If a servant in control of his master’s property has only “custody” of the property and not “possession,” the servant could be guilty of larceny if he/she steals the property.

The term “master and servant” means the same as “employer and employee.”

Custody: A servant has only custody of the master’s property and the possession remains with the master where: (1) the servant receives the property from the master and has the property in his/her control at the master’s direction; or (2) when the servant received the property from a third party on his master’s behalf and he/she deposited the property at a location in the master’s control.

REFERENCE DESK

Loker v. State, 233 A.2d 342 (Md. App. 1967):

“It is clear that larceny is an offense against possession, and that there must be a taking sufficient to constitute a trespass.  The early English cases held that since a servant, receiving property of his master from a third party, obtained possession and not mere custody, the servant could not be guilty of larceny until he gave up possession to the master.  Other early cases noted, however, the possession could be transferred to the master merely by placing the property in some receptacle provided for that purpose by the master. In answer to such cases as Bazeley, the first embezzlement statute was passed in England in 1799.  ‘The English courts consistently refused to treat these statutes as an extension of common law larceny, and insisted that they were passed solely and exclusively to provide for cases which larceny did not include.’ The Court of Appeals of this State has adopted and follows this view of the Maryland embezzlement statute,  even though the fine distinction between larceny and embezzlement has been avoided in its place of origin by statutory enactment.  We think it clear that, in Maryland, the embezzlement statutes do not absorb all cases of larceny by servants, agents or employees.”

North Carolina General Statutes – § 14-74.  Larceny by servants and other employees.

If any servant or other employee, to whom any money, goods or other chattels, or any of the articles, securities or choses in action mentioned in G.S. 14-75, by his master shall be delivered safely to be kept to the use of his master, shall withdraw himself from his master and go away with such money, goods or other chattels, or any of the articles, securities or choses in action mentioned as aforesaid, or any part thereof, with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by his said master; or if any servant, being in the service of his master, without the assent of his master, shall embezzle such money, goods or other chattels, or any of the articles, securities or choses in action mentioned as aforesaid, or any part thereof, or otherwise convert the same to his own use, with like purpose to steal them, or to defraud his master thereof, the servant so offending shall be guilty of a felony: Provided, that nothing contained in this section shall extend to apprentices or servants within the age of 16 years. If the value of the money, goods, or other chattels, or any of the articles, securities, or choses in action mentioned in G.S. 14-75, is one hundred thousand dollars ($100,000) or more, the person is guilty of a Class C felony. If the value of the money, goods, or other chattels, or any of the articles, securities, or choses in action mentioned in G.S. 14-75, is less than one hundred thousand dollars ($100,000), the person is guilty of a Class H felony. 

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