Unlawful Taking of Movable Property

Section 223.2(1) states the Code's general rule for an actor who seizes or holds something belonging to someone else: a person is guilty of theft if he "unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof."¹ Three requirements sit inside that sentence. The conduct element is an unlawful taking or unlawful control, the subject matter is movable property of another, and the mental state is purpose to deprive. Section 223.2 is the Code's provision on theft by unlawful taking or disposition, and subsection (1) is the half that governs movable property.² This one rule absorbs what the common law split between larceny, which required a trespassory taking and carrying away, and embezzlement, which reached a person who already held the goods lawfully.³

The definition of the subject matter comes first, because it decides whether this subsection or its counterpart for land applies. Section 223.0(4) defines movable property as property whose location can be changed, and it specifies that this includes things growing on, affixed to, or found in land, as well as documents even though the rights a document represents have no physical location. Immovable property is all other property.⁴ The test asks a physical question, whether the thing can be relocated, and the answer sorts the case into one of two routes. A thief can take or control a movable item, but land cannot be carried off, so the Code reaches land through an unlawful transfer under § 223.2(2), which the next section takes up.⁵ The listed inclusions stretch the category beyond what a layperson would call portable. Shrubs rooted in a yard and a sign bolted to a concrete footing both qualify, because the Code counts things growing on or affixed to land. A stock certificate or promissory note qualifies as well, because its value lies in the right it represents, and that right has no location at all. All of these sit within the Code's broad definition of property, which covers anything of value, including tangible and intangible personal property, contract rights, tickets, animals, food and drink, and electric power.⁶

Sorting the property first matters because the two routes describe different conduct. The landscaper's act is a taking, which fits § 223.2(1), while the forger's act is a transfer of an interest in land, which fits § 223.2(2).⁷ The forger never takes or controls the lot in any physical sense, so applying the movable-property rule to that scene would misdescribe what the forger did.

With the property identified, the Code's question about conduct is narrower than the common law's. The inquiry has two parts: whether the actor had control of the property, however it came into the actor's hands, and whether the actor's acquisition or use of it was authorized.⁸ The route by which an actor reaches the goods says little about how dangerous or blameworthy the actor is, and the same is true of whether the item was physically moved, a question the Code treats as insignificant to the criminal character of the act.⁹ A scheme that sorted takers by method left a gap for the people best placed to exploit it. An employee or other holder who lawfully has the goods does not take them in the trespassory sense, so larceny does not fit, and embezzlement was the separate crime that caught that conduct.¹⁰ By asking only whether the actor controls the property and whether that control is authorized, the Code treats the lawful holder who converts the goods and the stranger who snatches them in the same way, and no defendant can escape by showing that the facts fit a different pigeonhole.

The same shift appears when each common-law requirement is set beside the Code's replacement. The comparisons below preview the sub-rules that follow, each of which teaches one of them in full:

Asportation, the carrying away of the item, gives way to unlawful control, and the Code sets no minimum requirement that the property move.¹¹
A trespassory taking gives way to unauthorized control, because no trespass is needed to commit theft under this route.¹²
Intent to deprive the owner permanently gives way to purpose to deprive, which also covers withholding the property for so long that the actor appropriates a major portion of its economic value.¹³
Intent that exists at the moment of taking gives way to a rule under which it does not matter whether the intent was present at acquisition or formed afterward.¹⁴

Exam Analysis Steps

Because each element carries its own reason and its own common-law contrast, the subsection is best run as a sequence of questions. The first sorts the case into the right route, and the third and fifth are where most contested cases are decided. The steps are these:

Identify the property and decide whether it is movable under § 223.0(4), since immovable property is governed by § 223.2(2) instead.¹⁵
Ask whether the actor took the property or exercised control over it, treating the manner of acquisition and any movement of the item as irrelevant.
Ask whether that taking or control was unauthorized, which separates an actor who handles goods within a permitted role from one who goes beyond it.
Ask whether the property was property of another, meaning property in which someone other than the actor has an interest the actor is not privileged to infringe.¹⁶
Ask whether the actor acted with purpose to deprive as § 223.0(1) defines it, meaning the actor meant to withhold the property permanently or for so long as to appropriate a major portion of its economic value, or to dispose of it so that the owner is unlikely to recover it.¹⁷

