Idaho Code
Idaho Code § 18-2406 (2026)
Defenses.
✓ current as of May 2026
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Defenses.
(1) It is no defense to a charge of theft of property that the offender has an interest therein, when the owner also has an interest to which the offender is not entitled.
(2) Where the property involved is that of the offender’s spouse, no prosecution for theft may be maintained unless the parties were not living together as man and wife and were living in separate abodes at the time of the alleged theft.
(3) In any prosecution for theft committed by trespassory taking or the offense previously known as embezzlement, it is an affirmative defense that the property was appropriated openly and avowedly, and under a claim of right made in good faith. It is not a defense to a theft committed by such conduct that the accused intended to restore the property taken, but may be considered by the court to mitigate punishment if the property is voluntarily and actually restored (or tendered) prior to the filing of any complaint or indictment relating thereto, and this provision does not excuse the unlawful retention of the property of another to offset or pay demands held against such other person.
(4) In any prosecution for theft by extortion committed by instilling in the victim a fear that he or another person would be charged with a crime, it is an affirmative defense that the defendant reasonably believed the threatened charge to be true and that his sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of such threatened charge.
(5) It is no defense to a prosecution for theft under a provision of this chapter that the defendant, by reason of the same conduct, also committed an act specified as a crime in another chapter of title 18, or another title of the Idaho Code.
Notes of Decisions
Cited in 4
cases, 1974–1990 · leading case: State v. Boag, 801 P.2d 1295 (Idaho Ct. App. 1990).
State v. Boag, 801 P.2d 1295 (Idaho Ct. App. 1990). “Idaho Code § 18-2406 provides that: [1]n any prosecution for theft committed by trespassory taking or the offense previously known as embezzlement, it is an affirmative defense that the property was appropriated openly and avowedly, and under a claim of right made in good faith.”
Sparrow v. State, 625 P.2d 414 (Idaho 1981). “An information was filed charging him with embezzlement, a felony, pursuant to I.C. § 18-2406. Sparrow pleaded guilty to the reduced charge of embezzlement, a misdemeanor.”
State v. Caldwell, 735 P.2d 1059 (Idaho Ct. App. 1987). “[3] For example, Idaho Code § 18-2406 (3) states in part: (3) In any prosecution for theft committed by trespassory taking or the offense previously known as embezzlement, it is an affirmative defense that the property was appropriated openly and avowedly, and under a claim of…”
Barlow v. Int'l Harvester Co., 522 P.2d 1102 (Idaho 1974). “In this case the truth of the statements was in dispute and it would have been error to have relieved the jury of its obligation to weigh the evidence and determine truth or falsity.”
— Idaho Code § 18-2406(3) — 1 case
State v. Boag, 801 P.2d 1295 (Idaho Ct. App. 1990). “Idaho Code § 18-2406 provides that: [1]n any prosecution for theft committed by trespassory taking or the offense previously known as embezzlement, it is an affirmative defense that the property was appropriated openly and avowedly, and under a claim of right made in good faith.”
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