The Title is Affeer’d: Larceny or False Pretenses?

The perpetrators in State v. White, No. COA22-369, 2023 WL 3471116 (N.C. Ct. App. May 16, 2023), wrongfully obtained merchandise from a Walmart by purchasing an $89 child’s car seat box which they had surreptitiously filled with nearly $10,000 worth of electronics.  The defendant was convicted of larceny, conspiracy to commit larceny, and obtaining property by false pretenses, and appealed, arguing the trial court erred in allowing convictions for both larceny and false pretenses.  The Court of Appeals disagreed, saying “the crimes of larceny and obtaining property by false pretenses are not mutually exclusive.”  White, 2023 WL 3471116, at *5.  Ultimately, it held that there was sufficient evidence to support both charges and that the trial court did not err by instructing on both.  Id.  This post examines the difference between larceny and false pretenses to determine when a defendant may be convicted of both offenses based on a single transaction.

A Brief History of Larceny

“Larceny is the wrongful taking and carrying away of the personal property of another without his consent and with the intent to permanently deprive the owner thereof.”  State v. Green, 310 N.C. 466, 468 (1984).  It is a common law offense, requiring a misappropriation by trespass.  See State v. Weaver, 359 N.C. 246, 256, 607 S.E.2d 599, 605 (2005).  Originally, this meant an actual taking by violence or stealth, and the common law was slow to recognize a fraudulent taking as sufficient.  Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 304 (3rd ed. 1982).  Eventually, the courts acknowledged a constructive trespass in possession obtained by trick or artifice.  Id.; see also State v. Jones, 369 N.C. 631, 634, 800 S.E.2d 54, 57 (2017).  By then, however, it had become well-established that obtaining title by cheating was not larceny.  Perkins, Criminal Law, 307-08.  Hence, if the fraud induces the owner to part with title as well as possession, the wrongdoer is not guilty of larceny.

The crime of false pretenses came about as a legislative attempt to fill this gap in the law of larceny.  Perkins, Criminal Law, 364.  Accordingly, false pretenses requires transfer of title, and whether title to property delivered to the defendant passes to him usually depends on whether the victim intends to transfer title.  Wayne R. LaFave, 3 Substantive Criminal Law, § 19.7(d) (3rd. ed. 2018).  The original English statute was adopted in 1757, and it is still cited in the History note to our current statute.  See N.C.G.S. § 14-100 (citing 30 Geo. II, c. 24. s. 1).  Under Section 14-100, if any person shall, by means of any kind of false pretense whatsoever, obtain or attempt to obtain any money, goods, property, etc., with intent to cheat or defraud, such person shall be guilty of a felony.  The same statute provides, however,

that if, on the trial of anyone indicted for such crime, it shall be proved that he obtained the property in such manner as to amount to larceny or embezzlement, the jury shall have submitted to them such other felony proved; and no person tried for such felony shall be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts:

N.C.G.S. § 14-100.  Apparently recognizing the complexity in the existing categories, our General Assembly thus allowed the trial court some leeway in submitting whichever of these crimes the evidence tends to support and precluded the retrial of one already prosecuted for the transaction.

Mutually Exclusive Offenses

Verdicts are mutually exclusive when they purport to establish the defendant is guilty of two separate and distinct criminal offenses, the nature of which is such that guilt of one necessarily excludes guilt of the other.  State v. Mumford, 364 N.C. 394, 400, 699 S.E.2d 911, 915 (2010).

In State v. Speckman, 326 N.C. 576, 578, 391 S.E.2d 165, 167 (1990), our Supreme Court held that a defendant may not be convicted of both embezzlement (i.e., conversion of property by one to whom it has been entrusted) and false pretenses arising from the same act or transaction, due to the mutually exclusive nature of those offenses.  Embezzlement, our Supreme Court explained, requires the property be acquired lawfully, pursuant to a trust relationship; whereas false pretenses requires the property be acquired unlawfully at the outset.  Id. at 578, 391 S.E.2d at 166. “[S]ince property cannot be obtained simultaneously pursuant to both lawful and unlawful means, guilt of either embezzlement or false pretenses necessarily excludes guilt of the other.”  Id. at 578, 391 S.E.2d at 167.  If the evidence is conflicting (and so warrants submission of both to the jury), a defendant is entitled to an instruction that he may not be convicted of both.  Id. at 579, 391 S.E.2d at 167.

Regarding embezzlement and larceny, “North Carolina courts have remained respectful of the separate and distinct nature of these crimes[.]”  Weaver, 359 N.C. at 256, 607 S.E.2d at 605.  As for larceny and false pretenses, the offenses have been distinguished on grounds other than whether title to the property passed.  Still, a single larceny is committed when a perpetrator steals several items at the same time, and this “single taking rule” has been applied to obtaining property by false pretenses.  See State v. Buchanan, 262 N.C. App. 303, 306, 821 S.E.2d 890, 892 (2018).

