§708-835  Proof of theft offense.  A
charge of an offense of theft in any degree may be proved by evidence that it
was committed in any manner that would be theft under section 708-830,
notwithstanding the specification of a different manner in the indictment,
information, or other charge, subject only to the power of the court to ensure
a fair trial by granting a continuance or other appropriate relief where the
conduct of the defense would be prejudiced by lack of fair notice or by
surprise. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §708-835



 



  As outlined in the commentary on §708-830, one of the
principal reasons for the consolidation of various related common-law and
statutory offenses under the single theft statute is to eliminate pointless
procedural obstacles in prosecution.  The possibility of quashing a theft
indictment because of variance would substantially pervert the virtue of
simplicity which such consolidation seeks to achieve.  Subject only to the
court's power to ensure a fair trial (e.g., to ensure that the accused has
adequate time and information to prepare a defense), any charge of theft may be
proved by demonstration, beyond a reasonable doubt, that the accused's actions
came within the definition of one of the subsections of §708-830.[1]



 



Case Notes



 



The law does not permit the conviction of a defendant of two
counts of theft for, first, having obtained or taken an item of property and,
second, for having disposed of or sold the same item of property; the taking
and/or selling of one item of property is only one theft.  93 H. 22 (App.), 995
P.2d 323.



 



__________



§708-835 Commentary:



 



1.  See generally, M.P.C., Tentative Draft No. 1, Appendix A at
101-109 (1953).