There must be an intent to deprive such owner of his [72] ownership therein, it is said.  But why?  Is it because the law is more anxious not to put a man in prison for stealing unless he is actually wicked, than it is not to hang him for killing another?  That can hardly be.  The true answer is, that the intent is an index to the external event which probably would have happened, and that, if the law is to punish at all, it must, in this case, go on probabilities, not on accomplished facts.  The analogy to the manner of dealing with attempts is plain.  Theft may be called an attempt to permanently deprive a man of his property, which is punished with the same severity whether successful or not.  If theft can rightly be considered in this way, intent must play the same part as in other attempts.  An act which does not fully accomplish the prohibited result may be made wrongful by evidence that but for some interference it would have been followed by other acts co-ordinated with it to produce that result.  This can only be shown by showing intent.  In theft the intent to deprive the owner of his property establishes that the thief would have retained, or would not have taken steps to restore, the stolen goods.  Nor would it matter that the thief afterwards changed his mind and returned the goods.  From the point of view of attempt, the crime was already complete when the property was carried off.

It may be objected to this view, that, if intent is only a makeshift which from a practical necessity takes the place of actual deprivation, it ought not to be required where the actual deprivation is wholly accomplished, provided the same criminal act produces the whole effect.  Suppose, for instance, that by one and the same motion a man seizes and backs another’s horse over a precipice.  The whole evil which the law seeks to prevent is the natural and manifestly [73] certain consequence of the act under the known circumstances.  In such a case, if the law of larceny is consistent with the theories here maintained, the act should be passed upon according to its tendency, and the actual intent of the wrong-doer not in any way considered.  Yet it is possible, to say the least, that even in such a case the intent would make all the difference.  I assume that the act was without excuse and wrongful, and that it would have amounted to larceny, if done for the purpose of depriving the owner of his horse.  Nevertheless, if it was done for the sake of an experiment, and without actual foresight of the destruction, or evil design against the owner, the trespasser might not be held a thief.

The inconsistency, if there is one, seems to be explained by the way in which the law has grown.  The distinctions of the common law as to theft are not those of a broad theory of legislation; they are highly technical, and very largely dependent upon history for explanation. 1