rather than larceny. However, once the teller transfers possession of the money to his employer, by placing the money in the till for example, the subsequent taking would be larceny rather than embezzlement. This rule does not apply if the teller intending to steal the property places the money in the till merely as a temporary repository or to hide his peculation.
Thievery may well involve many items of personal property stolen from multiple victims. Questions arise as to whether such situations are to be treated as one large theft or multiple small ones. The answer depends on the circumstances. If a thief steals multiple items from one victim during a single episode the courts doubtlessly would treat the act as one crime. The same result would obtain if the thief stole items from the same victim over a period of time on the grounds that the stealing was pursuant to a common scheme or plan. The effect would be that the state could aggregate the value of the various items taken in determining whether the crime was a felony or misdemeanor. Such a result would not always work to the criminal's detriment. Aggregation is also generally permitted when the thief steals property from multiple victims at the same time. For example, a thief steals "rims" from several cars parked in the same lot. On the other hand, aggregation is not permitted when a thief steals items from various victims at different times and places.
