Defendant convicted of petit larceny of 6.5 gallons of gasoline. A witness at the scene describes defendant as driving away without paying for the gas. Witness states that defendant asked him to fill up his tank all the way before driving off. Witness claims he was tricked.
Convicted at trial.
Where an owner transfers property to the accused, thereby relieving him of the element of trespass, can conviction be sustained?
Yes. An actual trespass is not always required to be proven. When the victim or owner is tricked of subject to fraud by the accused, the owner shall be considered to still retain “constructive possession.” This is so because the owner did not intend to give the defendant the gasoline for free. The owner/witness in this case maintained the element intent and the fact he was tricked negates any transaction which would be a consensual exchange of goods.
This is commonly referred to as larceny by trick, which serves as an exception to the necessary element of trespass. The trick itself serves as the element of trespass.