Theft by finding occurs when someone who chances upon an object which seems abandoned takes possession of the object but fails to take steps to establish whether the object is abandoned and not merely lost or unattended. In some jurisdiction

Jurisdiction

Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

s the crime is called "larceny by finding" or "stealing by finding".

If the owner has renounced all property rights in the object, then the property is abandoned. Since theft

Theft

In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...

 is the unlawful taking of another person's property, an essential element of the actus reus

Actus reus

Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...

of theft is absent.

The finder of lost property acquires a possessory right by taking physical control of the property, but does not necessarily have ownership of the property. The finder must take reasonable steps to locate the owner. If the finder shows that reasonable steps to find the owner have been taken then the finder may establish that the required mens rea

Mens rea

Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...

for theft, the intention to deprive the owner permanently, is absent.

In discussing the history of finding, Alice Tay collected some cases (at footnote 36) where a finder raised an unsuccessful defence to larceny

Larceny

Larceny is a crime involving the wrongful acquisition of the personal property of another person. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of England into their own law. It has been abolished in England and Wales,...

 on the grounds that the circumstances of finding were such that no inquiry as to the true owner was required:

• Lamb's Case (1694) 2 East, P. C. (London, 1803) 664 (driver of hackney carriage keeping articles and cases left behind by passengers)
• Wynne's Case (1786) 1 Leach 413, 168 E. R. 308, 2 East, P. C. 664 (facts as in Lamb's Case)
• R. v. Pope (1834) 6 C. & P. 346, 172 E. R. 1270 (prisoner picking up hat after brawl in passage of public house)
• R. v. Kerr (1837) 8 C. & P. 176, 173 E. R. 449 (servant keeping money picked up in passage of master's dwelling-house)
• R. v. Peters (1843) 1 C. & K. 245, 174 E. R. 795 (prisoner 'finding' valuable ornaments in garden of one who had employed him to do some work)
• R. v. West (1854) 6 Cox C. C. 417 (stall-keeper appropriating purse left on stall by customer)
• R. v. Moore (1861) L. & C. 1, 169 E. R. 1278 (barber-shop keeper converting banknote picked up on floor after a customer had purchased some hair oil)

and cases where the circumstances were held to show no larceny:

• R. v. Wood (1848) 3 Cox C. C. 277 (banknote found on open land)
• R. v. Dixon (1855) 7 Cox C. C. 35, 25 L. J. M. C. 39 (lost note without mark)
• R. v. Shea (1856) 7 Cox C. C. 147; R. v. Christopher (1858) Bell C. C. 27, 169 E. R. 1153 (unmarked notes and purse found in public place)
• R. v. Glyde (1868) 11 Cox C. C. 103 (sovereign found in high road)
• R. v. Deavis (1869) 11 Cox C. C. 227 (prisoner's child found six sovereigns in public place)

An issue may arise when a person takes possession of lost property with the intention of returning it to the owner after inquiry but later converts the property to the finder's use. This is illustrated by Thompson v. Nixon [1965] 3 W.L.R. 501: an off duty police constable found a bag of rabbit food lying by the roadside, took it home intending to hand it in as lost property but some time after decided to keep it for his own use. He was found guilty at first instance but his ultimate appeal to the Divisional Court was upheld. The appellate court

Appellate court

An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...

 held that, at the time of finding, there was no mens rea to support a conviction of larceny. In some jurisdictions this has been addressed by statute; see, for example, s. 124, Crimes Act 1900 (NSW) allowing a jury to reach an alternative verdict of "fraudulent appropriation".

Some have argued that finding should not be a province for the criminal law

Criminal law

Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 but that any dispute as to ownership be left to civil suit. Others have argued that the jurisprudence

Jurisprudence

Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...

 gives rise to legal fiction

Legal fiction

A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...

s and strained reasoning which has attracted divergent statutory law reform in different jurisdictions.