1902 Encyclopedia > Theft


THEFT is, in modern legal systems, universally treated as a crime, but the conception of theft as a crime is not one belonging to the earliest stage of law. To its latest period Roman law regarded theft (furtum) as a delict prima facie pursued by a civil remedy,—the actio furti for a penalty, the vindicatio or condictio for the stolen property itself or its value. In later times, no doubt, a criminal remedy to meet the graver crimes gradually grew up by the side of the civil, and in the time of Justinian the criminal remedy, where it existed, took precedence of the civil (God., iii. 8, 4). But to the last criminal proceedings could only be taken in serious cases, e.g., against stealers of cattle (abigei) or the clothes of bathers (balnearii). The punishment was death, banishment, or labour in the mines or on public works. In the main the Roman law of theft coincides with the English law. The definition as given in the Institutes (iv. 1, 1) is "furtum est contrectatio rei fraudulosa, vel ipsius rei, vel etiam ejususus possessionisve," to which the Digest (xlvii. 2, 1, 3) adds " lucri faciendi gratia." The earliest English definition, that of Bracton (1506), runs thus: "furtum est secundum leges contrec-tatio rei alienas fraudulenta cum animo furandi invito illo domino cujus res ilia fuerit." Bracton omits the " lucri faciendi gratia " of the Roman definition, because in English law the motive is immaterial, and the "usus ejus posses-sionisve," because the definition includes an intent to de-prive the owner of his property permanently. The " animo furandi" and "invito domino" of Bracton's definition are expansions for the sake of greater clearness. They seem to have been implied in Roman law. Furtum is on the whole a more comprehensive term than theft. This difference no doubt arises from the tendency to extend the bounds of a delict and to limit the bounds of a crime. Thus it was furtum (but it would not be theft at English common law) to use a deposit of pledge contrary to the wishes of the owner, to retain goods found, or to steal a human being, such as a slave or filius familias (a special form of furtum called plagium). The latter would be in English law an abduction under certain circumstances, but not a theft. On the other hand, one of two married persons could not commit furtum as against the other, but theft may be so committed in England since recent legislation. As a furtum was merely a delict, the obligatio ex delicto could be extinguished by agreement between the parties; it will be seen that this cannot be done in England. In another direction English law is more con-siderate of the rights of third parties than was Roman. As will appear hereafter, the thief can give a good title to stolen goods; in Roman law he could not do so, except in the single case of a hereditas acquired by usucapio. The development of the law of furtum at Rome is historically interesting, for even in its latest period is found a relic of one of the most primitive theories of law adopted by courts of justice : " They took as their guide the measure of vengeance likely to be exacted by an aggrieved person under the circumstances of the case" (Maine, Ancient Law, ch. x.). This explains the reason of the division of furtum into manifestum and nec manifestum. The mani-fest thief was one taken red-handed,—" taken with the manner," in the language of old English law. The Twelve Tables denounced the punishment of death against the manifest thief, for that would be the penalty demanded by the indignant owner in whose place the judge stood. The severity of this penalty was afterwards mitigated by the praator, who substituted for it the payment of quad-ruple the value of the thing stolen. The same penalty was also given by the praetor in case of theft from a fire or a wreck, or of prevention of search. No doubt the object of this large penalty was to induce injured persons to refrain from taking the law into their own hands. The Twelve Tables mulcted the non-manifest thief in double the value of the thing stolen. The actions for penalties were in addition to the action for the stolen goods them-selves or their value. The quadruple and double penalties still remain in the legislation of Justinian. The search for stolen goods, as it existed in the time of Gaius, was a survival of a period when the injured person was, as in the case of summons (in jus vocatio), his own executive officer. Such a search, by the Twelve Tables, might be conducted in the house of the supposed thief by the owner in person, naked except for a cincture, and carrying a platter in his hand, safeguards apparently against a violation of decency and against any possibility of his making a false charge by depositing some of his own property on his neighbour's premises. This mode of search became obsolete before the time of Justinian. Robbery (bona vi rapta) was violence added to furtum. By the actio vi bonorum raptorum quadruple the value could be recovered if the action were brought within a year, only the value if brought after the expiration of a year. The quadruple value, it is to be noted, included the stolen thing itself, so that the penalty was in effect only a triple one. It was inclusive, and not cumulative, as in furtum.

