Facts
- John Topolewski was owed about $100 by Mat Dolan, an employee of Plankinton Packing Company.
- Dolan and Topolewski agreed Dolan would help satisfy the debt by enabling Topolewski to take barrels of meat from the company.
- Dolan disclosed the plan to the company, which coordinated with law enforcement to allow the plan to proceed to catch Topolewski.
- Company agents (including Dolan and another employee) arranged for barrels of meat to be placed on the loading platform where customers ordinarily picked up goods and instructed the platform boss to release the barrels to the person who came for them.
- Topolewski arrived with a wagon, told the platform boss he had ordered the meat through Dolan, loaded three barrels (valued at about $55.20), and drove away intending to steal them.
- Company representatives and officers observed the taking and did not interfere, as the situation had been deliberately staged.
Issues
- Whether larceny is established when the owner, through its agents, affirmatively assists the taking by delivering or facilitating possession, thereby eliminating the trespass element required for larceny.
Decision
- The Wisconsin Supreme Court reversed the larceny conviction and remanded for a new trial.
- The court held the conviction could not stand because the owner’s agents aided the taking in a manner that negated a trespassory taking.
- The court distinguished merely providing an opportunity to steal from acts by the owner or its agents that perform, or render unnecessary, an essential act of the offense.
Legal Principles
- Common-law larceny requires a trespassory taking and carrying away of another’s property.
- If the owner (or the owner’s agent) procures the property to be taken, or delivers possession to a person who intends to steal, the element of trespass is absent and larceny is not completed, even if the actor’s intent to steal is clear.
- An owner may set a trap by observing or leaving property available; however, when the owner’s conduct affirmatively facilitates delivery or possession in a way essential to the taking, the “trespass” required for larceny is not present.
Conclusion
Because the company’s agents arranged placement and release of the barrels in the ordinary pickup process, Topolewski obtained possession through the owner’s facilitated delivery rather than a trespassory taking; the larceny conviction was therefore reversed and the case remanded for a new trial.