No definition of the offence of theft; Carrara gives us a definition which has been taken up by our courts, “The malicious taking of an object belonging to others without the owner’s consent with the intent to make gain.” This is the definition which our court uses, our law simply creates one distinction for these offences. The law creates two types of theft: Simple Theft and Aggravated Theft. Simple Theft:
First element is “contrectazio” this is the taking away, this element has 3 schools of thought: 1. Carrara: Says amozio (movement), as soon as you have movement of the object, or as soon as the offender lays his hands on the object and simply moves it the offence of theft is complete. Carrara amended this to the moment of thought. 2. Pessina: Amozio not enough but you have to move it from one sphere of control to another sphere of control of the thief. The movement has to be such that it removes control over the object. 3. Impallomeni : Not only must you move the object and take it to the sphere of control and take it to the desired destination. Pessina’s theory was used by the Italian code in 1889, this created problems in trial but Carrara’s has been best because it is the simplest. Pulizija vs Carmelo Felice, (Mamo Notes). In criminal law there is no distinction between owner, possessor or the detentor, the criminal law does not care. Second element dolosa, “malicious taking,” you cannot commit the act of theft involuntarily. Police vs John Portelli 1981, Portelli claimed that he was acting under mistake of fact but the court disagreed and said he was acting maliciously and thus he was liable to theft. Third element di uno cosa, if we introduce the element of taking away the object has to be a moveable, it must be tangible and corporeal. The only exception is in water, gas and electricity but that is a specific exception laid down by the law. The object must have a value, what value do we give an object? The value is the market value of the object from the moment it was stolen. The fundamental rule is that the object must have a value confirmed by Carrara and Police vs Chetcuti 1963. Di cosa altrui, someone else’s object.
Fatto invite domino, done without owner’s consent and against the owner’s or possessor’s consent. You can’t steal a resillius and a res delicta, hence you cannot commit theft on something which is abandoned. What if you are co-owner of the item? If we’re co-owners you cannot steal the item, Carrara concurs. Absence of owner’s consent: Presumed consent between husband and wife and between employer and employee. This presumed consent can exclude theft, because in presumed consent because the owner is voluntarily giving the items to be used. Previ case 1911, Police find out that police are going to commit a theft from a show, and the police ask the owner if they can wait for the thieves to wait for them to make the move, this happened and the police caught them. This question raised in court was that the owner gave consent for the things to be taken but the Court specified that the agreement needs to be between the owner and the person taking the item. The owner agreeing with police so thieves could be caught is never tantamount to things being taken away. Theft by finding, you have 3 days to return the item to the police that is Section 340 (1). Furtu usus object stolen for particular use and then given back to the owner, which is a lesser crime. -------------------------------------------------
Animu lucrandi: stealing something of a joke, all elements are there except element of gain. Is this theft? Yes, you don’t need pecuniary gain, it can also be for some form of satisfaction. Pulizija vs Chetcuti 1943. You don’t require actual gain but the potentiality of gain is sufficient to find guilt Pulizija vs Fenech 1952. -------------------------------------------------
261. The crime of theft may be aggravated...