WHAT CONSTI- No consequence to whom property belongs. but took smaller oysters contrary to their license, they If the thing taken be not the property of the thief, it matters not to whom it belongs, whether to the king, or to a corporation, or parish, or club, or an individual, or even to some person unknown (3). The prosecutor may not be able to name any one as owner; e.g., to take things from a railway store for lost luggage would be theft, although the ownership of the articles was unknown. Nor does it matter from One thief stealing whose possession the thing is taken (4). One thief may steal property out of the unlawful possession of another thief (5). A case which has not yet occurred will illustrate this point. Suppose a police-officer receives information of the theft of an article easily identified, and finds it in the thief's house, he would undoubtedly be guilty of theft if he appropriated it (1). from another. Taking must be felonious. The taking must be felonious and without colour of title. If goods be carried off under a poinding, 1 William Ganett and Thomas 2 Chisholm and others v. Black 3 Hume i. 77, 78, and cases of 4 Hume i. 78.-Alison i. 273.- against captain of a vessel to steal cargo?" Court.-"Yes." 5 Samuel Wood and Agnes Marshall, Jedburgh, Oct. 6th 1842; Bell's Notes 23.-See also the case of Elizabeth Begs or Tonner, Glasgow, Dec. 22nd, 1846; Ark. 215. 6 John Smith, H.C., March 12th 1838; 2 Swin. 28 (Lord Cockburn's opinion). In the Lord JusticeClerk Hope's M.S. Notes to Hume, the following occurs :-"In Larg and Mitchell, 1817, forged notes were stolen-argued to the Jury that they could not be in the lawful possession of any one. But Court and Jury paid no attention to it." WHAT CONSTI TUTES THEFT. of ownership or owner. wife. however irregular and oppressive, there could be no COST conviction of theft, although a charge of oppression might be competent (1). Or if the person who takes Taking in belief is in the belief that what he is taking is his own, or concurrence of that he is taking it with the owner's concurrence, he is not guilty of theft (2). But his belief must be reasonable, and he must prove it (3). Where the offender is the husband or wife of the owner, Husband and difficult questions may arise. In one case the accused proved herself to be the wife of the owner, and was assoilzied (4). In another the objection that the things stolen were the property of the husband of one of the accused, was certified for the opinion of the Court, and no further proceedings took place (5). But it has not been decided that a wife cannot steal from her husband (6). And a husband has been held relevantly charged with theft of proceeds of a bond, his right to which was excluded by antenuptial contract (7). obtained by When it is said that if the taker believed he was Consent to taking acting with the owner's concurrence, he was fraud. not guilty of theft, this is not intended to cover the case of a person obtaining the concurrence by fraud (8). Where a person called at houses at which goods had been left, and got delivery of them by representing himself to be the messenger of the tradesmen, and stating that his master had sent him for them in order to rectify a mistake, this was held to 1 Hume i. 73, 74, and cases of Adamson: and Stark and others in note 1.-Alison i. 271 to 273. 2 Burnett 118, case of Ker and Stables there (also Hume i. 73, note 2).-Hume i. 74, cases of Graham Trotter and Rigg; and Gordon there.-Alison i. 271. 3 Hume, i. 74.-John Sandars, June 17th 1833; Bell's Notes 20. 4 Janet Becket, Glasgow, April 26th 1831; Shaw 217 and Bell's Notes 23. 5 Donald Macleod and Wedderburn Dick or Smith, Perth, Oct. 4th 1838; 2 Swin. 190 and Bell's Notes 23. 6 Joseph Kilgour, H.C., Dec. 8th 1851; J. Shaw 501 and 24 S. J. 66 and 1 Stuart 122 (Lord Wood's opinion). 7 Case of Kilgour, supra. 8 Hume i. 68, 69.-Alison i, 259, 260. WHAT CONSTI- Theft though owner aware at time that it is being committed. Intent to deprive essential. Using article for temporary pur pose not theft. be theft (1). And the same was decided where persons stated at the luggage-room of a railway that they had been sent to get luggage, or pretended to be the owners (2). There may also be theft through the owner, or those who are looking after the property, are aware that a theft is being committed. A person who suspects that things are being stolen, may watch the supposed delinquent, or even employ another to obtain the confidence of the thief, pretending to join in his scheme of plunder, and so secure proof of guilt (3). Police-officers when they see a theft about to be committed, often wait until it has been completed, but it has never been maintained that the offence on that ground ceases to be theft (4). The taking must be with intent to appropriate to the thief's own purposes and so to deprive the true owner of his property. If two persons have land contiguous to one another, and one use the other's plough which he has found on the ground, his own being broken; this is only a trespass. Again, if a per son take a boat for a pleasure sail, or if a servant use a horse of his master's to go an errand of his own, and 1 John Menzies, Glasgow, Sept. 21st 1842; 1 Broun 419 and Bell's Notes 17. See alsc Will. Barr, Glasgow, May 4th 1832; 5 Deas and Anderson 260. Margaret Grahame, Glasgow, Dec. 1847, referred to in the case of Jas. Chisholm, H.C., July 9th 1849; J. Shaw 241. 