Steps three and five decide most contested cases, because the actor's contact with the goods is usually undisputed and the argument is over whether that contact was authorized and what the actor meant to do with the goods. Those steps are also where students reason in common-law terms and lose the issue, since lawful possession at the outset does not defeat the charge. The Code asks whether the acquisition or use of the property was authorized and does not ask how the actor first came by it.¹⁸

In the first version the employee's hands on the pallet were lawful when she received it, and the common law would call the sale embezzlement. Under § 223.2(1) the same conduct is theft: selling the goods to a fence is control beyond any authorization, the pallet belongs to the employer, and disposing of it in a way that makes recovery unlikely shows purpose to deprive as § 223.0(1)(b) defines it.¹⁹ In the second version the employee handled the goods at least as much, but her control was authorized at every step and she never meant to withhold the pallet from the owner. The authorization step and the purpose step both fail, and the charge fails with them. The two versions differ only in those two facts, because handling, movement, and lawful possession are the same in each.

The five sub-rules below take each requirement in turn, starting with the conduct element of taking or controlling property, where the Code departs most visibly from larceny.

Taking or Controlling Property

The conduct element of § 223.2(1) is written in the alternative: the actor either "unlawfully takes" the property or "exercises unlawful control over" it.²¹ The second alternative does most of the Code's work, because it frees the prosecution from proving that the property was carried off or that the actor got it by trespass. Larceny at common law demanded both. It required a trespassory taking, meaning a wrongful intrusion on the owner's possession, and a carrying away, meaning some movement of the item, which the common law called asportation. The Code's text contains neither requirement, and the Code treats the question whether an item has been moved as having no criminological significance.²²

Movement is dropped because it tells a court nothing about harm or blame. An owner whose book is pocketed has lost the same thing whether the thief moved it a foot or a mile, and a thief stopped at the shelf was as ready to steal as one who reached the street. A rule that made movement the dividing line handed defendants a technical argument that had nothing to do with either the loss or the culpability. The Code asks about control instead. Control and movement usually travel together, since it is hard to exercise control over an object without some handling of it, but the handling is evidence that control existed and is not a separate element the prosecution must prove.²³

The shopper never moved the book out of the store, yet he exercised unlawful control over it as soon as he formed the purpose to deprive the bookstore of it, and the Code sets no minimum of carrying away.²⁴ The manager moved the encyclopedias much farther than the shopper moved the book, but her control was authorized and she meant no deprivation, so she has committed no theft. Movement is therefore unnecessary for theft and insufficient for it. The facts that decide the two scenes are whether the control was authorized and what the actor meant to do.

What replaces movement and trespass is a twofold inquiry. The first question is whether the actor had control of the property, however it came into the actor's hands. The second is whether the actor's acquisition or use of the property was authorized.²⁵ The word "unlawfully" in § 223.2(1) is where the second question lives, because control is unlawful when the way the actor obtained or used the property goes beyond what the owner or the law allows.²⁶ An actor who was permitted to hold goods for a limited purpose and then treats them as his own has used them without authorization. That actor satisfies the first question easily and fails the second, which is why a person already in lawful possession can still commit theft.

The same reasoning explains why the Code does not care how the actor first came by the property, and an innocent acquisition illustrates it well.

The customer committed no trespass, because the bank itself delivered the money and she did not know the extra bill was there. Under the Code her control over the bill became unlawful once she realized she had it and failed to return it, and keeping it to deprive the bank of it is theft by unlawful taking.²⁷ The common law had difficulty with this scene, since it usually required either a trespassory taking or an entrusting of the property to the holder, and neither was present. Under the Code's two questions the moment of acquisition drops out of the analysis: she controlled the bill, and her continued holding was unauthorized. Section 223.5 speaks directly to property delivered by mistake, and a later sub-rule below takes it up on its own terms.

Students trained on larceny tend to look for a carrying away and a trespass and, finding neither, to stop. The absence of asportation and trespass does not defeat the charge, because unauthorized control is enough however the actor acquired it. The opposite error is to treat any contact with another's goods as theft. Control satisfies only the conduct element, so authorization and purpose to deprive still have to be examined, and the mental element is the subject of its own sub-rule below.

