Instruction 8.520, Criminal Model Jury Instructions for Use in the District Court

LARCENY BY STEALING

G.L. c. 266, § 30

The defendant is charged with larceny by stealing. In order to

prove the defendant guilty of this offense, the Commonwealth must

prove the following three things beyond a reasonable doubt.

First: That the defendant took and carried away property;

Second: That the property was owned or possessed by

someone other than the defendant; and

Third: That the defendant did so with the intent to deprive that

person of the property permanently.

G.L. c. 277, § 39. Commonwealth v. Donovan, 395 Mass. 20, 25-26 (1985);

Commonwealth v. Johnson, 379 Mass. 177, 181 (1979).

SUPPLEMENTAL INSTRUCTIONS

1. “Took and carried away.” “Taking and carrying away” was

accomplished if the defendant physically transferred the

property from the other person’s control to his (her) own. It

does not matter if the transfer involved only slight movement,

or if it lasted only for a short time.

Commonwealth v. Fielding, 371 Mass. 97, 117 (1976) (any separation of property from

victim’s dominion, even if brief in space and time, sufficient); Commonwealth v. Salerno,

356 Mass. 642, 648 (1970) (taking can be proved by circumstantial evidence);

Commonwealth v. Luckis, 99 Mass. 431, 433 (1868) (wallet need not be removed from

victim’s pocket, but defendant “must for an instant at least have had perfect control of

the property”); Commonwealth v. Stephens, 14 Mass. App. Ct. 994, 994-95 (1982)

(sufficient that victim put property in bag on defendant’s orders, though defendant never

touched it); Commonwealth v. Bradley, 2 Mass. App. Ct. 804, 805 (1974) (momentary

transfer sufficient); Commonwealth v. Flowers, 1 Mass. App. Ct. 415, 418-419 (1973)

(transfer of property from victim’s control to thief’s sufficient, since literal “carrying away”

not required; transfer may be through agent or victim).

2. “Property.” The term “property” includes (money)

(movable items of personal property) (bank notes) (public

records) (anything that is part of or attached to real estate)

(apartment security deposits) (electronically processed or

stored data, either tangible or intangible) (domesticated

animals, including dogs, birds and other animals ordinarily

kept in confinement).

This is only a partial list. See G.L. c. 266, § 30(2) for the complete list of items, in

addition to those at common law, that may be the subject of larceny. See also

Commonwealth v. Youraski, 384 Mass. 386, 388 (1981) (intellectual property, such as

taped performance, not subject to larceny statute); Commonwealth v. Beckett, 373

Mass. 329, 341-43 (1977) (intent to commit larceny from welfare department inferable

from circumstances).

3. “Of another.” The Commonwealth must prove that the

property was owned or possessed by a person other than the

defendant. This can be proved by direct evidence that

someone else owned or possessed the property. Or, in some

cases, it may be reasonable for you to infer this from the

surrounding circumstances. The Commonwealth is not

required to prove who owned or held the property, as long as

it proves that the defendant did not.

G.L. c. 277, § 25 (identity of owner need not be alleged if property described with

sufficient certainty); G.L. c. 278, § 9 (“owner” includes anyone in actual or constructive

possession). Commonwealth v. Souza, 397 Mass. 236, 238-39 (1986) (identity of

owner need not be proved, only that it was not defendant; because of G.L. c. 277, § 35,

misnomer of owner is immaterial if defendant not misled); Commonwealth v. Kiernan,

348 Mass. 29, 50-51 (1964), cert. denied sub nom. Gordon v. Mass., 380 U.S. 913

(1965) (“owner” includes anyone with a possessory or property interest);

Commonwealth v. Binkiewicz, 342 Mass. 740, 748 (1961) (because of G.L. c. 278, § 9,

complaint about “the property of x” in effect reads “the property of x, or of another but

in x’s actual or constructive possession”; driver with shared dominion over auto

registered in spouse’s name is “owner”); Commonwealth v. Finn, 108 Mass. 466, 467

(1871) (one may steal from thief); Commonwealth v. Sullivan, 104 Mass. 552, 554-55

(1870) (person who orders goods is in constructive possession of them once delivered

to a common carrier, absent a shipping agreement to the contrary); Commonwealth v.

