i) Contrectatio

(i) Contrectatio

This is the act of taking possession of a thing Divesting the actual owner of the possession thereof. “Contrectatio” therefore represents the act of completion of the theft and all acts which precede it may, if all other conditions are satisfied, constitute an attempt. But the precise notion of contrectatio is a matter of serious controversy among jurists. Three main theories have been propounded, i.e.

(a) According the first, contrectatio consists in removing the thing from the place in which it was; therefore as soon as there has been such removal, the theft is couplet It is consequently not necessary that the thing be also carried away from the room or from the house of the owner, because although he is in possession of the room or of the house, he is no longer in possession of the thing.

(b) According to the second theory, contrectatio is made up of “apprehensio” and "amotio de loco ad locum". So that contrectatio may be said to be complete and that the theft may be said to be consummated, it is not enough that the thing be taken away from the portion of space which it occupied, but it is also necessary that it be removed from the sphere of possession or actual control of its lawful possessor. Before this happens, that is to say in the interval between the “apprehensio” and the “amotio de loco ad locum” there may be an attempt; but the theft cannot be said to be consummated or completed if therefore the thief is surprised before he has gone out of the room or of the house »he will be guilty of an attempt and not of the completed theft,

(c) According to the third theory, the theft is not consummated before the thing has been safely carried away, that is carried away to the place where the thief intended to take it (ao loco quo destina ver at) ; consequently the theft is not completed, not only where the thief is surprised while he is still in the house, but also where, having gone out of the house, the thief is caught while carrying the thing to the place he had appointed.

This third theory is propounded by a small minority and may be discarded. The second theory was strongly advocated by Pessina and v/as, in fact, enshrined in the Italian Penal Code of 1889. “This theory”, Pessina wrote, “less strict (then the theory of

“amotio”), as well as answering to the true motion of the crime, finds an echo in popular judgement, because where, for instance, it happens that a thief is apprehended with the booty in the house where he went to steal, and is so apprehended while he was making for the door to escape, popular judgement always says that the man attempted to steal, and not that he stole”474 . Elsewhere the seme jurist wrote: “Theft is completed by the thief taking possession of the thing; but this change of possession cannot be said to have taken place so long as the thing is still in the place which constitutes the sphere of possession of the owner [...] The first phase of the crime of theft is the “apprehensio rei” , and the last phase consists in the change of place which integrates the “ablation”. But by the ‘place’ one must not always understand the same J place in the physical sense, that is the room or the house. The place is determined by the sphere o' activity of the lawful holder of the thing. If one enters the house of another to commit a theft, the exit or going out of the thief from the house is a necessary condition so that the theft may be said to be consummated if two people live in the same house but in different rooms, one of them does not truly complete the theft, except when he carries away the thing out of the room where it lay. if two individuals share the same room, as for example two prisoners in a prison cell, or two pupils in a room in a college, the theft can be considered as completed when the thing is removed from the limited nook where all the property of the owner of the thing is contained and is carried away and concealed either out of the room or among the things of the taker. So the terminus ad quern’ is represented by any displacement which takes away the thing from the sphere of activity of its lawful holder"475 .

This theory, attractive though it may be, was admitted by its own advocates to be necessarily somewhat fluid and flexible. It requires for the completion of the theft that the thief shall have become possessed (impossessato) of the thing or in other words that possession of the thing shall have passed from the lawful holder in the hands of the thief: how this passage of possession “non può essere raffigurato da una formola precisa, assoluta; ma deve essere rappresentato da circostanze, che difficilmente potrebbero essere prestabilite, od esemplificate”476 .

474 Relazione sul progetto 29 Gennaio, 1885, p. XLVII - XLVIII 475 Elem. di Dir. Pen. Vol. Ill p. 212 476 Relaz. della Comm. della Ca. dei Dop. sul prog. 1887, art. 381., n. 1

The first theory, i.e., Carrara's theory which, as we have said, is generally adopted by our Courts, more severe and strict though it undoubtedly is, has the merit of providing a fixed and invariable criterion. It was the theory which, in the absence of a legal definition, was followed under the Tuscan Code. It was also the theory which, in the like absence, was generally followed under the Neapolitan Code, on which our Code was mainly modelled. It is as we shall see, identical with the theory which the English Common Law adopted and to which the English Larceny Act has given statutory recognition.

According to it, the theft is completed so soon as the thief has laid hands on the thing which he intended to steal and has removed it with such intent from the place T/here the owner had put it.

