Top Law Schools

I know you need to have the intent to permanently deprive at the time you commit the taking and carrying away for it to be a crime of larceny. But reviewing critical pass flashcards and they say under "Continuing Trespass" - "when one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property."

Um I'm trying to figure out a hypo for this because the majority of the Q's I've done have concluded that D not guilty of larceny. Let me give it a shot -- so I borrow my neighbor's car to take a joyride and plan to return it - not larceny. I borrow it, originally plan to return it - then I decide to keep it - that's continuing trespass?? Because I swear to God I thought it was not larceny and that's what most of the questions said.

Help confused does anyone have a clear explanation...

if when you borrowed it you had every other required element for larceny except intent to permanently deprive, yes. (in response to the car hypo).



so it had to be trespassory, etc.

Law-So-Hard wrote:I know you need to have the intent to permanently deprive at the time you commit the taking and carrying away for it to be a crime of larceny. But reviewing critical pass flashcards and they say under "Continuing Trespass" - "when one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property."

Um I'm trying to figure out a hypo for this because the majority of the Q's I've done have concluded that D not guilty of larceny. Let me give it a shot -- so I borrow my neighbor's car to take a joyride and plan to return it - not larceny. I borrow it, originally plan to return it - then I decide to keep it - that's continuing trespass?? Because I swear to God I thought it was not larceny and that's what most of the questions said.

Help confused does anyone have a clear explanation...

I asked Barbri by email. They explained it can only be a continuing larceny when the taking itself was sort of unlawful but you didn't have the requisite mens rea to make a larceny until the "continuing" part where you later formed the mens rea.

So in the example where someone Borrows something, the taking was never "wrongful" so no matter what he changes his mind to, that cant be a continuing larceny relating back to the taking. But if I took your phone to play a few games on it without ur permission, and later i was like "sweet phone, lemme keep it" there since the taking was "wrongful" the later mens rea change to "wanting to keep the item" will be a continuing larceny.

Does any of this make sense to you?

jd20132013 wrote:if when you borrowed it you had every other required element for larceny except intent to permanently deprive, yes. (in response to the car hypo).



so it had to be trespassory, etc.

Yeah you can have every element except intent to permanently deprive -- what makes it a continuing trespass if you later change your mind as opposed to no larceny?

I just feel like there will be a Q on the MBE where it comes down to "not larceny" and "guilty b/c of the continuing trespass" and I'm going to be like dafuq.

pizzasodafries wrote:

Law-So-Hard wrote:I know you need to have the intent to permanently deprive at the time you commit the taking and carrying away for it to be a crime of larceny. But reviewing critical pass flashcards and they say under "Continuing Trespass" - "when one borrows property with the intent to return it, but later keeps it; larceny arises at the moment D decides not to return the property."

Um I'm trying to figure out a hypo for this because the majority of the Q's I've done have concluded that D not guilty of larceny. Let me give it a shot -- so I borrow my neighbor's car to take a joyride and plan to return it - not larceny. I borrow it, originally plan to return it - then I decide to keep it - that's continuing trespass?? Because I swear to God I thought it was not larceny and that's what most of the questions said.

Help confused does anyone have a clear explanation...

I asked Barbri by email. They explained it can only be a continuing larceny when the taking itself was sort of unlawful but you didn't have the requisite mens rea to make a larceny until the "continuing" part where you later formed the mens rea.

So in the example where someone Borrows something, the taking was never "wrongful" so no matter what he changes his mind to, that cant be a continuing larceny relating back to the taking. But if I took your phone to play a few games on it without ur permission, and later i was like "sweet phone, lemme keep it" there since the taking was "wrongful" the later mens rea change to "wanting to keep the item" will be a continuing larceny.

Does any of this make sense to you?

I....cannot tell the difference....http://www.visionmonday.com/CMSImagesCo ... -gif-1.gif

i can't think of an example where that wouldn't be a continuing trespass. can you give an example?

if you change your mind later, it's larceny, because a continuing trespass has occurred. I don't really think of "contiuing trespass" as a discrete thing. it's just a way the common law gets around the concurrence problem.

I found this in my notes:

- Continuing trespass doctrine: if the defendant takes property with a wrongful state of mind but without the intent to commit larceny and later, while still in possession of the property, forms the intent to steal it, the trespass involved in the initial wrongful taking is regarded as “continuing,” and the defendant is guilty of larceny.

re "borrowing" your neighbor's property and "borrowing" a phone - I can't really tell the difference.

Does anyone have any other hypos from MBEs? I wish I noted which question that was.

