2. Purloining of Documents or Deposits from the Public Archives or other Public Offices

“E’ dunque... alla negligenza del custode che mai si verifichi nel caso di violazione da altri volontariamente commessa, che sembraci dovessi esclusivamente limitare l’applicazione della pena, per non sottoporsi qualunque altra negligenza che alle semplici indennizzazioni civili giuste le regole del diritto comune”210 .

In conclusion, Section 143 lays down that where the crime under Section 140 is committed with violence against the person, the punishment is hard labour from two to six years. This punishment, of course, applies where the violence against the person does not in itself constitute a more serious crime.

2. Purloining of Documents or Deposits from the Public Archives or other Public Offices

In cases of embezzlement, destruction, mutilation or purloining of documents, records or other papers, registers, acts or any effects whatsoever existing in the public archives, or in any other public offices, or delivered to any public depositary or functionary whatsoever in virtue of his office, the offender is liable to hard labour from thirteen months to three years (Section 142 (l)).

Here again, the law does not punish the act in so far as it is a violation of property, but in so far as it constitutes an offence against the Public Authority instituting the deposit. As was expressly explained by the official reporter in connection with the French Code:

“Un deposito pubblico e’ un asilo sacro; e qualunque trafugamento commesso in quel luogo e’ una violazione della garanzia sociale, un attentato alla pubblica fede”211. And the Court of Cassation said: “Le sottrazioni cui si riferiscono esclusivamente questi articoli sono quelle che si verificino nei depositi posti sotto la speciale protezione della pubblica autorità, o costituiscono, indipendentemente dal valore degli oggetti sottratti, un’offesa all’interesse di ordine, renerai e per cui queste, protezione si e’ resa necessaria.” This is why, this crime is included under the Title which deals with offences against the Administration of Justice and other Public Administrations.

The material objects in regard to which the crime may be committed are defined by the law as being “documents, records or other papers, registers, acts or any effects

210 Op. cit., pg. 114, para. 784 211 Cheveau et Helie, op. cit., Vol. II, pg. 149, para. 1050

whatsoever” and the places in relation to which the crime may arise are the “public archives or other public offices” to which the law has assimilated the hands of any public depositary or functionary who has received the things by virtue of his office. Typical of such places are the Notarial Archives, the Public Registry, the Archives and Registries of the Courts, the Registries of Government Departments, etc.

In the old jurisprudence of France, it was held that the theft of books from a public library constitutes an offence under this provision. Chaveau et Helie doubt the soundness of such decision. It is true, they say, that a public library is “a public place of deposit” in a very broad sense: but the objects which the law specifies as being the matter of this crime would tend to show that the intention of the legislature was to limit the application of the provision to the deposit of documents, records, acts and registers. The other words used by the law “or other effects whatsoever” are, indeed, very comprehensive and could include books; but, in the view of the said writers, those words ought to be construed as referring, by the rule “ejusdem generis”, to things of the same kind as the documents, acts and registers specifically mentioned. At the same time, however, the learned commentators do not disguise the fact that public libraries contain also important manuscripts and documents of very great interest and that, consequently, the law may well have intended to cover them by this provision.

Where the document, register etc. taken, purloined or tampered with is not in a public archive or other public office, but is in the hands of a public depositary or functionary, it is necessary that such public depositary or functionary shall have received the custody of the thing ‘by virtue of his office'. Such would be, for instance, a judicial referee to whom the record of the proceedings is delivered for the purpose of the reference, or a court martial or usher to whom acts are delivered for purposes of service or execution. Such, riso, undoubtedly, is every notary in regard to the notarial acts received or kept by him in his capacity as such, though not in regard to papers entrusted to him as a fiduciary depositary on account merely of personal trust.

Although section 142(1) does not make any express mention, this crime cannot be committed without criminal intent in the case of embezzlement or purloining. The dolus “inest re ipsa.” But if it is evident that an involuntary or accidental destruction or mutilation of a document does not constitute this crime.