Mistake of Fact Negates Specific Intent

February 5, 2006

We think the verdict in this case was largely, if not wholly, owing to an instruction given to the jury, which, although in the language of section 485 of the Penal Code, was not applicable to this case, and was liable to mislead the jury.

The instruction to which we refer reads as follows: “One who finds lost property, under circumstances which gives him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without making a reasonable and just effort to find the owner and restore the property to him, is guilty of larceny.”

Section 485 of the Penal Code, of which this instruction is a copy, “relates in terms to property lost (in the apparent possession of no one) and found.” (People v. Walenzuella, 6 P. C. L. J. 561.)

There is no evidence in this case of the finding of any lost property. The property was in the apparent possession of the appellant, who could not have intended to steal it, unless he knew it was not his own property. The objection to that instruction in this case is, that the jury may have construed the instruction to mean that if appellant had the property of another in his possession, and appropriated it to his own use, without making any effort to find the owner, and restore the property to him. he was guilty of larceny, although he may not have known or suspected it to be the property of another. In other words, if, by the exercise of due circumspection, he might have ascertained that some of the hogs in his possession belonged to some one else, he was as guilty as if he had known that they were the property of some one else.

There are cases in which all the knowledge which a person might have acquired by due diligence is to be imputed to him. But where a felonious intent must be proven, it can be done only by proving what the accused knew. One cannot intend to steal property which he believes to be his own. He may be careless, and omit to make an effort to ascertain that property which he thinks his own belongs to another; but so long as he believes it to be his own, he cannot feloniously steal it. We think if this instruction had not been given, the jury, under the instructions which preceded it, would have returned a different verdict.

People v. Devine, 30 P. 378, 379 (Cal. 1892).

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