Property of Another

Section 223.2(1) applies only to movable property of another, and § 223.0(7) defines that phrase so the element does not depend on who holds title.²⁹ Under the definition, property of another includes any property in which a person other than the actor has an interest that the actor is not privileged to infringe. The definition then adds two clarifications. The result is the same even if the actor also has an interest in the property, and the same even if the other person could not win a civil suit to recover it because the property was used in an unlawful transaction or was subject to forfeiture as contraband.³⁰ The element therefore asks whose protected interest the actor's conduct overrides, and the answer can be someone who owns nothing.

Each part of the definition does separate work. Because the test speaks of an interest, it reaches the borrower, the bailee holding goods for someone else, and the lienholder in possession, each of whom has something the law protects and each of whom is harmed when the property is removed without legal process. The privilege language supplies the limit. An actor who is entitled to override an interest, as an owner is entitled to recover lent goods once the loan has ended, infringes nothing by doing so, and the element is not met. The clause about the actor's own interest closes off the argument that a part owner cannot steal what is partly his, an argument that would let anyone with a sliver of interest take the rest from the other holders. The final clause does a similar job from the victim's side. A rule that let the victim's own wrongdoing erase the victim's interest would make anyone holding contraband, or the proceeds of an illegal deal, fair game for any taker.

The putter illustration shows how far the definition reaches. Ben lends Greg his putter for a week and, in the middle of the week, takes it from Greg's golf bag. The putter is property of another as to Ben, because Greg's right to hold and use it during the loan is an interest Ben is not privileged to infringe, and Ben's title does not change that.³¹ The common law arrived at a similar result by a different route: larceny protected possession rather than title, so an owner who retook a loaned item from the borrower could be guilty of larceny of his own property.³² The reasoning holds if Greg had a lien on the putter, since a lienholder's interest is also one the owner may not override by self-help, and it holds if the person holding the item is a thief, because a thief who lacks title still has possession that others may not infringe.³³ The common law went the other way for co-owners, holding that a partner or tenant in common could not commit larceny against another co-owner, whereas the Code's definition applies regardless of the actor's own interest.³⁴

The dealer's inability to recover civilly does not remove the dealer's interest from the definition, because § 223.0(7) expressly disregards it.³⁵ What matters is that the intruder had no privilege to override the dealer's possession, and the element is therefore met.

The definition contains one carve-out. Property in the actor's possession is not deemed property of another who has only a security interest in it, even if legal title sits with the creditor under a conditional sales contract or other security agreement.³⁶ The reason lies in what the creditor's retained title does in such a deal. It secures payment of a debt, and the creditor's remedies for a default are civil ones: repossess the goods and collect what is owed. If a security interest counted as property of another against a buyer in possession, every default in which the buyer parted with the goods would become a theft charge, and the criminal law would be enforcing ordinary debts. The Code keeps that dispute in civil court.

The carve-out depends on who has possession. Change the actor and the answer changes: a stranger who drives the same car away from the buyer's driveway takes property of another, because the buyer's possessory interest and the finance company's interest are both interests the stranger is not privileged to infringe.³⁷ The lienholder example above runs the opposite way, with the lienholder in possession and the owner as the actor. The exception applies only when the actor is the one in possession and the creditor's interest is merely security.

Students often assume that the holder of title is always the victim and that an owner can never be the thief. Title alone decides nothing under § 223.0(7), because the question is who has an interest the actor is not privileged to infringe. An actor who honestly but wrongly believes the property is his own raises a different question, which the claim-of-right defense in § 223.1(3) handles in a later section, so this element looks to the interests that actually exist and leaves the actor's belief about them to that defense.³⁸

Exam Analysis Steps

Because the definition has a broad rule, two clauses that disregard certain facts, and one exception, it is best run as a short sequence. The steps are these:

Identify every person other than the actor who holds an interest in the property, whether title, possession, a lien, or a right to use it.
Ask whether the actor is privileged to infringe that interest, since an interest the actor may lawfully override does not make the property property of another.
Set aside the actor's own interest in the property and any bar to the other person's civil recovery, because the definition makes neither relevant.³⁹
Check the exception: if the actor has possession and the only other interest is a creditor's security interest, the property is not property of another, even where the creditor holds legal title.⁴⁰

Theft from a Spouse

Marriage does not shield a person from a theft charge when the property belongs to the other spouse. Section 223.1(4) provides that it is no defense that the theft was from the actor's spouse.⁴² That rule reverses the common-law position, under which a spouse, like a partner or a tenant in common, counted as a co-owner who could not commit larceny against another co-owner.⁴³ The reversal fits the way the Code defines the 'of another' element. Property belongs to another whenever someone besides the actor holds an interest the actor is not privileged to infringe, even if the actor holds an interest in it too. A spouse's interest in a ring, a savings account, or a car is an interest of exactly that kind. A rule excusing the actor because of the relationship would exempt the person with the easiest access to the victim's belongings, and the victim's loss is the same whoever carries the property off.

