Cassation, Judgement No. .
Integra 6937/2011 the crime of theft and embezzlement is not the person's behavior that, by borrowing the phone with an excuse, it returns to the owner. For the integration of this case provided by the crime of embezzlement (Article 464 cp) assumes that the agent has a relationship with something "self-availability" means the possession acquired under the pretext of carrying out a telefonta, does not confer the 'self-availability "on the phone. The Supreme Court's decision is based on the different meaning that the concept of possession in criminal cases takes longer necessary with the "limited" the same concept in civil law. "As part of the criminal law - explained the legitimacy of judges - the concept of ownership should not be taken in accordance with the statutory definition, which requires the assistance of the material element (corpus, namely availability and physical power over the thing) and of 'spiritual element (animus, that is about to conduct themselves as having rights of ownership or other real right), but in a broader sense, and includes the detention of any kind (Eg, lease, loan, deposit, mandate, etc.). Esplicantesi outside the direct supervision of the holder (in a civil law) and the other thing that has a greater legal powers. Configure, then, the crime of theft and not embezzlement, misappropriation of just got a phone just to make a phone call, in the presence of the owner of the phone, because it does not give the holder of the property entrusted to that effect power autonomous status, which is rather a necessary precondition of the case in art. 646 cod. pen. (See, case (other) relating to an employee of a transport company that strip the goods entrusted to him (Section 4, Sentence No. CC 23091 of 13/04/2008. (Dep. 10/06/2008) Rv. 240,295).
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