Larceny is defined as the trespassory taking and carrying away of another person’s property with the intent to steal it. Let’s break down this definition to make sure we understand the elements of this crime.
Carrying Away:
The carrying away element (or “asportation” for you fancy cats) requires only the slightest movement.
Example: I’m having lunch with a friend and he gets up to use the restroom. I reach across the table, grab his iphone, and put it in my pocket with the intent to keep it. Essentially the moment I move his iphone with my hand the crime of larceny is complete.
Intent:
It is important to understand that a person must have the intent to steal to commit larceny.
A person who takes property with the honest belief that the property belongs to him is not guilty of larceny. The required intent does not exist. It does not matter how unreasonable or incorrect this belief is, as long as it’s honest.
Example: I’m having lunch with a friend and he gets up to use the restroom. I reach across the table, grab his iphone, and put it in my pocket with the intent to keep it. I honestly but mistakenly believe that the iphone belongs to me and that I’m just taking back my own property. There is no reasonable basis for my belief that my friend’s iphone belongs to me (I’m just out of my mind apparently), but it is honest. Am I guilty of larceny? NO. I did not have the intent required for larceny.
Quick tip: If the person honestly believes that the property he is taking belongs to him on an MBE question, we know that he has not committed larceny (the intent is not there). We don’t care why he has this belief or whether this belief even makes any sense (as long as it’s honest).
Intent To Commit Larceny on Questions About Burglary
This intent to commit larceny is sometimes the key issue on an MBE question involving the crime of burglary.
If a person breaks into another’s house with the intent to take property that he honestly but incorrectly believes belongs to him (even if this belief is unreasonable), has he committed burglary? NO. Burglary requires the intent to commit a felony once inside at the time of the breaking and entering. Since the intent to commit larceny does not exist at the time of the breaking and entering (he honestly believes he is taking back his own property), there is no burglary either.
Example: I break into my boss’s house with the intention of taking his Ravishing Rick Rude wrestling figure, which I mistakenly but honestly believe belongs to me. Am I guilty of larceny, burglary, both crimes, or no crime at all? The answer is no crime at all. I’m not guilty of larceny because I lacked the intent for larceny. I honestly thought the Ravishing Rick Rude wrestling figure belonged to me. For this very reason I am also not guilty of burglary because burglary requires the intent to commit a felony once inside at the time of the breaking and entering. The felony in this case would have been larceny, but I lacked the intent for larceny. Without the intent to commit larceny I can’t be guilty of burglary either.
Continuing Trespass
There is an exception (because of course there is) to the intent to steal element of larceny.
If a person takes another’s property without the intent to steal it but also without their permission and then later decides to steal it, they will be guilty of larceny. This is known as the theory of “continuing trespass.” This is an exception to the rule that larceny requires a person to have the intent to steal the property at the time they take the property.
Example 1: I take my roommate’s toothbrush without his permission, intending to use it and then return it to him (totally normal). After using his toothbrush I realize that it is superior to my toothbrush, and I decide to keep it. Even though I did not have the intent to steal his toothbrush when I took it (which would normally be required for larceny), I would still be guilty of larceny under the theory of continuing trespass.
Example 2: I break into my boss’s house (obviously without his permission) with the intention of taking his Ravishing Rick Rude wrestling figure, borrowing it for a couple of days, and then returning it to him. Once I get home I realize how much I love the Ravishing Rick Rude wrestling figure and I decide to just permanently keep it. Am I guilty of just larceny, just burglary, both crimes, or no crime at all? The answer is just larceny. I am not guilty of burglary because at the time of the breaking and entering I did not intend to commit larceny or any other felony. At that moment I intended to just borrow the figure and return it to my boss. However, I would still be guilty of larceny under the theory of continuing trespass.
Note: Even though I am just guilty of larceny in the above example, the crimes of larceny and burglary do not merge, so a person can be guilty of both crimes.
What to understand
- Larceny is the trespassory taking and carrying away of another’s property with the intent to steal it.
- A person generally must have the intent to steal the property at the time he takes it in order to be guilty of larceny.
- A person lacks the intent required for larceny if he honestly believes the property he is taking belongs to him, even if this belief is unreasonable and inaccurate.
- If a person does not have the required intent for larceny at the time he breaks into another’s dwelling, he cannot be guilty of burglary either. Burglary requires the intent to commit a felony once inside at the time of the breaking and entering.
- If a person takes another’s property without the intent to steal it and also without their permission but then later decides to steal it, he will be guilty of larceny under the theory of “continuing trespass.” This is an exception to the rule that larceny requires a person to have the intent to steal the property at the time they take the property.
- The crimes of larceny and burglary do not merge, so a person can be guilty of both.
Please feel free, as always, to leave a comment if you have any thoughts or questions, and best of luck 🙂