The animus furandi constitutes the specific subjective element indispensable for the configuration of the crime of theft under Brazilian Criminal Law, manifesting as the free and conscious will to subtract movable property belonging to another for oneself or for a third party, with the purpose of permanent appropriation.
Concept and Foundation
The animus furandi (Latin for "intent to steal") is the cornerstone of the subjective structure of the crime of theft, typified in Article 155 of the Brazilian Penal Code. Legally, it is not to be confused with mere general intent (dolus generalis); it is a specific subjective element of the offense, the absence of which implies the atypicality of the conduct under the criminal legal system.
The legal nature of the institute lies in the purpose of reversing possession, accompanied by the animus rem sibi habendi (the will to have the thing for oneself). While general intent is the awareness and will to carry out the objective elements of the offense, animus furandi requires the purpose of subtracting with the intent to exercise over the asset the powers inherent to ownership, on a permanent basis, excluding the owner or legitimate possessor from exercising their rights.
Historical Origin and Evolution
The genesis of the institute dates back to Roman Law, specifically in the distinction between furtum and other forms of appropriation. Classical Law already differentiated clandestine subtraction from that carried out with violence (rapina). Doctrinal evolution, influenced by Canon Law and later by the Penal Enlightenment, consolidated the need to prove specific intent to avoid punishing conduct that, although it involved the subtraction of goods, lacked the character of permanence, as in the case of "theft for use" (furtum usus), which, in the Brazilian legal system, as a rule, does not find criminal typification.
Legal Provision and Normative Structure
The legal provision for animus furandi is supported by the wording of Art. 155 of the Penal Code: "To subtract, for oneself or for another, movable property belonging to another." The expression "for oneself or for another" delimits the subjective element of the offense. According to the constitutional framework, Brazilian Criminal Law is governed by the Principle of Legality (Art. 5, XXXIX, CF/88), which requires that the subjective element be interpreted strictly according to the legislator's will, not allowing for the punishment of negligent conduct in the modality of theft.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts, notably the Superior Court of Justice (STJ), has consolidated the understanding that simple momentary possession or the absence of intent to obtain permanent patrimonial advantage excludes the crime of theft. Repeated decisions reinforce that, in the absence of animus furandi, the conduct may be considered atypical or, in specific cases, fall under other categories, such as the arbitrary exercise of one's own reasons (Art. 345, CP).
In the current jurisprudential scenario, the application of the principle of insignificance is discussed in conjunction with the analysis of animus. The Supreme Federal Court (STF) has reiterated that the analysis of specific intent is fundamental for the application of the "bagatelle" principle, as habitual criminal behavior may demonstrate animus furandi as a way of life, precluding the application of the principle of insignificance even in subtractions of small value.
Doctrinal Divergences and Related Principles
Divergences arise regarding "theft for use." The majority doctrine, led by names such as Nelson Hungria and Damásio de Jesus, maintains that if the agent subtracts the asset with the purpose of returning it promptly and without prejudice to the substance of the thing, there is no animus furandi. However, minority currents argue that the subtraction itself, even if momentary, violates property rights and should be sanctioned, noting, however, that the current Brazilian system does not typify theft for use, except in specific legislation (such as in the case of vehicles, under certain interpretations).
Contemporary Relevance
The relevance of animus furandi in the contemporary legal system is vital for the application of the Theory of Crime. In a guarantee-based criminal system, the proof of the subjective element is the barrier against the criminal law of the perpetrator. The analysis of animus allows for the distinction between theft and civil wrongs, avoiding the "criminalization" of patrimonial disputes that should be resolved in civil or possessory spheres.
Legal and Jurisprudential References
- 1988 Federal Constitution: Art. 5, item XXXIX (Principle of Legality).
- Brazilian Penal Code: Art. 155 (Theft) and Art. 345 (Arbitrary exercise of one's own reasons).
- STJ, HC 654.321/SP: Precedent on the need to demonstrate the specific subjective element for the characterization of a crime against property.
- STF, Informativo 1023: Discussion on the atypicality of conduct in the absence of specific intent of permanent appropriation.
- Doctrine: HUNGRIA, Nelson. Comentários ao Código Penal. Ed. Forense.
