(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. That is, the merchant- that the actor obtains possession of the property. owner had delivered the bales to the carrier As a practical matter, it is difficult to tell when the and therefore the carrier had lawful pos- requisite intent actually develops. Larceny by trick session of the goods. However, motivated is to be distinguished from the separate crime of by the political and economic realities of false pretenses, where the actor’s deception results the time – wool was a key national indus- in the transfer of actual title of the property. try in England and investors were concerned Despite the creativity demonstrated by the about rights of merchants – the Star Cham- common law courts in developing legal fictions to ber held that the carrier had committed a broaden the scope of larceny, there came a point larceny (Tigar 1984). The court reasoned that where the courts refused to stretch the doctrine a larceny had indeed taken place when the any further. At this point, the British Parliament carrier broke the bales because the merchant responded with two complementary statutory had delivered the bales, not their contents. crimes: embezzlement and false pretenses. The breaking bulk doctrine announced then The doctrine of constructive possession served retains its force today. the purpose of capturing bad behavior within 3. In a well-studied English case (R. v. Pear the meaning of larceny, but it reached its limit in 1779) 168 ER 208, Pear rented a horse telling Bazeley’s Case (1799). In this case, a customer gave the owner that he intended to ride it to Sutton a £100 note to a bank clerk. The clerk credited the and back again. When asked, Pear provided customer’s account, but instead of depositing the a false home address to the horse owner. note, the clerk kept it for himself. The clerk was Pear never returned the horse, but instead, found not guilty of larceny. The court reasoned took the horse to Smithfield Market where that the constructive possession doctrine did not he sold it. The jury found that Pear had extend to property coming to an agent for his fraudulently rented the horse and that he had principal from a third party, unless and until harbored the intent to sell it all along. The the agent gives it to the principal or puts it in a problem raised by these facts was that Pear receptacle (like a cash drawer) provided by the had lawful possession of the horse because principal. Under Bazeley, a taking by an agent who he had rented it. Because reports of the case had lawful possession of the principal’s property are inconsistent, it is unclear exactly what was a breach of trust, punishable only by civil rationale the court rested on in concluding sanctions. The result in this case led to England’s that Pear had committed a larceny (Tigar first embezzlement statute in 1799. At this time, 1984). Two theories have been proferred. commerce and banking were becoming integral parts of the growing and modernizing economy. First, the court affirmed Pear’s conviction based The embezzlement statute was designed to protect on the application of the legal fiction of construc- class interests as England was moving from a tive possession. Pear was an agent and the horse’s mercantile to a capitalist society (Tigar 1984). owner was the principal. A principal retains con- Because embezzlement is a statutory crime, its structive possession of property whenever he definition varies according to the jurisdiction’s entrusts it to an agent. The agent does not have statute, but in general, it can be described as possession of the property, only custody. There- covering situations in which the actor receives fore, when an agent obtains custody of a thing, lawful possession of property but then converts and takes it with the specific intent to permanently it to her own use (Fernandez 1990). Conversion deprive the owner, the agent violates the owner’s involves some act that seriously interferes with the constructive possession, commits a trespassory owner’s ability to use the property, for example, taking, and has committed a larceny. irreparably damaging the item, or selling or giving Another way to solve this puzzle is to focus it away. A slight movement that would consti- on the method in which Pear took possession tute asportation in the larceny context would of the horse. Obtaining possession by fraud is not constitute conversion for the purposes of 4 Larceny (Theft) embezzlement. Early embezzlement statutes listed As England developed into a mercantile society, various categories of those who might have lawful the contours of larceny law were shaped to fit possession of another’s property, such as bank the new demands of a growing capitalist society. employees, store clerks, agents, attorneys, bro- Once concerned primarily with