In England theft appears to have been very early regarded by legislators as a matter calling for special attention. The pre-Conquest compilations of laws are full of provisions on the subject. It is noticeable that the earlier ones appear to regard theft as a delict which may be compounded for by payment. Considerable distinctions of person are made, both in regard to the owner and the thief. Thus, by the laws of Ethelbert, if a freeman stole from the king he was to restore ninefold, if from a freeman or from a dwelling threefold. If a theow stole, he had only to make a twofold reparation. In the laws of Alfred ordinary theft was still only civil, but he who stole in a church was punished by the loss of his hand. The laws of Ina named as the penalty death or redemption according to the wer-gild of the thief. By the same laws the thief might be slain if he fled or resisted. Gradually the severity of the punishment increased. By the laws of Athelstan death in a very cruel form was inflicted. At a later date the Leges Henrici Primi placed a thief in the king's mercy, and his lands were forfeited. Putting out the eyes and other kinds of mutilation were sometimes the punishment. The principle of severity continued down to the present century, and until 1827 theft of certain kinds remained capital. Both before and after the Conquest local jurisdiction over thieves was a common franchise of lords of manors, attended with some of the advantages of modern summary jurisdiction. It might be exercised either over thieves who committed a theft or were appre-hended within the lordship (infangthef), or over those inhabitants of the lordship who were apprehended else-where (outfangthef). Either or both franchises might be enjoyed by grant or prescription. As lately as 1 Ph. and M. c. 15 infangthef and outfangthef were confirmed to the lords marchers of Wales. An analogous franchise was iheam, or the right of calling upon the holder of stolen goods to vouch to warranty, i.e., to name from whom he received them. In the old law of theft there were to be found two interesting survivals of the primitive legal notions which were found in Roman law. Up to a com-paratively recent date a distinction analogous to that between furtum manifestum and nec manifestum was of importance in English criminal practice. The thief "taken with the manner" was by the Statute of West-minster the First not to be admitted to bail (see Letters of Junius, lxviii.). In modern procedure the probable guilt or innocence of the accused is not so much to be considered in a question of bail as the probability of his appearance at the trial. The other matter worthy of notice is the old pursuit (secta) by hue and cry. In the pre-Conquest codes the owner was generally allowed to take the law into his own hand, as in early Roman law, and get back his goods by force if he could, no doubt with the assistance of his neighbours where possible. From this arose the later development of the hue and cry, as the recognized means of pursuing a thief. The Statutes of Westminster the First and of De officio coronatoris enacted that all men should be ready to pursue and arrest felons, and ten years later the Statute of Winchester (1285) enforced upon all the duty of keeping arms for the purpose of following the hue and cry. It also made the hundred liable for thefts with violence committed in it, an adoption no doubt in feudal law of the old pre-Conquest liability of the frith-borg. As justice became more settled, the hue and cry was regulated more and more by law, and lost much of its old natural simplicity. This led to its gradually becom-ing obsolete, though the Statutes of Westminster the First and De officio coronatoris are still nominally law as far as they relate to the hue and cry. The Statute of Winchester as to the liability of the hundred was repealed in 1827.

The term theft in modern English law is sometimes used as a synonym of larceny, sometimes in a more com-prehensive sense. In the latter sense it is used by Mr Justice Stephen, who defines it as " the act of dealing from any motive whatever, unlawfully and without claim of right, with anything capable of being stolen, in any of the ways in which theft can be committed" (for which see § 296-300), " with the intention of permanently converting that thing to the use of any person other than the general or special owner thereof" (Digest of the Criminal Law, § 295). In this broader sense the term applies to all cases of depriving another of his property, whether by removing or withholding it. It thus includes larceny, robbery, cheating, embezzlement, and breach of trust. Embezzle-ment is a statutory crime created as a separate form of offence in the last century (see vol. viii. p. 159). The difference between larceny and embezzlement turns mainly on the fact of the master's being in actual or constructive possession of the stolen property (see POSSESSION). Fraud-ulent breach of trust was not made a specific offence until 1857 (see TRUST).

