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9.1-8 Larceny by Obtaining Property by False Promise -- § 53a-119 (3) and §§ 53a-122 through 53a-125b
Revised to April 23, 2010
Note: The degree of the larceny is determined by the value of the property stolen. See § 53a-122 (first degree); § 53a-123 (second degree); § 53a-124 (third degree); § 53a-125 (fourth degree); § 53a-125a (fifth degree); § 53a-125b (sixth degree). The dollar amounts for the degrees of larceny were increased as of October 1, 2009. See the table in Introduction to Larceny for the values in effect prior to that date.
The defendant is charged [in count __] with larceny by obtaining property by false promise in the (first / second / third / fourth / fifth / sixth) degree. The statute defining this offense reads in pertinent part as follows:
a person obtains property by false promise when, pursuant to a scheme to defraud, (he/she) obtains property of another by means of a representation, express or implied, that (he/she) or a third person will in the future engage in particular conduct, and when (he/she) does not intend to engage in such conduct or does not believe that the third person intends to engage in such conduct.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Obtained property
of another
The first element is that the
defendant obtained property from the property owner.
"Obtaining" property includes, but is not limited to, bringing about the transfer of a legal interest in the property from the owner to the defendant or to a third person. If the legal title or ownership of the property or some legal interest in the property is transferred, such a transfer would constitute "obtaining" under the statute. The property does not need to be physically obtained. If the owner delivered the property intending to transfer legal ownership or some legal interest in the property, sufficient transfer would have occurred.
"Property" includes any (money / personal property / real property / thing in action / evidence of debt or contract / article of value of any kind). [Commodities of a public utility, such as gas, electricity, steam and water also constitute property.]
"Owner" means not only the true or lawful owner, but any person who has a superior right to that of the offender.
Element 2 - By false promise
The second element is that the
defendant made a representation that (he/she) or some other person would in the
future engage in particular conduct. Not every prediction or statement about
the future will qualify as a promise under this definition. It must pertain to
something to be done in the future by the defendant or some other person. For
example, a prediction that it will be a nice day tomorrow would not be a promise
under the statute. However, a statement that the defendant or some third person
will pay money or confer some other benefit upon another person in return for
some transfer of property would be a promise under this definition.
The representation or promise may be made in writing, verbally, or by actions or conduct. It may be express, as where the words used contain all the terms of the promise. It may also be implied, as where a person in a restaurant is served food on the assumption that (he/she) will pay the bill, even though nothing is said specifically about payment at the time the order is taken.
Element 3 - Intent to defraud
The third element is that the
defendant intended to defraud <insert name of person>. In other words,
(he/she) must have intended to deceive, and by this deceit, to obtain the
property. <See
Intent to Defraud, Instruction 2.3-6.>
It is essential that the defendant had no honest intention of doing what (he/she) had promised [or no honest belief that the third person intended to keep the promise]. A reckless or foolish promise is not criminal unless there is no honest intention to keep it at the time the property is obtained. The fact that the promise was not carried out is not by itself sufficient evidence for you to determine that the defendant did not have the intention or belief that the promise would be carried out.
Element 4 - Value of the
property1
The fourth element is that the
property had a value that <insert as appropriate:>
First degree: exceeded $20,000.
Second degree: exceeded $10,000.
Third degree: exceeded $2,000.
Fourth degree: exceeded $1,000.
Fifth degree: exceeded $500.
Sixth degree: did not exceed $500.
<See Larceny, Instruction 9.1-1, for a full explanation of this element.>
Conclusion
In summary, the state must prove beyond a reasonable doubt that 1) the defendant wrongfully obtained the property of another, 2) (he/she) obtained the property by a false promise, 3) (he/she) intended to defraud the owner of the property, and 4) the value of the property obtained was <insert value according to degree charged>.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
larceny by obtaining property by false promise, then you shall find the
defendant guilty. On the other hand, if you unanimously find that the state has
failed to prove beyond a reasonable doubt any of the elements, you shall then
find the defendant not guilty.
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1
If the victim is over the age of sixty years, blind or physically disabled, it
is second degree larceny regardless of the value of the property. General
Statutes § 53a-123 (a) (5). See
Larceny of an Elderly, Blind, or Physically Disabled Person, Instruction
9.1-9.