Friday, July 13, 2012

Continuing Trespass Larceny

The following was sent to me vie email:

"I came across these two variations on larceny:
Version 1 is: D takes P's car with no intent to steal but just to borrow it for three hours. After 3 hours D decides to keep the car.
Larceny? Yes because intent formed later .

Version 2: same as above plus after two days D suffers from pangs of guilt and returns it.
I say yes because intent existed for however short a time. B says no larceny because of lack of intent.

In a practice question where a woman takes a bracelet with intent to steal but changes her mind and puts it back it was held larceny.

I am over thinking this I know! But please help."


Let's start with Version 1. D took P's car with no intent to keep the car but then later decides to keep it. It would seem that an essential element of larceny is missing; namely, the intent to permanently deprive another of his/her property. But D did take the property of P, knowing that it was P's, and in such a situation, D can be found guilty of larceny under a continuing trespass theory, if D later decides to keep the property, even if at the time D took the property he did not have the intent to keep it. That's what we have here, so D is guilty of larceny.

In version 2, when D took the property from P, D did not intend to permanently deprive P of the property. As such, the only way for D to be guilty of larceny is under a theory of continuing trespass. But here, unlike in version 1, D never decides to keep the property, and so the elements of continuing trespass are not satisfied. D is not guilty of larceny.

In regards to the woman taking the bracelet, the woman intended to take the bracelet knowing that it was not hers, and she intended to permanently deprive the rightful owner of that bracelet (note the important distinction between this example and versions 1 and 2 above). In this case, all the elements of larceny are satisfied, and so continuing trespass need not be analyzed. The moment the woman takes even the slightest step towards leaving the area with the bracelet (this is the element of "asportation") she has committed larceny.


  1. I am still confused about version 2 and 3.
    Wont version 2 be continued trespass like version 1 and then returning the car is like version 3. So it *should* be larceny because the D had the intention, however fleeting?
    What am I missing?

  2. The key distinction between 2 and 3, is that in 2, the intent to deprive was not present when the item was taken. Therefore, larceny can only be found under a theory of continuing trespass. In version 3, then intent to deprive was present when the item was taken, and, as such, no need to analyze under continuing trespass, as the woman is guilty of the traditional larceny.

    In version 2, I was under the impression that the item was never intended to be kept? If she did decide to keep it permanently, and then later decided to return it, then, yes, continuing trespass.

  3. Can you have a continuing trespass burglary? Or does continuing trespass only apply only to larceny?

  4. Just larceny for continuing trespass.

  5. Hello Sean, Thank you for your great posts. I have a question regarding this theory. If x borrows Y's car with Y's consent and with intent to return it, but after 2 days decides to keep the car, is he still guilty of larceny or the first taking must be somehow trespassory?
    Thank you in advance

  6. Good question, Ehsan. That would not be larceny since there was consent. Even for continuing trespass larceny the taking must be trespassory.