Study guide
11.1 Common Law Larceny
California First-Year Law Students' Examination Baby Bar
Track your progress as you read
Finished sections get a check mark.
1 Introduction & FYLSE Examination Guide
1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique
2 Contracts: Mutual Assent, Capacity & Contract Formation
2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract
3 Contracts: Consideration, Estoppel & Implied Obligations
3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms
4 Contracts: Third-Party Beneficiaries, Assignment & Delegation
4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties
5 Contracts: Statute of Frauds, Parol Evidence & Interpretation
5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction
6 Contracts: Performance, Conditions, UCC Warranties & Breach
6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity
7 Contracts: Remedies, Discharge & Changed Circumstances
7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction
8 Criminal Law: Principles of Criminal Liability & Mens Rea
8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence
9 Criminal Law: Inchoate Offenses & Accomplice Liability
9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime
10 Criminal Law: Homicide & Crimes Against the Person
10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person
11 Criminal Law: Property Crimes, Theft & Habitation
11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson
12 Criminal Law: Defenses: Capacity, Justification & Excuse
12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse
13 Torts: Intentional Torts to Persons & Property
13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion
14 Torts: Privileges & Defenses to Intentional Torts
14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege
15 Torts: Negligence — Duty of Care & Breach
15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur
16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages
16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
17 Torts: Strict Liability & Products Liability
17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability
18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts
18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts
11.1 Common Law Larceny
Key Takeaways Explain This Topic AI
Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive, formed at the time of the taking.
Asportation requires only the slightest movement of the entire object, so lifting a package an inch satisfies the element.
Under the continuing trespass doctrine, a defendant who takes property wrongfully but without felonious intent commits larceny when the intent to steal is later formed.
An employee ordinarily has mere custody rather than possession of an employer's property, so misappropriating it is larceny rather than embezzlement.
Intent to borrow, or a good-faith claim of right to the property, negates the intent to permanently deprive.
Last updated: September 2026
Common Law Larceny
Exam Snapshot: Property offenses represent one of the most heavily tested subject areas on the California FYLSE (Baby Bar). Examinees must master the historical common-law theft classifications, which remain vital for bar examination issue spotting even in jurisdictions with consolidated theft statutes. The dispositive analytical inquiries always center on: (1) who held legal possession at the time of the unlawful conversion, (2) whether the victim intended to part with mere custody, possession, or legal title, and (3) whether the defendant possessed the concurrent specific intent to permanently deprive ( animus furandi ).
- 1. Common Law Larceny: Elements & Doctrinal Boundaries
- The Classical Definition
At common law, larceny is defined as the trespassory taking and carrying away (asportation) of the personal property of another with the intent to permanently deprive the owner thereof .
Larceny is a specific intent crime. To sustain a conviction, the prosecution must establish five distinct elements beyond a reasonable doubt: [ Trespassory Taking ] + [ Asportation ] + [ Personal Property ] + [ Of Another ] + [ Animus Furandi ] = Larceny
Element 1: Trespassory Taking (Captio)
A "taking" occurs when the defendant exercises physical dominion and control over the chattel. The taking must be trespassory , meaning it must occur without the consent of the person entitled to lawful possession. If the owner voluntarily consents to the defendant taking possession of the property, the taking cannot constitute common law larceny (unless consent was induced by fraud, giving rise to larceny by trick).
Possession vs. Ownership: Larceny is a crime against possession , not ownership. A taking is trespassory if it invades another's lawful possessory interest, even if the person in possession is not the true legal owner (e.g., a bailee, pledgee, or lessee).
Lost, Mislaid, and Abandoned Property:
Abandoned Property: Property intentionally cast aside by its owner with no intent to reclaim belongs to nobody; taking it is never trespassory.
Lost or Mislaid Property: The finder of lost or mislaid property commits a trespassory taking only if: (1) the finder knows the identity of the true owner or has reasonable means of discovering the owner from clues attached to the property, AND (2) the finder forms the specific intent to permanently deprive the owner at the exact moment of finding .