The Code then adds a narrow exception for shared property. Misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft only if it occurs after the parties have ceased living together.⁴⁴ The effect is that the Code does not criminalize the taking of items the spouses generally share unless the couple has separated.⁴⁵ Everything outside that category stays under the general rule, so the exception never reaches the far more common case of one spouse taking something that belongs to the other alone.

Each half of the exception has its own logic. The scope limit confines the exception to property both spouses ordinarily reach for. Spouses who share a home use, move, lend, sell, and discard family belongings all the time, and if each of those acts could be charged as unauthorized control with purpose to deprive the other spouse, the criminal law would sit in judgment over routine domestic disagreements about the family television. An item one spouse keeps behind a lock for private use falls outside that pattern, because the other spouse never had ordinary access to it, and taking it looks like taking from any other person who holds an interest. The timing limit does separate work. While the spouses share a home, shared access is the working arrangement of the household. Once they have ceased living together that arrangement has ended, and one spouse carrying off shared belongings is no longer doing something a functioning household tolerates. The trigger is a fact about how the spouses are living, and the text does not ask whether a divorce or separation decree has been entered.⁴⁶

Two features of the exception deserve attention. First, it speaks to when the misappropriation occurs, so a spouse who sells shared household goods while the couple still lives together is not turned into a thief by a separation that comes the following week.⁴⁷ Second, the exception removes only the marital question. Where it does not apply, theft by unlawful taking still requires unlawful control of movable property of another and purpose to deprive.⁴⁸ The common law had a comparable thought for co-owners generally, since its bar on larceny by one co-owner against another did not always hold once partners were dissolving their relationship.⁴⁹ The Code writes the separation point into the text for spouses, so the answer no longer depends on a court's sense of how far the relationship has come apart.

Exam facts about spouses invite two wrong answers. The first is the common-law instinct that a spouse cannot steal from a spouse, which § 223.1(4) rejects outright. The second treats every taking from a spouse as theft without looking at the exception, and it overlooks that shared property is outside the theft statute only while the couple still lives together. The two limits of the exception can be run as a short sequence once the other elements are in view.

Exam Analysis Steps

Because the rule combines a general bar on marital immunity with a two-part exception, spouse problems are best run in the following order:

Confirm that the ordinary elements of theft are otherwise met, namely unlawful control of movable property of another with purpose to deprive, since marriage changes none of them.
Ask whether the property consists of household or personal effects or other property normally accessible to both spouses, because property outside that category gets no special treatment and marriage is simply no defense.
If the property is shared in that way, ask whether the spouses had ceased living together when the misappropriation occurred, because theft is made out only if they had.⁵⁰
Treat a separation that begins after the conduct as irrelevant, since the exception looks to the time of the misappropriation.

Purpose to Deprive

Section 223.2(1) states its mental element in its final clause: the actor must take or control the property of another with purpose to deprive the owner of it.⁵² The label intent to steal adds little, since it restates the offense inside the name of its own mental state, so modern theft statutes spell out what the intent must be, and the most common formulation follows the Code's definition.⁵³ Section 223.0(1) supplies that definition. To deprive means to withhold property of another permanently, or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore it only upon payment of a reward or other compensation; it also means to dispose of the property so as to make it unlikely that the owner will recover it.⁵⁴ Because the mental state is purpose, the prosecution must show that producing one of those results was the actor's aim, which makes the actor's plan for the property the central question.

The definition is easiest to understand against the common-law rule it reworks. Larceny's intent to steal is usually described as an intent to deprive the owner of possession permanently, and courts stretched that idea to cover an intent to keep the property for an unreasonable length of time, or to use it in a way that would probably cost the owner the property.⁵⁵ Those extensions leave open where a reasonable period ends and an unreasonable one begins. The Code answers by dropping permanence as a requirement and measuring the owner's loss in economic terms, so the first branch of the definition asks whether the actor will hold the property long enough to appropriate a major portion of its economic value.⁵⁶ The second and third branches pick up plans to restore the property that give the owner little real protection: the owner must pay to get it back, or the actor will dispose of it so that recovery is unlikely.