Larceny (a corruption of latrocinium), or theft proper, was felony at common law. The common law of larceny has been affected by numerous statutes, the main object of legislation being to bring within the law of larceny offences which were not larcenies at common law, either because they were thefts of things of which there could be no larceny at common law, e. g., beasts feral natural, title deeds, or choses in action, or because the common law regarded them merely as delicts for which the remedy was by civil action, e.g., fraudulent breaches of trust. The earliest Act in the statutes of the realm dealing with larceny appears to be the Carta Forestai of 1225, by which fine or imprisonment was inflicted for stealing the king's deer. The next Act appears to be the Statute of West-minster the First (1275), dealing again with stealing deer. From this it seems as though the beginning of legislatioa on the subject was for the purpose of protecting the chases and parks of the king and the nobility. An immense mass of the old Acts will be found named in the repealing Act of 1827, 7 and 8 Geo. IV. c. 27. An Act of the same date, 7 and 8 Geo. IV. c. 29, removed the old dis-tinction between grand and petit larceny. The former was theft of goods above the value of twelve pence, in the house of the owner, not from the person, or by night, and was a capital crime. It was petit larceny where the value was twelve pence or under, the punishment being imprisonment or whipping. The gradual depreciation in the value of money afforded good ground for Sir Henry Spelman's sarcasm that, while everything else became dearer, the life of man became continually cheaper. The distinc-tion between grand and petit larceny first appears in statute law in the Statute of Westminster the First, c. 15, but it was not created for the first time by that statute. It is found in some of the pre-Conquest codes, as that of Athelstan, and it is recognized in the Leges Henrici Primi. A distinction between simple and compound larceny is still found in the books. The latter is larceny accompanied by circumstances of aggravation, as that it is in a dwelling-house or from the person. The law of larceny is now contained chiefly in the Larceny Act, 1861, 24 and 25 Vict. c. 96 (which extends to England and Ireland), a comprehensive enactment including larceny, embezzlement, fraud by bailees, agents, bankers, factors, and trustees, sacrilege, burglary, housebreaking, robbery, obtaining money by threats or by false pretences, and receiving stolen goods, and prescribing procedure, both civil and criminal. There are still, however, some earlier Acts in force dealing with special cases of larceny, such as S3 Hen. VIII. c. 12, as to stealing the goods of the king, and the Game, Post-Office, and Merchant Shipping Acts. Later Acts provide for larceny by a partner of partnership property (31 and 32 Vict. c. 116), and by a husband or wife of the property of the other (45 and 46 Vict. c. 75). Pro-ceedings against persons subject to naval or military law depend upon the Naval Discipline Act, 1866, and the Army Act, 1881. There are several Acts, both before and after 1861, directing how the property is to be laid in indictments for stealing the goods of counties, friendly societies, trades unions, &c. The principal con-ditions which must exist in order to constitute larceny are these:— (1) there must be an actual taking into the possession of the thief, though the smallest removal is sufficient; (2) there must be an intent to deprive the owner of his property for an indefinite period, and to assume the entire dominion over it, an intent often described in Bracton's words as animus furandi; (3) this intent must exist at the time of taking; (4) the thing taken must be one capable of larceny either at common law or by statute. One or two cases falling under the law of larceny are of special interest. It was held more than once that a servant taking corn for the purpose of feeding his master's horses, hut without any intention of applying it for his own benefit, was guilty of larceny. To remedy this hard-ship, 26 and 27 Vict. c. 103 was passed to declare such an act not to be felony. The case of appropriation of goods which have been found has led to some difficulty. It now seems to be the law that in order to constitute a larceny of lost goods there must be a felonious intent at the time of finding, that is, an intent to deprive the owner of them, coupled with reasonable means at the same time of knowing the owner. The mere retention of the goods when the owner has become known to the finder does not make the retention criminal. Larceny of money may be committed when the money is paid by mistake, if the prisoner took it animo furandi. In two recent cases the question was argued before a very full Court for Crown Cases Reserved, and in each case there was a striking difference of opinion. In Reg. v. Middleton, Law Sep., 2 Crown Cases Reserved, 38, the prisoner, a depositor in a post-office savings bank, received by the mistake of the clerk a larger sum than he was entitled to. The jury found that he had the animus fumndi at the time of taking the money, and that he knew it to be the money of the postmaster-general. The majority of the court held it to be larceny. In a case in 1885 (Reg. v. Ashwell, Law Rep., 16 Queen's Bench Division, 190), where the prosecutor gave the prisoner a sovereign believing it to be a shilling, and the prisoner took it under that belief, but afterwards discovered its value and retained it, the court was equally divided as to whether the prisoner was guilty of larceny at common law, but held that he was not guilty of larceny as a bailee. The procedure in prosecutions for larceny has been considerably affected by recent legislation. The incon-veniences of the common-law rules of interpretation of indictments led to certain amendments of the law, now contained in the Larceny Act, for the purpose of avoiding the frequent failures of justice owing to the strictness with which indictments were construed. Three larcenies of property of the same person within six months may now be charged in one indictment. On an indictment for larceny the prisoner may be found guilty of embezzlement, and vice versa ; and if the prisoner be indicted for obtaining goods by false pretences, and the offence turn out to be larceny, he is not entitled to be acquitted of the misdemeanour. A count for receiv-ing may be joined with the count for stealing. In many cases it is unnecessary to allege or prove ownership of the property the sub-ject of the indictment. The Act also contains numerous provisions as to venue and the apprehension of offenders. In another direc-tion the powers of courts of SUMMARY JURISDICTION (q.v.) have been extended, in the case of charges of larceny, embezzlement, and receiving stolen goods, against children and young persons and against adults pleading guilty or waiving their right to trial by jury. The maximum punishment for larceny is fourteen years' penal servitude, but this can only be inflicted in certain exceptional cases, such as horse or cattle stealing and larceny by a servant or a person in the service of the crown or the police. The extreme punishment for simple larceny after a previous conviction for felony is ten years' penal servitude. "Whipping may be part of the sen-tence on boys under sixteen.