Property Delivered by Mistake: If a delivery person mistakenly hands an excess quantity of goods or an envelope of cash to the defendant, a trespassory taking occurs only if the defendant realizes the mistake at the time of physical delivery and concurrently forms the intent to keep it. If the recipient discovers the overpayment or mistake only hours or days later, the taking was not trespassory at common law.
Element 2: Carrying Away (Asportation)
Asportation requires that the defendant move the property from the position it previously occupied. On the FYLSE, two rules govern asportation:
Any Movement Suffices: The slightest movement of the chattel is legally sufficient. Moving an item one inch, or lifting a wallet halfway out of a pocket, satisfies asportation ( Rex v. Lapier ).
Severance and Movement: The entire chattel must be completely severed from its attachment and moved. In a classic bar scenario, if a thief attempts to snatch a coat displayed on a boutique rack, but the coat is padlocked to the rack by a steel chain, pulling the coat to the full extension of the chain does not constitute asportation because the item was never completely severed from the possessor's physical control.
Element 3: Personal Property
At common law, larceny was restricted exclusively to tangible personal property (goods and chattels).
Real Property & Severance: Real estate, soil, minerals, growing crops, and building fixtures cannot be the subject of common law larceny. However, if a defendant severs crops, timber, or fixtures from land, a subtle common-law distinction emerges:
Continuous Act: If the defendant severs timber and immediately hauls it away in one continuous transaction, the act constitutes a civil trespass to realty, not larceny.
Severance and Subsequent Asportation: If the defendant severs the timber, leaves the logs on the land, and returns hours or days later to carry them away, the severed logs became personal property in the interim; the subsequent taking constitutes larceny.
Intangibles, Documents & Services: Intangible rights (debts, shares, patents) and professional or labor services (securing lodging or taxi rides without paying) could not be stolen under common law larceny.
Element 4: Of Another
The property must be in the lawful possession of someone other than the defendant. Several recurring exam nuances apply:
Stealing One's Own Property: Because larceny protects possession, an owner can commit larceny of their own chattel. If an owner takes their automobile to a mechanic for repairs, and subsequently sneaks onto the repair lot at night to retrieve the vehicle without paying the repair bill, the owner has committed larceny against the mechanic, who held a lawful possessory artisan's lien.
Co-Owners: At strict common law, one co-owner or joint tenant could not commit larceny of jointly owned property because each owned an undivided possessory interest.
Element 5: Specific Intent to Permanently Deprive ( Animus Furandi )
The defendant must intend to deprive the person entitled to possession of the substantial benefit or value of the property permanently. This mental state must exist at the time of the taking .
Mental State at Taking Intent Satisfied? Doctrinal Rule & Reasoning
Intent to Permanently Keep Yes Classic animus furandi ; defendant intends to keep chattel indefinitely.
Borrowing with Intent to Return No Mere unauthorized borrowing or joyriding lacks the specific intent to permanently deprive.
Intent to Create Substantial Risk of Loss Yes Taking property and recklessly abandoning it in an open, remote, or hazardous place demonstrates intent to permanently deprive.
Intent to Sell Back to Owner Yes Conditioning return of property on payment of a ransom, reward, or "repurchase" price constitutes intent to permanently deprive.
Intent to Pledge as Collateral Yes Pawning or pledging another's property without authorization constitutes intent to permanently deprive, even if the defendant hopes to redeem it later.
