Property of Another

Property of Another

The definition of larceny reaches the taking of tangible personal property "of another."¹ A reader meeting those words for the first time would naturally take them to mean property that someone else owns, and that reading is too loose to predict results. The common law organizes the element around possession instead. The defendant must take the property from a person who has a possessory interest superior to the defendant's own.² A possessory interest is a legal right to hold and control a thing, and it can belong to someone who is not the owner, such as a person who has rented a car or a repairer holding a customer's goods. The element therefore asks who held the property at the moment of the taking, and the answer can differ from the answer to who owned it.

The reason for keying the element to possession lies in the wrong the offense punishes. Larceny condemns the violation of a person's right to hold and use property, so the victim's loss is the loss of that hold, whether or not the victim has title. A rule built on possession lets the offense work whoever the true owner turns out to be. A person renting a car is protected in holding it even against the company that owns it, and a thief's possession is protected against a later thief, even though no one would call the first thief the owner. A rule built on ownership would force every theft prosecution to settle questions of title before it could decide whether a taking was wrongful. The question of who was holding the goods is a question about facts that witnesses can describe.

That possession focus produces two results that look odd until the logic is clear, and they run in opposite directions. An owner can commit larceny by taking the property back from someone who lawfully possesses it, because at that moment the possessor holds the superior interest. In the other direction, a defendant who lawfully possesses property when deciding to appropriate it cannot commit larceny by keeping it, even without owning it, because no one holds an interest superior to the defendant's and the property was never taken from anyone.

The second scene exposes a gap, since a person who lawfully holds another's property and then converts it has wronged the owner as surely as a thief has. Embezzlement, taught later in this chapter, is the offense designed to fill that gap. The possession question also returns under trespassory taking, where deciding whether the defendant or the victim held possession controls whether the taking was wrongful. Students lose this issue when they ask who owns the property and stop there, because ownership alone neither completes nor defeats the element.

The two sections that follow develop the idea in turn. The first works through the contest between possession and ownership, including the lawful possessor who keeps the thing and the owner who takes it back. The second turns to two applications that point in opposite directions, joint owners and second thieves.

Possession Over Ownership

Because larceny protects the right to hold a thing, the property-of-another element turns on who held the property when the defendant acted, and that answer can come out against the owner. Under the rule of possession at the time of the taking, a person who lawfully possesses property when taking it cannot commit larceny of it, even without owning it, and an owner can commit larceny of the very thing the owner owns when someone else lawfully possesses it at that moment.⁴ The two halves apply one test from opposite sides. Larceny condemns a trespass on someone's possession, so the offense needs a victim whose hold is invaded. A lawful possessor who decides to keep the thing invades no one's hold, because the hold being exercised is the defendant's own. An owner who has handed possession to another for a term has given up the right to hold the thing during that term, so retaking it invades the other person's hold exactly as a stranger's taking would.

A rented textbook shows the first half. Sam owns a criminal law textbook and rents it to Jane for the semester, and her rent is paid up. Sam reaches into Jane's bag, removes the book, and walks away intending to keep it. He is guilty of larceny even though he holds title, because the book was lawfully in Jane's possession and larceny punishes the violation of possessory rights rather than ownership rights.⁵ The paid-up rental is the fact that carries the result, since it makes Jane's possession lawful and gives her a right to hold the book against Sam for the term. The intent element lines up with the same idea, because it asks whether the defendant meant to deprive the person entitled to possession of that possession, and Sam means to end Jane's hold for good.⁶

The same result follows whenever the owner has given another a lawful right to hold the property. An owner who leases an unused car for a year and, six months in, sneaks into the lessee's driveway to drive it away with a spare key commits larceny, because the lessee lawfully possessed the car at that moment. An owner who takes his own car from a person holding it under a statutory lien, knowing of the lien, can likewise be convicted, since the lienholder's possessory interest is superior to his own.⁷ Pawned property sits close to this line. A defendant who pawns a watch and then breaks into the pawnbroker's store to take it back has at least an argument that the watch was not property of another, because the defendant kept title.⁸ The possession rule would point toward larceny on those facts, since the pawnbroker holds the watch as security and so holds an interest superior to the owner's when the taking occurs.⁹ On an exam the safe course is to spot the issue, apply the possession rule, and note the title argument.

