Law Dopers: Let's talk Larceny

[UltraVires]

Many states still use the common law definition for larceny:

Larceny

Let’s say that a person picks up an item in a store with the intent to steal it, but thinks better of it and puts it back down. (Say he confesses this intent so there is no proof issue).

Aha! The legal scholars say, he is guilty of larceny because the “slightest movement” is sufficient for the “carrying away” aspect.

But, I would argue, his taking was not “trespassery.” It is an item on display at a store where the public is invited to pick it up.

Who is correct?

[Trinopus]

If the store detective catches him with the goods in his hand…and, as you say, intent is conceded…there’d be a good strong case to be made. The goods are in his possession, and he has an intent to take them away.

But once he sets them down again? C’mon. What kind of D.A. would act on that? What the hell kind of jury would convict on it?

[Senegoid]

@UltraVires

Aha! The legal scholars say, he is guilty of larceny because the “slightest movement” is sufficient for the “carrying away” aspect.

But, I would argue, his taking was not “trespassery.” It is an item on display at a store where the public is invited to pick it up.

Who is correct?

The wiki article seems to say rather explicitly that you are correct, as opposed to the hypothetical “legal scholars” of whom you speak.

To understand larceny, one must understand the distinction between custody and possession.[11] A person has possession of property when he has actual physical control over the property (actual possession) or he has the right to exercise considerable control over the disposition or use of the property (constructive possession). A person has custody if he has actual physical control of the property but the person who has constructive possession has substantially restricted the custodian’s right to use the property.[11] Examples of custody would be a store customer examining the goods of a merchant, an employee who has been given the property of his employer to be used in his employment and a person who has obtained actual possession of the property by fraud.

(Emphasis added by me.)

ISTM, even though your allegedly larcenous customer had originally intended to steal the merchandise (and even admitted it), he never truly had possession of it (according to the terms quoted above), so that element of larceny is absent.

ETA:

@Trinopus

But once he sets them down again? C’mon. What kind of D.A. would act on that? What the hell kind of jury would convict on it?

Good and obvious points, of course, but not what OP was asking.

[UltraVires]

But further in the article it mentions a customer picking up steaks with the intent to steal but then returning them to the meat counter as an example of larceny.

I would tend to think that the customer at the meat counter never had possession of the steaks, merely custody.

[Nema98]

He/she sets them down and decides not to go ahead, then no charges. Why waste time, when they decided against committing the crime?

[madsircool]

One must take them outside of the store to commit a crime.

[Canadjun]

@Nema98

He/she sets them down and decides not to go ahead, then no charges. Why waste time, when they decided against committing the crime?

The OP wasn’t asking whether he would be charged. He was asking whether it was an example of larceny.

[Trinopus]

I know that the intent to steal has been acknowledged in the premise – but, lacking that, how, exactly, is the guy’s behavior objectively different from any other shopper’s? We all put things in our shopping cart…and then decide to put them back on the shelf again.

Intent is not absolute. In the example, the guy’s intent changes. At one point he’s thinking larcenous thoughts…but a moment later, he isn’t.

In California law, any object can be a “weapon” if the wielder intends it to be. If you have a baseball bat in your car, you have to be careful to think, “This is for a pick-up game of ball,” and not “This is for self-protection.”

But that means that the baseball bat in my car magically turns into a weapon, and then ceases being one again, on and off, as many as twenty times an hour!

Hate crimes, too, are often defined on the basis of intent. But, again, what if my intent changes back and forth? I’m beating this guy up because he was rude to me. (Not a hate crime.) He’s also a damned Jew. (Hate crime.) No, it’s just because he was rude. (Not…)

At some point, pragmatic concerns have to overrule abstract laws. Otherwise, you get into Asimov’s laws of robotics, and madness. If an intent is not clear, then I would argue it is not legally an intent. Someone just thinking about shoplifting has not established a clear intent.

If a mind-reader is required, then it isn’t “clear.”

[UltraVires]

@Trinopus

I know that the intent to steal has been acknowledged in the premise – but, lacking that, how, exactly, is the guy’s behavior objectively different from any other shopper’s? We all put things in our shopping cart…and then decide to put them back on the shelf again.

Intent is not absolute. In the example, the guy’s intent changes. At one point he’s thinking larcenous thoughts…but a moment later, he isn’t.

In California law, any object can be a “weapon” if the wielder intends it to be. If you have a baseball bat in your car, you have to be careful to think, “This is for a pick-up game of ball,” and not “This is for self-protection.”

But that means that the baseball bat in my car magically turns into a weapon, and then ceases being one again, on and off, as many as twenty times an hour!

Hate crimes, too, are often defined on the basis of intent. But, again, what if my intent changes back and forth? I’m beating this guy up because he was rude to me. (Not a hate crime.) He’s also a damned Jew. (Hate crime.) No, it’s just because he was rude. (Not…)

At some point, pragmatic concerns have to overrule abstract laws. Otherwise, you get into Asimov’s laws of robotics, and madness. If an intent is not clear, then I would argue it is not legally an intent. Someone just thinking about shoplifting has not established a clear intent.

If a mind-reader is required, then it isn’t “clear.”

That is an interesting point, but for the purposes of this thread, let’s assume clear intent. My argument that picking up an item on display in a store is not possession nor is it trespass on the store’s interest in the property. They have consented to members of the public picking up their merchandise, even when the member of the public has no intention of buying it.

Even on the Bar Exam practice questions this example came up and was used as a point to show that a larceny occurred by picking up an item in the store and putting it back down. I disagree. The shopper did not “take” the item as the public has permission to pick up items on display in a store.

[UltraVires]

@Trinopus

Someone just thinking about shoplifting has not established a clear intent.

If a mind-reader is required, then it isn’t “clear.”

The more I think about it, the more I agree with your argument. Yes, he says it was his intent to steal the item when he picked it up, but in a larger sense, was it really? The fact that he did not ultimately walk out of the store with the item shows that his intent was not solidified, that he was merely considering stealing the item and the act of picking it up was a mere act of preparation.