- 2. Critical Larceny Doctrines: Continuing Trespass & Claim of Right
- The Doctrine of Continuing Trespass
Under the fundamental principle of concurrence, the actus reus and mens rea must coincide. If a defendant takes property without felonious intent, does a subsequent decision to keep the property constitute larceny? The answer depends entirely on whether the initial taking was permissive or trespassory : Initial Physical Taking of Property
- ├── Permissive Taking (With Consent: borrowing a lawnmower)
- │ └── Later Intent to Steal ──▶ NO LARCENY (Continuing trespass does NOT apply; check Embezzlement)
- └── Trespassory Taking (Without Consent: unauthorized joyride)
- └── Later Intent to Steal ──▶ LARCENY (Continuing trespass applies; intent concurs with continuous trespass)
Mechanics of the Fiction: Under the doctrine of continuing trespass , if the defendant takes property without the owner's permission—even with an innocent intent (e.g., intending merely to borrow it temporarily)—the initial taking constitutes a civil trespass against possession. The law treats that wrongful trespass as continuing every second the defendant retains possession. When the defendant subsequently forms the intent to permanently deprive, that new intent concurs with the continuing trespass, completing the crime of common law larceny.
The Permissive Exception: If the initial taking was fully consensual (e.g., the owner loaned the lawnmower to the defendant for the weekend), the initial acquisition was lawful. The continuing trespass doctrine does not apply to permissive takings. If the borrower later resolves to keep the lawnmower, no common-law larceny has occurred.
The Claim of Right Defense
Because larceny requires the specific intent to steal property belonging to another, an honest, good-faith claim of right completely negates animus furandi .
Subjective Standard: If a defendant takes property under an honest, subjective belief that the property belongs to them, or that they have an absolute legal right to possess it, the defendant does not commit larceny.
Unreasonableness is Irrelevant: The defendant's belief need not be reasonable . An unreasonable, foolish, or careless mistake of fact or civil law negates specific intent. If a defendant takes an umbrella from a restaurant stand honestly believing it is their own, no larceny occurs, even if the umbrella is a completely different color and brand from the defendant's own umbrella.
Debt Collection Limitation: In many jurisdictions, seizing specific unliquidated chattels to satisfy an unrelated general monetary debt does not fall within the claim of right defense, as the creditor owns no possessory title to the debtor's distinct property.
3. Custody vs. Lawful Possession: The Master-Servant Rule & Bailees
The boundary separating common law larceny from statutory embezzlement hinges entirely on the legal distinction between mere custody and lawful possession .
Legal Status Definition & Authority Typical Examples Crime Committed if Converted
Custody Pure physical control over a chattel, subject to the owner's overarching legal dominion; no broad discretionary control. Low-level employees, store customers inspecting goods, temporary physical handlers. LARCENY (Taking possession from owner)
Possession Lawful control over property coupled with legal discretion and substantial independent authority over its management. Bailees, trustees, attorneys, high-level corporate treasurers, executors. EMBEZZLEMENT (Converting while in possession)
The Master-Servant Rule
Under the common-law master-servant rule , when a master delivers property to a servant for use in the master's business, the master retains legal constructive possession; the servant acquires mere custody .
Low-Level Employee: A supermarket cashier, delivery driver, or factory assembly worker has mere custody of the goods and cash registers they operate. If a cashier pockets cash from the register, the cashier commits larceny , because the cashier wrongfully converted mere custody into unlawful possession.
High-Level Fiduciary: A corporate chief financial officer, comptroller, or branch manager entrusted with broad discretionary control over bank accounts and assets holds lawful possession . If they appropriate funds, the offense is embezzlement .
The "Breaking Bulk" Doctrine (Carrier's Larceny)
At early common law, if a merchant entrusted a bale of cloth or a barrel of wine to a commercial transporter (bailee), the transporter held lawful possession. If the transporter sold the entire unopened barrel, no common-law crime occurred (leading to the creation of embezzlement statutes).
To close this loophole, English judges created the fiction of breaking bulk ( The Carrier's Case (1473)):
If a bailee breaks open a sealed container, box, or bale ("breaks bulk") and extracts a portion of the contents, the bailment terminates as to the contents. The bailee's lawful possession instantly reverts to mere custody.
The subsequent taking and carrying away of the extracted goods constitutes common law larceny .