§ 32.02 Larceny: General Principles

§ 32.02 Larceny: General Principles

[A] Definition

Common law larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the possessor of the property.⁶ Each of the elements of larceny, as seen in this definition, are discussed in subsequent sections of this chapter. At the outset, however, it is useful to break this definition down into its components and to become familiar with the different ways that each element is described by judges and commentators.

The social harm of larceny is the "trespassory taking and carrying away of the personal property of another." It should be observed that larceny is a "conduct," rather than a "result," crime. That is, it prohibits the conduct of taking and carrying away personal property; the offense is complete when those acts occur. It is not necessary that the property taken be damaged, destroyed, or converted to the personal use of the wrongful taker. Instead, if the offender has the requisite mens rea, it is assumed that injury to the property or to the victim's interest in it will occur (if it has not already occurred). In this limited sense, larceny may be viewed as an inchoate offense.

The most complicated legal aspect of the actus reus of larceny is the requirement that there be a "trespassory taking." More specifically, the trespassory taking involves the nonconsensual taking of possession of the property in question.⁷ A person who by trespass obtains title—ownership—to the property of another is guilty, if anything, of obtaining property by false pretenses, a different offense. The element of "taking" is frequently described in the case law as the caption of the property.

The element of "carrying away" is frequently described as the asportation of the property. Legal issues regarding this element rarely arise.

Larceny prohibits only the trespassory caption and asportation of another person's personal property. Real property is not the subject of larceny law.⁸ Moreover, only tangible forms of personal property are encompassed in the common law offense, although the modern statutory versions of larceny law or its progenitors are apt to include intangible forms of personal property.

Larceny is a specific-intent crime. The actor who takes and carries away the personal property of another must do so with the specific intent to deprive the other of the property on a permanent basis. Sometimes this mens rea is described in shorthand, simply, as "the...