The Elements Necessary to Committ A Theft

Several acts are necessary to commit a theft. The initial act is the taking of the property. This act includes an important element and that is referred to as “carrying away” or removing the property from its location.

CARRYING AWAY.

theft old style image To be convicted of a completed act of theft, rather than merely an attempt, there must be an act or acts establishing some “movement” of the property which is the subject of the theft. The element of movement is not satisfied unless it is shown that “the goods were severed from the possession or custody of the owner, and in the possession of the thief, though it be but for a moment.” This can be accomplished even though no physical movement occurs.[1]

An Example of this is when a thief converts to his own use money fraudulently obtained from the victim. The thief never physically possesses or “moves the money” but it nevertheless is considered movement for purposes of proving this necessary element.[2]

THE EXTENT OF MOVEMENT NECESSAY TO PROVE THIS ELEMENT

Only slight movement away from the place of taking is necessary; the extent of that movement and the distance are immaterial, any movement Is sufficient to satisfy that condition if the result is the sever of possession and control.[3]

TANGIBLES AND INTANGIBLES

Property subject to theft can include personal property and intangibles, such as a written instrument, a ticket or pass to travel, computer data or programs, bank checks payable to the victim. . ., etc.[4]

INTENT

Another basic element of a theft is the intent to steal. To commit a theft the thief must have a “specific” intent to steal the property, to use it as his own, and with no intention of returning it to its rightful owner.[5] This intent excludes for example the taking and use of property believing it is you own property; [6] the inadvertent or accidental taking of property not belonging to you; barrowing without the owner’s permission property intending to return it; fraudulently acquiring property for temporary use.[7]

THE RELATIONSHIP BETWEEN THE “VICTIM” AND THE PROPERTY

An unusual situation is where the person from whom property is stolen and who is the victim of the theft, does not have actual title to the property. This can include a thief committing a theft from another thief who thieved the property during an earlier theft.[8]

When, “[c]considered as an element of [theft], ‘ownership’ and ‘possession’ may be regarded as synonymous terms; for one who has the right of possession as against the thief is, as far as the latter is concerned, the owner. The actual status of the legal title to the property is of no concern to the thief.”[9] Therefore the fact the “owner” from whom he takes the property has no legal claim to the property [he may also be a thief] is not a defense, the thief is still guilty of a theft.

As one court has said “. . . neither the victim's illegal acquisition or possession nor the illegal character of the property precludes a larceny conviction. [Because even if the] . . . law restricts possession, [the possessor] nevertheless has certain claims and powers associated with that property not possessed by any other. . . [including the thief].” [10]


[2] People v. Hickman (1939) 31 C.A.2d 4, 10, 12, [distinguishing attempt].

[3] People v. Quiel (1945) 68 C.A.2d 674, 679. http://caselaw.findlaw.com/ca-court-of-appeal/1793248.html

[5] People v. Brown (1894) 105 C. 66, 69, 38 P. 518 [“felonious intent must be to deprive the owner of the property permanently”] https://www.ravellaw.com/opinions/41fba4dfaec30f7e00ba41cfe1f5e4d5

[6] People v. Photo (1941) 45 C.A.2d 345, 353, 114 P.2d 71 [ defendant took citrus under claim of title and in good faith following what defendant considered legal advice]; http://law.justia.com/cases/california/court-of-appeal/2d/45/345.html

[7] People v. Turner (1968) 267 C.A.2d 440, 443, 73 C.R. 263, quoting the text [using false name and identification to rent vehicle was insufficient to establish specific intent]; http://law.justia.com/cases/california/court-of-appeal/2d/267/440.html

[8] People v. Oldham (1896) 111 C. 648, 652 https://case-law.vlex.com/vid/111-cal-648-crim-609081146 ; People v. Photo (1941) 45 C.A.2d 345, 351 http://law.justia.com/cases/california/court-of-appeal/2d/45/345.html People v. Cain (1907) 7 C.A. 163, 166, https://casetext.com/case/people-v-cain-16