¹ Cf. Pollock, , “The Distinguishing Mark of Crime” (1959) 22 M.L.R. 495, 498.CrossRefGoogle Scholar

² R. v. Middleton (1873) L.R. 2 C.C.R. 38, 54, Cf. Bell, and Friedman, , “Use of Criminal Sanctions in the Enforcement of Economic Legislation—a Sociological View”, (1964–1965) 17 Stan. L.R. 197, 211CrossRefGoogle Scholar.

³ Cf. Kenny's Criminal Law (16th ed.) 543.

⁴ Ibid., 546.

⁵ See, e.g., in connection with fraud, Mannheim, , Group Problems in Crime & Punishment, 276Google Scholar; Mannheim, , Criminal Justice & Social Reconstruction, 120Google Scholaret seq.

⁶ Friedmann, , Law in a Changing Society, 185.Google Scholar

⁷ Or conversion of a bailed article

⁸ Sees. 49 (detention) and 52 (conversion) of the Civil Wrongs Ordinance (New Version). See Street, , The Laws of Torts (2nd ed.) 43Google Scholar.

⁹ See the definition of stealing in sec. 263 (1) of the Criminal Code Ordinance, 1936, which is identical with that in sec. 1(1) of the Larceny Act, 1916.

¹⁰ e.g., Austria, , Rittler, , Lehrbuch des Oesterreichischen Straf rechts (2nd ed.) vol. II, 133Google Scholar; Switzerland, see Schwander, , Das Schweizerische Strafgesetzbuch, 251Google Scholar; Finland, , Mezger, , Schönke, , Jeschek, , Das Ausländische Straf recht der Gegenwart, 112Google Scholar.

¹¹ Thus sec. 379 of the French Criminal Code defines stealing (in the translation of The American Series of Foreign Penal Codes) without the element of intention permanently to deprive: “Any person who fraudulently takes away anything of which he is not the owner, is guilty of larceny.” For South Africa, see sec. 1 of the General Law Amendment Act, No. 50 of 1956, and for Canada, sec. 269(7) of the Canadian Criminal Code, 1954. See the survey of enactments proscribing theft of use in Vergleichende Darstellung des Deutschen und Ausländischen Strafrechts, IV, 318 et seq. (chapter edited by Dr. Harburger).

¹² As interpreted, the offence of stealing relates only to tangible things, Smith, & Hogan, , Criminal Law, 371Google Scholar. The same is true of the civil wrong of conversion, Baharav v. Grundland (1958) 12 P.D. 685. But as for England, see Douglas Valley Finance Co. Ltd. v. Hughes (Hirers) Ltd. [1966] 3 All E.R. 214, and the note by Bar-Shirah, E. in (1967) 23 HaPraklit 13.Google Scholar

¹³ The protection of abstract values is recognized in this country under copyright. Sec. 3 of the Copyright Ordinance, 1924, provides that the making for sale or hire of any infringing copy of a copyright work, as well as the sale or letting for hire of such infringing copy is a criminal offence.

¹⁴ Cf. People v. Ashworth, 220 N.Y. App. D. 498.

¹⁵ Cf. sec. 223.7 of the Proposed Official Draft of the Model Penal Code of the American Law Institute.

¹⁶ Holmes, , The Common Law, 70.Google Scholar

¹⁷ Sec. 263 (2) (b) of the Criminal Code Ordinance, 1936; sec. l(2)(ii) of the Larceny Act, 1916; See also R. v.Thompson (1825) 168 E.R. 1192; R. v. Walsh (1824) 168 E.R. 1166. It should be noted that the very existence of intention permanently to deprive as an element of stealing indicates that the emphasis is on the risk and not the consequence. Objectively, it is not possible (apart from the case of destruction) precisely to determine whether the article has been permanently lost to the possessor—even a thing thrown into the sea may theoretically be recovered and restored to its owner (see the notes in Entwurf eines Strafgesetzbuches (St GB) E/1962, 421). The law is therefore content with intention permanently to deprive in contrast to laying down actual permanent deprivation as a constituent part of the actus reus.

¹⁸ See Smith & Hogan, op. cit. 376; State v. Ward 10 P. 133, 137 (1886); Perkins, , Criminal Law, 225Google Scholar; R. v. Furtuin (1883) 1 Buc. A.C. 290 (S.A.); R. v. Dorfling (1954) 2 S.A. 125; R. v. Laforte (1922) C.P.D. 487. Cf. the definition added to the new English Theft Bill: (1968) Crim. L.R. 61.

