OUJI-CR 5-97

LARCENY FROM THE HOUSE - ELEMENTS

No person may be convicted of larceny from the house unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, unlawful;

Second, entry;

Third, taking;

Fourth, carrying away;

Fifth, personal property;

Sixth, of another;

Seventh, from a house/(railroad car)/tent/booth/(temporary building);

Eighth, by fraud/stealth;

Ninth, with the intent to deprive permanently.

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Statutory Authority: 21 O.S. 1991, § 1723.

Committee Comments

This crime contains two concepts: entry and theft. It is apparently meant to cover the situation in which the accused has stolen property from a house but cannot be convicted of burglary because no evidence of breaking exists. See Grandbury v. State, 64 Okl. Cr. 408, 81 P.2d 874 (1938). Although the accused could be convicted of larceny, the Legislature evidently decided that the entry deserved a felony penalty regardless of the value of the property taken. This statute does not apply to the situation wherein the person lawfully enters a house and then decides to steal property. The entry must be an unlawful or trespassory entry. Ex parte Wright, 73 Okl. Cr. 167, 119 P.2d 97 (1941). Nor does this statute apply to the situation wherein a person unlawfully enters with the intent to steal, but leaves without stealing. Potts v. State, 72 Okl. Cr. 91, 113 P.2d 839 (1941).

Although the language used in section 1723 differs from the language used in the general larceny statutes, the Commission is of the opinion that the Legislature intended that section 1723 be interpreted like the general larceny statutes in regard to the theft concept. Thus, the elements for larceny from the house are generally identical to the elements of petit larceny, with the additional elements of entry and the specified structures in which the larceny is committed. Gransbury, supra, supports the conclusion of the Commission in dicta. See also Edgmon v. State, 485 P.2d 774 (Okl. Cr. 1971).

Compare the crime created by 21 O.S. 1991, § 1723, with the crime created by 21 O.S. 1991, § 1438(A), discussed in the Committee Comments after OUJI-CR 5-16.