2 Henry Hardinge and Lucinda Edgar or Hardinge, H.C., March 2d 1863; 4 Irv. 347 and 35 S. J. 303. Doubt seems to have been expressed on a similar point in Samuel Michael, H.C., Dec. 26th 1842; 1 Broun 472 and Bell's Notes 8, but this apparently referred to some specialty, and no decision was given. 3 There is no case illustrative of this point, but about 1862 several of the money and check-takers in the Theatre-Royal of Edinburgh were convicted in the Sheriff-Court of appropriating money belonging to the lessee. The lessee had employed a detective as a check-taker, and the offences were committed with the supposed connivance of the detective. But though the accused were ably defended by counsel, it was not maintained that the crime was not established because of the knowledge on the part of the owner of the money. 4 Will. Vair and others, March 13th 1835; Bell's Notes 14. TUTES THEFT, containing trade return, there is no theft (1). The most difficult case of WHAT CONSTIthis sort is that of a person taking an article not with Purloining book the intention to keep it, but unfairly and clandestinely secrets, and reto get some benefit from it. Suppose one take a book turning it. to learn the secrets of some process used by the owner in his trade, and is detected before he return it, or even after he has returned it. Is it a good defence in such a case, that there was no intent to deprive the owner of his property? It is difficult to see how such an act can be held not to be one of theft. The property is not openly used as in a trespass, but is clandestinely taken. And it is retained, not as in the case of the plough or boat, to use it for a short time for a purpose to which it is adapted, but for a purpose of nefarious gain, by depriving the owner permanently of a valuable secret (2). 1 Hume i. 73.-Alison i. 270.— Sween M'Intosh, Inverness, April 16th 1841, Bell's Notes 20. It has been laid down that if a person be attempting to commit a theft, and take a key from where it has been laid for the purpose of opening a lock, and not with the intention of carrying it off, he is not guilty of stealing the key. Peter Alston and Alex. Forrest, H.C., March 13th 1837; 1 Swin. 433 and Bell's Notes 20 (Lord Justice-Clerk Boyle's and Lord Meadowbank's opinions. This point, as regards Lord Meadowbank's opinion, is not noticed by Mr Swinton). In reference to this the Lord Justice-Clerk Hope's MS. Notes to Hume, contain this note "I have considerable doubt of this." Compare with John Ash and Daniel Cairns, H.C., May 19th 1848; Ark. 493, where it was laid down that if a thief searching for more valuable booty, took articles out of a drawer, he was guilty of stealing them, though he did not think it worth while to carry them away. It is certain that there are 2 There have been only two WHAT CONSTI- Theft not neces Theft from malice. While the taking must deprive another of his property, it need not be for actual gain to the thief. sarily for gain. Though he hide the thing stolen, and never use it, his guilt is the same. Indeed, his object may not be gain in the sense of profit at all, but only the satisfaction of indulging evil passion. If cattle be taken out of a field, it is theft, though the purpose was to slaughter them out of malice to the owner (1.) Or if a person, from ill will to another, take an article belonging to him, and throw it down a well, or into the sea, the act of taking is theft, though the only gain to the offender be the indulgence of his spite (2). The theft consists in taking the thing with intent to deprive the owner of it. Nor is guilt removed by repentance however early, or restitution however complete (3). And the value of the thing taken is of no consequence, in considering the relevancy of a charge of theft, if it have any value (4). A pickpocket who secures but a letter or a pencil, worthless to him, is still guilty of theft. Anything which is property may be stolen. It is theft to take wool from a sheep, milk from a cow, fruit from a tree, grass from a meadow, coal from a pit, stone from a quarry, fuel from a moss, firewood from a pile, potatoes or turnips from a Theft of writings. field (5), or writings from a table (6), &c., &c. To snatch a receipt from a creditor and carry it off without Repentance and restoration do not purge guilt. It is theft if thing taken be property. the second case (John Deuchars, 1 Hume i. 75, 76.-Alison i. 273, 2 Burnet 116, note, case of Gilchrist; (argument for panel and answer). 3 Hume i. 79, and cases of Watson Macgibbon: Somerville: and Mackay there. 4 Hume i. 76, 77.-i. 102, 103.Alison i. 275. 5 Hume i. 79, and cases of Miln : and Young there, and case of Gray in note 3.-Alison i. 278, 279. The question, whether pasturing sheep on the growing grass of another is theft, is not decided. See Alexander Rebertson and others, Aberdeen, Sept. 20th 1867; 5 Irv. 480 and 40 S. J. 1, and 4 S. L. R. 251. 6 Hume i. 80, and cases of Mathew Wood and Dow: Eviot : Scott Steel: Graham and Johnston there.-Alison i. 279. : |