Robbery is larceny accompanied by violence or threatened violence. Whether obtaining money by threats to accuse of crime was robbery at common law was open to some doubt. It is now a specific offence under the Larceny Act, punishable by penal servitude for life. Whipping may be added as part of the sentence for robbery by 26 and 27 Vict. c. 44.

Cheating is either a common-law or statutory offence. An indictment for cheating at common law is now of comparatively rare occurrence. The statutory crime of obtaining money by false pretences is the form in which the offence generally presents itself, ike embezzlement, this offence dates as a statutory crime from the last century. It now depends upon the Larceny Act. A false pretence is defined by Mr Justice Stephen as " a false representation made either by words, by writing, or by conduct that some fact or facts existed" (Digest of the Criminal Law, § 330). The principal points to notice are that the false pretence must be of an existing fact (e.g., it was held not to be a false pretence to promise to pay for goods on delivery), and that property must have been actually obtained by the false pretence. The broad distinction between this offence and larceny is that in the former the owner intends to part with his property, in the latter he does not. By 22 and 23 Vict. c. 17, no indictment for obtaining money by false pretences is to be presented or found by the grand jury unless the defendant has been committed for trial or the indictment is authorized in one of the ways mentioned in the Act. The maximum punishment for the common-law offence is fine or imprisonment at discretion, for the statutory five years' penal servitude.

Stolen Goods.—The owner of the goods stolen has an action against the thief for the goods or their value. How far he is entitled to pursue his civil right to the exclusion of criminal prosecution does not seem very clear upon the authorities. One of the latest statements of the law was that of Mr Justice Watkin Williams:—" It has been said that the true principle of the common law is that there is neither a merger of the civil right, nor is it a strict condition precedent to such right that there shall have been a prosecution of the felon, but that there is a duty imposed upon the injured person not to resort to the prosecution of his private suit to the neglect and exclusion of the vindication of the public law ; in my opinion this view is the correct one" (Midland Insur-ance Company v. Smith, Law Rep., 6 Queen's Bench Division, 568). Dealing with stolen goods by persons other than the thief may affect the rights of such persons either criminally or civilly. Two varieties of crime arise from such dealings. (1) Receiving stolen goods knowing'them to have been stolen, a misdemeanour at common law, is by the Larceny Act a felony punishable by penal servitude for fourteen years where the theft amounts to felony, a misdemeanour punishable by penal servitude for seven years where the theft is a misdemeanour, as in obtaining goods by false pretences. Recent possession of stolen property may, according to circumstances, support the presumption that the prisoner is a thief or that he is a receiver. The Prevention of Crime Act, 1871, made important changes in the law of evidence in charges of receiving. It allows, under proper safeguards, evidence to be given in the course of the trial of the finding of other stolen property in the possession of the accused, and of a previous conviction for any offence involving fraud and dishonesty. (2) Compounding theft, or theftbote, that is, taking back stolen goods or receiving compensation on condition of not prosecuting, is a misdemeanour at common law. It need not necessarily be committed by the owner of the goods. Under the Larceny Act it is a felony punishable by seven years' penal servi-tude to corruptly take money or reward for helping to recover stolen goods without using all due diligence to bring the offender to trial. By the same Act, to advertise Or print or publish any advertisement offering a reward for the return of stolen goods, and using any words purporting that no questions will be asked, &c, renders, the offender liable to a penalty of £50. This penalty must, by 33 and 34 Vict. c. 65, be sued for within six months, and the assent of the attorney-general is necessary. Various Acts provide for the liabilities of pawnbrokers, publicans, marine-store dealers, and others into whose possession stolen goods come. Search for stolen goods can only be undertaken by a police officer under the protection of a search warrant. The law as to stolen goods, as far as it affects the civil rights and liabilities of the owner and third parties, is shortly as follows. As a general rule a purchaser takes goods subject to any infirmities of title. The property in money, bank-notes, and negotiable instruments passes by delivery, and a person taking any of these bona fide and for value is entitled to retain it as against a former owner from whom it may have been stolen. In the case of other goods, a bona fide purchaser of stolen goods in market overt (see SALE) obtains a good title (except as against the crown), provided that the thief has not been convicted. After conviction of the thief the property revests in the owner, and the court before which the thief was convicted*may order restitu-tion, except in the cases specially mentioned in the Larceny Act, i.e., the bona fide discharge or transfer of a security for value with-out notice and the fraudulent dealing by a trustee, banker, &c, with goods and documents of title to goods entrusted to him. After conviction of the thief the goods must be recovered from the person in whose hands they are at the time of the conviction, for any sales and resales, if the first sale was in market overt, are good until conviction of the thief. If the goods were obtained by false pretences and not by larceny, the question then is whether the property in the goods has passed or not, and the answer to this question depends upon the nature of the false pretences employed. If the vendee obtains possession of goods with the intention by the vendor to transfer both the property and the possession, the property vests in the vendee until the vendor has done some act to dis-affirm the transaction. But if there was never any such inten-tion, —if, for instance, the vendor delivers the goods to A. B. under the belief that he is C. D.,—the property does not vest in the transferee, and the owner may recover the goods even from a bona fide purchaser.1

