OUJI-CR 5-92


The defendant is charged with:

[grand/petit larceny]

[grand larceny in (a dwelling/vessel)/(the nighttime)]

[larceny of domestic animals/fowls]

[larceny of an automotive driven vehicle]

[larceny from a house]

[grand/petit larceny of (oil products)/merchandise]

[entering with the intent to steal copper]

of [Description of Property Allegedly Stolen] in the possession of [Name of Possessor] on [Date] in [Name of County] County, Oklahoma.

Committee Comments

The above instruction is meant for use with reference to the more common crimes listed in Chapter 68 of Title 21 entitled Larceny. It presents the relevant facts normally detailed in the information. The instructions for receiving or concealing stolen property, section 1713, are included later in this chapter.

Section 1702 does not create a separate crime but simply indicates a factual situation which establishes the crime of larceny as defined by section 1701. Berry v. State, 4 Okl. Cr. 202, 111 P. 676 (1910).

Sections 1705, 1706, and 1724 are statutes setting forth the punishment for grand larceny, petit larceny, and larceny from the house.

Sections 1709, 1710 and 1711 provide definitions of value for written instruments, passenger tickets, and securities not yet issued. These sections are meant to clarify the early common law, which had difficulty in assigning a value to written instruments. If an item did not have value at common law, the item could not be personal property. The definitions of value given by these sections therefore insure that written instruments, passenger tickets, and securities not yet issued can be subject to larceny. Written instruments, passenger tickets, and securities not yet issued are also made personal property subject to larceny by the definition of personal property given in 21 O.S. 1991, § 103. State v. McCray, 15 Okl. Cr. 374, 177 P. 127 (1919).

Section 1712 resolves a problem presented by the common law decisions with regard to fixtures or parts of realty. At common law, theft of timber, for example, is not larceny because the timber has never been personal property in the possession of the owner or tenant. Section 1712 makes it clear that a person who cuts the timber and carries it away has committed larceny, because section 1712 defines severed timber as personal property. Similarly, sections 1717 and 1718 make dogs personal property. At common law, certain base animals such as dogs and cats are not considered personal property.

One final question is presented by section 1732 concerning larceny of trade secrets. At common law, trade secrets are not personal property subject to larceny because a trade secret is considered an intangible idea or plan. Commonwealth v. Engleman, 336 Mass. 66, 142 N.E.2d 406 (1957). It is the opinion of the Commission, however, that section 1732 does not create a separate crime, larceny of trade secrets, but simply clarifies the meaning of personal property as given by 21 O.S. 1991, § 103. Hence, the element instructions on grand and petit larceny encompass larceny of trade secrets. Cf. ABC Coating Co. v. J. Harris & Sons Ltd., 747 P.2d 271, 273 n.8 (Okla. 1987) ("criminal penalty for larceny of personal property also applies to larceny of trade secrets").