[PAULUS libro quadragensimo ad Sabinum. ] §47.2.21.prUolgaris est quaestio, an is, qui ex aceruo frumenti modium sustulit, totius rei furtum faciat an uero eius tantum quod abstulit.
[PAULUS in the fortieth book on Sabinus.] It is a common question whether he who has taken a modius of grain from a heap commits theft of the whole thing, or indeed only of that which he took away.
Ofilius totius acerui furem esse putat: nam et qui aurem alicuius tetigit, inquit Trebatius totum eum uideri tetigisse: proinde et qui dolium aperuit et inde paruum uini abstulit, non tantum eius quod abstulit, uerum totius uidetur fur esse.
Ofilius thinks that he is a thief of the entire heap: for even he who has touched someone's ear, says Trebatius, is deemed to have touched the whole person; likewise, he who has opened a jar and taken a little wine from it is deemed to be a thief not only of what he took away, but of the whole.
sed uerum est in tantum eos furti actione teneri, quantum abstulerunt.
But it is true that they are liable to an action for theft only to the extent of what they took away.
nam et si quis armarium, quod tollere non poterat, aperuerit et omnes res, quae in eo erant, contrectauerit atque ita discesserit, deinde reuersus unam ex his abstulerit et antequam se reciperet, quo destinauerat, deprehensus fuerit, eiusdem rei et manifestus et nec manifestus fur erit.
For even if anyone should open a chest which he could not carry away, and touch all the things that were in it, and so depart, and then having returned, take away one of these, and before he could withdraw to the place he had intended, be caught, he will be both a manifest and a non-manifest thief of the same thing.
sed et qui segetem luce secat et contrectat, eius quod secat manifestus et nec manifestus fur est.
But also he who cuts and touches grain by day is both a manifest and a non-manifest thief of what he cuts.
§47.2.21.1Si is, qui uiginti nummorum saccum deposuisset, alium saccum, in quo scit triginta esse, errante eo qui dabat acceperit, putauit autem illic sua uiginti esse, teneri furti decem nomine placet.
If he who had deposited a sack of twenty coins should receive another sack in which he knows there are thirty, through the error of the one who gave it, but believed that his own twenty were there, it is held that he is liable in an action for theft in respect of ten.
§47.2.21.2Si quis aes subripuit, dum aurum se subripere putat, uel contra, ex libro octauo Pomponii ad Sabinum aut minus esse, cum plus esset: eius quod subripuit, furtum committit: idem Ulpianus.
If anyone has stolen bronze while believing that he is stealing gold, or vice versa, according to the eighth book of Pomponius on Sabinus, or a lesser amount when there was more, he commits theft of that which he actually stole; Ulpian says the same.
§47.2.21.3Sed et si quis subripuit furto duos sacculos, unum decem, alterum uiginti, quorum alterum suum putauit, alterum scit alienum: profecto dicemus tantum unius, quem putauit alienum, furtum eum facere, quemadmodum si duo pocula abstulerit, quorum alterum suum putauit, alterum scit alienum: nam et hic unius fit furtum.
But even if anyone has stolen two sacks by theft, one of ten and the other of twenty, of which he believed one to be his own and knew the other to be another's: we shall certainly say that he commits theft only of the one which he believed to be another's, just as if he had taken away two cups, of which he believed one to be his own and knew the other to be another's; for here too, theft is committed of only one.
§47.2.21.4Sed si ansam in poculo suam putauit uel uere fuit, totius poculi eum furtum facere Pomponius scripsit.
But if he believed the handle on the cup to be his own, or if it truly was, Pomponius wrote that he commits theft of the whole cup.
§47.2.21.5Sed si de naui onerata furto quis sextarium frumenti tulerit, utrum totius oneris an uero sextarii tantum furtum fecerit? facilius hoc quaeritur in horreo pleno: et durum est dicere totius furtum fieri.
But if anyone should take a sextarius of grain by theft from a laden ship, does he commit theft of the entire cargo or indeed only of the sextarius? This question is more easily asked in the case of a full granary; and it is harsh to say that theft is committed of the whole.
et quid si cisterna uini sit, quid dicet? aut aquae cisterna? quid deinde si naue uinaria (ut sunt multae, in quas uinum effunditur), quid dicemus de eo, qui uinum hausit? an totius oneris fur sit? et magis est, ut et hic non totius dicamus.
And what if there should be a cistern of wine, what will he say? Or a cistern of water? What then if it is a wine ship (as there are many into which wine is poured), what shall we say of him who has drawn wine? Is he a thief of the entire cargo? And it is more correct that here too we should say not of the whole.
§47.2.21.6Certe si proponas in apotheca amphoras esse uini easque subtractas, singularum furtum fit, non totius apothecae, quemadmodum si ex pluribus rebus mouentibus in horreo reclusis unam tulerit.
Certainly, if you suppose that there are amphorae of wine in a cellar and they are taken away, theft is committed of the individual ones, not of the entire cellar, just as if he had taken one from several movable things shut up in a granary.
§47.2.21.7Qui furti faciendi causa conclaue intrauit, nondum fur est, quamuis furandi causa intrauit.
He who has entered a room for the purpose of committing theft is not yet a thief, although he entered for the purpose of stealing.
quid ergo? qua actione tenebitur? utique iniuriarum: aut de ui accusabitur, si per uim introiuit.
What then? By what action will he be liable? Surely by the action for injuries; or he will be accused of violence if he entered by force.
§47.2.21.8Item si maioris ponderis quid aperuit aut refregit, quod tollere non possit, non est omnium rerum cum eo furti actio, sed earum tantum quas tulit, quia totum tollere non potuit.
Likewise, if he has opened or broken open something of greater weight which he could not carry away, there is no action for theft against him for all the things, but only for those which he took, because he could not carry away the whole.
proinde si inuolucrum, quod tollere non potuit, soluit, ut contrectet, deinde contrectauit quasdam res: quamuis singulas res, quae in eo fuerunt, tollere potuerit, si tamen totum inuolucrum tollere non potuerit, singularum rerum, quas tulerit, fur est, ceterarum non est.
Therefore, if he has undone a bundle which he could not carry away, so that he might touch it, and then touched certain things: although he could have carried away the individual things that were in it, yet if he could not carry away the entire bundle, he is a thief of the individual things which he took, and not of the rest.
quod si totum uas tollere potuit, dicimus eum totius esse furem, licet soluerit, ut singulas uel quasdam tolleret: et ita et Sabinus ait.
But if he could have carried away the entire vessel, we say that he is a thief of the whole, although he undid it to carry away individual things or certain of them; and so Sabinus also says.
§47.2.21.9Si duo pluresue unum tignum furati sunt, quod singuli tollere non potuerint, dicendum est omnes eos furti in solidum teneri, quamuis id contrectare nec tollere solus posset, et ita utimur: neque enim potest dicere pro parte furtum fecisse singulos, sed totius rei uniuersos: sic fiet singulos furti teneri.
If two or more have stolen a single beam which individual ones could not carry away, it must be said that all of them are liable for theft in full, although he alone could neither touch nor carry it away, and so we practice; for individual ones cannot say that they committed theft in part, but all together of the whole thing; thus it will happen that individual ones are liable for theft.
§47.2.21.10Quamuis autem earum quoque rerum, quas quis non abstulit, furti teneatur, attamen condici ei non potest, idcirco quia condici ea res, quae ablata est, potest: et ita et Pomponius scribit.
But although he is liable for theft also of those things which he did not take away, nevertheless a condictio cannot be brought against him, for the reason that only that thing which has been taken away can be recovered by condictio; and so Pomponius also writes.