Caption: Obtaining Control

Caption: Obtaining Control

The earlier sections asked whose hold on the property the defendant invaded. The act elements ask what the defendant did to that hold, and the first of them is the taking itself, which the common law calls caption. Caption requires that the defendant actually obtain control over the property.¹ The idea behind it is that larceny punishes the substitution of the defendant's control for the possessor's. A defendant who has put the thing in her own hand, pocket, or vehicle has accomplished that substitution, because someone else now decides what becomes of it. The pickpocket is the paradigm: a thief who removes a wallet from a victim's pocket and runs away with it has taken property in the victim's possession, and the offense is complete even if the victim does not notice the loss for some time.² Control is the core of the element, and each refinement below comes from asking whether the defendant, directly or through another, ended up holding the property.

The same idea sets the first limit. A defendant who destroys property, or who merely moves it, has not satisfied the taking requirement unless the defendant thereby gains control over it.³ The reason follows from what the offense is built to catch. Destroying a thing injures the owner, but it leaves nothing for the defendant to hold, use, or sell, so no control has replaced the owner's. Shifting a thing from one place to another without commanding it leaves the owner in a similar position, since the object has been displaced and nobody has acquired it. The loss in both cases is genuine, and the law answers it with offenses directed at damage to property, which is why larceny uses control as the line between stealing a thing and wrecking it.

Vehicle cases show that this element tracks control. In People v. Alamo the defendant entered a stranger's car, turned on the lights, and started the engine, and the New York Court of Appeals upheld an instruction allowing the jury to find theft of the car even though it never moved, provided the jury found intent to steal.⁴ The court read the traditional movement requirement as reflecting a concern that possession and control be established: a wallet or a safe is inert and comes under a thief's command only when lifted or shoved, whereas a started car is already under its operator's command.⁵ How much movement the carrying-away element demands is the subject of the next section. Alamo shows why the two elements are linked, since movement is one way of proving that the defendant has command of the thing and other proof of command can serve.

Control can also be gained through someone else's hands. A taking occurs even when the defendant acquires control of the property through the act of an innocent agent who acts under the defendant's direction.⁶ An agent is innocent when ignorant that anything wrong is happening, and in that situation the agent functions as an instrument, much as a tool would. The defendant is still the person who ends up with the control the offense forbids, because the agent obtained it only by following the defendant's direction. A rule that required the defendant's own hands on the property would let a thief escape larceny simply by arranging for someone else to do the carrying, so the law attributes the agent's acts to the defendant.

In Terrell v. State a defendant purported to sell timber the seller did not own to an innocent purchaser, and the purchaser hauled the timber away. Most courts, Terrell among them, treat the purchaser as the seller's innocent agent and impute the purchaser's acts to the seller, which supports a larceny conviction of the seller.⁷ The same reasoning applies to a defendant who sees another's property on a table and sells it to a buyer who then carries it off.⁸ The scenario is contested, however. A minority of courts refuse to convict on those facts, among them the Louisiana court in State v. Laborde, because the defendant never moved the property and so, on their view, no carrying away by the defendant occurred.⁹ The rule this chapter follows treats control gained through an innocent agent as a taking, so the answer on an exam is that caption is satisfied, and a stem that tests the split rewards a sentence acknowledging the minority view.

Students lose this issue when they treat harm to the owner as control by the defendant. A stem describing a defendant who smashes, burns, or dumps another person's property invites the answer larceny because the owner has plainly lost something, yet the element asks what the defendant obtained, and a defendant who obtained nothing has not taken. The mirror-image error is overlooking the agent: when a stem has an unwitting third party carrying off the goods, the deciding fact is whether that person acted at the defendant's direction and without knowledge of any wrong, since the control then counts as the defendant's. Caption also answers a narrower question than the elements around it. It asks whether the defendant took the property at all, leaving to later sections how far the property moved, whether the owner consented, and what the defendant intended.