Two kinds of theft are distinguished: the simple thefts and the qualified thefts.
The first are those in which are met the three preceding elements, but without any further aggravating circumstance. The second (qualified thefts) are those which to the three preceding elements add some aggravating circumstances. These circumstances are: 1, the quality of the agents (servants, inn-keepers, drivers or boatmen).
It is clear that this is an aggravating circumstance by reason of the facility given by the more intimate relations in which they stand with the injured persons, and the greater confidence these are obliged to grant them.
2. Times and places.—For example, thefts committed by night are more grave than those committed by day, because it is more difficult to anticipate them, to catch their perpetrators, and because they place the injured person in greater danger. The places that aggravate theft are: 1, the fields; 2, inhabited houses; 3, edifices consecrated to divine worship; 4, highways, etc. It is easy to understand why these different places aggravate the crime by rendering it more easy.
3. Circumstances of execution, as for example: 1, theft committed by several persons; 2, theft by breaking open; 3, theft with an armed hand, etc.
In a word, theft becomes greater in proportion to the difficulty of forestalling it, and its menacing character.
One particular form of theft is swindling. Swindling is a sort of theft, since it is a fraudulent appropriation of the thing of another. But it is characterized by the fact that it does not take place through violence, but through cunning, and in deceiving the victim by fraudulent maneuvers; for instance, in making him believe in the existence of false enterprises, in an imaginary power or credit, in calling forth the hope and fear of a chimerical event, etc.
Embezzlement is a sort of swindling, with this difference, that “if the criminal has betrayed the confidence which has been placed in him, he has not solicited this confidence by criminal maneuvers.” Among these may be classed: 1, taking improper advantage of the wants of a minor; 2, misuse of letters of confidence; 3, embezzlement of trusts; 4, the abstraction of documents produced in court.
We have to point out still several other kinds of theft: for example, theft at gambling or cheating; theft of public moneys or peculation, etc.
In one word, under whatever form it may be concealed, misappropriation of another’s goods is always a theft. In popular opinion it often seems, as if theft really takes place only when the criminal takes violent possession of another’s property. Very often a few false appearances suffice to conceal to the eyes of easy consciences the hatefulness and shamefulness of fraudulent spoliations. One who would scruple to take a piece of money from the purse of another, may have no scruple in deceiving stockholders with fictitious advertisements, and appropriate capital by fraudulent maneuvers. Theft thus committed on a large scale is still more culpable, perhaps, than the act of him who, through want, ignorance, hereditary vices, never knew of any other means of living than by theft.