§708-834  Defenses:  unawareness of
ownership; claim of right; household belongings; co-interest not a defense. 
(1)  It is a defense to a prosecution for theft that the defendant:



(a) Was unaware that the property or service was that
of another; or



(b) Believed that the defendant was entitled to the
property or services under a claim of right or that the defendant was
authorized, by the owner or by law, to obtain or exert control as the defendant
did.



(2)  If the owner of the property is the
defendant's spouse or reciprocal beneficiary, it is a defense to a prosecution
for theft of property that:



(a) The property which is obtained or over which
unauthorized control is exerted constitutes household belongings; and



(b) The defendant and the defendant's spouse or
reciprocal beneficiary were living together at the time of the conduct.



(3)  "Household belongings" means
furniture, personal effects, vehicles, money or its equivalent in amounts
customarily used for household purposes, and other property usually found in
and about the common dwelling and accessible to its occupants.



(4)  In a prosecution for theft, it is not a
defense that the defendant has an interest in the property if the owner has an
interest in the property to which the defendant is not entitled. [L 1972, c 9,
pt of §1; am L 1979, c 106, §8; am L 1980, c 232, §41; gen ch 1993; am L 1997,
c 383, §69]



 



COMMENTARY ON §708-834



 



  Both the defenses allowed under §708-834(1) are probably
unnecessary in light of an informed reading of the substantive definitions of
the various modes of theft.  The existence of either condition (a) or (b) would
relieve the actor of the culpability required to establish the offense:  the
actor could not have intended to deprive another of property (or refuse payment
for services) unless the actor was aware that the property or services were
that of another; and a claim of right, assuming that it amounts to a belief
that the actor is the true owner, would not only indicate that the actor did
not have the requisite mental state, it would constitute a mistake of fact
defense under §702-218.  The summary and restatement of this subsection is
principally for purposes of clarity and emphasis.



  The marital defense of subsection (2) is based upon various
theories.  First, the uncertainty of ownership of much household property,
together with the potential bitterness of interspousal conflict, provide
numerous opportunities for a miscarriage of justice.[1]  Alternatively, it is
said that household belongings, defined in subsection (3), constitute a kind of
"common pool of wealth," and that misappropriations in this context
are so generally tolerated as not to deviate substantially from
socially-accepted norms.  A wife who rifles her husband's wallet, or a husband
who pawns his wife's jewelry, does not present a grave danger to the community,
so long as the activity is so confined.  Finally, criminal courts are unsuited
to handle breakdowns in the family structure of which interspousal theft
complaints are only a symptom.[2]



  Subsection (4) is intended to cover the situation where an
aggrieved person attempts to seek an informal solution by threatening legal
action unless restitution, indemnification, or compensation is made.  The most
significant instance of this device is the waiver of prosecution commonly
offered by insurance companies in exchange for the return of valuable
merchandise.  The rationale here is that it is hardly fair to penalize someone
for trying to recover one's own goods (or the value thereof), nor could the penal
law realistically expect to suppress such natural inclinations.



  Subsection (5) merely requires that the interest which the
actor asserts under a claim of right must be inconsistent with that of the
victim.  The premise is that if the interest is not inconsistent, it does not
justify the actor's possession as opposed to that of the victim.  Furthermore,
it is felt that "co- owners should be as well protected against the
depredations of other co-owners as they are against outsiders."[3]



 



SUPPLEMENTAL COMMENTARY ON §708-834



 



  Act 106, Session Laws 1979, amended this section as part of a
consolidation of laws pertaining to extortion.



  Act 232, Session Laws 1980, added subsection (4) and the
words "co-interest not a defense" in the section heading to restore
language erroneously omitted by L 1979, Act 107, §8.



  Act 383, Session Laws 1997, amended this section to provide a
defense to prosecution for theft of property to reciprocal beneficiaries.  In
establishing the status of reciprocal beneficiaries, the Act provides certain
rights and benefits and represents a commitment to provide substantially
similar government rights to those couples who are barred by law from
marriage.  Conference Committee Report No. 2.



 



Case Notes



 



  Claim of right defense discussed.  62 H. 25, 608 P.2d 855.



  Claim of right defense to theft under this section does not
apply in a prosecution for robbery.  83 H. 264, 925 P.2d 1088.



  Subsection (1)(b)'s defense was not applicable to offense of
unauthorized control of propelled vehicle (§708-836).  10 H. App. 200, 862 P.2d
1073.



  Trial court erred harmfully in excluding, pursuant to HRE
rules 401 and 403, defendant's exhibit with respect to defendant's
theft-by-deception charges under §708-830(2), on the grounds that defendant's
analysis of the tax laws was irrelevant and that evidence of defendant's legal
theories would confuse the jury, where evidence that defendant, based on
defendant's understanding of the tax laws, had a good faith belief that
defendant did not owe taxes on defendant's wages was relevant to whether
defendant acted by deception and whether defendant had a defense under
subsection (1).  119 H. 60 (App.), 193 P.3d 1260.



__________



§708-834 Commentary:



 



1.  M.P.C., Tentative Draft No. 2, comments at 104 (1954).



 



2.  Id. at 104-5.



 



3.  See Prop. Mich. Rev. Cr. Code, comments at 246.