Scotland.—There is a vast quantity of Acts of the Scottish parlia-ment dealing with theft. The general policy of the Acts was to make thefts what were not thefts at common law, e.g., stealing fruit, dogs, hawks, or deer, and to extend the remedies, e.g., by giving the justiciar authority throughout the kingdom, by making the master in the case of theft by the servant liable to give the latter up to justice, or by allowing the use of firearms against thieves. The general result of legislation in England and Scotland has been to assimilate the law of theft in both kingdoms. As a rule, what would be theft in one would be theft in the other. There can be theft of children in Scots as in Roman law, under the name*of plagium. The crime of stouthrief is robbery accompanied by exceptional violence. The English receiving stolen goods and obtaining money under false pretences are represented by the reset and fraud of Scots law. Theftbote or redempiio furti appears in legislation as early as the assizes of King William, c. 2. The offender was there subjected to the ordeal of water if convicted on the oath of three witnesses, to be immediately hanged if the oath of three seniores were added. The offence was made punish-able by 1436, c. 1, 1515, c. 2, and appears still to be a crime. Blackmailing, under that name, was forbidden by 1567, c. 27. There is no consolidation Act for Scotland like the Larceny Act for England and Ireland, but various Acts are in force dealing with specific offences or with procedure. Thus 7 Anne c. 21, § 7, makes theft by landed men no longer treason, as it had previously been. 4 Geo. II. c. 32 deals with theft of lead, &c, fixed to houses, 21 Geo. II. c. 34 with the admissibility of an accomplice as witness in a charge of cattle stealing, 51 Geo. III. c. 41 with theft of linen, &c. The most important Act relating to procedure is 31 and 32 Vict. c. 95, § 12, by which a previous conviction for theft may be libelled and proved as aggravation of robbery, and a previous conviction for robbery as aggravation of theft. Stolen goods are always taken subject to the inherent vittum reale of their acquisition, and the true owner may recover them from any one in whose possession they are. The protection given by market overt is unknown in Scotland. See Macdonald, Criminal Law, p. 18. United States.—The law depends almost entirely upon State legislation, and is in general accordance with that of England

The only Acts of Congress bearing on the subject deal with theft in the army and navy, and with theft and receiving on the high seas or in any place under the exclusive jurisdiction of the United States. The doctrine of market overt is not acknowledged by any State. (J. Wt.)


Thus destruction of a letter by a servant, with a view of suppress-ing inquiries into her character, makes the servant guilty of larceny in English law.

This provision was most unnecessarily repeated in the Larceny Act of 1861. o

1 For the Roman and English law, see, besides the authorities cited, Hunter, Roman Law; Muirhead, Roman Law ; 4 Stephen, Commentaries, pt. vi. chap. v. j 3 Stephen, Hist, op the Criminal Law, chap, xxviii.

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