The two scenes involve the same book and the same two people, and only the direction of the taking changed. In the first, the defendant took from the person who held the book. In the second, the defendant was the person who held it. The line between them follows the general idea that taking something from a person who is entitled to retain it is a trespass, while failing to give something to a person who is entitled to receive it is not.¹⁰ Jane's omission at the end of the term is the second kind. A wrong remains, because Sam trusted her with the book and she betrayed that trust, and a different offense taken up later in this chapter is built for that betrayal. Larceny does not reach it.

Students lose this issue when they assume an owner cannot steal, and they make the mirror-image error when they assume a non-owner who ends up keeping the property must have stolen it. Both instincts ask about title, and the element asks about possession. In an exam stem, the sentence naming the owner is rarely the one that decides larceny; the sentence revealing who was holding the property when the defendant acted usually is.

Joint Owners and Second Thieves

The superior-possessory-interest idea can be tested on any taking by asking what possessory right the victim held that the defendant lacked. Two applications of that question come out in opposite directions. A second thief who takes goods from a first thief commits larceny, while at common law one joint owner who takes jointly held goods from another joint owner commits none. The results look inconsistent until you see that each follows from the same inquiry, applied to a defendant whose own rights differ.

Begin with the second thief. Previously stolen property can itself be the subject of larceny, so a defendant who takes goods from a thief is guilty of larceny of those goods if the other elements are met.¹² That conclusion can seem backward, because the first thief has no right to the goods and one might think no one remains to be wronged. The answer lies in what the element measures. Larceny asks whether the victim's possessory right is superior to the defendant's, and it does not ask whether the victim's possession is rightful against the whole world. The first thief's possession is wrongful as against the true owner but superior to everyone else's, so the second thief, who holds no right to the goods at all, trespasses on the only hold that exists.¹³ A contrary rule would leave stolen goods unprotected against everyone except the owner, and anyone willing to snatch them from the thief could do so without committing larceny.

The first thief's priority has a boundary, and the boundary is the person entitled to possession. The first thief's possessory rights are superior to everyone's except that person's, so an owner who retakes stolen goods from the thief is not trespassing on a hold that outranks the owner's own.¹⁴ A stranger who makes the identical move stands differently, because a stranger holds no right better than the thief's. Only the person entitled to possession can claim a right that outranks the first thief's.

The joint owner presents the mirror image. At common law, one joint owner could not commit larceny by taking jointly held property from another joint owner.¹⁵ The reason is that each co-owner holds a right to possess the property, so the taker's possessory right is equal to the victim's. Larceny needs a victim whose hold is superior to the defendant's, and between co-owners neither hold outranks the other, so the taking invades nothing the defendant lacks. The contrast with the second thief is the whole lesson: the second thief takes from someone holding a right the thief does not share, while the joint owner takes from someone holding a right the joint owner shares in full.

The same reasoning reached partners and spouses at common law, and the modern departures from it show where the reasoning strains. A partner who took partnership property could escape conviction on the ground that the partner had an interest in what was taken, and because husband and wife were treated as one, neither could steal from the other.¹⁶ A few states and the Model Penal Code (section 223.0) reject the partner rule, reasoning that the thieving partner's interest was not an undivided one, so the taking invades a possessory right the partner does not hold.¹⁷ The Model Penal Code, in section 223.1(4), also partly rejects the spousal rule: it treats the taking of household goods normally available to both spouses as no theft, but the taking of a spouse's purely personal property as theft.¹⁸

On an exam, the joint-owner rule is the common-law baseline, and modern law has moved away from it, so a complete answer states the common-law result, gives the possessory-interest reason, and notes that the governing statute or the Model Penal Code may reach the taking. Students lose the second-thief issue when they assume a thief has no rights to violate, because larceny asks only whether the victim's hold outranks the defendant's. In a joint-owner stem, the deciding sentence is the one showing that the taker and the victim each had a right to possess the property.