¹⁹ See my article in (1967) 2 Is. L.R. 18.

²⁰ R. v. Pheteon (1840) 173 E.R. 952; Perkins, op. cit. 226. In Nyasaland (now Malawi), stealing includes the intention permanently to deprive but the definition also provides that for a conviction “intent to use the thing as a pledge or security” is sufficient, sec. 256 (b) of the Nyasaland Protectorate Penal Code. See also sec. 383 (2) (c) of the Nigerian Code of 1916. In England special offences have been created with regard to unlawful pawning in specific Acts, see e.g. sec. 33 of the Pawnbrokers Act, 1872. (Cf. the notes in 17 Halsbury Statutes (2nd ed.) 775) and compare sec. 127 (15) of the local Bankruptcy Ordinance.)

²¹ Smith & Hogan, op. cit. 387–89.

²² In Germany unlawful pawning of an article by the taker is regarded as an intermediate stage between ordinary stealing and taking for temporary use (furtum usus). “Grenzfelle zwischen Zueignung und Gebrauchsanmassung ergeben sich wenn der Täter fremde Sachen als Kreditbasis (Verpfandung Sicherungs-eigentum) benűtzen will”. Schönke-schröder, , Strafgestzbuch Kommenter (8th ed.) 836Google Scholar.

²³ It is assumed that the same rule applies to all fungible things, “which in ordinary dealings are usually determined by number, measurement or weight”, Paton, , Juris prudence (2nd ed.) 418.Google Scholar

²⁴ R. v. Williams [1953] 1 All E.R. 1068, 1070, and see the local decision which follows it, A.G. v. Barzilai (1964) (IV) 18 P.D. 757, 760, but contrast the other approach in A.G. v. Halifax (1966) 42. P.M. 59. The same technical ground also serves with regard to appropriation of money by false pretences when the intention was to return other coins to the same amount, see A.G. v. Jabani (1953–54) P.M. 231, 236; A.G. v. Berti (1958–59) 20 P.M.S. 29; sec. 256 (e) of the Nyasaland Criminal Code finds it essential to lay down expressly in its definition of stealing that “in the case of money an intent to use it, although he may intend afterwards to repay the amount to the owner” is sufficient intention; see also sec. 383 (2) (f) of the Nigerian Code of 1916. As against this, it has been held in Austria that the taking of money with the intent to return the same amount in circumstances where the possibility to do so existed is not stealing. But views differ as to whether this view is correct; Rittler, op. cit. 133, note 34.

²⁵ Except where the coins have special value not as currency but as a commodity (sentimental, historic, artistic or other like value). See for the varying approaches to money in other areas, Levontin in (1966) 1 Is. L.R. 250.

²⁶ A South African decision has dwelt on this ground of risk in addition to the technical ground mentioned: R. v. Milne & Erleigh (1951), I S.A. (A.D.) 791, 865—”The distinction is not only technically valid, the taker having no intention to return what he plans to consume. It is also a sensible one, for the consumption increases the risk that the taker even if he intends to replace may not be able to do so.” By contrast some have based the imposition of responsibility in this case on the fact that it would be difficult to assess the veracity of the statement by a taker of money for use that he intended to restore an equal amount, ibid. 865: “the difficulty of proving what has happened to consumables that have been taken makes it harder than in the case of other goods to test any statement by the accused that he intended to replace.” I think that this matter of evidence is not the decisive reason, since questions of proof arise in all cases of unlawful taking, when the taker pleads that he intended to return the thing to the owner even when it remained in his possession. It is difficult to lay down as a rule that proof is always more difficult when dealing with money or like things. Cf. State v. Pratt 220 Pac. 505 (1923). (Paulsen, and Kadish, , Criminal Law and its Processes, 703.Google Scholar)

²⁷ Cf. American Law Institute's Proposed Official Draft which prescribes in sec. 223.0 (1) (b) that intent to deprive includes “to dispose of the property so as to make it unlikely that the owner will retrieve it”. Seemingly, in accordance with this formula, it would be possible to convict only those who acted with knowledge that the risk existed.

²⁸ A distinction must be made between fungibles and consumables which deteriorate with use, although many objects belong to both groups; Paton, op. cit. 418.

²⁹ See the remarks by van den Heever, J. A. in R. v. Sibia (1955) 4 S.A. 247Google Scholar, 260, and Paton, ibid.

³⁰ Rittler, op. cit. 133.

