§ 32.05 Larceny: Carrying Away (Asportation)

§ 32.05 Larceny: Carrying Away (Asportation)

A person is not guilty of larceny unless he carries away the personal property that he trespassorily took from another.⁴² However, virtually any movement of the property—even a "hair's breadth"⁴³—away from the point of caption is sufficient.⁴⁴ Thus, common law larceny, rather than attempted larceny, occurs if a shoplifter is caught with the merchant's property in his possession while walking to the exit,⁴⁵ or if a person pulls an earring from the victim's ear, and moves it only a few inches before it gets snagged in her hair.⁴⁶

The asportation requirement is not satisfied, however, unless the movement of the property constitutes a "carrying away" motion. For example, if D moves a box from the floor to a table in order to open it and steal the contents, this change of position of the property does not meet the asportation requirement; instead, it is an act in furtherance of the process of taking possession of the contents of the container; it was not a "carrying away" motion. Therefore, if D were arrested at this moment, he would only be guilty of attempted larceny.⁴⁷

In view of the nearly trivial nature of the "carrying away" requirement, one scholar has observed that "it is frequently difficult to see where taking ends and asportation begins."⁴⁸ As a consequence, the Model Penal Code does not require proof of asportation.⁴⁹ This feature of the Code has been followed by most states that have revised their theft laws.⁵⁰

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Notes:

^[42] People v. Sanders, 67 Cal. App. 4th 1403, 1415 (Ct. App. 1998).

^[43] Hall, Note 1, supra, at 259.

^[44] American Law Institute, Comment to § 223.2, at 164.

^[45] People v. Olivo, 420 N.E.2d 40, 44 (N.Y. 1981).

^[46] Rex v. Lapier, 1 Leach 320, 168 Eng. Rep. 263 (1784); see Harrison v. People, 50 N.Y. 518 (1872) (pickpocket moved a wallet in victim's pocket a few inches before he was caught). Today, the earring example could constitute robbery rather than larceny, as the act of pulling the earring from the victim's ear would likely constitute a forcible taking.

^[47] See Cherry's Case, 168 Eng. Rep. 221 (1781) (defendant picked up a package containing cloth in order to remove the cloth; held: no larceny).

^[48] Hall, Note 1, supra, at 259.

^[49] E.g., Model Penal Code § 223.2(1) (providing that theft occurs if a person "unlawfully takes" another's property).

^[50] American Law Institute, Comment to § 223.2, at 165.