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While reading this question I tried to think about analogous situations. Unfortunately, that just created a second situation I didn't understand.

Imagine a restaurant, with a big bowl of after-dinner mints by the register. There is no sign or clear direction, and the restaurant's intent is to let customers take a mint after dinner (i.e. they are not for-sale-but-poorly-labelled mints).

Intuitively, I would expect that I can take a mint after eating at the restaurant. I can probably take two mints. I probably cannot scoop the whole bowl into a santa sack (or can I?).

Where is the line, and how can you tell?

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    There isn't a legal line. Rather, the line is where the person at the register looks at you like you're a dick.
    – WPNSGuy
    Feb 8 at 23:45

2 Answers 2

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You can take as many as you have permission to.

As with many crimes, theft or larceny has a mens rea component: the same physical action might or might not be criminal depending on if it is accompanied by criminal intentions. The mens rea component of theft typically includes intent to deprive the owner of the property permanently (or sometimes, just for some significant amount of time). Therefore, mistaken belief of rightful ownership is a defense to theft (per CALCRIM No. 1800. Theft by Larceny (Pen. Code, § 484) Judicial Council of California Criminal Jury Instructions (2023 edition)).

If you genuinely believed you had permission to take all the mints, you would not be guilty of the crime of theft. In contrast, if you took all the mints without having permission and with the knowledge that you did not have permission to take them all, that would be a crime.

Laws vary from state to state but it is common to have a statutory distinction between a felony and misdemeanor based on the value of what is being stolen (or if it falls in some special category such as firearms). In California, something worth $950 or less (which presumably covers a bowl of mints) falls into the category of petty theft (a misdemeanor). Furthermore, prosecutorial discretion is obviously relevant in practice.

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You can take as many mints as you have permission to take

You have implicit permission to take a reasonable amount if you are a restaurant customer. A reasonable amount is what a reasonable person would take in the circumstances, perhaps 1-3 per member of your party.

If you took more than that, the restaurant could, in theory, sue you for the value of the excess. A reasonable person might reasonably consider this to be an overreaction. A more reasonable restauranteur might withdraw the implicit permission and give an express limit.

Notwithstanding, unless you did so dishonestly, you could take the entire bowl and not be guilty of theft because dishonesty is an essential requirement.

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