³¹ Sec. 263 of the Criminal Code Ordinance, 1936; sec. 1 of the Larceny Act, 1916. In R. v. White (1853) 6 Cox C.C. 213, it was held that gas can be stolen. The special provision in sec. 285 of the Criminal Code Ordinance, 1936, proscribing appropriation of electricity and water was intended first to remove doubts and secondly to lay down a severer penalty (5 years) for this offence than for stealing (1 year). (Since the original enactment the penalty in both cases has been set at 3 years.)

³² Fitzgerald, , Criminal Law and Punishment, 45.Google Scholar

³³ It appears that in Germany the view is that one may also be charged in this case with stealing the battery itself, Schönke-Schröder, op. cit. 836.

³⁴ Is it possible to impose responsibility on the taker for causing wilful injury (sec. 326 of the Criminal Code Ordinance)? The question is whether all the requirements of the mental element of “wilfully” have been fulfilled when the taker appropriates the sh'oes knowing that they will be damaged by use. In England it has been held that “the word ‘maliciously’ in a statutory crime postulates foresight of consequences”, R. v. Cunningham [1957] 2 Q.B. 396, 400, i.e. the mental element of recklessness is enough. It appears that the same applies a fortiori in our Ordinance which uses the lesser term “wilfully”. Although one can with some straining bring this case within the scope of the offence of causing wilful injury, its true place is not there. The former refers to a single positive act and not to use. Even criminologically, it is not right so to classify the instant case with malicious injury which is associated with a type of violent offender who generally operates aggressively whereas our offender is closer to the type which acts lucri causa.

³⁵ R. v. Hall (1849) 3 Cox C.C. 245, 246. The court said through Alderson B: “I think that he who takes property from another intends wholly to deprive him of it, if he intends that he shall get it back again under a contract by which he pays the full value of it.”

³⁶ Slaughter v.State 38 S.E. 854 (Snyder, , Criminal Justice 408Google Scholar). See also Perkins, op. cit. 226.

³⁷ R. v. Beecham (1851) 5 Cox C.C. 181. In Germany and Switzerland an example is given similar to that in the text; a person takes the savings bank book of another, withdraws all the money deposited in the bank and thereafter returns the book to the owner: Schönke-Schröder, op. cit. 83; Schwander, V., Das Schweizerische Strafgesetzbuch, 251.Google Scholar

³⁸ Snyder, op. cit. 408, deals with the problem from this point of view.

³⁹ Burdick, op. cit. II, 317, sec. 548, explains conviction for theft in these circumstances in the following light: “Although the owner may get back his property upon paying the reward, yet he has been unlawfully deprived of a portion of its value, and that is sufficient to constitute the intent required” (Commonwealth v. Mason, 105 Mass. 163).

⁴⁰ Jones, Cross, Introduction to Criminal Law (5th ed.) 191.Google Scholar But contrast the opposite view, Smith & Hogan, op. cit. 378.

⁴¹ Hall, J., Theft, Law and Society, 103Google Scholar, note 71, raises de lege ferendo the possibility of defining stealing in terms of value or economic goods instead of property, as in civil law. This suggestion is revolutionary of the accepted concepts of stealing. Moreover, it is not known whether it would be easy to work out a satisfactory definition along these lines.

⁴² Van den Heever, J. A., who gave the minority judgment in R. v. Sibia, ubi supra, 261, saidGoogle Scholar: “Nowadays in cases of theft we are apt to look at the economic effect of the act by which a person fraudulently converts value to his own use, rather than be hypnotized by the concrete mechanics by means of which the crime is committed”.

⁴³ Mercier, , Crime & Criminals, 160–61, 164–67Google Scholar, emphasizes that since it is possible to “acquire” use, there is no, reason why criminal responsibility should not be imposed for theft of “use”. See Williams, op. cit. 80, note 8 and Fitzgerald, op. cit. 45, as well as the comments on the Model Penal Code, T.D. No. 2 p. 70.

⁴⁴ The same applies to property that is not used in manufacturing but for giving services and the value of which to the owners derives from their use in this manner, such as lorries and other means of transport; cf. R. v. Cullum (1873) L.R. 2 C.C.R. 28 (the case of a barge-master who without authority used his barge for “private” purposes and pocketed the proceeds).

⁴⁵ The examples are taken from the notes to the German Draft Criminal Code of 1962: Entwurf Eines Strafgesetzbuches E/1962, 421. The draftsmen who do not in general recognize furtum usus have for the purpose of attaching criminal responsibility in these instances created in sec. 251 a special offence, denominated Sachentziehung, the constituents of which are the taking of a movable from another, unlawfully, with intent to cause him or a third person appreciable loss. Criminal responsibility is subject to a complaint by the injured party. Clearly if generally a temporary taking incurred criminal responsibility, there would be no need to create a special offence, unless one were interested to impose a different penalty for this kind of offence.

