Ulpianus, On Sabinus, Book XL. The following question frequently arises, namely: where anyone removes a measure of grain from a heap, whether he steals the whole of it or only the amount which he appropriates. Ofilius thinks that he steals the entire heap, for Trebatius says that a person who touches the ear of anyone is considered to have touched him all over; hence, if anyone opens a cask, and takes out a little wine, he is understood to have stolen not merely what he removed, but all of it. It is, however, true that, under these circumstances, he is only liable in an action for theft for the amount which he carried away. For if anyone opens a closet, which he cannot remove, puts aside everything it contains, and then departs; and afterwards, having returned, removes one of the articles, and is caught before he reaches his destination, he will be guilty of both manifest and a non-manifest theft of the same property. For he who, in the daytime, cuts down growing grain, and puts it aside with the intention of removing it, is both a manifest and a non-manifest thief, so far as what he has cut is concerned. 1If anyone, who has deposited a bag of twenty sesterces, should receive another bag in which he knows there are thirty, through the mistake of the person who gave it to him, who thought that his twenty were contained therein, it is decided that he will be liable for the theft of ten sesterces. 2Where anyone steals brass, when he thinks he is stealing gold, or vice versa, or he thinks that the value of the article is less, when it is more, he commits a theft of what he removed, according to the Eighth Book of Pomponius on Sabinus. Ulpianus is of the same opinion. 3If, however, anyone steals two bags, one of ten, and the other of twenty aurei, one of which he thought belonged to him, and the other he knew to belong to someone else, we say that he only steals the bag which he believed belonged to another, just as if he should steal two cups, one of which he thought was his own, and the other he knew belonged to someone else, for he only steals one of them. 4But where he thinks that the handle of a cup belongs to him, and it actually is his, Pomponius says that he is guilty of stealing the entire cup. 5If, however, anyone should steal the sixth part of a measure of wheat from a loaded ship, does he commit a theft of the entire load, or only of the sixth part of the measure of wheat? This question is more applicable to a granary, which is full, and it is very severe to hold that a theft of all of it is committed. And what would be the rule in the case of a reservoir of wine, or a cistern of water, or what in that of a ship loaded with wine, as there are many of these in which wine is poured? And what shall we say of him who has drunk of the wine; is he to be considered to have stolen all of it? The better opinion is that we should say that he has not stolen it all. 6If you suppose two jars of wine to be placed in a warehouse, and that one of them is stolen, the theft has reference to that one, and not to the entire warehouse; just as where one of several portable articles in a granary is removed. 7A person who enters a room with the intention of committing a theft is not a thief, although he may have entered for that purpose. What, then, is the rule? To what action will he be liable? He can be accused of committing damage or violence, if he entered by force. 8Likewise, if he opened or broke anything of great weight, which he was not able to remove, an action for theft for the entire amount cannot be brought against him, but only for what he took away, because he was unable to take it all. Hence, if he removed a cover which he could not take away, in order to obtain access to certain articles, and then appropriated some of them, although he may have been able to remove the objects therein contained separately, but could not take the entire contents together; he is only considered to have stolen the thing which he removed, and not the others. If he was able to remove the entire receptacle, we say that he steals the whole of it, although he may have detached the cover in order to take some, or a certain number of the articles therein contained. This was also the opinion of Sabinus. 9If two or more persons should steal a beam, which any one of them alone is unable to lift, it must be said that all of them are guilty of stealing it, although none of them singly could have handled or removed it, and this is our practice. For it cannot be held that each one committed a theft proportionally, but that all of them stole the whole of it. Hence it results that each of them will be liable for theft. 10And although a person may be liable in an action of theft for property which he did not remove, still, a personal action cannot be brought against him, because such a proceeding will not lie to recover property which has been carried away. This was also the opinion of Pomponius.