Person goes to car dealership and sells car for an agreed price of $ 4,500. The dealership mistakenly writes a check for $ 45,000 that the person immediately cashes and begins spending. Clearly bad conduct but theft requires acquiring the property without the effective consent of the owner. Has anyone ever seen a similar fact pattern? Any suggestions about prosecuting as a theft or other crime? Any help would be appreciated.

Phil Hall
Bastrop County

Check out the definition of "deception" in the theft statute. There's some specific ways it had to be charged that I don't have in front of me right now, but off the top of my head, I think it fits.

After acquiring the property, the seller pretty clearly disposed of it in a manner that made recovery by the new owner of the vehicle unlikely. Thus, you have proof of an intent to deprive under 31.01(2)(C). But, it is indeed more difficult to prove the appropriation was without the effective consent of the buyer. Was the transfer of possession of the funds induced by deception? I guess you argue the seller created or confirmed by words or conduct the impression, which arguably proved to be false, that he was willing to part with the vehicle for the contract price rather than the larger amount paid, but did he believe that to be untrue at the time the price was negotiated, or only later? So, instead you decide to focus on the failure to correct the false impression under which the buyer was operating when he mistakenly overpaid for the vehicle, under 31.01 (1)(B). But, does this theory apply to the situation where, in a sales transaction, the cashier mistakenly calculates the amount of change due and thus unjustly enriches the purchaser? I waiver on the answer. I have justified not correcting the mistake on the ground that the seller is responsible for hiring competent employees and assumes such errors as a risk of his business. By merely accepting an incorrect amount, I doubt you are actively preventing the other from acquiring the necessary information. But, arguably that form of deception is also present.

Possibly, your question represents a gap in the law. I am familiar with the laws of another state which provide not only for theft by use of deception, but separately provide: "a person is guilty of theft of property delivered by mistake when he comes into control of the property of another that he knows to have been delivered under a mistake as to the amount of the property."

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