Arrance, 5 Allen 517, 517-518 (1862) (because of G.L. c. 278, § 9, permissible to allege

and prove only one co-owner); Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 328

(2002) (“Direct proof of ownership, although preferable, is not essential. . . .”).

4. Intent to Deprive Permanently. The Commonwealth must

prove that the defendant intended to deprive the owner of the

property permanently. This may be proved by direct evidence

or by inference from the surrounding circumstances. For

example, if a person takes the property of another and

disposes of it with utter indifference to whether the owner

recovers its possession, you might infer from that an intent to

deprive the owner of it permanently.

See Instruction 3.120 (Intent).

Salerno, supra; Commonwealth v. Cabot, 241 Mass. 131, 141-143 (1922);

Commonwealth v. Olivera, 48 Mass. App. Ct. 907, 909 (1999) (difference between

larceny of motor vehicle and use without authority is intent to deprive permanently; the

latter assumes returning stolen vehicle to its owner or abandoning it where it might be

recovered); Commonwealth v. Moore, 36 Mass. App. Ct. 455, 456-57 (1994);

Commonwealth v. Coyle, 17 Mass. App. Ct. 982, 984 (1984); Commonwealth v.

Ellison, 5 Mass. App. Ct. 862, 862-63 (1977) (intent to make restitution later is not a

defense).

5. Larceny over $1,200. If you determine that the

Commonwealth has proved beyond a reasonable doubt that

the defendant is guilty of larceny, you must also go on to

determine whether (if more than one item stolen: all) the property that

was stolen was worth more than $1,200. You may use your

general knowledge in evaluating the value of a piece of

property; it is not required that you have any expert evidence

of its value.

So if your verdict is guilty, you must also indicate on

your verdict slip whether or not the Commonwealth has also

proved beyond a reasonable doubt that the property was

worth more than $1,200.

For a sample verdict slip, see the appendix (Instruction 8.521).

Effective April 13, 2018, G. L. c. 266, § 30(1) makes the offense a felony “if the property

stolen is a firearm. . . or if the value of the property stolen exceeds $1,200. . . .” St.

2018, c. 69, §§ 136-138. For offenses committed prior to April 13, 2018, this instruction

can be utilized, but $250 should be inserted wherever it refers to $1,200. The

supplemental instruction may be appropriately adapted if the theft is of a firearm.

Commonwealth v. Kelly, 24 Mass. App. Ct. 181, 183-186 & n.4 (1987), held that,

whether or not the value of the property stolen is alleged in the complaint, “the judge

should instruct the jury that if they convict, they must determine by their verdict whether

the value did or did not exceed [$1,200] so that the judge will know what range of

punishments is available. Otherwise the judge will be required to sentence as if the

value did not exceed” $1,200. Kelly also indicated that the value of the stolen property

need not be alleged in the complaint, since “the value of the property. . . is an element

of the punishment but not an element of the offense of larceny. . . .” Compare

Commonwealth v. Pyburn, 26 Mass. App. Ct. 967, 968-70 (1988) (in prosecution for

wanton destruction of property under G.L. c. 266, § 127, “if there is an allegation in a

complaint. . . that the value of the property so destroyed or injured exceeded” $1,200

then jury must determine that issue, but instruction need not present that factor as an

essential element of the offense since it is not such) with Commonwealth v. Beale, 434

Mass. 1024, 1025 & n.2 (2001) (“the value of the property must be treated as an

element of the felony of malicious destruction of property” but “the focus of the

constitutional inquiry is not a formalistic examination of whether a finding is labeled an

‘element’ or a ‘sentencing factor,’ but whether the finding is made by a jury on proof

beyond a reasonable doubt”). See also Commonwealth v. Harrington, 130 Mass. 35,

36 (1880) (statutory attempt to dispense with need to charge that crime is subsequent

offense, where an element of enhanced sentencing, violated art. 12 of Massachusetts

Declaration of Rights).