In State v. Walston, 67 N.C. App. 110, 116, 312 S.E.2d 676, 680 (1984), our Court of Appeals upheld a conviction for false pretenses when the defendant rented a typewriter for five dollars and failed to return it in an hour as promised.  On appeal the defendant argued the trial court erred by failing to instruct the jury that transfer of title is a requirement for false pretenses.  Id. at 113, 312 S.E.2d at 679.  Acknowledging that the common law recognized “fine distinctions” between the offenses of larceny, false pretenses, and embezzlement, the Court of Appeals nevertheless found no reference in Section 14-100 to transfer of title and declared that “transfer of title is not a necessary element of the offense of obtaining property by false pretenses.”  Id. at 115, 312 S.E.2d at 680.  The trial court therefore did not err by denying the requested instruction and, for the same reason, the evidence was sufficient without any showing of transfer of title.  Id.

In State v. Kelly, 75 N.C. App. 461, 464, 331 S.E.2d 227, 230 (1985), our Court of Appeals upheld a conviction for false pretenses when the defendant’s wife acquired a car upon the defendant’s representation that she intended to give it a test drive, and she never brought it back.  Rejecting the defendant’s double jeopardy argument, it distinguished larceny and false pretenses by explaining that larceny requires a nonconsensual taking, whereas false pretenses requires a false representation.  Id. at 463, 331 S.E.2d at 229.  As in Walston, the Court of Appeals in Kelly found no indication that Section 14-100 prescribed or implied passage of title as a requisite element of the offense.  Id. at 464, 331 S.E.2d at 230.  As for the defendant’s argument that the trial court erred by failing to instruct the jury on larceny, the Court of Appeals found no evidence that the defendant obtained the car without the owner’s consent.  Id. at 465, 331 S.E.2d at 231.

State v. White

In White, the perpetrators emptied an $89 child’s car seat box inside a Walmart and filled the box with about $10,000 worth of electronics.  They purchased the car seat box at a self-checkout kiosk, loaded the box into a car, and departed.  Employees found the nearly empty electronics display case the next morning, and called the police, who obtained surveillance video.  The defendant was charged and convicted of felony larceny, conspiracy to commit larceny, and obtaining property by false pretenses.

Upon review, our Court of Appeals cited Kelly for the proposition that larceny and false pretenses are separate and distinguishable offenses.  White, 2023 WL 3471116 at *3.  It found no violation of the “single taking rule,” cabining that doctrine to cases where a defendant is charged with multiple counts of larceny or multiple counts of false pretenses but not both.  Id. at *4.  And since the crimes have disparate elements, they were not mutually exclusive offenses, and there was no violation of the statutory provision in Section 14-100 precluding liability for both.  Id. at *5.


The Court of Appeals may be right.  If, as it said in Walston and Kelly, transfer of title is not required for false pretenses under Section 14-100, then there is no longer any meaningful distinction in North Carolina between larceny by trick and false pretenses.  Under common law categories, the taking in White would be properly characterized as larceny, not false pretenses, as the perpetrators acquired possession but not title to the stolen goods.  Indeed, Walmart could not have intended to transfer title to the electronics concealed by the perpetrators in other packaging. If such a fraudulent purchase amounts to both larceny and false pretenses, this could arise only by virtue of a legislative abrogation of the common law distinction between the offenses.

The same conduct may, of course, constitute more than one offense, and the legislature could certainly have intended Section 14-100 to subsume the common law crime of larceny.  This seems unlikely, however, in view of the provision that allows the trial court to submit to the jury the charge best supported by the evidence, whether false pretenses, larceny, or embezzlement.  Further, the provision barring a defendant tried for false pretenses from being liable to subsequent prosecution for larceny or embezzlement upon the same facts seems intended to maintain the distinction and preclude conviction for both based on the same conduct.  See N.C.G.S. § 14‑100.

In any event, the test for mutual exclusivity cannot depend on whether the offenses contain disparate elements.  Indeed, embezzlement (requiring a trust relationship) and false pretenses (requiring a false representation) are not the same offense for purposes of double jeopardy, and yet a conviction for both based on the same transaction cannot stand.  See Speckman, 326 N.C. at 578, 391 S.E.2d at 167.  Under the common law categories, larceny and false pretenses are mutually exclusive: as title to the misappropriated goods either passes or it does not.  If the crimes are not mutually exclusive under Section 14-100, that is only because they are now indistinguishable.

At the same time, White should not be read as carte blanch to charge every theft offense as both larceny and false pretenses.  It is only when the taking is accompanied by a contemporaneous intent to steal and accomplished by means of an intentional misrepresentation that the crime could conceivably fall into both categories.  Our Supreme Court has retained the common law distinction between larceny and embezzlement – one that does not readily appear from a cursory comparison of the elements – and the practical prosecutor should be aware of the origin and purpose of false pretenses, even if passage of title is no longer its defining feature.  As noted by Perkins, “[m]iscarriage of justice has resulted in many a case because the prosecuting attorney made a wrong guess as to just what type of misappropriation would be shown when all the evidence was before the jury.”  Perkins, Criminal Law, 291.