Theft

The doctrine was also used in the case of persons finding lost items. Even if the owner did not know where the item was, he was said to have constructive possession of the item. Then, if the finder, F, knew, or could suspect, who the owner was, and intended at the time of finding to convert the item, the finding became trespassory.

The constructive possession fiction did not apply to the merchant deliverer situation nor to a host of other similar (but not identical) relationships. For example, if A gives B her first edition of Shakespeare, believing B to be C, an antiques dealer, B has obtained possession voluntarily, and his later conversion of the book is not larceny. Similarly, if D owes E$10 but gives him $100 in error, E has not committed larceny of the $90 excess because he obtained it nontrespassorily. Cooper v. Commonwealth, 110 Ky. 123 (1901). Now the courts could have found B and E to be “bailees” or, in the alternative, could have concluded that A and D retained “constructive possession” as well. But they did not, and it was up to legislatures to deal with these situations.

One such exception was created by the courts, relatively late, in the infamous Pear’s Case. R. v. Pear, 168 Eng. Rep. 208 (1779). Pear rented a horse from Victim, intending all the while to take the horse and sell it. Pear argued that his initial taking of the horse was consensual and not trespassory. The court responded by finding that his intent at the initial rental to take the horse vitiated the consensual aspect of the rental and created “larceny by trick.” Had Pear formed the intent to take the horse after he rented it, it would not be larceny (but might be embezzlement) (see infra).

This muddle of rules as to when a trespass does (or does not) occur baffled both courts and prosecutors. And when courts required that the prosecutor indict for the precise crime committed, and prove that offense or lose, the stakes were substantial.

Asportation and Taking

Although “taking” and “asportation” seem to describe the same actions, the common law distinguished between them. Asportation (a sufficiently clumsy word to justify vilification of the common law courts) occurred only if the defendant actually “moved” the property. Where the property is incapable of being “carried away,” such as a house or a heavy object, it may not be the subject of asportation. See Annot., 70 A.L.R.3d 1202 (1976).

The movement need not be far; there are cases holding that even a change of position of two or three inches is sufficient. However, if the item is not moved at all, there is no asportation and hence no larceny. Of course, the courts were always ready to create a fiction if justice required it. Suppose that George “sells” Jamal that red Maserati of Ralph’s. George gives Jamal convincing fake copies of title, and Jamal, after depositing $50,000 in George’s hand, drives the car away. Even if George has never entered the car, he has “asported” it. The fiction of innocent agency turned Jamal into George’s “agent,” so that when Jamal took the car, it was “really” George driving it away.[6]