PETIT LARCENY OF OIL PRODUCTS - ELEMENTS
No person may be convicted of petit larceny of oil products unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
Second, carrying away;
Third, oil products;
Fourth, of another;
Fifth, valued at less than $500;
Sixth, from a pipe/pipeline/tank/(tank car)/receptacle/container;
Seventh, by fraud/stealth;
Eighth, with the intent to deprive permanently.
Statutory Authority: 21 O.S. Supp. 2001, § 1722.
Although the language of the statute is somewhat different from the language of the general larceny statutes, the Commission has concluded that the elements of the crimes are identical, except that the property taken must be an oil product and must be taken from specified structures. Section 1722 uses the word "unlawfully," but the Commission interpreted the word to mean that the property was obtained without the consent of the owner/possessor. Hence, the word "unlawfully" should have the same definition as "by fraud or stealth." For the sake of consistency in language, the Commission has used "fraud or stealth," as opposed to "unlawfully," as an element of the instructions. Moreover, section 1722 uses the word "owner," but in light of decisions under other larceny statutes which speak in terms of "owner" but define "owner" to include possessors, the Commission has concluded that the person from whom the property is taken should be stated as "of another," not "of the owner." Thus, the crimes of section 1722 and sections 1701 and 1704 are substantially similar.
The prosecuting attorney is apparently permitted to elect to prosecute under either section 1722 or the general grand and petit larceny statutes. See Ex parte Scherer, 60 Okl. Cr. 195, 62 P.2d 660 (1936); Bingham v. State, 44 Okl. Cr. 258, 280 P. 636 (1929).