(a) It is an affirmative defense to prosecution for theft that the defendant: (1) was unaware that the property or service was that of another; or (2) acted in good faith under a claim of right to the property or service involved or that he had a claim of right to acquire or dispose of it as he did. (b) It is no defense that theft was from the defendant's spouse, except that misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft only if it occurs after the parties have ceased living together. SOURCE: G.P.C. § 511; M.P.C. § 223.1(3), (4); *Cal. § 2901(3), (4) (T.D.3 1969); Cal. § 1012 (1971); Mass. ch. 266, § 17(8); N.J. § 2C:20- 2(c), (d). CROSS-REFERENCES: California Joint Legislative Committee for Revision of the Penal Code, Penal Code Revision Project 76-77 (tent. draft No. 3, July 1969).
COMMENT: § 43.25 substantially restates existing Guam law. The provision of Guam Penal Code § 511 that the claim of right defense is unavailable in embezzlement cases where the defendant had retained property Ato off-set or pay demands held against him,@ has not been retained. There is no similar restriction on the claim of right defense under present law if the defendant is charged with common-law larceny or theft by fault pretenses. Of course, as in common law, the claim of right defense who would be available only where the defendant honestly believes that he had the legal right to retain the property as a set-off. Thus, where a defendant took property of another and no right of set-off existed, even if the defendant may have been owed money by the other, no defense would arise under this Section. As with existing law, § 43.25 rejects the common-law rule that unity between husband and wife precludes possibility of theft from a spouse. However, there is no theft of commonly owned property unless the spouses are living apart. This provision will, it is hoped, substantially reduced the risk of theft prosecution following a family quarrel or domestic dispute.