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effraction

Theft

[theft]

In criminal law, theft (also known as stealing or filching) is the illegal taking of another person's property without that person's freely-given consent. As a term, it is used as shorthand for all major crimes against property, encompassing offences such as burglary, embezzlement, larceny, looting, robbery, mugging, trespassing, shoplifting, intrusion, fraud (theft by deception) and sometimes criminal conversion. In some jurisdictions, theft is considered to be synonymous with larceny; in others, theft has replaced larceny.

Someone who carries out an act of or makes a career of theft is known as a thief.

Elements

The actus reus of theft is usually defined as an unauthorised taking, keeping or using of another's property which must be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use.

For example, if X goes to a restaurant and, by mistake, takes Y's scarf instead of her own, she has physically deprived Y of the use of the property (which is the actus reus) but the mistake prevents X from forming the mens rea (i.e. because she believes that she is the owner, she is not dishonest and does not intend to deprive the "owner" of it) so no crime has been committed at this point. But if she realises the mistake when she gets home and could return the scarf to Y, she will steal the scarf if she dishonestly keeps it. Note that there may be civil liability for the torts of trespass to chattels or conversion in either eventuality.

By region

Theft in English law

In English law, theft was codified into a statutory offence in the Theft Act 1968 which defines it as:
"A person is guilty of theft, if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it". (Section 1)
The five elements of the offence are defined sequentially in the Act:

  • Section 2 dishonesty;
  • Section 3 "appropriation" which occurs when the defendant wrongfully asserts the rights of ownership over the property. This can be by physical taking, but it will also include many different situations (i.e. a failure to return or omission) in which a person may have lawfully come into possession of the property and then keeps or uses the property in an unauthorised way;
  • Section 4 "property" includes all personalty, i.e. land itself cannot be stolen but anything severed from the land (with the exception of wild flowers) can be stolen, as can intangible property such as a chose in action; however it seems that the term does not extend to all intangible property, as information (Oxford v. Moss) and trade secrets (R v. Absolom, The Times, 14th September 1983) have been held not to fall within the Section 4 definition of property.
  • Section 5 "belonging to another" requires a distinction to be made between ownership, possession and control:

ownership is where a person is not legally accountable to anyone else for the use of the property:
possession is where a person is only because it had been physically removed but there were two issues to be decided:
did the car "belong to another"? The garage had a lien i.e. a "proprietary right or interest" in the car as security for the unpaid bill and this gave the garage a better right than the owner to possess the car at the relevant time.
what was the relevance of Turner's belief that he could not steal his own property? The defence of mistake of law) only applies if the defendant honestly believes that he has a right in law to act in the given way. Generalised and non-specific beliefs about what the law might permit are not a defence.

  • Section 6 "with the intent to permanently deprive the other of it" is sufficiently flexible to include situations where the property is later returned. For example, suppose that B, a keen football fan, has bought a ticket for the next home match. T takes the ticket, watches the match and then returns the ticket to B. In this instance, all that T returns is a piece of paper. Its value as a licence to enter the stadium on a particular day has been permanently lost. Hence, T steals the ticket. Similarly, if T takes a valuable antique but later repents and returns the goods, T has committed the actus reus with the mens rea. The fact that T's conscience forces a change of mind is relevant only for sentencing.

The maximum sentence in the Crown Court is seven years (section 7).

If the act of stealing is already complete before another comes into possession of the goods, this may be handling. For alternative charges involving deceptions, see the deception offences and the Theft Act 1978 which may overlap with s1 Theft. For the theft of motor vehicles with or without violence, see robbery, blackmail and TWOC.

Victoria - Australia North and south

Theft is defined at s.72 of the Crimes Act 1958. The actus reus and mens rea are defined as follows:

Actus reus

Appropriation - defined at s.73(4) of the Crimes Act 1958 as the assumption of any of the owners rights. It does not have be all the owner's rights, as long as at least one right has been assumed(Stein v Henshall). If the owner gave their consent to the appropriation there cannot be an appropriation(Baruday v R). However, if this consent is obtained by deception, this consent is vitiated.

Property - defined at s.71(1) of the Crimes Act 1958 as being both tangible property, including money and intangible property. Information has been held not be property(Oxford v Moss).

Belonging to another - s.73(5) that property belongs to another if that person has ownership, possession, or a proprietary interest in the property. Property can belong to more than one person. s.73(9) & s.73(10) deal with situations where the accused receives property under an obligation or by mistake.