Each branch describes a way of inflicting on the owner a loss equal in substance to a permanent one. An actor who holds an item until most of its value is spent has done to the owner what a permanent taker does, whatever the actor plans to hand back at the end. An actor who will return the property only for a price has turned the owner's own property into something the owner must buy, and an actor who puts the property beyond the owner's reach has made any later plan to restore it irrelevant to what the owner experiences. A permanence test would also depend entirely on a fact that only the actor knows and can assert at no cost, since nearly anyone found with another's property will say he meant to give it back someday. Measuring economic value and the likelihood of recovery lets the factfinder test that claim against what the actor actually did with the property.

The first branch shows most clearly why the Code dropped permanence, because a taking that ends with the property coming back can still satisfy it.

Admission tickets fall within the Code's definition of property, so nothing in the example depends on a gap in coverage.⁵⁷ The opposite pole is a taking that leaves the property's value intact. A person who takes another's putter for a single golf tournament and returns it afterward has withheld an item that keeps nearly all of its economic value, and it is not even clear that such a taking meets the definition.⁵⁸ The measure is economic value, so the owner's sentimental or aesthetic attachment to an item does not enter the calculation.⁵⁹ The same period of withholding can therefore be theft for one item and not for another, depending on how much of the item's value that period consumes. Many states reach the temporary taking of a motor vehicle through a separate, lesser offense usually called joyriding, a sign that temporary use falling short of the stealing intent is often handled outside theft proper.⁶⁰

The second and third branches reach actors who say they intend to return the property but make the owner's recovery depend on something other than the actor's good word.

In both scenes the actor's stated willingness to give the property back changes nothing, because the definition looks at the conditions on which the owner would recover it rather than at the actor's description of his own generosity.⁶¹

A related question is whether an intent to repay or replace the property, rather than to return the very thing, defeats the purpose to deprive. The usual answer is that it does not. In the standard illustration, an actor takes a car with a hundred dollar bill on the front seat and drives to the race track, planning to return both after winning. He is not a thief as to the car, since he means to return the car itself, but he is a thief as to the money, because he does not intend to return those same bills and he exposes them to a substantial risk of loss.⁶² The drafters' own explanation of the line is that a person who takes money meaning to repay it substitutes his own credit for the owner's property in hand, whereas a person who takes a thing for temporary use leaves the owner some assurance of getting it back beyond the actor's general credit.⁶³ Even an intent to pay helps only an actor with a substantial ability to do so, and a bare hope of replacing the property will not do.⁶⁴ That limit explains why the Code treats the person who takes property exposed for sale, intending to pay promptly, under a separate defense covered later in this chapter.

The Code also confines theft to the actor who wants the property for his own ends. The theft provisions contemplate an actor who uses the property for his own purposes, so destroying or damaging another's tangible property is dealt with as criminal mischief rather than as theft.⁶⁵

The disposal branch can tempt a reader to reach for theft whenever property vanishes, so the better question is whether the actor wanted the property for use, sale, or abandonment, or wanted it ruined.

One timing point deserves a brief mention here. Because the offense consists of unlawful control over the property together with the purpose to deprive, the purpose does not have to exist when the property first comes into the actor's hands. An actor who exercises control and then forms the purpose to deprive commits the offense once the two coincide, and the later section on lost or misdelivered property develops that situation.⁶⁶

Exam Analysis Steps

Students lose this element when they treat an intent to return the property eventually as a complete defense. Because the definition has several alternative branches and a limit on what kind of loss counts, the element is best run as a series of questions about what the actor planned to do with the property. The steps are these:

Ask whether the actor meant to withhold the property permanently, since an affirmative answer satisfies the element without more.
If the actor meant to give the property back, ask whether the period of withholding would consume a major portion of its economic value, measuring value in economic terms and setting aside sentimental attachment.⁶⁷
Ask whether the actor meant to restore the property only upon payment of a reward or other compensation.
Ask whether the actor meant to dispose of the property in a way that makes it unlikely the owner will recover it, as by abandoning it far away or gambling away the owner's money.
Ask whether the actor wanted the property for his own purposes or wanted it ruined, because ruin as the aim points to criminal mischief rather than theft.⁶⁸

Lost or Misdelivered Property

Section 223.5 reaches a person who comes into control of another's property innocently and only afterward decides to keep it. The provision makes a person guilty of theft who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient, if, with purpose to deprive the owner, he fails to take reasonable measures to restore the property to a person entitled to have it.⁷⁰ Four things must therefore be present: control of property of another, knowledge that the property was lost, mislaid, or misdelivered, purpose to deprive, and a failure to take reasonable measures to restore it. The last of these completes the offense, and it can occur days after the property first came into the person's hands.