- Continuing trespass doctrine: if the defendant takes property with a wrongful state of mind but without the intent to commit larceny and later, while still in possession of the property, forms the intent to steal it, the trespass involved in the initial wrongful taking is regarded as “continuing,” and the defendant is guilty of larceny.

that's pretty much exactly right. what exactly's confusing you?

the only time you wouldn't get larceny in a situation where the person forms the intent later that I could possibly think of is if the initial taking was not trespassory/without consent. (e.g., if you were entrusted with the thing and then decided to take it permanently). That would be embezzlement, I believe


gotta do a problem set but will check in later

Janitor is cleaning a jewelry store. Sees a beautiful necklace, decides he's going to borrow it for the evening for his wife to wear to an event but plans to give it back the next day. When he gives it to her, she asks if it's hers to keep. Janitor, so happy in the moment, says "sure thing, baby." At that moment it becomes larceny due to the continuing trespass doctrine.

jd20132013 wrote:i can't think of an example where that wouldn't be a continuing trespass. can you give an example?

if you change your mind later, it's larceny, because a continuing trespass has occurred. I don't really think of "contiuing trespass" as a discrete thing. it's just a way the common law gets around the concurrence problem.

Here is an example i recall.

I think I took my umbrella out when it was raining, instead I took someone else's umbrella, later when I find this out, I decide to keep this other person's umbrella. No Continuing trespass since the taking wasn't "wrongful." I recall seeing that somewhere, maybe the longer outlines book that no one ever opens.

pizzasodafries wrote:

jd20132013 wrote:i can't think of an example where that wouldn't be a continuing trespass. can you give an example?

if you change your mind later, it's larceny, because a continuing trespass has occurred. I don't really think of "contiuing trespass" as a discrete thing. it's just a way the common law gets around the concurrence problem.

Here is an example i recall.

I think I took my umbrella out when it was raining, instead I took someone else's umbrella, later when I find this out, I decide to keep this other person's umbrella. No Continuing trespass since the taking wasn't "wrongful." I recall seeing that somewhere, maybe the longer outlines book that no one ever opens.

Oh that's an interesting twist. And is that not any kind of theft crime at all?

jd20132013 wrote:

- Continuing trespass doctrine: if the defendant takes property with a wrongful state of mind but without the intent to commit larceny and later, while still in possession of the property, forms the intent to steal it, the trespass involved in the initial wrongful taking is regarded as “continuing,” and the defendant is guilty of larceny.

that's pretty much exactly right. what exactly's confusing you?

the only time you wouldn't get larceny in a situation where the person forms the intent later that I could possibly think of is if the initial taking was not trespassory/without consent. (e.g., if you were entrusted with the thing and then decided to take it permanently). That would be embezzlement, I believe


gotta do a problem set but will check in later

So I cracked open the big outline book - the defendant must have a wrongful state of mind. If he had NO intent to steal, but a "wrongful state of mind," and later develops the intent to steal it, then it's a continuing trespass situation. The umbrella hypo is spot on.

Comparatively it's not larceny if one only intends to borrow - I guess that's less than a wrongful state of mind.

Damn it I'm falling for the morally correct choice because my brain is telling me it's still wrongful if you go into your neighbor's garage to "borrow" his Maserati - how is that not wrongful? Whatever. Just gotta remember: WRONGFUL STATE OF MIND EVEN IF NO INTENT TO STEAL MAKES IT A CONTINUING TRESPASS IF D LATER FORMS INTENT TO KEEP IT.

Sorry for all caps. It's been a long summer

jd20132013 wrote:

pizzasodafries wrote:

jd20132013 wrote:i can't think of an example where that wouldn't be a continuing trespass. can you give an example?

if you change your mind later, it's larceny, because a continuing trespass has occurred. I don't really think of "contiuing trespass" as a discrete thing. it's just a way the common law gets around the concurrence problem.

Here is an example i recall.

I think I took my umbrella out when it was raining, instead I took someone else's umbrella, later when I find this out, I decide to keep this other person's umbrella. No Continuing trespass since the taking wasn't "wrongful." I recall seeing that somewhere, maybe the longer outlines book that no one ever opens.

Oh that's an interesting twist. And is that not any kind of theft crime at all?

Not sure, but we are getting very deep into continuing larceny. I wouldn't worry about it, they will test us on continuing larceny, but it will be was it

A) Larceny
B) Continuing Larceny
C) Larceny by trick
D) Macaroni

Law-So-Hard wrote:

jd20132013 wrote:

- Continuing trespass doctrine: if the defendant takes property with a wrongful state of mind but without the intent to commit larceny and later, while still in possession of the property, forms the intent to steal it, the trespass involved in the initial wrongful taking is regarded as “continuing,” and the defendant is guilty of larceny.

that's pretty much exactly right. what exactly's confusing you?

the only time you wouldn't get larceny in a situation where the person forms the intent later that I could possibly think of is if the initial taking was not trespassory/without consent. (e.g., if you were entrusted with the thing and then decided to take it permanently). That would be embezzlement, I believe


gotta do a problem set but will check in later

So I cracked open the big outline book - the defendant must have a wrongful state of mind. If he had NO intent to steal, but a "wrongful state of mind," and later develops the intent to steal it, then it's a continuing trespass situation. The umbrella hypo is spot on.