From a scientific point of view Carrara defends this theory by various reasons. in the first place, theft is a violation of the possession of others: hence at the first moment at which a thief takes possession of a thing which was possessed by others, the violation of possession takes place without waiting that the possession taken by the thief shall be protracted to any length of time, or much less that the thief shall convert the thing into his dominion. If we abandon this first moment of "amotio", which already in itself constitutes a violation of possession, we will never know where to find a criterion for defining the moment at which the crime is consummated. As a matter of fact, among the opponents of this doctrine of “amotio” there is very great uncertainty. Some say that the theft is completed when the thing stolen is removed from the room where it was: others hold that it is completed when the thing is carried away from the apartment; others mention the house, yet others speak of the appurtenance of the house, maintaining that the violation of possession is not completed so long as the thing, being still within the residence of the owner or within its appurtenances, remains in his possession. But this mode of reasoning confuses the possession of the house with the possession of the thing. Not all things that are in my house are posseted by .me. The things which another person has about him when he comes into my house are possessed by him and not by me: this is evident: and when the thief, having entered my house, takes my things, he makes himself possessor thereof, notwithstanding that he is still within my house477 .

477 Carrara op. cit., loc. cit., para. 2019

According to Carrara's doctrine a theft is completed and not merely attempted although the thing removed from the place where the owner left it, is put by the thief in some other place in the same room.

In this respect, English Law accords with this doctrine. By the definition given by the Larceny Act (6 and 7 Geo. 5. c. 50) stealing requires a “taking” and a “carrying away”: “a person steals who, without the consent of the owner, fraudulently and without claim of right made in good--faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof [...]”. But the expression “carry away” is expressly defined as including removal of any thing from the place which it occupies but in the case of a thing attached, only if it has been completely detached. While therefore there must be a change of possession, at least constructively, to constitute larceny, inasmuch as if there is no infringement of possession, i.e. no trespass, there could be no larceny, yet the asportation or carrying away, which together with the taking is essential, is satisfied by the slightest removal of the thing from the place which it occupies: and this, even though the thief at once abandon the thing. Thus, there is a sufficient aspiration in taking plate out of a chest and leaving it on the floor; or in shifting a bale from the back of a cart to the front, or in pulling a lady’s earing from her car, even though the earing be caught in her hair and remain in it. Only in the case of a thing attached, there cannot be a sufficient removal unless it has been completely detached: e. g. not unless the string which ties the scissors to the counter has been cut through478 .

Now, the subject matter of the crime of theft can only be a movable thing. Immovables, it was said “non concretantur sod invaduntur” . Some of the very early Roman Lawyers had thought there might be “furtum fundi locive” i.e., that land was legally capable of being stolon. But even before the time of Gaius, all the jurists came to abandon this view. The expression “movable thing” must be construed in its widest sense. It includes also those things which are considered by the Civil Law as immovables so long as they are attached to the land, tenement or trees but which become movable as soon as they are severed therefrom; e.g., fixtures, growing fruit, etc.

With regard to the things attached to realty the Common Law rule in England was that they could not be the subject matter of larceny. The movableness of the thing must

478 Kenny op. cit. p. 214

have existed before the theft, A thing therefore was not lacerable if it first became movable by the very act of the taking. Thus, it was no theft at all to take mould from I \ garden or send from a pit: or to pull down a wall and carry away the bricks. So it was no larceny to strip woodwork or other fixtures from a house or to cut down a tree. But these acts have now been made specific statutory offences. The Larceny Act, 1916, preserves the rule that (with a some except ions as to fixtures, growing plants and mineral orbs) “anything attached to or forming part of the realty shall not be capable of being stolen by the person who severs the same from the realty, unless, after severance he has abandoned possession thereof’. For even at Common Law, there would be a larceny if, after the severance heel once been fully completed, the thing were abandoned by the thief but he afterwards changed his mind and returned and carried it away.

The movable thing, to be stealable, must be physical or corporeal. Piracy of copyright may give rise to other remedies under specific laws, but not to a charge of theft. Likewise debts or rights of action cannot be the subject-matter of theft: but the papers or instruments evidencing such claims or right, may.

It is, however, not doubted by anyone and our law makes express provision - that gas or electric current are movable things capable of being stolen.

The thing to be the subject of stealing must have a value. But the exact measure of this value is not fixed in England the principle is now distinctly laid down that although, to be the subject of a stealing, a thing must be of value to its owner, if not to other people, yet this need not amount to the value of the smallest coin known to the law, or ever the hundredth part of a farthing”. In R vs Clarence (1889), Mr. Justice Hawkins went so far as to say, though only incidentally, that stealing a single pin would be larceny.

In Italian doctrine it is likewise held that, provided the thing has some value, even though very small, it can be the subject-matter of theft. Carrara says: “purché un qualche valore vi sia, per quanto minimo, e’ sempre furto”479 . But some value is necessary. So that in the case of 'a theft of “a forged bank note” Carrara opined that there was no theft either complete or attempted.

479 loc. ext. para. 2073