Mens rea

Intention to permanently deprive - defined at s.73(12) as treating property as it belongs to the accused, rather than the owner.

Dishonestly - s.73(2) creates a negative definition of the term 'dishonestly'. The section deems only three circumstances when the accused is deemed to have been acting honestly. These are a belief in a legal claim of right (s.73(2)(a)), a belief that the owner would have consented (s.73(2)(b)), or a belief the owner could not be found(s.73(2)(c))

United States

In the U.S., plenary regulation of theft exists only at the state level, in the sense that most thefts by default will be prosecuted by the state in which the theft occurred. The federal government has criminalized certain narrow categories of theft which directly affect federal agencies or interstate commerce.

Although many U.S. states have retained larceny as the primary offence, some have now adopted theft provisions.

For example, California consolidated a variety of common law crimes into theft in 1927, and now distinguishes between two types of theft, grand theft and petty theft. Grand theft generally consists of the theft of something of value over $400 (it can be money, labor or property), while petty theft is the default category for all other thefts. Grand theft is punishable by up to a year in jail or prison, and can either be seen as a misdemeanor or felony. while petty theft is a misdemeanor punishable by a fine or six months in jail. As for the older crimes of larceny, embezzling, and stealing, any references to them now mean theft instead.

In many states, grand theft of a vehicle is charged as "grand theft auto" (see motor vehicle theft for more information).

Repeat offenders who continue to steal may become subject to life imprisonment in certain states.

Canada

Theft is dealt with by Part 9 of the Criminal Code of Canada which is the part that covers property crime. Section 322 in Part 9 creates a general definition of theft, while other sections such as section 326 (which deals with the theft of gas, electricity and telecommunication services) define special kinds of theft. According to the general definition in section 322 a person steals a thing if he or she takes or converts it fraudulently, without colour of right and with intent to deprive the owner of it, either permanently or temporarily. For the purposes of punishment theft is divided into two separate offences by section 334 depending on the value and nature of the goods stolen. If the thing stolen is worth more than $5000 or is a testamentary instrument the offence is commonly referred to as Theft Over $5000 and is an indictable offence with a maximum punishment of 10 years imprisonment. Where the stolen item is not a testamentary instrument and is not worth more than $5000 it is known as Theft Under $5000 and is a hybrid offence, meaning that it can be treated either as an indictable offence or a less serious summary conviction offence, depending on the choice of the prosecutor. If dealt with as an indictable offence Theft Under $5000 is punishable by imprisonment for not more than 2 years and, if treated as a summary conviction offence, 6 months imprisonment, a fine of $2000 or both.

Romania

By the Romanian Penal Code for theft (furt) a person can face a penalty ranging from 1 to 20 years.

Degrees of theft:

A: Theft (1 to 12 years)
When a person steals a thing, or uses a vehicle without permission and no aggravating circumstances applies.

B: Qualified theft (basically 3 to 15 years but there can be special cases when penalty range is from 4 to 18 years and even 10 to 20 years)

  • Aggravating circumstances - 3 to 15 years: a) by two or more persons together b) by a person who detains a gun or a narcotic substance c) by a masked or disguised person d) against a person who is in impossibility of self defence e) in a public place f) in a public transportation vehicle g) during the night h) during a natural disaster i) by effraction, or by using an original or copyed key j) things belongs to the cultural patrimonium k) stealing official identity papers with intention to make use of them l) stealing official identity badges with intention to make use of them
  • Aggravating circumstances - 4 to 18 years : a) stealing petrol based products directly from transportation pipes and vehicles or deposits b) stealing components from national electrification, telecommunication, irrigation networks or from any type of navigational system c) stealing a public alertation device d) stealing a public intervention vehicle or device e) when periclitating the safety of public transportation.
  • Aggravating circumstances - 10 to 20 years : When the consequences are extremely grave and affects some public institutions or the material prejudice is over 2.000.000.000 ROL (Approximately 80.000 USD).

Notes

See also

Specific forms of theft

Categories

References

  • Allen,Michael. Textbook on Criminal Law. Oxford University Press, Oxford. (2005) ISBN 0-19-927918-7.
  • Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
  • Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell. ISBN 0-421-19960-1
  • Ormerod, David. Smith and Hogan Criminal Law, LexisNexis, London. (2005) ISBN 0-406-97730-5
  • Maniscalco, Fabio, Theft of Art (in Italian), Naples - Massa (2000) ISBN 88-87835-00-4
  • Smith, J. C. Law of Theft, LexisNexis: London. (1997) ISBN 0-406-89545-7.

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