Larceny by Trick

Larceny by Trick

Larceny requires a trespassory taking, which means that the defendant takes the property without the consent of the person who holds it. That requirement leaves an opening for the swindler who snatches nothing and instead lies until the owner hands the property over willingly. If the owner's agreement counted at face value, the swindler would escape larceny, because the owner voluntarily gave up the goods. The common law closed the opening with the doctrine of larceny by trick: when a victim gives the defendant custody or possession because of the defendant's misrepresentation, the law treats the consent as invalid and the taking as trespassory.¹ Fraud, in other words, takes the place of the trespass, so a defendant who obtains possession of another's property, but not title, by trickery can be guilty of larceny.²

The rule makes sense once you ask what consent does in larceny. Consent defeats a trespass because it shows that the owner chose to let the defendant have the property on terms the owner understood. A victim who agrees only because of a lie has not chosen those terms, since the defendant supplied the false picture that produced the agreement. Treating that agreement as no consent leaves the trespass element intact for a defendant who meant to steal from the outset, and it denies the swindler the argument that the victim handed the property over willingly. The doctrine carries two limits, and both follow from the same reasoning: the lie must have been told to get the property, and the victim must have meant to give up only custody or possession, a point developed below.

The doctrine began in Rex v. Pear, an English case from 1779. Pear rented a horse after telling the owner that he was going to Surrey, then rode to Smithfield and sold it, and the jury apparently found that he meant to sell the horse when he rented it.³ Conventional larceny doctrine had trouble with those facts, because Pear took possession with the owner's consent, so the court reasoned that his taking was wrongful, and therefore void, from the very beginning because deceit had achieved it.⁴ On that reasoning a defendant whose intent was fraudulent from the start never acquired lawful possession, and the later conversion of the horse was treated as the taking and carrying away that larceny requires.⁵ The judges were stretching larceny to reach a swindler whose possession looked consensual, and earlier courts had already stretched the idea of possession for the same purpose in other settings.⁶

Later commentators reframed the reasoning in a way that matters for timing. Fraud, they said, did not stop possession from passing; it made the possession pass without valid consent, and a nonconsensual transfer is enough for a trespass.⁷ On this view the larceny occurred when Pear hired the horse and not when he later sold it, because the crime is complete once the defendant gets hold of the property carrying the intent to steal.⁸ The sale, a refusal to return the property, or any other later conduct still matters, but only as evidence of what the defendant intended at the moment of handover. That is the concurrence rule from the previous sections applied to the swindler: the intent to deprive the owner permanently and the trespassory taking must coincide, and here the fraud supplies the trespass at the instant the intent exists.⁹

Because the intent must exist at the moment of handover, the same borrowing can be larceny by trick or no larceny at all, depending on what the borrower meant when receiving the property. In a standard teaching illustration, Sam asks Jane to lend him her textbook and never intends to give it back; Jane hands it over, and Sam, who obtained possession but not title by deceit, is guilty of larceny by trick.¹⁰

The two borrowers differ in a single fact, the borrower's intent when the book changed hands, and that fact decides whether the consent was genuine.¹¹

The second limit concerns what the victim meant to give up. Larceny by trick applies when the victim intended to pass only custody or possession, because the lie then invalidates a consent that reached only the possessory interest. In an illustration involving money held in trust, a man persuades the holder of the money to hand it to him by promising to carry it to a third person, and he intends from the start to keep it. The holder relies on the promise and means to give up possession only, so the consent is invalid, the taking is trespassory, and every element of larceny is satisfied.¹² Because the man obtained possession and not title, false pretenses was not committed.¹³ Had the holder meant to pass ownership of the money, the analysis would move to a different offense, which the later sections on false pretenses take up.

The deceit requirement also separates larceny by trick from embezzlement, the offense that covers someone who lawfully holds property and then misappropriates it. The same promise can lead to either offense. Sam offers to carry Jane's textbook to the bookstore and bring her the proceeds, and Jane hands it over. If Sam honestly meant to do so and decides on the way to keep the book, a real bailment (a delivery of property to someone for a limited purpose) was formed, and he has embezzled. If the promise was false from the start and Sam meant to keep the book all along, no bailment was formed and the offense is larceny by trick.¹⁴ Under larceny by trick the initial taking is achieved by deceit and is therefore considered never to have been possession, whereas embezzlement begins with lawful possession.¹⁵ The words spoken at the handover are identical in the two cases, so the only fact that separates them is the defendant's state of mind at that moment.

Students lose this issue when they treat every lie that precedes a handover as larceny by trick, when the controlling questions are what the defendant intended at the moment of receipt and what interest the victim meant to pass.

Larceny by trick marks one outer edge of larceny, because it reaches a defendant whose possession looks consensual only because a lie produced the consent. Two other situations lie beyond it. A defendant who lawfully holds property when the intent to steal first forms has taken nothing from another's possession, and a defendant who is given title has nothing to trespass upon. In People v. Williams the California Supreme Court held that a defendant who used re-encoded credit cards to buy gift cards had not committed robbery, because the store consented to transfer title to the cards, so there was no trespassory taking; unlike larceny by trick, where fraud vitiates consent as a matter of law, the acquisition of title precludes a trespass.¹⁷ What offense fits the defendant who lawfully held the property and then misappropriated it, and the defendant who obtained title by a lie, is the question the next two sections answer.