THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Collection Table of Contents

Theft

    1.    Theft By Mistake: Payment For Services Rendered
    2.    Theft By Fraud Not Committed If Property Obtained Was Only Such As Accused Was 
           Legally Entitled To Receive, Even Though It Was Obtained By Means of Falsehood
    3.    Theft By Fraud: Information And Defendant’s Response Not Evidence

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.    Theft By Mistake: Payment For Services Rendered

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    It is __________’s (name of defendant) position that (he/she) reasonably believed both that (he/she) was authorized to sign checks as part of managing the __________’s (name of victim) business, and that (he/she) was entitled to the money he obtained in this fashion. Because __________ (name of defendant) was providing valuable services to the __________’s (name of victim), (he/she) reasonably believed (he/she) was entitled to compensation for the services he performed; thus, (he/seh) did not intend to defraud the __________ (name of victim) but rather intended to receive compensation.

    If the evidence which you have heard in this case, including evidence relating to __________’s (name of defendant) theory of defense, leaves you with a reasonable doubt as to (his/her) guilt, then you must acquit (him/her).

    There is evidence that at the time of the alleged offense the defendant believed that (he/she) was authorized to make payment to (himself/herself) for the reasonable value of (his/her) services and that he took no more than the reasonable value of those services.

    If an honest error of fact results in a person's not having the knowledge required for a crime, the person is not guilty of that crime. Likewise, if an honest error of fact results in a person not having the intent required for a crime, the person is not guilty of that crime. This is true even if you determine that the defendant's honest belief is objectively unreasonable.

    Before you may find that the knowledge required for this offense is present, the State must prove by evidence that satisfies you beyond a reasonable doubt that the defendant knew that (his/her) representation was false.

    Similarly, before you may find that the intent required for this offense is present, the State must prove by evidence that satisfies you beyond a reasonable doubt that the defendant made the representation with intent to deceive and defraud __________ (name of victim).

See NCJIC Chapter 103: Theft/Larceny Based Crimes.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2.    Theft By Fraud Not Committed If Property Obtained Was Only Such As Accused Was Legally Entitled To Receive, Even Though It Was Obtained By Means of Falsehood

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The offense of theft by fraud is not committed if the property obtained was only such as the accused was legally entitled to receive, even though (he/she) obtained it by means of falsehood. In such a case two essentials of the offense, an intent to defraud and an actual fraud committed, are lacking.

    It is __________’s (name of defendant) position that he believed in good faith (he/she) was entitled to the money which (he/she) obtained by signing __________’s (name of victim) name to checks. Because __________ (name of defendant) was providing valuable services to __________ (name of victim), (he/she) reasonably believed (he/she) was entitled to compensation and did not intend to make false representations when (he/she) obtained such compensation.

    Further, because of __________’s (name of defendant) belief that (he/she) was entitled to compensation for the services (he/she) performed, it is (his/her) position that (he/she) did not intend to defraud __________ (name of victim) but rather intended to receive compensation.

    If the evidence which you have heard in this case, including evidence relating to _________’s (name of defendant) theory of defense, leaves you with a reasonable doubt as to (his/her) guilt, then you must acquit (him/her).

Clawson v. State, 129 Wis. 650, 109 N.W. 578 (1906); contra State v. Kennedy, 105 Wis. 2d 625, 314 N.W.2d 884 (Ct. App. 1981).

See NCJIC Chapter 103: Theft/Larceny Based Crimes.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    Theft By Fraud: Information And Defendant’s Response Not Evidence

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In response to the charge in the Information, __________ (name of defendant) has informed the Court formally that (he/she) did not intend to defraud anyone of any money. Both the state's charge in the Information and __________’s (name of defendant) response to it are merely formal matters, and neither is evidence. Their only effect is to allow a trial and to raise the presumption that __________ (name of defendant) is innocent.

See NCJIC 12.2.2 [Charging Document Is Not Evidence].

See NCJIC Chapter 103: Theft/Larceny Based Crimes.