Comparatively it's not larceny if one only intends to borrow - I guess that's less than a wrongful state of mind.

Damn it I'm falling for the morally correct choice because my brain is telling me it's still wrongful if you go into your neighbor's garage to "borrow" his Maserati - how is that not wrongful? Whatever. Just gotta remember: WRONGFUL STATE OF MIND EVEN IF NO INTENT TO STEAL MAKES IT A CONTINUING TRESPASS IF D LATER FORMS INTENT TO KEEP IT.

Sorry for all caps. It's been a long summer

Your welcome!

pizzasodafries wrote:

jd20132013 wrote:

pizzasodafries wrote:

jd20132013 wrote:i can't think of an example where that wouldn't be a continuing trespass. can you give an example?

if you change your mind later, it's larceny, because a continuing trespass has occurred. I don't really think of "contiuing trespass" as a discrete thing. it's just a way the common law gets around the concurrence problem.

Here is an example i recall.

I think I took my umbrella out when it was raining, instead I took someone else's umbrella, later when I find this out, I decide to keep this other person's umbrella. No Continuing trespass since the taking wasn't "wrongful." I recall seeing that somewhere, maybe the longer outlines book that no one ever opens.

Oh that's an interesting twist. And is that not any kind of theft crime at all?

Not sure, but we are getting very deep into continuing larceny. I wouldn't worry about it, they will test us on continuing larceny, but it will be was it

A) Larceny
B) Continuing Larceny
C) Larceny by trick
D) Macaroni

Lol
This reminds me of a Barbri question where the answer explanation said something like "(D) is nonsense" with NO EXPLANATION. I had picked D.

Law-So-Hard wrote:

jd20132013 wrote:

- Continuing trespass doctrine: if the defendant takes property with a wrongful state of mind but without the intent to commit larceny and later, while still in possession of the property, forms the intent to steal it, the trespass involved in the initial wrongful taking is regarded as “continuing,” and the defendant is guilty of larceny.

that's pretty much exactly right. what exactly's confusing you?

the only time you wouldn't get larceny in a situation where the person forms the intent later that I could possibly think of is if the initial taking was not trespassory/without consent. (e.g., if you were entrusted with the thing and then decided to take it permanently). That would be embezzlement, I believe


gotta do a problem set but will check in later

So I cracked open the big outline book - the defendant must have a wrongful state of mind. If he had NO intent to steal, but a "wrongful state of mind," and later develops the intent to steal it, then it's a continuing trespass situation. The umbrella hypo is spot on.

Comparatively it's not larceny if one only intends to borrow - I guess that's less than a wrongful state of mind.

Damn it I'm falling for the morally correct choice because my brain is telling me it's still wrongful if you go into your neighbor's garage to "borrow" his Maserati - how is that not wrongful? Whatever. Just gotta remember: WRONGFUL STATE OF MIND EVEN IF NO INTENT TO STEAL MAKES IT A CONTINUING TRESPASS IF D LATER FORMS INTENT TO KEEP IT.

Sorry for all caps. It's been a long summer

This is where u are making it more complicated, you cant "borrow" something without their permission, so it's wrongful from the taking. If you borrow it with permission than its clearly not wrongful.

If by "borrow" you mean that the neighbor took the Maserati without permission, then I think it is larceny when he later decides he's going to keep it permanently. Did barbri say otherwise?

tsutsik wrote:If by "borrow" you mean that the neighbor took the Maserati without permission, then I think it is larceny when he later decides he's going to keep it permanently. Did barbri say otherwise?

No, he was clearly mistaken that is clearly Continuing larceny. No question about it. You cant "borrow" something without consent, if we could than I would be borrowing my neighbors Lexus way more often.

Know the continuing trespass rule, but also remember that if property is taken under claim of right, then never larceny (even with continuing trespass).

Claim of right is not necessarily a claim of ownership. It includes authorized taking--borrowing with permission. At the time you took it, you had a claim of right. That does not change if you change your mind about giving it back. If you "borrowed" it without permission, you had no claim or right and are not protected by this rule.

Asleep wrote:Know the continuing trespass rule, but also remember that if property is taken under claim of right, then never larceny (even with continuing trespass).

Claim of right is not necessarily a claim of ownership. It includes authorized taking--borrowing with permission. At the time you took it, you had a claim of right. That does not change if you change your mind about giving it back. If you "borrowed" it without permission, you had no claim or right and are not protected by this rule.

thank you, I think this thread helped me understand the concept a lot better. I know it's just a ticky tacky point but this kind of stuff def gets under my skin when I don't understand it.