Also known as: trespassory taking
Written by attorneys · grounded in primary & secondary sources — see below
A nonconsensual acquisition of possession over tangible personal property belonging to another that supplies the actus reus for common law larceny. The taking occurs at the moment the defendant obtains control without valid consent from a person holding a superior possessory interest. Consent procured by misrepresentation does not defeat the trespassory character of the acquisition.
Talia Torres approached security guard Tobias Thomas at the concert venue and falsely claimed authorization to remove instruments for offsite setup. Tobias unlocked the equipment room in reliance on the misrepresentation. Talia then removed Jackson's custom guitar and placed it in her car trunk. The acquisition was trespassory because Tobias's consent rested on deliberate deception and therefore supplied no valid permission.
Trevor Tate, a seasonal farm worker, received permission from Tiana Tan to take ordinary leftover supplies from the barn at season's end. Trevor instead loaded premium seed crates that Tiana had expressly reserved and drove them to his home. Because Trevor initially held only limited custody and the crates remained in Tiana's superior possession, the removal constituted a trespassory taking rather than a later conversion of lawfully possessed property.
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A taking is trespassory when the defendant acquires control without valid consent from a person holding superior possessory interest. Consent obtained through misrepresentation is treated as invalid and does not defeat the trespassory element.
Supporting sources
A trespassory taking occurs at the moment of acquisition when the defendant lacks lawful possession and takes from someone with a superior right. Embezzlement instead requires initial lawful possession followed by a later misappropriation that conflicts with the terms of that possession.
Supporting sources
Yes. When a bailee opens closed containers and misappropriates the contents, possession of those contents reverts to the bailor. The bailee's subsequent misappropriation then becomes a trespassory taking that satisfies the larceny requirement.
Supporting sources
…1812, 52 Geo. 3, c. 63 (Eng.), no subsequent enactment vitiated the distinction that the embezzlement statute criminalized non-trespassory takings and larceny remained the proper action in all other cases. Embezzlement remained a purely statutory offense, specifically tailored to criminalize as felonies acts which common law larceny…