Larceny (Fr. larcin, Lat. latrocinium, theft), the taking and removing, by trespass, of personal property, which the trespasser knows to belong either generally or specially to another, with the intent of depriving him of his general or special ownership therein. To this definition some authorities, but not all, add the further element that the act must be done for the sake of some advantage to the wrong doer. It cannot indeed be doubted that the crime of theft may be fully committed although the act be done without any thought of one's own advantage, and exclusively for the benefit of another; as if he should steal bread or clothing for a hungry or a naked man. Circumstances like these might affect the moral character of the action, and might mitigate the punishment inflicted by the court; but they could not change the legal character of the case. At common law personal property alone could be the subject of this offence; of lands there can plainly be no larceny; and as the law conceives that everything attached to the land or realty partakes of its character, it would not be larceny, independently of statutes, to sever and carry away with felonious intent standing grain, or growing grass, or fruits from trees, or lead or copper fixtures from a building.
But if these things were severed at one time and carried away at another after an interval of time sufficient to render the two transactions distinctly separate, a larceny would be committed; for the property would become by the severance the personal property of the owner of the realty, and rest as such in his possession before the asportation. The too narrow and technical construction of the common law in this respect has been remedied by legislative enactments. It is also essential to the offence that the thing stolen be of some value, though the smallest value, less even than that of the smallest coin, is sufficient. The common law recognizes no value in choses in action, so called, that is, in notes and other personal securities. It esteems them mere evidences of valuable rights; and on the principle that their merely material worth is merged in their representative value, there can be no larceny of such instruments, nor could a suit be maintained even for the value of the paper upon which they were written, unless they had been, by payment or otherwise, rendered void. This defect of the common law has also been remedied, and, by statutes, bank notes, books of account, notes and other valuable securities, are rendered subjects of larceny.
The principle of value is also applied in the case of animals known to the law as ferce naturce. It is the rule of the law that animals wild by nature are not subjects of larceny until they are reclaimed, and then only when they are fit for food. By the common law therefore there can be no larceny of dogs and cats and many other animals, however the civil jurisprudence may recognize a right of property in them. - A taking and a carrying away are also essential to constitute larceny, and an indictment for this crime must charge both these acts. If the party accused have for only an instant of time perfect control over the property, any, even the slightest, removal of the whole of it is sufficient. Thus one was held guilty of larceny who had snatched a watch, the guard of which, though for an instant free from the person of the owner, was while being withdrawn by the thief caught and arrested by a button. But where a purse became entangled by its strings with keys in the owner's pocket, though it had been raised from its place and out of the pocket, yet there was not a perfect control of the purse, and consequently no such carrying away as is essential to complete the offence. The required ownership may be either general or special.
Stolen goods restolen from a thief may be alleged in an indictment to be either his property or that of the true owner. And it is said that one may commit larceny of his own property, if he take it from the possession of his bailee, with the intent to charge him for its loss. - It is further requisite to the constitution of the crime of larceny that there be a coincidence in point of time of two distinct intents, viz., an intent to trespass on another's personal property, and an intent to deprive him of his ownership therein. Therefore, if one too drunken to conceive an intent to steal take property, but surrender it before any such intent is entertained, there can be no conviction for larceny. Nor was this crime held to have been committed in a case where, though there was a trespass, the property was taken with the intention of converting only its use to the service of the trespasser. The rule is that the trespass must concur in time with the intent to steal. This rule may seem to be and perhaps is rather technical than reasonable; but it is firmly fixed in criminal jurisprudence, and a clear apprehension of it is necessary to the right conception of the crime of larceny. - Trespass is a wrongful act of force done to the possession of another.
Therefore, in respect to larceny, there can be no trespass against an owner who has not the possession of the property taken. On this principle rests the familiar rule of law, that common carriers and other bailees cannot commit larceny of the goods intrusted to them, so long as this relation exists; for under their contract of bailment they, and not the owners, have the legal possession of the property, and the essential trespass is therefore impossible. For example, the master of a ship, who steals one of several packages delivered to him to carry, does not commit larceny; but if he first break the package and then steal part of its contents, the offence of larceny is complete. The distinction between the two cases is clear. It is evident that the bailee must be first divested of his legal possession before the trespass is possible. In the former of the cases proposed, although by stealing the package without breaking its bulk he destroys the privity of contract between himself and his bailor, still the act is committed in respect of goods which at the time are in his legal possession; the termination of the contract and the act of conversion are simultaneous.
But where the package is first broken, the act of breaking determines the contract of bailment and the right of the bailee to hold the property, for that is on the instant revested in the owner. Any act of conversion of the goods to the bailee's own use, after a trespass upon the owner's legal right has destroyed the trespasser's right of possession, completes the offence of larceny. A distinction is to be observed between this legal possession and a mere custody. Thus servants who have a thing in their custody to keep, or clean, or carry, have no right of possession; their possession is their master's possession, and he may at his own pleasure take the thing from their hands; therefore they may commit larceny of any goods in their custody which came to them by delivery from the master, or were otherwise in his legal possession. - In all cases in which the legal possession is rightfully acquired, it is plain that trespass and therefore larceny cannot be possible. This principle may be practically illustrated by the example of lost goods. The finder may lawfully take such goods into his possession.
He acquires a special property in them, defeasible only by the owner, and in virtue of this has the legal possession, so that, though he afterward ascertain who the owner is, and with felonious intent convert the goods to his own use, he is not guilty of larceny. To constitute the crime in such cases, the finder must at the time of the finding either know the owner, or have means of knowing him, or have reason to believe that he may be found, and must at that time have the felonious intent of appropriating the goods to his own use. The essential element and criterion of a trespass is the wrongful force. This force need not be exerted physically. It may consist in the unjust use of legal process. So it is a sufficient trespass to entice away an animal by the voice, or by offering food. A thief commits a trespass when he has gotten the control of an article by inspiring fear in the owner. In these cases the law refers the surrender of the ownership to the thief's act of force. Not so, however, when one is induced by a fraud to part with his property.
Whatever remedy the defrauded owner may have in such a case in civil jurisprudence, in the criminal law there is no larceny; and though the intent of the taker were ever so felonious, yet the owner's consent precludes the act of trespass without which, as we have seen, the offence is not complete. So, if one obtains goods by falsely personating the party who had ordered them, he is not guilty of larceny, whatever be his intent, for the owner means to pass the property in the goods by the delivery. But, on the other hand, if he gets the loan of an article, his concurrent intent being to steal it, the owner's consent avails him nothing, and he commits the crime. The same principle applies to those cases in which an owner delivers goods with the understanding that the property in them is to pass when the price is paid, but the taker's object is to get possession of them without any intention of performing this condition. - The second intent essential to constitute the crime is the intent to deprive the owner of his ownership, or of his whole right of property, in distinction from any mere particular interest in it.
So that he is no thief who takes a horse, however wrongfully, with the intention of using and then returning him. - The common law distinction between grand and petit larceny, which was determined by the value of the thing stolen, is in the United States very generally abolished. Compound larceny is larceny aggravated by taking the thing stolen from the house or person of the party against whom the theft is committed.