The jury may use its common knowledge, and does not require expert evidence, in

evaluating value. Commonwealth v. Hosman, 257 Mass. 379, 386 (1926);

Commonwealth v. McCann, 16 Mass. App. Ct. 990, 991 (1983).

6. Single Scheme. The complaint in this case charges the

defendant with stealing property between two dates pursuant

to a single scheme. Therefore, in addition to the three

elements of larceny that I have just instructed you about, the

Commonwealth must also prove beyond a reasonable doubt

that during that period of time the defendant acted out of a

single, continuing intent to steal; that even though time

elapsed between incidents, they were not separately

motivated but were part of one general scheme or plan to

steal.

If total value is relevant to evidence: If this is proved beyond a

reasonable doubt, you may consider the total value of all

property obtained on all of those occasions cumulatively in

deciding whether the value of the property stolen was in

excess of $1,200.

Commonwealth v. John G. Grant & Sons Co., 403 Mass. 151, 157 (1988) (statutory

language making each day of a continuing violation a separate offense prevents

charging as single, continuous offense); Commonwealth v. Murray, 401 Mass. 771

(1988) (where several acts of a defendant are involved, successive takings in a single,

continuing larcenous scheme may, but need not, be charged as a single scheme);

Commonwealth v. England, 350 Mass. 83, 86- 87 (1966) (value of successive larcenies

in single scheme may aggregate to grand larceny); Commonwealth v. Stasiun, 349

Mass. 38, 45 (1965) (same); Commonwealth v. Peretz, 212 Mass. 253, 254 (1912)

(same); Pimental, 54 Mass. App. Ct. at 329 (same); Slater v. United States Fidelity &

Guar. Co., 7 Mass. App. Ct. 281, 285 (1979), rev’d on other grounds, 379 Mass. 801

(1980) (same); Donovan, 395 Mass. at 27-31 (where a single act of a defendant is

involved, successive takings in a single, continuing larcenous scheme must be charged

as a single offense); Commonwealth v. Pina, 1 Mass. App. Ct. 411, 412 n.2 (1973).

Compare G.L. c. 277, § 32 (charging a continuing offense); Sullivan, 104 Mass. at 553

(distinct larcenies may be presented in multiple counts; stealing at one time of articles

belonging to several owners may be charged either as one larceny or as distinct

larcenies). But see Commonwealth v. Donovan, 395 Mass. 20, 29 (1985) (only one

count of larceny, not seven, where defendant mounted imitation deposit lock box over

the real one at a bank, obtaining seven bank deposits from different depositors). See

also Commonwealth v. Baldwin, 52 Mass. App. Ct. 404, 407 (2001) (Donovan

inapplicable where circumstances involve more than one discrete offense, such that

different property is taken at different times and from different locations).

7. Claim of right. If the defendant took another person’s

property in an honest belief that he (she) (another person on

whose behalf he [she] was acting) had a legal right to it, then

you must find the defendant not guilty, even if that belief was

in fact mistaken. You may consider all of the evidence in the

case and any reasonable inferences you choose to draw from

that evidence in making that determination.

Commonwealth v. Garrity, 43 Mass. App. Ct. 349, 358 n.7 (1997); Commonwealth v.

Larmey, 14 Mass. App. Ct. 281, 283-85 (1982); Commonwealth v. Anslono, 9 Mass.

App. Ct. 867, 868 (1980); Ellison, supra; Commonwealth v. White, 5 Mass. App. Ct.

483, 485-88 (1977).

8. Abandoned Property The defendant has asserted that he (she)

honestly believed the property at issue had been abandoned.

Property is abandoned if the person who owned or possessed the

property has intentionally relinquished, surrendered, or given up their

right to or interest in the property.

In these circumstances, the Commonwealth must prove beyond

a reasonable doubt both the elements of the offense and that the

defendant did not honestly believe the property was abandoned. You

may consider all of the evidence in the case and any reasonable

inferences you choose to draw from that evidence in making that

determination.