Introduction

Larceny and Related Theft Offenses

Introduction

When property that belongs to one person ends up in another person's hands, the criminal law must decide whether that is a crime and, if so, which one. The answer turns on the route the property traveled, and the common law starts from larceny, its basic theft offense. Larceny is the trespassory taking and carrying away of tangible personal property of another, with the intent to deprive that person of his interest in the property permanently, or for so long that the deprivation is unreasonable.¹ The physical side of the offense is a taking (called caption) followed by a carrying away (called asportation), and the taking is trespassory when the defendant takes possession without the possessor's consent or other lawful justification.² The mental side is a specific intent to steal, which the prosecution must prove in addition to the physical act.³ A pickpocket who lifts a wallet from a victim's pocket and runs off with it, even before the victim notices, satisfies every part of the definition: the wallet is tangible personal property, it was in another's possession, it was moved without consent, and the pickpocket meant to keep it.⁴

The trespass requirement shapes the rest of this body of law, because it makes larceny an offense against possession. A bailee who rightfully receives goods from the owner therefore cannot commit larceny by later using them in a way the owner never expected, since nothing was taken from anyone's possession.⁵ That narrowness led courts to stretch the offense and, later, legislatures to supplement it. English judges created larceny by trick, treating a fraud that induces the owner to hand over possession as an invalidation of the owner's consent, so that the taking counts as a trespass.⁶ Parliament added two statutory crimes for the cases larceny still missed: embezzlement, which reaches a defendant who lawfully holds the property and then misappropriates it, and false pretenses, which reaches a defendant who obtains title to the property by deception.⁷ The three crimes differ in the victim's part in the transfer. The larceny victim is involuntary throughout, the embezzlement victim entrusted the goods but never agreed to their misappropriation, and the false-pretenses victim consented only nominally, because a lie induced the consent.⁸ Many American jurisdictions have since merged these offenses into a single crime of theft, yet the older distinctions persist inside the merged statutes, so the common-law structure remains the working map.⁹

This chapter therefore runs a two-step analysis. The first step tests the facts against each element of larceny: whether the property is of a kind larceny protects and belongs to someone with a superior possessory right, whether the defendant took control of it and carried it away, whether the taking was a trespass, and whether the defendant had the intent to steal when the taking occurred. When every element is met, the inquiry ends with larceny. When an element fails, usually trespass or intent, the second step asks how the defendant came to hold the property, since that route decides which neighboring offense, if any, fits. A fraud that invalidated the owner's consent to a handover of possession leaves a taking that is trespassory after all, which is larceny by trick. Lawful possession that the defendant later betrayed is embezzlement, and title obtained through a lie is false pretenses. The analysis begins with the thing taken: the kind of property larceny protects, and whose possession of it the law guards.