Also known as: trespassory taking
Written by attorneys · grounded in primary & secondary sources — see below
The unauthorized acquisition of possession of another's tangible personal property without consent. This element distinguishes larceny from offenses like embezzlement by requiring that the defendant obtain control through a wrongful taking from a person with a superior possessory interest rather than through an initial lawful holding.
Leo, a seasonal worker on Carla's apple farm, receives instructions to load freshly picked apples into the storage shed. Instead Leo loads several full crates into his own van and drives toward town intending to sell them at another market. The diversion exceeds Leo's limited custody and constitutes a trespass in the taking from Carla's superior possessory interest.
Evan, a junior analyst at Apex Brokerage, enters client Maria Lopez's file room after hours and removes her rare coin collection from a desk drawer. Evan places the coins in his backpack intending to hold them as collateral for a disputed personal claim. Because Evan never held lawful possession of the coins the removal is a trespass in the taking rather than a later misappropriation.
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Trespass in the taking occurs when the defendant acquires possession wrongfully at the outset by taking property from a person with a superior right of possession. Embezzlement instead requires that the defendant first acquire or hold the property lawfully and only later convert it. The timing of the wrongful act determines which offense applies.
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No. Fraud vitiates consent so that a taking accomplished by trick or misrepresentation remains trespassory. The owner does not truly consent when the defendant induces the transfer through deceit with intent to steal. This form of larceny is often called larceny by trick.
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A bailee generally holds possession of bailed goods. If the bailee breaks bulk by opening closed containers and misappropriates the contents possession of those contents reverts to the bailor. The subsequent misappropriation then constitutes a trespassory taking that supports larceny.
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Low-level employees ordinarily hold only custody rather than possession. When such an employee diverts property outside the limited scope of authority the taking is trespassory as to the employer's superior possessory interest. Broader discretionary possession would instead support an embezzlement analysis.
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