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Larceny (Theft) the Purview of Larceny Law (Lafave 2010)

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Larceny (Theft) the Purview of Larceny Law (Lafave 2010) (false pretenses, see below), were omitted from Larceny (Theft) the purview of larceny law (LaFave 2010). KIM D. CHANBONPIN The elements of the common law crime of larceny are: (1) taking, (2) and carrying away, (3) tangible personal property, (4) from the posses- Under the common law of England, larceny was sion of another, (5) with the specific intent to defined as the “wrongful or fraudulent taking and steal. Each of these elements will be described in carrying away, by any person, of the mere personal detail here. The first four elements relate to the goods of another, from any place, with a felonious actus reus of larceny. The fifth element relates to intent to convert them to his (the taker’s) own mens rea. use, and to make them his own property, without Taking: Because larceny protected an indi- the consent of the owner” (Bull 1886). Theft vidual’s right to possess an item, a taking was crimes that are prosecuted today still retain many unlawful only if it was “trespassory.” A taking, of the same elements as the common law crime of also known as “caption,” is trespassory if the larceny, but the doctrine has evolved in response criminal actor takes possession of the property to changing cultural values and new technologies. without the possessor’s consent or other lawful Larceny was considered a crime against the justification. person before it became a crime against property Carrying away: Carrying away is also known (Lee and Harris 2009). To fully understand the as “asportation.” This element is fulfilled by the doctrine, it is necessary first to survey the cultural assertion of control over and some movement and historical environment from which the crime of the item contrary to the possessory rights of of larceny emerged. Sources as ancient as the the owner. Any movement of the object in ques- Decalogue, the Qur’an, and the Bhagavad Gita tion will suffice, however slight. Special problems are consistent in their prohibition of the act of related to this element arise in the retail con- theft or stealing. In feudal England, however, text, where it is expected that customers will pick theft was not originally a crime against property up merchandise and move it around within a (Dressler 2007). English feudal society had not yet store. Common law jurisdictions in the United developed a notion of property dependent upon States take varying approaches to this question, an owner’s exclusive right to use and dispose of but the Model Penal Code has bypassed this issue a thing (Tigar 1984). It was interference with the by eliminating the asportation element, explain- right to possession, then, that was the hallmark of ing in commentary that if the actor has taken the original crime of larceny. control of the property, then slight movement is The common law judges sought to protect the a “criminologically insignificant fact” (American peaceful public order rather than to protect an Law Institute 1962). individual’s ownership interests with the crime of Tangible personal property: Under English com- larceny. If a thief were to openly commit an act mon law, only chattel property was subject to contrary to an individual’s lawful right of posses- larceny. In the twentieth century, the invention sion, it would likely lead to a disturbance of the of computers and the proliferation of informa- peace. The law of larceny was designed to pro- tion technology and other forms of intellectual tect against the violence that would likely erupt property created new opportunities for theft, and under these very specific circumstances (Steel lawmakers were prompted to update the defini- 2008). Under this precise rationale, instances in tion of property subject to larceny laws. Under which breaches of the peace were not imminent, modern criminal codes, nontangible and also cer- such as where the thief already had possession tain forms of real property are covered by theft of the property at the time of misappropria- offenses. Modern codes also distinguish between tion (embezzlement, see below) or where the grand and petit (“petty”) larceny, depending on property was obtained from the owner by lying the value of the property (LaFave 2010). The Encyclopedia of Criminology and Criminal Justice, First Edition. Edited by Jay S. Albanese. © 2014 John Wiley & Sons, Inc. Published 2014 by John Wiley & Sons, Inc. DOI: 10.1002/9781118517383.wbeccj470 2 Larceny (Theft) From the possession of another: If one’s personal as the doctrine of continuing trespass (Scurlock property is in one’s home or personal presence, 1948). In the hypothetical above, the neighbor’s then it will be deemed to be in one’s possession initial taking was not trespassory because the (Beale 1892). It is important to remember that specific intent to steal did not coincide with the larceny protects possession, not ownership. Even act of taking. The continuing trespass doctrine a true owner of an item could be guilty of larceny if provides that for every second that the neigh- another person had lawful possession of the prop- bor retains possession of the lawnmower, she is erty. For example, a dog owner who has put her committing a new trespass. Under this legal fic- pet in a daycare facility may not take her dog back tion, whenever the neighbor actually develops the without first paying the daycare for the service intent to steal, it will coincide with the next tres- because the daycare is in lawful possession of the pass. And, therefore, the neighbor has committed dog, even though it does not actually own the dog. a larceny. Furthermore, the requirement that the taking Common law judges endowed the strict ele- must be from the possession “of another” meant ments of larceny with some elasticity, as in the that co-owners, such as business partners and following three examples. spouses could not steal from each other (LaFave 2010). For the purposes of common law larceny, 1. Another fact pattern familiar to students of ownership in personal property was undivided. larceny involves the distinction between cus- The typical modern approach to this problem tody and possession. Debra enters a jewelry is to disallow a defense to larceny in situations store to shop for a watch. She sees one in where the actor has an interest in the property, the display case that she fancies and asks the as long as the other owner(s) has an interest to sales clerk if she can take a closer look. The which the actor is not entitled (LaFave 2010). sales clerk takes the watch out of the case With the specific intent to steal: Larceny is a and hands it to Debra. She slides it onto her specific intent crime. The actor must intend to wrist and then decides to run out of the store. permanently deprive the victim of the possession When prosecuted for larceny, Debra argues of the subject property. In jurisdictions that still that she lawfully possessed the watch; after all, recognize the distinction between general and the sales clerk handed it to her. Here, how- specific intent crimes, even if the actor takes the ever, the law says Debra had mere “custody” property of another, if she does so with the honest of the watch. This result is accomplished by and good faith belief that she owns it or has a the creation of another legal fiction. Under right to possess it, she is not guilty of larceny. In these facts, the sales clerk retains constructive other words, she lacks the specific intent to steal. possession over the watch. When Debra runs Said differently, a good faith mistake of fact can out of the store, she is wrongfully converting negate the specific intent required for the crime custody of the watch into possession. of larceny, even if that mistake was unreasonable Dressler (2012: 547) provides the following (Lee and Harris 2009). Similarly, if an actor takes distinction between possession and custody. the property with the intent to return it the next An actor has possession when she has suffi- day, there is no larceny because the actor did not cient control over the property to use it in intend to steal when she took the property. For a reasonably unrestricted manner. When the example, if one neighbor takes a lawnmower out actor has physical control over the property, of her neighbor’s tool shed without permission, but her right to use it is substantially restricted but with the intent to borrow and later to return by the person in constructive possession of it, this is not larceny. A different scenario arises, the property, the actor has only custody. however, with the neighbor who did not initially 2. The Star Chamber considered The Carrier’s intend to steal, but after taking the lawnmower Case in 1473; this case became the vehi- later develops the intent to steal it. When faced cle through which the court announced the with similar fact patterns, the common law courts “breaking bulk” doctrine. A merchant sent found a way to punish bad behavior that fell bales of dye through a carrier. Before the outside the technical bounds of larceny law by shipment arrived at the intended destina- creating a legal fiction which later became known tion, the carrier broke the bales and took Larceny (Theft) 3 the contents. Under a strict interpretation of a form of trespassory taking called “larceny by the law, there was no larceny under these trick” (Dressler 2012). Larceny by trick applies facts because the carrier’s initial possession only if the intent to steal was there at the time of the bales was lawful.
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