The criminal intent element required under consolidated theft statutes is either specific intent or purposely, or general intent or knowingly to perform the criminal act, depending on the jurisdiction. The Model Penal Code requires purposeful intent for theft by unlawful taking, deception, theft of services, and theft by failure to make required disposition of funds received (Model Penal Code §§ 223.2, 223.3, 223.7, 223.8).
When the criminal intent is specific or purposely, the defendant must intend the criminal act of stealing and must alsointend to keepthe stolen property. 1 This could create a potential failure of proof or affirmative defense that the defendant was only “borrowing” property and intended to return it after use. In some jurisdictions, specific or purposeful intent to keep the property does not apply to embezzlement theft under the traditional definition. 2 Thus in these jurisdictions, a defendant who embezzles property and later replaces it cannot use this replacement as a defense.
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