At what point does missing property become a theft. Two brief scenarios. An individual leaves her Ipad in a shopping cart, drives off, and when she comes back, it's gone. It was not turned into the business as lost and found. Another individual is at a beauty salon, uses the bathroom, takes off her jewelry to wash her hands. She forgets the jewelry, and when management finds it, they ask individuals if it belongs to them. One subject (not the owner) claims the jewelry as her own, and takes possession of it. In both cases, property is obtained without the effective consent of the owner. Which is theft, or are they both?

Either of these scenarios might involve a mistake of fact defense. Case 2 would be a harder sell, unless the claimant could prove she was the owner of similar jewelry and offered to return it as soon as it became obvious it was not hers. Abandoned property generally cannot be the subject of conversion and thus probably not of theft either. Thus, there is a moral wrong in case 1, but really hard to prove intent to deprive the owner.

How often have you failed to appropriate some form of money found lying about with no evident owner anywhere close? I realize not so easy to verify who owned, but lost, money, but same principle seems applicable to me.

The key in cases like this is whether it's reasonable for the actor (or, really, an ordinary & prudent person) to form the belief that the property was in fact "abandoned."

The word "abandon" means a giving up, a total desertion, an absolute relinquishment. Worsham v. State, 56 Tex. Crim. 253, 260, 120 S.W. 439, 443 (1909); see Fender v. Schaded, 420 S.W.2d 468, 473 (Tex. Civ. App.--Tyler 1967, writ ref'd n.r.e.). Abandonment includes both the intention to forsake or abandon and the act by which such intention is carried into effect. .... "It is essential, in order to raise the issue of abandonment, that there must be a concurrence of the intention to abandon and an actual relinquishment of the property, so that it may be appropriated by the next comer." Worsham, 56 Tex. Crim. at 260, 120 S.W. at 444; see Fender, 420 S.W.2d at 473.

- From Ingram v. State, 261 S.W.3d 749.


So while a mistake of fact defense may in fact be available in theory, it would be difficult to convince me that an iPad left in a shopping cart could reasonably be thought to be "abandoned." (The second example even less so, of course.) We prosecute stolen cash cases all the time where a bank envelope or a wallet, etc., is stolen by whoever finds it lying on a counter or wherever. Just not reasonable to believe that someone intended to abandon the money.