John Doe saw James Smith's car sitting in James's driveway and decided to steal it. He walked up onto the driveway (trespassing) and broke into the car and stole it (theft). What John didn't know was that James had just died, and had willed all of his property to John. Therefore, John actually was walking in his own driveway (which is legal, of course) and broke into and "stole" his own car (also legal, albeit unusual). Did John commit a crime? He had intent and thought he had committed a criminal act (he thought he was trespassing and stealing), but the actions were actually legal. Does the criminal intent make them illegal?

  • Bad example according to the answer because the car is not yours. But surely we can come up with different situations.
    – gnasher729
    Jul 8, 2022 at 21:05
  • Not really substantive, but for future reference, the term for transferring property to someone by means of a last will and testament is "devise" or "transfer" or "give", Using the term "willed" in this context, while understandable, is an incorrect usage of the word. "Gifted" is somewhat more acceptable but is also strictly speaking, an incorrect use of the word which means to have exceptional talent and not to carry out a donative transfer of property.
    – ohwilleke
    Jul 13, 2022 at 2:54

2 Answers 2


Theft in Oregon (and elsewhere, substantially the same) is defined statutorily:

A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person: (1) Takes, appropriates, obtains or withholds such property from an owner thereof...

The car is James' property and it is not John's, even though James is dead. There is a legal process by which at some point in the future the car could become John's, but criminal acts are defined in terms of what is the case at the time of the act, not what might happen in the future. James' intent as expressed in the will notwithstanding, it is not guaranteed that John will become the car owner. So until John is actually the owner of the car, John is taking the property of another, and this is theft.

  • I thought when someone died and had willed property to someone, the property was transferred immediately?
    – Someone
    Jul 8, 2022 at 4:53
  • There is still a legal process that has to happen before the beneficiary takes title, plus transfer on death is a special arrangement and not a general rule about probate.
    – user6726
    Jul 8, 2022 at 5:10
  • When does the transfer happen? When my grandmother passed away I don't remember there being any legal process; the executor just sent checks to the heirs, splitting the account evenly. (Her only other asset of significant value was a car, which would have been sold and the money been distributed evenly, but the will was overridden in that case because all heirs signed affidavits transferring title to one person.)
    – Someone
    Jul 8, 2022 at 5:13
  • 1
    @Someone The executor sending you checks was part of the legal process. You didn't own the money until the executor made you do.
    – Greendrake
    Jul 8, 2022 at 5:28
  • @Greendrake so if a car is willed to someone, at what point does that person become the legal owner of the car?
    – Someone
    Jul 8, 2022 at 5:28

On the surface the obvious answer is yes, John took something that didn’t belong to him and that is, by definition, theft. Morally as well, John knows that he has committed a crime.

However, intent is meaningless unless a few other things happen…

Just like transferring legal ownership is a process, determining whether or not a crime has been committed in the eyes of the law is a process. Intent and motive are important elements of that process, but they are generally evaluated during the investigation, charging, and trial phases.

Since John’s intent is known only to him, the only fact we can discern as an outside observer is that John is in possession of an automobile that is not registered to him. In most places this would not automatically be considered theft because friends often loan cars to friends. The trigger event for law enforcement to consider it car theft would be the car being reported stolen.

Alternately John could be pulled over and confess, (good reason to exercise your right to remain silent!) or if there was damage from breaking in and it can be seen that the car was hot-wired he could be detained on suspicion of theft.

But minus a stolen car report no prosecutable crime has been committed in the eyes of the law.

  • Your answer points out a pandemic problem with legal hypotheticals: they need to be plausible. I agree with the suggestion that "beyond reasonable doubt" could not be proven w.r.t. intent. "Permissive borrowing" is a perfectly plausible alternative account of him Problem is: the estate (executor) could alert the police that the car was stolen – the titular owner is not the only person who can call the police.
    – user6726
    Jul 12, 2022 at 1:33

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