THEFT – S378 OF THE PENAL CODE
To constitute theft, the offender must
- Intend to take dishonestly;
- Any moveable property;
- Out of the possession of any person.
- Without that person’s consen;
- Move that property in order to such taking;
Punishment for theft can include imprisonment which may extend to 3 years, a fine, or both.
- s379A: Of a motor vehicle ;
- s380: In dwelling house, etc ;
- s381: By clerk or servant or property in possession of master.
- s382: After preparation made for causing death or hurt in order to commit theft;
Punishments for offences within s379A to s381 include imprisonment which may extend to 7 years and fine, and punishment for s382 includes imprisonment which may extend to 10 years, and not less than 3 strokes of the cane.
“Dishonestly” is an action done with the intention to cause wrongful gain or loss to a person.
“Wrongful gain” is a gain by unlawful means of property by one not legally entitled to it.
“Wrongful loss” is a loss by unlawful means of property by one legally entitled to it.
Having an ability to pay is not a legal defence and does not negate an intention to steal.
However, an inability to pay will strengthen the inference of a dishonest intent.
A thing attached to the earth is not moveable property and hence cannot be the subject of theft. However, it becomes moveable property upon being severed from the earth and hence becomes capable of being the subject of theft (see example 1).
Moving the property
The following acts constitute a movement of the property:
- An act of severance which also moves the property
- Removing an obstacle which prevented it from moving
- Separating it from any other thing
- Actually moving it
It does not matter that the offender does not gain possession of the property immediately (see example 5).
With regards to animals, a person who, by any means, causes the animal to move is said to move that animal and everything, which in consequence of the motion so caused, moved by that animal (See example 2 and 3).
Out of the possession of any person
This means that a property must be in a person’s possession for it to be the subject of theft (see example 4).
The consent may be expressed or implied
The consent may be given either by
- The person in possession.
- Any person having for that purpose authority either express or implied.
A person who honestly believes that he has the implied consent of another would not, on the taking of the possession, have committed theft. This is because he has no dishonest intentions.
Presumption of theft
The court may presume a man in possession of stolen goods soon after the theft to be the thief or to have received the goods knowing they were stolen, unless the man can account for his possession.
A cuts down a tree on Z’s ground, intending to take it dishonestly out of Z’s possession without his consent.
Theft is committed once A severs the tree in order to take it.
A puts a bait for dogs in his pocket and induces Z’s dog to follow it.
If A intends to dishonestly take Z’s dog out of Z’s possession without consent, theft is committed as soon as Z’s dog begins to follow A.
A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction in order to dishonestly take the treasure.
Theft is committed once the bullock begins to move.
Z entrusts his plate to A. A sells the plate.
As Z did not have possession of the plate, there is no theft.
The offence in this case is likely to be one of criminal breach of trust.
A sees Z’s ring on a table in Z’s house. A does not take the ring immediately but hides it in a place where it is highly improbable that it would be found by Z, intending to take and sell the ring when the loss is forgotten.
A commits theft at the time of first moving the ring.
If A pawns his watch to Z and takes it out of Z’s possession without Z’s consent, not having paid what he borrowed, he commits theft even though the watch is his own property, as he takes the watch dishonestly.
If however, if A does not owe Z any money, there is no theft.
In summary, there must be a dishonest intention of the offender’s part, movement of the property as well as a lack of consent and deprivation of possession from the person who possesses the property.