Property Subject to Larceny

Property Subject to Larceny

The first screen in any larceny problem concerns the thing taken, and the definition itself supplies the screen. Larceny is the trespassory taking and carrying away of tangible personal property of another¹, and those words limit the offense before any question about the defendant's conduct or state of mind arises. The limit is stated as a rule of its own: at common law, larceny could be committed only with respect to personal property that was capable of being possessed and that had some value.² Property that fails this screen cannot support a larceny conviction, however clearly the defendant meant to profit at the owner's expense.

The reason for the limit lies in the physical shape of the offense. Larceny is built on two acts, obtaining control of a thing (caption) and moving it away (asportation), and both acts assume an object that can be held in the hand and carried off. A watch, a bicycle, or a bag of grain can pass from one possessor to another in that way. Land stays where it is, a performance ends when the curtain falls, and an abstract right has nothing to grip. These things fall outside the offense because the offense describes a kind of movement they cannot undergo, and the exclusion does not depend on any judgment that they matter less.

Because the property element sits at the front of the analysis, it works best as a quick filter run before the harder elements receive attention.

One caution applies to every step. This is the common-law rule, and many jurisdictions have enlarged the statutory definition of theft beyond it, so a statute on an exam may reach property the common law left alone. When an exam question sets the problem under common-law larceny, the screen above controls. The two sections that follow teach the screen in detail, starting with the physical goods that qualify and the way the common law treats things cut away from land, and then turning to services and intangible interests.

Tangible Personal Property

The property screen begins with the object taken, and at common law that object must be a movable physical good that has some value. Larceny protects personal property, meaning things that are neither land nor permanently attached to land, so a wallet, a bicycle, or a load of lumber qualifies while a parcel of land does not.⁴ The limit follows from the way the offense is built. Caption and asportation describe a thief who takes hold of a thing and moves it away, and that description fits only an object capable of being held and moved. The screen stated above has two halves, and this section teaches the first: the physical goods the offense covers, and the timing rule that governs things cut away from land.

The value requirement sounds like a serious hurdle but rarely is one. Value here means worth of one cent or more, so the cheapest trinket qualifies.⁵ The common law did produce one odd exclusion under this heading: dogs were treated as lacking the required value, so taking a dog was not larceny.⁶ That result is a historical quirk, and the working rule for an exam is that any real worth satisfies the element.

Real property and its fixtures stand on the other side of the line. Neither can be the subject of larceny.⁷ Land cannot be carried away, and a fixture shares the legal status of the land it is attached to, so neither fits the taking-and-carrying structure of the offense. Growing crops and standing trees are part of the land while they remain rooted, which means that taking them in that condition is not larceny.⁸

The harder question is what happens when something is cut away from the land, because the same physical material can change legal category in the course of a single afternoon. Under the severance rule, a person who severs property from the land and takes it before the landowner has obtained possession of it as personal property commits no larceny. Once the landowner does possess the severed material as personalty, any later wrongful taking of it can be larceny.⁹ The reason lies in what larceny protects. The offense guards a possessor's hold on movable goods, and a landowner who has never held the cut wood as a movable chattel has no such hold for the taking to invade. Once the owner has gathered and stacked the wood, it has become an ordinary chattel in the owner's possession, indistinguishable for this purpose from a bicycle in a garage, and a later taker invades a possession that the offense is designed to protect.

The two poles differ in a single fact, and the contrast shows which fact carries the analysis. A landowner cuts timber and stacks it in the yard, and a stranger hauls the stacked timber away at night intending to sell it. The timber had been severed and was in the owner's possession as personalty when taken, so larceny lies.¹⁰ Now change one thing: a stranger fells standing trees on the landowner's land and hauls them off the same day, before the owner has done anything with the cut wood. The trees were part of the land until severed, and the owner never possessed the severed material as personalty, so no larceny occurs.¹¹ The wood, the thief's purpose, and the profit are identical in both scenes. Only the moment at which the owner came to possess the wood as a movable thing differs.

The fifteen trees thus fall into two different legal conditions, and the sorting depends entirely on timing. Students lose this issue when they ask only whether the object is physical and valuable and forget to ask when the owner came to possess it as personalty. A stack of cut timber looks the same as a stand of live timber in a fact pattern's first sentence, and the answer depends on the sequence the stem describes. A short checklist keeps the sequence in view.

One limit on this analysis is worth stating. The severance rule describes common-law larceny, and a theft statute on an exam may define property more broadly. When a stem invokes a statute, read the statute's definition of property before applying the common-law screen.

Services and Intangibles

The second half of the property screen asks whether the thing taken is tangible. Three kinds of things that people loosely call stolen fail that question at common law: services, purely intangible rights or interests, and documents that merely stand in for such rights. Under the traditional rule, wrongfully obtaining services is not larceny.¹³ Purely intangible rights or interests are likewise outside the offense, so wrongfully acquiring one does not amount to larceny.¹⁴ The reason lies in the verbs of the crime. Larceny is a taking and carrying away of a thing from another's possession, and its model is an object that rests in one person's hands and ends up in another's. Labor is a stream of acts that exists only while it is performed, an evening at the theater is consumed as it is delivered, and a legal right is a relationship among people rather than an object. None of these can be lifted and moved, so a defendant who obtains one has not done what the definition describes, however real the owner's loss.

Students lose this issue when they treat the owner's loss of value as enough, since the property element asks what kind of thing the defendant obtained rather than how much the owner lost. The theater owner in the example above lost real revenue, and the law of larceny still has nothing to say about it.

Documents raise a subtler version of the same problem. At common law, courts treated a document or instrument as merged with the property or right it represented, so that the paper and the thing it stood for counted as a single object in the eyes of the law.¹⁵ A deed to land is the clearest illustration: the deed represents real property, real property cannot be the subject of larceny, and the paper therefore carried no protection of its own. A contract that evidences an intangible right follows the same logic. Unless the document or instrument had independent monetary value, it could not be stolen, because the land or right embodied in it was not itself subject to larceny.¹⁶ The merger idea keeps the offense consistent. If the paper alone could support a conviction, the exclusion that applies to land and to rights would disappear whenever a document happened to record them.

A tangible object does not lose its status because of what it carries. Absent a special statute, a defendant cannot be punished for wrongfully appropriating a trade secret, since the secret is information rather than a physical thing, yet a defendant who steals the sheets of paper on which the secret is printed can be convicted of larceny.¹⁷ The conviction rests on the paper, which is movable, physical, and worth at least a cent; the secret stays outside the offense. This is the mirror image of the merger idea. A document that does no more than represent land or a right adds no property to the case, while a physical item with value of its own is stealable property whatever else it happens to hold. The practical question is therefore which object actually left the owner's possession.

All of this describes the common-law baseline, and legislatures have layered reform over it. The Model Penal Code, in section 223.7, and some states treat theft of services as theft, and today tangible evidence of a right, such as a deed or a check, can be the subject of larceny.¹⁸ Computer data and trade secrets are the areas where the common-law gap is widest, and statutes addressing them vary too much in scope and wording to generalize.¹⁹ The habit to build is a two-step one: identify the service, intangible, or document in the facts and say that common-law larceny does not reach it, then say that modern statutes commonly expand coverage and that the governing statute must be read to see how far it goes.