STEALING/CRIMINAL LAW

This unit will introduce you to stealing as a topic in criminal law. You will learn what stealing is, how it is different from other subjects in criminal law.

1.0 INTRODUCTION

To steal is both morally reprehensible and criminally wrong. The offence of stealing is contained in the criminal and penal codes. From the way it is constituted, stealing can manifest in various acts and such acts have been spelt out elaborately in this work.

2.0 OBJECTIVE

At the end of this unit, you should be able to: expressly state which acts constitute the offence of stealing and which acts do not.

3.0 MAIN CONTENT

3.1 Definition

Ordinarily, stealing means the wrongful taking away of the goods of another. It could also mean to take away dishonestly or wrongfully especially secretly. Stealing is defined in the Criminal Code thus: “a person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any person anything capable of being stolen, is said to steal that thing”. See section 383 (1) of the criminal code. Certain key words like “taking” and “converting” are critical in the discussion of the offence of stealing.

3.2 Taking

For there to be taking in the eyes of the law, the thing must be moved or caused to be moved. See section 383 (6) of the Criminal Code. There are two known types of taking: The first one is actual taking, which occurs when a person comes into physical or bodily possession of the property. The second is where someone else is caused to take it on your behalf. Under the second category of taking, there must be control over the person doing the taking by the principal.

3.3 Converting

Conversion is not defined in the Criminal Code. According to the renowned authors, Okonkwo and Naish, in their book, Criminal Law in Nigeria, the definition of conversion is to be and should be taken from the area of torts. Thus, in the all-important case of Lancashire Railway Company v. Macnicol (1919) 88LJKB 601 and 605, conversion was looked at as a dealing with goods in a manner inconsistent with the rights of the true owner, provided that it is also established that it is also an intention on the part of the defendant, in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right. See also Street on Torts at page 44, as well as the view, as well as the view of the court in the case of Mills v. Broker (1919) 1 KB 555. If we therefore relate the above definition to the subject at hand, it is fitting to say that for conversion to amount to stealing, it must be done with one of the fraudulent intents provided in section 383 (2) of the Criminal Code.

With a view to deciding whether a conversion is fraudulent, Section 383 (4) of the Criminal Code provides that it is immaterial that the person converting had an innocent possession of that property or that he held a power of attorney for its disposition or was otherwise authorized to dispose of the property.

3.4 Specific Intents in Stealing

Six intents have been criminalized by section 383 (2) of the criminal code and to the analysis of these intents, we now turn:

1.  Section 383 (2) (a) of criminal code provides for an intent permanently to deprive the owner of the thing, of it. Here, the law emphasizes permanent deprivation and not temporary deprivation. See the unreported case of State v. Otaru in charge No. U/6C/67 decided in Midwest High Court. The law does not regard as amounting to stealing where there is a conditional taking with intent to keep only of the goods that are valuable. The case of R. v. Easom (1971) 2 All ER 945 is important here. We are of the opinion that if a conditional taking does not amount to stealing as we have seen in the case of Easom, it could pass section 4 of the criminal code.There is stealing where the accused fraudulently deceives the owner of goods to buy such goods which already belong to him or to which he already has a valid title. See the case of R. v. Hall (1894) 2 C 947. Motive of gain is not important or central in order to determine whether a permanent deprivation is fraudulent. See R. v. Cabbage (1815) R&S 292. 
2. Next is section 383 (2) (b) of the Criminal Code, which provides for an intent permanently to deprive any person who has any special property in the thing of such property. According to the code, the phrase “special property” as contained herein includes any charge or lien upon the thing in question, and any right arising from or dependent upon holding possession of the thing in question whether by the person entitled to such right or by some other person for his benefit. This limb of section 384 (2)(b) is designed to protect the right of a person who is not the owner of the property but has some special interest in the thing he must have power to exercise physical control over that thing. Therefore, if you are a finder of a lost property or goods or a pledge of goods, the law recognizes you as having special property in the article.
3. The third is contained in section 383 (2) (c) of the Criminal Code and it deals with an intent to use the things as a pledge or security. The general rule is that a person who is not the owner] of a property and who pledges that property to another as a security has committed the offence of stealing. To every general rule, the law recognizes exception(s). The exception here is in the case of extreme necessity and on condition that he would retrieve such goods almost immediately, but unfortunately, is unable to do so. Here, the law will not regard that, as the offence of stealing because intention which is an essential ingredient is considered lacking.
4. Section 383 (2) (d) deals with intent to part with it on a condition as to its return which the person taking or converting it may be unable to return. Here, the accused takes one’s property for a transaction but loses such property in the cause of such transaction and therefore is unable to such property to the owner.
5. The intent here revolves round dealing with one’s property in such a manner that it cannot be returned in the condition in which it was at the time of taking or conversion. The point of note here is that the thing taken or converted cannot be returned by the accused in substantially the same condition. The facts of any similar case will be of great assistance. This was decided in thecase of R. v. Bailey 1924 QWN 38.
6.  The last intent is set out in section 383 (2) (f) of the Criminal Code and it states thus: in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner. The law contained in section 383 (2) (f) of the criminal code was the basis of court’s decision in the case of R. v. Orizu (1954) 14 WACA. In that case, the court held that accused liable for offence of stealing and convicted him accordingly.

SELF ASSESSMENT EXERCISE 1

Mention six intents criminalized in the code which would make taking or conversion fraudulent and therefore criminal in the eye of the law.

3.5 Things Capable of Being Stolen

For one to be convicted of having stolen anything, such a thing must be one capable of being stolen. It then follows that it is not everything which is capable of being stolen. Section 383 of the criminal code relates to the issue of things capable of being stolen. From that section, it is obvious that things that are inanimate which are the property of any person and which are movable, are things capable of being stolen. In law, there are certain things which are not capable of being stolen. Such things are land and property not owned by anybody. The common law position is that, a corpse is not capable of being stolen. But the law has been developed to the effect that if a corpse possesses peculiar attributes as to justify its preservation on scientific or other grounds and some work of skill have been performed on such corpse, and it is an unlawful possession of a person or authority, it may amount to stealing if such a corpse is disposed of in a manner constituting the offence of stealing.

4.0 CONCLUSION

In this unit, we demonstrated that for a property to be capable of being stolen, it must be:

1. Belong to somebody else 
2. Moveable 
3. Corporeal 

In order for the act to be unlawful, the act of stealing must take place without the permission of the person who has a right to possess it. In the unit, we demonstrated that to have the intention required for theft it must relate to the act, the nature of property, and to the unlawfulness. Further more, the intention must be to permanently deprive the person entitled to the possession of the property.

5.0 SUMMARY

Stealing is an offence which when committed, attracts punishment, as contained in the code.
It is not every act of the accused that constitutes the offence of stealing. For an act to be regarded as stealing, it must be accompanied by any of the specific intents contemplated in section 383 (2) (a)-(f) of the code. It is not everything that is capable of being stolen; for example, land and ownerless properties cannot be stolen. The things stolen must be moved to the slightest degree with the intent of permanently depriving the owner of the use of such things or with any of the specified intents.

6.0 TUTOR-MARKED ASSIGNMENT

1.  Can a person who has entered my plot of land located at Abuja metropolis without my permission and plucked an orange from an orange tree planted on the land charged with the offence of stealing?
2.  If, as my intimate friend, I give you money to deliver to my mother at the village but you use the money to pay your school fees and now cannot refund it to me upon demand, have you committed a criminal offence in the eyes of the law?