The opinion
Theft by deception normally requires proof that the actor, with purpose to deprive the owner of his property, knowingly obtained that property by deception. 1 There is no evidence in this case that these elements took place at the same time, a deficiency to which the state responds that no such coincidence is necessary. The state's theory, that these elements need not occur at the same time, would seem to support the idea that every debtor who lies to his creditor about repayment is guilty of theft by deception. Lest our jails be filled with souls who have falsely stated that "the check is in the mail," it should be pointed out that the state's theory does not accurately reflect the law.
Thus, assignment of error seven would properly be sustained as to the five theft-by-deception counts. Since there has been no response relative to the other two counts, it appears that they too would fail scrutiny as to the sufficiency of proof.
I would sustain assignment of error seven and reverse the convictions.
1 As noted elsewhere, the theft statute could conceivably provide for a crime which would consist of proof that an actor, with purpose to deprive the owner of his property, knowingly exerted control over that property by means of deception. Here, however, the deception did not enable the defendant to exert control over the property; she already had control over the property by the time of the deception, and the deception did nothing to add to her control of it. In any case, the elements must coincide in time.
It is noted that it was not charged here that the defendant, with purpose to deprive the owner of his property, knowingly exerted control over that property beyond the express or implied consent of the owner, which is that combination of the statutory elements which is designated to cover conversion and embezzlement. *Page 156