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Theft

Theft Defined

22-30A-1.   Theft–Violation. Any person who takes, or exercises unauthorized control over, property of another, with intent to deprive that person of the property, is guilty of theft.

Source: SDC 1939, § 13.3801; SDCL, § 22-37-1; SL 1976, ch 158, § 30A-7; SL 2005, ch 120, § 49.

South Dakota Theft Laws

22-30A-1. Theft–Violation. Any person who takes, or exercises unauthorized control over, property of another, with intent to deprive that person of the property, is guilty of theft.

22-30A-2. Transfer of another’s property as theft. Any person who transfers property of another, or any interest in the property of another, with intent to benefit the transferor or another who is not entitled thereto, is guilty of theft.

22-30A-3. Theft by deception. Any person who obtains property of another by deception is guilty of theft. A person deceives if, with intent to defraud, that person:

(1) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind. However, as to a person’s intention to perform a promise, deception may not be inferred from the fact alone that that person did not subsequently perform the promise;

(2) Prevents another from acquiring information which would affect the other person’s judgment of a transaction;

(3) Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom the deceiver stands in a fiduciary or confidential relationship; or

(4) Fails to disclose a known lien, adverse claim, or other legal impediment to the enjoyment of property which the deceiver transfers or encumbers in consideration for property the deceiver obtains, whether such impediment is or is not valid, or is or is not a matter of official record.

The term, deceive, does not, however, include falsity as to matters having no pecuniary significance or puffing by statements unlikely to deceive reasonable persons.

22-30A-3. Theft by deception. Any person who obtains property of another by deception is guilty of theft. A person deceives if, with intent to defraud, that person:

(1) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind. However, as to a person’s intention to perform a promise, deception may not be inferred from the fact alone that that person did not subsequently perform the promise;

(2) Prevents another from acquiring information which would affect the other person’s judgment of a transaction;

(3) Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom the deceiver stands in a fiduciary or confidential relationship; or

(4) Fails to disclose a known lien, adverse claim, or other legal impediment to the enjoyment of property which the deceiver transfers or encumbers in consideration for property the deceiver obtains, whether such impediment is or is not valid, or is or is not a matter of official record.

The term, deceive, does not, however, include falsity as to matters having no pecuniary significance or puffing by statements unlikely to deceive reasonable persons.

22-30A-6. Theft of lost or mislaid property. Any person who comes into control of property of another that the person knows to have been lost, destroyed, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient, is guilty of theft if, with intent to deprive the owner thereof, the person fails to take reasonable measures to restore the property to a person entitled to have the property.

22-30A-7. Receiving stolen property. Any person who receives, retains, or disposes of property of another knowing that the property has been stolen, or believing that the property has probably been stolen, unless the property is received, retained, or disposed of with the intent to restore the property to the owner, is guilty of theft.

22-30A-8. Obtaining property or services without paying. Any person is guilty of theft if that person intentionally obtains property or service which that person knows is available only for compensation, by deception, threat, or other means to avoid payment for the service or property.

22-30A-8.1. Obtaining property or services with false credit card. Any person who, by use of a credit card issued to another person, without the consent of the person to whom issued, or by use of a credit card which has been revoked or canceled or has expired, or by use of a falsified, mutilated, altered, or counterfeit credit card obtains property or services on credit, is guilty of theft.

22-30A-10.1. Return of stolen property considered in mitigation of punishment–Return not a defense. If any person, who has been accused of theft, restores or returns the property allegedly stolen before an indictment or information is laid before a magistrate, such fact may be considered in mitigation of punishment. The restoration or return of the property is not a defense nor may it be considered by the finder of fact.

22-30A-12. Unauthorized operation of vehicle or vessel as misdemeanor. Any person who, without the intent to deprive the owner thereof, operates another’s motor vehicle or vessel without the consent of the owner, is guilty of a Class 1 misdemeanor.

22-30A-15. Theft as single offense incorporating previous separate offenses–Terms used in alleging theft. Conduct constituting theft pursuant to this chapter constitutes a single offense including any separate offenses committed or charged before the effective date of this chapter and known as larceny, embezzlement, extortion, fraudulent conversion, false pretense, and receiving stolen property. An accusation of theft may be supported by evidence that the theft was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of a court to ensure a fair trial by granting a continuance or other appropriate relief if the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

22-30A-16. Ignorance and honest claim of right as affirmative defenses to theft. It is an affirmative defense to a prosecution for theft that the defendant:

(1) Was unaware that the property taken was that of another; or

(2) Acted under an honest and reasonable claim of right to the property involved or that the defendant had a right to acquire or dispose of the property as he or she did.

