§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 (2000).
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§708-835 Commentary:
1. See generally, M.P.C., Tentative Draft No. 1, Appendix A at 101-109 (1953).