• 2003 - Theft of Property Delivered by Mistake
  • K-11.07
    • Mistake
    • Property
    • Theft
    • Theft

  • A person who willfully [retains] [disposes of] another’s property while knowing it has been delivered under a mistake [as to the identity of the recipient] [as to the nature or amount of the property] is guilty of Theft.

     

    ESSENTIAL ELEMENTS OF OFFENSE

     

    The State’s burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

     

    1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________ willfully [retained] [disposed] of certain property, namely, _______________;

     

    2) The property belonged to _______________;

     

    3) The Defendant knew then [that the property had been delivered under a mistake as to the identity of the recipient] [that the property had been delivered under a mistake as to the nature or amount of the property];

     

    4) The Defendant acted with intent to deprive the owner of the property; and

     

    5) The Defendant failed to take readily available and reasonable measures to restore the property to a person entitled to have it [.] [; and] [

     

    6) The Defendant did not honestly believe the Defendant had a valid claim to the property.] [

     

    7) _______________ and the Defendant were not then living together as husband and wife, and the property involved did not constitute household or personal effects or other property normally accessible to both.] [

     

    8) The property stolen [exceeded ten thousand dollars in value] [was acquired or retained by a threat [to commit a [class A] [class B] felony] [to inflict serious bodily injury on the person threatened or on any other person]].] [

     

    9) The property stolen exceeded five hundred dollars in value but not more than ten thousand dollars;] or [

     

    10) The property stolen [was [acquired] [retained] by threat and was [acquired] 2003 NDJI-CRIMINAL K - 11.07 [retained] by a public servant by a threat to [take] [withhold official action] [exceeded fifty dollars in value but not more than five hundred dollars];] or [

     

    11) The value of the property stolen exceeded fifty dollars but not more than five hundred dollars and is [acquired] [retained] by a public servant in the course of his/her official duties;] or [

     

    12) The property stolen was [a firearm, ammunition, explosive, or destructive device] [an automobile, aircraft, or other motor-propelled vehicle];] or [

     

    13) The property stolen consisted of any government file, record, document, or other government paper stolen from any government office or from any public servant;] or [

     

    14) The Defendant was then in the business of [buying] [selling] stolen property and the property was [received] [retained] [disposed of] in the course of that business;] or [

     

    15) The property stolen consisted of any implement, paper, or other thing uniquely associated with the preparation of any money, stamp, bond, or other document, instrument, or obligation of this State;] or [

     

    16) The property stolen consisted of livestock taken from the premises of the owner;] or [

     

    17) The property stolen consisted of a key or other implement uniquely suited to provide access to property, the theft of which would be a felony and it was stolen to gain that access;] or [

     

    18) The property stolen is a card, plate, or other credit device existing for the purpose of obtaining money, property, labor, or services on credit, or is a debit card, electronic fund transfer card, code, or other means of access to an account for the purposes of initiating electronic fund transfers.] [

     

    19) The value of property stolen did not exceed two hundred fifty dollars and the theft was not committed by threat; and the theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft; and the Defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of official duties.]

     

    DEFINITIONS [Insert relevant definitions. NDCC 12.1-02-02, 12.1-23-10.]


    *****

    • 12.1-23-02(1)(b)
    • 12.1-23-04
    • 12.1-23-05
    • 12.1-23-05(3)
    • 12.1-23-09
    • 12.1-23-09(3)(a)
    • 12.1-23-09(3)(b)
    • 12.1-23-09(3)(c)
    • 12.1-23-10
  • Notes: The bracketed language in paragraphs 6 or 7 should be used if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue of the defense raised. When using paragraph 7, note the exception under NDCC 12.1-23-09(1)(b). The bracketed language of paragraph 8 should be used if a class B felony is charged. The bracketed language of paragraphs 9 through 18 should be used as appropriate, if a class C felony is charged. When using paragraphs 10 and 11 dealing with "public servants," note NDCC 12.1-23-09(3)(a) on prima facie case of theft. When using paragraph 14, note the inference of theft under NDCC 12.1-23-09(3(d). The bracketed language of paragraph 19 should be used if a class B misdemeanor is charged. Under NDCC 12.1-23-05(3), all theft offenses not otherwise provided for are class A misdemeanors.