Lund v. Commonwealth

Citation: Lund v. Commonwealth, 217 Va. 688, 232 S.E.2d 745 (1977).

Factual Background
Defendant was a graduate student at the Virginia Polytechnic Institute and State University. His faculty advisor required the use of computer operation time and services of the computer center personnel at the University. The faculty advisor neglected to arrange for defendant’s use of the computer but defendant used it without obtaining the proper authorization. Defendant came under surveillance on October 12, 1974, because of complaints from various departments that unauthorized charges were being made to one or more of their accounts.

Defendant was charged in an indictment with the theft of keys, computer cards, computer printouts, and using "without authority computer operation time and services of at the University with intent to defraud, such property and services having a value of $100 or more." Defendant was convicted of grand larceny.

The defendant appealed alleging there was (1) no evidence that the articles were stolen or that they had a value of $100 or more, and (2) computer time and services are not the subject of larceny under the provisions Code § 18.1-100 or 18.1-118.

State Supreme Court Proceedings
Va. Code § 18.1-100 or 18.1-118 provides "any person who commits larceny from the person of another money or other thing of value of five dollars or more or commits simple larceny not from the person of another of goods and chattels of the value of one hundred dollars or more, shall be deemed guilty of grand larceny."

The court held that the defendant, who used time and services of computer center personnel without obtaining proper authorization, could not be convicted of grand larceny of keys and computer cards found in his possession because there was no evidence those articles were stolen or had a market value of $100 or more. For one to be guilty of crime of larceny by false pretense, he must make a false representation of an existing fact with knowledge of its falsity and, on that basis, obtain from another person money or other property which may be the subject of larceny, with the intent to defraud. Larceny is the taking and carrying away of the goods and chattels of another, with intent to deprive the owner of the possession thereof permanently. The phrase "goods and chattels" cannot be interpreted to include computer time and service without obtaining proper authorization.

In the absence of a clearly expressed legislative intent, labor or services cannot be the subject of the statutory crime of larceny by false pretense. The unauthorized use of the computer is not the subject of larceny. Larceny refers to a taking and carrying away of a certain concrete article of personal property.

Where there is no market value of an article that has been stolen, the better rule is that its actual value should be value. The cost of producing the print-outs is not the proper criterion of value. Although the print-outs had no monetary value to the University, they had value to the defendant. Therefore, the judgment of the trial court is reversed and the indictment is quashed.