08/07/2019
Penal Code, 1860 (Act No. XLV of 1860).
CHAPTER XVII
OF OFFENCES AGAINST PROPERTY
Of Theft
Theft
378. Whoever, intending to take dishonestly any moveable property out of the
possession of any person without that person's consent, moves that property in
order to such taking, is said to commit theft.
Explanation 1.A thing so long as it is attached to the earth, not being
moveable property, is not the subject of theft; but it becomes capable of being
the subject of theft as soon as it is severed from the earth.
Explanation 2.A moving effected by the same act which effects the severance
may be a theft.
Explanation 3.A person is said to cause a thing to move by removing an
obstacle which prevented it from moving or by separating it from any other thing,
as well as by actually moving it.
Explanation 4.A person, who by any means causes an animal to move, is said
to move that animal, and to move everything which, in consequence of the
motion so caused, is moved by that animal.
Explanation 5.The consent mentioned in the definition may be express or
implied, and may be given either by the person in possession, or by any person
having for that purpose authority either express or implied.
Illustrations
(a) A cuts down a tree on Z's ground, with the intention of dishonestly taking the
tree out of Z's possession without Z's consent. Here, as soon as A has severed
the tree in order to such taking, he has committed theft.
(b) A puts a bait for dogs in his pocket, and thus induces Z's dog to follow it.
Here, if A's intention be dishonestly to take the dog out of Z's possession without
Z's consent, A has committed theft as soon as Z's dog has begun to follow A.
(c) A meets a bullock carrying a box of treasure. He drives the bullock in a
certain direction, in order that he may dishonestly take the treasure. As soon as
the bullock begins to move, A has committed theft of the treasure.
(d) A being Z's servant, and entrusted by Z with the care of Z's plate,
dishonestly runs away with the plate, without Z's consent. A has committed theft.
(e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till
Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was
not in Z's possession. It could not therefore be taken out of Z's possession, and
A has not committed theft, though he may have committed criminal breach of
trust.
(f) A finds a ring belonging to Z on a table in the house which Z occupies. Here
the ring is in Z's possession, and if A dishonestly removes it, A commits theft.
(g) A finds a ring lying on the highroad, not in the possession of any person. A,
by taking it, commits no theft, though he may commit criminal misappropriation
of property.
(h) A sees a ring belonging to Z lying on a table in Z's house. Not venturing to
misappropriate the ring immediately for fear of search and detection, A hides the
ring in a place where it is highly improbable that it will ever be found by Z, with
the intention of taking the ring from the hiding place and selling it when the loss
is forgotten. Here A, at the time of first moving the ring, commits theft.
(i) A delivers his watch to Z, a jeweler, to be regulated. Z carries it to his shop.
A, not owing to the jeweler any debt for which the jeweler might lawfully detain
the watch as a security, enters the shop openly, takes his watch by force out of
Z's hand, and carries it away. Here A, though he may have committed criminal
trespass and assault, has not committed theft, inasmuch as what he did was not
done dishonestly.
(j) If A owes money to Z for repairing the watch, and if Z retains the watch
lawfully as a security for the debt, and A takes the watch out of Z's possession,
with the intention of depriving Z of the property as a security for his debt, he
commits theft, inasmuch as he takes it dishonestly.
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