Yet it is possible, to
say the least, that even in such a case the intent would make all
the difference. I assume that the act was without excuse and
wrongful, and that it would have amounted to larceny, if done for
the purpose of depriving the owner of his horse. Nevertheless, if
it was done for the sake of an experiment, and without actual
foresight of the destruction, or evil design against the owner,
the trespasser might not be held a thief.
The inconsistency, if there is one, seems to be explained by the
way in which the law has grown. The distinctions of the common
law as to theft are not those of a broad theory of legislation;
they are highly technical, and very largely dependent upon
history for explanation. /1/
The type of theft is taking to one's own user It used to be, and
sometimes still is, thought that the taking must be lucri catesa,
for the sake of some advantage to the thief. In such cases the
owner is deprived of his property by the thief's keeping it, not
by its destruction, and the permanence of his loss can only be
judged of beforehand by the intent to keep. The intent is
therefore always necessary, and it is naturally stated in the
form of a self-regarding intent. It was an advance on the old
precedents when it was decided that the intent to deprive the
owner of his property was sufficient.
Pages:
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107