⁴⁶ Defined in sec. 326 (1) as follows: “Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour.”

⁴⁷ The English courts indeed give the expression “injury to property” a broad interpretation which includes the case of a person contributing to stop a machine from working, without breaking any part thereof or moving it from its place (R. v. Fisher (1872) L.R. 1 C.C.R. 47), but do not extend it further, e.g. to a case in which the article itself suffers no injurious consequences. In Germany a broader interpretation is given, under which a person who releases a confined domestic animal is guilty of injury to property though no injury is caused directly to the animal: see the notes to Entwurf Eines Strafgesetzbuches, E/1962, 421.

⁴⁸ In Aunimelech v. Chief Military Prosecutor (1958) Selected Military Judgments, 211, 213 (in Hebrew), it is said: “Be the position as it may, our considered view is that in sec. 77, the legislature, taking account of military needs intended to lay down special provisions for the army; in the particular conditions under which possession and use of this property occurs, it was forced upon the legislature to prescribe provisions the requirements of which are not as onerous as in ordinary theft.” Sec. 121 of the U.S. Military Code also, in defining “wrongful appropriation” in its various forms, waived the element of the intention permanently to deprive: Manual for Courts Martial U.S. (1951) 362; Aycock, & Wurfel, , Military Law under the Uniform Code of Military Justice, 297.Google Scholar

⁴⁹ Sec. 263 of the Criminal Code Ordinance, 1936. In point of intention, the whole difference between ordinary stealing and stealing by a bailee is that in the latter the criminal intent can arise after the thing is already in the possession of the thief (A.G. v. Bana (1959) 13 P.D. 897), whereas in ordinary stealing it must exist at the time of the taking.

⁵⁰ In Geisler v. State of Israel (1966) (II) 20 P.D. 477, 486, it was said “[In] an offence under sec. 276 of the Criminal Code Ordinance … it is necessary to prove that the offender took the thing permanently; but if he is a public servant, then even if he took only temporarily public property contrary to the regulations binding upon him, in order to utilize it for its own purposes, it would be an offence under sec. 140, although possibly the State was not in fact caused any financial or material damage.”

⁵¹ Sec. 290 of the Criminal Code. See Maurach, , Deutsches Strafrecht, Besonderes Teil, 1956 (2nd ed.) 233Google Scholar; Frank, , Das Strafgesetzbuch für das Deutsche Reich (5–7 ed.) 487Google Scholar; Von Liszt, , Lehrbuch des Deutschen Strafrechts (23rd ed.) 456.Google Scholar

⁵² See the report of the English Rovai Commission on Theft and Related Offences (Cmnd. No. 2977)28.

⁵³ An example from another area may possibly be found in Military Law when it proscribes stealing from a soldier under sec. 84 of the Military Justice Law, 1955. Here intention permanently to deprive is not necessary, the reason apparently being that cramped living conditions in the army create a special temptation to make use of another's things.

⁵⁴ See the Penal Law Amendment (Use of Vehicles without Permission) Law, 1964. Prior to that law it was customary to charge the accused with stealing petrol and criminal trespass (A.G. v. Ben Yair (1961) 15 P.D. 2325).

⁵⁵ See, e.g., U.S.A.—52 Corpus Juris Secundum, p. 782; Austria, sec. 467 of the Criminal Code, Rittler op. cit. II, 186; Yugoslavia—sec. 254 of the Criminal Code of 1951 (English translation in Collection of Yugoslav Laws, I); Hungary—sec. 304 of the Criminal Code of 1961 (German translation in Strafgesetzbuch der Ungarischen Volksrepublic); Sweden—sec. 7 of the Eighth chapter of the Code of 1963 (English Translation, Ministry of Justice, 1965).

⁵⁶ 39 Divrei Haknesset (23.3.1964) 1506.

⁵⁷ To this should be added a further risk at times bound up with the temporary taking of a motorcar: the frequent use of it to commit other offences.

⁵⁸ The Law has been amended to make the term three years in each case: sec. 4 (33) of the Criminal Code Ordinance (Amendment Law) 1966.

⁵⁹ In protesting against the severity of the punishment for the offence of using a vehicle without permission as against that laid down for ordinary theft, one member of the Knesset did not apparently consider this aspect of the problem: 38 Divrei Haknesset (14.1.1964) 781.