22-30A-17. Grand theft–Felony. Theft is grand theft, if the property stolen:

(1) Exceeds one thousand dollars in value;

(2) Is a firearm;

(3) Is taken from the person of another; or

(4) The property stolen is cattle, horses, mules, buffalo, or captive nondomestic elk.

Grand theft is a Class 4 felony.

22-30A-17.1. Aggravated grand theft–Felony. Theft is aggravated grand theft, if the value of the property stolen exceeds one hundred thousand dollars. Aggravated grand theft is a Class 3 felony.

22-30A-17.2. Petty theft in the first degree–Misdemeanor. Theft is petty theft in the first degree, if the value of the property stolen exceeds four hundred dollars but does not exceed one thousand dollars. Petty theft in the first degree is a Class 1 misdemeanor

22-30A-17.3. Petty theft in the second degree–Misdemeanor. Theft is petty theft in the second degree, if the value of the property stolen is four hundred dollars or less. Petty theft in the second degree is a Class 2 misdemeanor.

22-30A-18. Aggregation of related thefts to determine degree of offense. Amounts involved in thefts, whether from the same person or several persons, committed pursuant to one scheme or course of conduct, may be aggregated in determining the degree of the offense.

22-30A-19.1. Liability of shoplifter to owner or seller–Penalty. Any adult, or any emancipated minor as defined in § 25-5-24, or any parent or guardian of any unemancipated minor, who takes possession of any goods, wares, or merchandise displayed or offered for sale by a store or other mercantile establishment without the consent of the owner or seller, and with the intention of converting the goods to the person’s own use without having paid the purchase price, is liable to the owner or seller for the retail value of the merchandise, regardless of whether or not the merchandise has been recovered in undamaged condition by the owner or seller. In addition, the owner or seller is entitled to a penalty of four times the retail value of the merchandise, or one hundred dollars, whichever is greater.

22-30A-19.2. Detention of suspected shoplifter–Reasonableness–Grounds. Any owner or seller of merchandise, who has reasonable grounds to believe that a person has committed retail theft pursuant to § 22-30A-19.1, may detain such person, on or off the premises of a retail mercantile establishment, in a reasonable manner and for a reasonable length of time:

(1) To request identification;

(2) To verify such identification;

(3) To make reasonable inquiry as to whether such person has in his or her possession unpurchased merchandise and, to make reasonable investigation of the ownership of such merchandise;

(4) To inform a law enforcement officer of the detention of the person and surrender that person to the custody of a law enforcement officer; and

(5) In the case of a minor, to inform a law enforcement officer, a parent, guardian, or other private person interested in the welfare of the detained minor and to surrender custody of the minor to such person.

An owner or seller of merchandise may make a detention as permitted in this section off the premises of a retail mercantile establishment only if such detention is pursuant to the immediate pursuit of such person.

22-30A-19.3. Demand for payment by victim of retail theft. Any owner or seller of merchandise who is the victim of retail theft pursuant to § 22-30A-19.1 may make a written demand for the amount for which any person is liable pursuant to § 22-30A-19.1. Except for a sole proprietorship, a member of management, other than the initial detaining person, shall evaluate the validity of the accusation that an act of retail theft was committed and shall approve the accusation before a written demand for payment is issued. The demand for payment shall be mailed by certified mail to the person from whom payment is demanded or served personally on the person from whom payment is demanded. Personal service shall be accomplished in the same manner as the service of a summons.

22-30A-19.4. Failure to pay liability for theft–Penalty doubled. If the person to whom a written demand is made pursuant to § 22-30A-19.3 complies by making full payment of the amount required by the written demand within thirty days after its receipt, that person incurs no further civil liability to the owner or seller of the merchandise. However, if the person to whom a written demand is made fails to make full payment pursuant to that written demand, then the penalty allowed in § 22- 30A-19.1 may be doubled.

22-30A-24. Theft by insufficient funds check–Degrees according to amount–Aggregation of checks. Any person who, for himself or herself or as agent or representative of another, for a present consideration, with intent to defraud, passes a check drawn on a financial institution knowing at the time of such passing that there are not sufficient funds in the account on which the check was drawn in the financial institution for the payment of such check and all other checks upon such funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is guilty of theft by insufficient funds check. Theft by insufficient funds check is punishable as theft pursuant to chapter 22-30A. In determining the degree of theft, the value of the property stolen or attempted to be stolen is the same as the face amount of the insufficient funds check. Any series of insufficient funds checks within any thirty-day period may be aggregated in amount to determine the degree of theft of such course of conduct.

22-30A-29. Postdated check not in violation. The making of a postdated or hold check, knowingly received as such, or a check issued under an agreement with the payee that the check would not be presented for payment for a specified time, does not constitute a violation of § 22-30A- 24.