Section 122 - Acts which amount to an appropriation

(1) An appropriation of a thing by a trustee means a dealing with the thing by the trustee, with the intent of depriving a beneficiary of the benefit of the right or interest in the thing, or in its value or proceeds, or a part of that thing.

(2) An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that a person may be deprived of the benefit of the ownership of that thing, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing.

(3) An intent to deprive can be constituted by an intent to appropriate the thing temporarily or for a particular use, if the intent is so to use or deal with the thing that it probably will be destroyed, or become useless or greatly injured or depreciated, or to restore it to the owner only by way of sale or exchange, or for reward, or in substitution for another thing to which that owner is otherwise entitled, or if it is pledged or pawned.

(4) It is immaterial whether the act by which a thing is taken, obtained or dealt with

(a) is or is not a trespass or a conversion,

(b) is or is not in any manner unlawful other than by reason of its being done with a purpose of dishonest appropriation,

and it is immaterial whether, before or at the time of doing the act, the accused person had or did not have possession, custody, or control of the thing.

Illustrations

Subsection (1) A is a trustee of stock for B. If A orders the stock to be sold with the intent of appropriating part of the proceeds, A has appropriated the stock.

Subsection (2) A, intending to steal a horse, disguises it by cutting its mane and tail. This is a sufficient appropriation.

Subsection (3)

1. A is a workman paid according to the quantity of metal which A obtains from ore. If A fraudulently puts into the furnace a metal belonging to the employer instead of the ore, with the purpose of increasing A’s wages, A may be convicted of stealing the metal, although A does not mean to deprive the employer of it permanently.

2. A borrows a horse without the consent of its owners intending to keep it until it is worn out and then return it. Here A has committed the criminal offence of stealing the horse.

Subsection (4) A person can be convicted of stealing a thing entrusted to that person to carry or keep, and it is not necessary in order to constitute a stealing by that person, that the package in which the thing is contained should be broken open by that person.