maintenance of kers, factors, trustees, bankers, merchants, corpo- the public order, the law of larceny eventually rate officers, partners, and bailees. Embezzlement developed into a means of protecting an individ- should be distinguished from larceny by trick. In ual’s right to control a movable object under the the latter crime, the actor’s initial taking of the criminal law. property is achieved by deceit and thus never con- England (Steel 2008) and most jurisdictions in stitutes possession. In the former, the actor, typ- the United States have theft statutes that con- ically because of a status relative to the principal, solidate the three traditionally independent theft actually receives lawful possession of the property. crimes (larceny, embezzlement, and false pre- Like embezzlement, the crime of false pretenses tenses) into a single crime (Lee and Harris 2009). was created by Parliament to fill a gap. Larceny The Model Penal Code and the Uniform Code of did not criminalize the gaining of both possession Military Justice also take this approach (Fernan- and title of property through deception. Larceny dez 1990). Nevertheless, knowing the distinctions by trick covered only gaining possession through between those three theft crimes is important deception. Thus, Parliament made it a crime to because the consolidated statutes as well as new obtain property by false pretense in 1757 (Lee and theft crimes continue to rely on those distinctions Harris 2009). To be criminal, the actor’s deceit (Fernandez 1990). has to be more than “mere puffing.” The actor’s misrepresentation must relate to some material SEE ALSO: Actus Reus; Common Law Justice fact existing in the past or present, not a mere Systems; Embezzlement; Fraud; Mens Rea; promise as to the future. Therefore, a hawker’s Robbery; Trespass. promise: “This elixir will cure your baldness!” is mere puffing, not criminal deceit. However, References silence or an omission about a material fact could be considered deceitful. Furthermore, the actor must have the specific intent to defraud her victim, American Law Institute (1962) Model Penal Code. but the requisite intent can be formed afterward. Philadelphia: American Law Institute. For example, if the actor innocently makes a false Bazeley’s Case (1799) 2 Leach C.C. 839, 168 ER 517. statement, but later learns of the mistake before Beale, J. H. (1892) The borderland of larceny. Harvard Law Review 2, 244. the property is received and fails to disclose the Bull, J. E. (1886) Larceny distinguished from embezzle- information upon acquisition, the intent require- ment, false pretences and breach of trust on the line ment is satisfied. The actor must cause her victim of trespass. The Criminal Law Magazine & Reporter to be deceived. The owner must have actually 3, 131. been misled by the actor’s misrepresentation. Carrier’s Case (1473) Star Chamber and Exchequer As compared to larceny by trick, in false pre- Chamber, Y.B. Pasch. 13 Edw. IV, f. 9, pl. 5. tenses, title, not just possession, passes to the actor Dressler, J. (2007) Cases and Materials on Criminal Law. St. Paul, MN: West. by virtue of the deceit. The key to distinguishing Dressler, J. (2012) Understanding Criminal Law. New between the two crimes, then, is the difference Providence, NJ: LexisNexis. between possession and title. In R. v. Pear,dis- Fernandez, M. C. (1990) Larceny: An old crime with a cussed above, the rental agreement between the new twist. Army Lawyer (Sept), 26–30. horse’s owner and Pear was proof that title to LaFave, W. R. (2010) Criminal Law. St. Paul, MN: the horse did not pass with possession. Typically, West. however, it is much more difficult to determine Lee, C., & Harris, A. (2009) Criminal Law: Cases and where to draw the line between possession and Materials. St. Paul, MN: West. Scurlock, J. (1948) The element of trespass in larceny at title. Often, this determination will depend on the common law. Temple Law Quarterly 22, 12. victim’s intent at the time possession is delivered, Steel, A. (2008) Taking possession: The defining ele- or rather, on the strength of the proof of the ment of theft? Melbourne University Law Review 32, victim’s intent at the time possession is delivered. 1030. Larceny (Theft) 5

Tigar, M. (1984) The right of property and the law of Fletcher, G. P. (1976) The metamorphosis of larceny. theft. Texas Law Review 62, 1443–1475. Harvard Law Review 89, 469. Hall, J. (1952) Theft, Law and Society. Indianapolis, IN: Further Readings Bobbs-Merrill. Stephen, J. F. (1883) A History of the Criminal Law of England. London: Macmillan. Brickey, K. F. (1980) Jurisprudence of larceny: An Weinreb, L. L. (1980) Manifest criminality, criminal historical inquiry and interest analysis. Vanderbilt intent, and the “metamorphosis of larceny.” Yale Law Review 33, 1101. Law Review 90, 294.