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What is theft?

October 31, 2011

1. History, 2. Law

What is theft?

Theft – or the older and still sometimes used term Larceny – is a very cool crime.  So much arises out of it – Burglary, Robbery, and Possession of Stolen Property, for example.  Even Trespass.

Common Law defined it as the “trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the possessor of the property.”  It’s common for the first word – trespassory – to be dropped when quoting the Common Law.  It’s handled in the application of “taking.”  It doesn’t mean trespass as the word is ordinarily used – to enter someone’s real property without their permission.

What does it mean to “take”?  To dispossess someone without their consent.  To exercise dominion over something.  For example, someone with whom you are walking drops accidentally several coins.  You step on one to cover it then crouch down to help him gather the remainder.  You have prevented that person from regaining possession of the coin.  You have dispossessed him of it.

What does it mean to “carry away”?  Movement, no matter how slight.  You come back later for the coin.  It goes into your pocket.

You see how “take and carry away” are two different concepts?

It needs to be personal property.  The opposite of personal property is real property.  Real property is land and anything attached to it – houses, crops, etc.  Personal property must be movable at the time.  The coin was movable.  Weight or ease of moving isn’t the issue – it’s whether it is fixed to the ground.

It has to be the property of another.  This is where we tag along another concept – Theft is a “specific intent” crime.  You can’t stumble into Theft negligently.  Assume your neighbor often borrows your lawnmower.  You go to your shed – empty.  You go his shed – lawnmower.  You take it.  Turns out that he finally bought one for himself, and bought the same model you owned.  Was it his  lawnmower?  Yes, it’s the property of another.  Did you intend specifically to steal his lawnmower?  No.  You had what’s called a “claim of right.”  You really did believe it was your lawnmower.

The property has to be someone else’s – “of another.”  You can’t steal your own stuff.  That usually is preparatory to another crime – insurance fraud.

The intent needs to be to permanently deprive.  Does that mean you can intend to just borrow something for a few days and avoid a theft charge?  No.  Everything has a limited useful life.  To make it easy, assume that useful life is one year, and you intended to borrow it for a week.  You permanently deprived the owner of 1/52d of the useful life of that item.

And the person you are depriving is the person in possession of it.  So ownership never comes into it.  If I lend my lawnmower to you, and some yahoo takes it from your shed – he’s stolen it from you, not from me.

So put the phrases together:

  • taking
  • and carrying away
  • of the personal property
  • of another
  • with the intent to permanently deprive
  • the possessor of the property

You want Robbery?  Commit Theft with force against a person.  Burglary?  Intend to commit Theft then enter a building.  You want Trespass?  Go onto someone’s property to steal their lawnmower and chicken out before you grab it.

Committing retail theft is easy.  Walk into Wal-Mart, stick a video game in an aluminum-foil lined bag, and walk out the door.  The bag should defeat the RFID tag so no alarm goes off.  Now you’re in the parking lot.  Several gentlemen from Loss Prevention surround you.

Let’s step through it:

  • taking – you exercised dominion as you stuck it in the bag
  • and carrying away – done when you walked past the cash registers
  • of the personal property – it was movable
  • of another – wasn’t your game, now was it?
  • with the intent to permanently deprive – even if you returned it used, the value was less
  • the possessor of the property – the store certainly possessed it before you did.

Best of luck explaining it.

Theft crimes are graded (levels of Misdemeanors and Felonies) based upon value of the item stolen.  Some items get graded because of what they – cars and guns are examples.  Just be glad you’re not a thief 100+ years ago – they liked to hang them.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde


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