Theft by finding occurs when a person is likely to be an object that appears to be abandoned and retrieves the property of an object but fails to take steps to determine whether the object is actually abandoned and not just lost or unattended. In some criminal jurisdictions it is called "theft by finding" or "stealing by searching".
If the owner has stripped all property rights in the object, then the property is abandoned. Since theft is the removal of someone else's property that is unlawful, an important element of theft actus reus does not exist.
The lost property scribe obtains ownership by taking physical control of the property, but not necessarily possessing property ownership. The searcher must take reasonable steps to find the owner. If the finder indicates that reasonable steps to find the owner have been taken then the finder may specify that required mens rea for theft, intention to permanently deprive the owner, no.
In discussing the history of the discovery, Alice Tay collects several cases (in footnote 36) in which a seeker raises an unsuccessful defense to theft on the grounds that the state of discovery is such that no question of the actual owner is required:
- Lamb's Case (1694) 2 East, P. C. (London, 1803) 664 (driver of article and case of a cable car rider left by passengers)
- Wynne's Case (1786) 1 Leach 413, 168 E. R. 308, 2 East, P.C 664 (facts like at Lamb's Case )
- R. v. Pope (1834) 6 C. & amp; P. 346, 172 E. R. 1270 (inmates retrieving hats after brawl in public house journeys)
- R. v. Kerr (1837) 8 C. & amp; P. 176, 173 E. R. 449 (the maid keeps the money taken on the journey from the master's home)
- R. v. Peters (1843) 1 C. & amp; K. 245,174 E. R. 795 (prisoners 'found' valuable ornaments in the garden that had hired him to do some work)
- R. v. West (1854) 6 Cox C. C. 417 (owner of the stall-keeper takes the deposits left at the kiosk by the customer)
- R. v. Moore (1861) L. & amp; C. 1, 169 E. R. 1278 (barber shopkeeper who changes the paper money taken on the floor after the customer purchases some hair oil)
and cases where circumstances occur to indicate no theft:
- R. v. Wood (1848) 3 Cox C. C. 277 (banknotes found on open land)
- R. v. Dixon (1855) 7 Cox C. C. 35, 25 L. J. M. C. 39 (loss of unmarked notes)
- R. v. Shea (1856) 7 Cox C. C. 147; R. v. Christopher (1858) Bell C. C. 27, 169 E. R. 1153 (unmarked notes and wallets found in public places)
- R. v. Glyde (1868) 11 Cox C. C. 103 (sovereign found on the high street)
- R. v. Deavis (1869) 11 Cox C. C. 227 (detainees find six rulers in a public place)
A problem may arise when a person takes ownership of a lost property with the intention of returning it to the owner after the investigation but then converts the property to the property of the searcher. This is illustrated by Thompson v. Nixon [1965] 3 W.L.R. 501: an unskilled police cop finds a bag of rabbit food lying on the side of the road, takes it home to hand it as lost treasure but some time after deciding to keep it for its own use. He was found guilty at the first level but his main appeal to the Divisional Court was upheld. The appeals court stated that, at the time of discovery, there was no mens rea to support the belief in theft. In some of these jurisdictions have been dealt with by law; see, for example, s. 124, Crimes Act 1900 (NSW) allows the jury to reach an alternative verdict "appropriation fraud".
Some argue that the findings should not be a province for the criminal law system but disputes over ownership are left to completion through a civil suit. Others argue that jurisprudence leads to legal fiction and tense reasoning that has attracted different legal reforms in various jurisdictions.
Video Theft by finding
References
Source of the article : Wikipedia
0 Comments