§ 32.03 Larceny: Trespass

§ 32.03 Larceny: Trespass

The act of taking and carrying away the personal property of another is not, in itself, an offense. The beginning point is that "[t]here can be no larceny without a trespass, and there can be no trespass unless the property was in the possession of the one from whom it is charged to have been stolen."¹³ It is the trespassory taking of another person's property that is said to be the "fundamental nature of the crime."¹⁴

The term "trespass" as used here is not related to the tort or crime of trespass to land. Rather, the origin of the term is the ancient writ of trespass be bonis asportatis (trespass for goods carried away), which was the basis for the tort of trespass to chattel. In the larceny context, a "trespass" occurs if one takes possession of the victim's personal property—he dispossesses the other of the property—without consent, or in the absence of a justification for the nonconsensual dispossession.¹⁵

The concept of trespass originally was limited to acts of stealth. The doctrine of caveat emptor ("let the buyer beware") prevailed: One who obtained possession of another person's property by fraud was viewed as a clever person, rather than as a criminal deserving of the death penalty. Gradually this laissez faire attitude changed. In 1757, the Parliament enacted the misdemeanor offense of "obtaining property by false pretenses."¹⁶ This offense, however, prohibited the use of deception to obtain title to another's property; mere dispossession of personal property by fraud was not covered by the statute.

Fraud became a part of larceny law in 1779 with Pear's Case.¹⁷ In Pear, P rented V's horse for a day with the fraudulent intent to take it and sell it immediately, which he did. Because stealth was not involved, the delivery of the horse to P by V was outwardly consensual. Nonetheless, a majority of judges in the case concluded that P was guilty of larceny or, as it is often identified by statute, "larceny by trick."

The reasoning of Pear is disputed.¹⁸ Nonetheless, it is clear that obtaining possession of property by fraud constitutes a trespassory (nonconsensual) taking that may result in conviction for larceny if the other elements of the offense are satisfied.

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^[13] People v. Hoban, 88 N.E. 806, 807 (Ill. 1909); see also People v. March, 886 N.W.2d 396, 406 (Mich. 2016) ("What makes . . . dispossession wrongful is that the person from whom the property is taken holds the right to possess it as against the...