Can you steal whiskey by drinking it? A follow up to "Grand Theft Bourbon"

After writing my previous post about bourbon theft, I came across a story too good not to share: that of John Saunders, a caretaker at a Pennsylvania mansion who drank one hundred thousand dollars’ worth of pre-Prohibition “Old Farm” brand rye whiskey that did not belong to him – as dastardly and base a whiskey-related crime as can be imagined.

The Facts

Patricia Hill of Pittsburgh, PA found 9 cases of Old Farm Pure Rye Whiskey distilled in 1912 and bottled in 1917 hidden in the walls and stairwell of a historic mansion she had bought and was renovating. After the discovery and during the renovations, Ms. Hill’s live-in caretaker, John Saunders, apparently drank four of the cases (!) emptying 52 bottles in all (!!). Police got a search warrant to test Saunders’ DNA and matched it to DNA found on the lips of three of the bottles. Saunders only escaped prosecution for felony theft and receiving stolen property by the not-recommended expedient of dying before trial. The whiskey’s value was appraised at over $102,000.

Saunders was charged with theft under Pennsylvania law. What about under Texas law? Could he be convicted for theft for drinking all of that whiskey?

The Law

He sure could. Although there doesn’t appear to be a Texas case on point, his actions fit all the elements of the theft statute. Recall that a person commits “theft” in Texas by unlawfully acquiring or otherwise exercising control over property with the intent to deprive the owner of that property and without the owner’s effective consent. Tex. Penal Code Sec. 31.03. The whiskey was the property Saunders acquired, he acquired or exercised control over it by drinking it without the permission of its owner, and by doing so he deprived the owner of that whiskey. And, since the whiskey had an appraised value of $102,000, Saunders could have been charged with a 3rd Degree Felony and punished by up to 10 years in prison and up to a $10,000 fine. Which hardly seems like justice for this particular offense. We Texans have a phrase that seems a better fit: “Hangin’s too good for ‘em.”

Further reading

If you can bear it: