Theft

LARCENY

The “elements” of larceny are easily stated:

1. There must be a trespassory
2. taking
3. and asportation
4. of the personal property
5. of another
6. with the intent
7. to deprive him of it permanently (or for a long period of time)

Trespass

The first element of larceny limits the crime to acts that violate possession of an item. If the defendant has already obtained lawful possession of the property, his later use or conversion cannot be a “trespass” and he has not committed larceny. Thus, if George, with Ralph’s permission, borrows Ralph’s Maserati, and decides later that he loves the car too much to return it, George may be a dastardly evildoer, but he is not guilty of common law larceny because his initial taking was not a trespass.

That limitation, however, conflicted with the need to protect trade in mid-Renaissance England. In The Carrier’s Case, Anon. v. The Sheriff of London, 64 Seld. Soc. 30 (1473), a London dealer (call him Henry) had hired the defendant (Jerry) to take some goods from London to Southampton. The goods were inside packages. Jerry got about halfway, broke open the packages, and hid the contents. In a prosecution for larceny, Jerry argued that he had obtained possession of the goods lawfully and consensually and therefore was not guilty of the crime. Jerry was right, but he lost anyway. The court announced a new fiction. Jerry, it said, had possession of the packages qua packages. Had he simply sold those packages, he would not have “trespassed” on the goods. But since he had “broken bulk” of the packages, he had trespassed on the goods inside and hence was guilty of larceny.

The fiction of “breaking bulk” was only the first of many such fictions that the common law courts would create, some favorable to the defendant, some not, in trying to square specific acts with the definition of larceny. A second judicially created fiction was constructive possession, which elaborated on the distinction between “custody” and “possession.” Usually, we think of anyone who has “dominion” over an item as “possessing” it. However, the courts concluded that a person who had only temporary and extremely limited authorization to use the property had only custody and not possession. This was said to be the case with employees[5] and bailees but not with carriers, apparently because they had authority for larger periods of time than did bailees or employees. Constructive possession remained in the owner, such that a taking by an employee was trespassory.