The provision exists because the common law left a gap here. Larceny requires that the taking and carrying away coincide with the intent to steal, so a finder who picks up lost property meaning to return it, and later decides to keep it, is not guilty of larceny, since the pickup and the intent to steal never occur together.⁷¹ The same holds for a person who receives a misdelivery, including an overpayment of money, with an innocent mind and decides to keep it only after learning of the mistake, although some minority authority treats an item enclosed in a container as taken only when the recipient discovers it.⁷²

Common-law courts tried to close the gap with the fiction of continuing trespass. Under that fiction the original trespassory taking is treated as continuing for as long as the wrongdoer keeps the property, so an intent to steal formed later coincides with a taking that is deemed to be happening at that moment.⁷³ The fiction needs a trespass to continue, and the honest finder does not supply one: a person who takes lost or mislaid property with an innocent mind commits no trespass at all, and neither does a person on whom another's property is thrust by a misdelivery.⁷⁴ Someone who takes property knowing it is not his and that the owner has not authorized the taking, even meaning to use it carefully and return it soon, does commit a trespass, so for that person the fiction can operate.⁷⁵ The finder and the innocent recipient therefore fall into the space the common law could not fill.

Section 223.5 closes that space by changing what the prosecution must show about timing. What the person intended when the property arrived is no longer the question; the offense is complete when he, knowing the property belongs to someone else, holds it with purpose to deprive and fails to take reasonable measures to restore it.⁷⁶ A rule that looks only at intent at the instant of pickup rewards the person who forms the intent to keep a moment after picking the property up, and it asks the factfinder to reconstruct a private state of mind at an arbitrary moment. The Code instead looks at conduct after the person knows the property belongs to another. What he did with the property shows whether reasonable measures were taken, and it also shows whether he has decided to treat another's property as his own. What counts as reasonable depends on the circumstances: an identification card inside a wallet makes restoration easy, so very little effort satisfies the standard, while an item with no identifying marks leaves the finder fewer obvious options.

The section is limited by its two mental elements. The knowledge requirement keeps out a person who has no reason to realize the property is anything other than his own, such as someone who picks up a look-alike jacket believing it is his; that situation is handled by the claim of right defenses covered later in this chapter. The purpose requirement keeps out the person who has not yet acted but has not decided to keep the property either, because a failure to restore proves theft only when it accompanies a purpose to deprive in the sense defined in § 223.0(1), the same definition applied to unlawful taking.⁷⁷ Students who carry the common-law concurrence rule into these facts ask what the finder intended at pickup, and under § 223.5 that question is the wrong one to ask.

Section 223.5 sits beside several narrower provisions the reader should know exist. Section 223.6 makes receiving stolen property a form of theft, § 223.7 covers theft of services, and § 223.9 makes it a misdemeanor to operate another's automobile or other motor-propelled vehicle without the owner's consent.⁷⁸ Each has its own elements, and none is needed to analyze the finder or the mistaken recipient, who are governed by § 223.5.

Exam Analysis Steps

Because the offense turns on what the person knows and does after the property comes into his hands, lost-property and misdelivery problems are best run in the order in which those facts arise. The steps are these:

Confirm that the person has come into control of property of another, whether by finding it or by receiving it through a misdelivery.
Ask whether he knew the property had been lost, mislaid, or delivered under a mistake as to its nature or amount or the identity of the recipient, since a person without that knowledge is outside the section.⁷⁹
Ask whether he holds the property with purpose to deprive the owner, applying the permanence, economic-value, reward, and disposal branches of the definition.
Ask whether he failed to take reasonable measures to restore the property to a person entitled to have it, treating prompt steps such as mailing a wallet to the address on its license as measures that defeat the offense.
Identify the culpable moment as the point at which purpose to deprive and the failure to restore coincide with his knowledge, whatever he intended when he first picked the property up.