⁶⁰ In contrast, it is doubtful whether the English legislature did not have more in mind the proprietary aspect when making the parallel offence (sec. 217 of the Road Traffic Act, 1960, as amended by sec. 44 of the Road Traffic Act, 1962). Two things attest to this—first, in the offence the emphasis is not upon the use of the vehicle but, as with stealing, upon the taking (see the restricted interpretation of “taking” in Mowe v.Perraton [1952] 1 All E.R. 423, and R. v. Wibberley [1966] 2 W.L.R. 1, (and cf. the comments at p. 174 of the Proposed Official Draft of the Model Penal Code of the American Law Institute); and second, the punishment is lighter than that for stealing (two instead of five years' imprisonment).

⁶¹ Sec. 1 (b) of the Penal Law Amendment (Unauthorized Use of Vehicles) Law, 1964, which refers to the definition of “vehicle” in the Transport Ordinance.

⁶² But compare van den Heever, J. A. in R. v. Sibia (ubi supra at 260Google Scholar), who sees the danger of a breach of public peace more in cases of temporary taking than in using a bailed article without permission.

⁶³ As whether it includes a mental state of recklessness or conditional intent; see Williams, op. cit. 80.

⁶⁴ Sec. 2 of the Law.

⁶⁵ This result is reached by a broad definition of the “thing” obtained by deceit, “thing” being defined to include “benefit”. The latter term undoubtedly covers temporary uses.

⁶⁶ It should be remembered that certain forms of stealing, such as stealing by a trick (sec. 263 (2) (a) (i) of the Criminal Code Ordinance) are most difficult to distinguish from deceit.

⁶⁷ Cf. Paton, Jurisprudence (3rd. ed.) 501.

⁶⁸ See the Report of the English Royal Commission, ubi supra, 27.

⁶⁹ It may be observed that there is no evidence that in those countries where stealing includes use, vexatious appeal to the law is common. Likewise apparently the number of complaints in the army of stealing from a soldier, which does not include intention permanently to deprive, is not especially large.

⁷⁰ As the matter now stands in the law of many Continental states and as is suggested in 2.12 of the Proposed Official Draft of the Model Penal Code. At the procedural level, the principle operates in practice in our legal system as well; the authorities which initiate legal proceedings possess the power not to prosecute in the absence of public interest (see secs. 53 and 56 of the Criminal Procedure Law, 1965), but with some offences a private complaint may in this event be laid. Stealing is not among these offences. As an alternative to the general defence of de minimis the special defence could be made available that if the taking is temporary and causes no loss or risk in consequence, there is exemption from responsibility: cf. sec. 377 of the Greek Code of 1950 (M. Ancel, Les Codes Pénaux Européens, II). Or one might ameliorate the position if the accused of his own accord returns the thing, as provided in sec. 249 (2) of the Yugoslav Cod'e—“if the perpetrator has restored the stolen movable to the injured party, before he learnt of the commencement of criminal proceedings, the court may remit the punishment.” In Yugoslavia, a system of minimum punishment prevails, hence the necessity for a special provision to remit sentence.

⁷¹ Report of the English Royal Commission, ubi supra, 27.

⁷² See p. 369 above.

⁷³ Some examples are: piracy (sec. 78—life imprisonment), removing boundary marks in order to defraud (sec. 329—a misdemeanour), exhibition of false light, mark or buoy (sec. 245—seven years' imprisonment).

⁷⁴ This is in fact the approach of the English Royal Commission.

⁷⁵ The Royal Commission points out (at 28) that offenders in the instance are “more eccentric than genuinely criminal”.

⁷⁶ In R. v. Cullum (ubi supra), Bramwell B. said (at p. 32): “the use of this barge by the prisoner was a wrongful act, yet not dishonest in the sense of stealing.” See also Schreiner, J.A. in R. v. Sibia, ubi supra, 257.Google Scholar

⁷⁷ Obviously the opportunity is available of varying the method of dealing with the offender according to the circumstances, and in certain instances of imposing a heavier penalty.

⁷⁸ See sec. 223.0 (1) (a) of the Proposed Official Draft—“with intent to restore only upon payment of reward or other compensation.”

⁷⁹ Sec. 223.0 (18)—“to dispose of the property so as to make it unlikely that the owner will recover it.”

⁸⁰ Sec. 223.0 (1) (a)—“to withhold property of another …for so to extended a period as to appropriate a major portion of its economic value.”

⁸¹ See p. 377 above.

⁸² Cf. Sec. 379 of the French Criminal Code, n. 11 above.