People v. Devine

Citations

• 95 Cal. 227
• 30 P. 378
• 1892 Cal. LEXIS 805

Syllabus

<p>Criminal Law — Larceny — Felonious Intent — Insufficiency of Evidence. — To constitute the offense of larceny, there must be a felonious intent, and where there is an absence of proof of such intent, and the evidence tends to prove that'the property taken was honestly believed to be •¿he property of the defendant accused of larceny, the fact that he took and carried away the property of another does not justify a verdict of larceny.</p> <p>Id. — Appropriation of Lost Property Found — Construction of Code — Instruction. — Section 485 of the Penal Code, providing that one who finds lost property under circumstances which give him knowledge or means of inquiry as to the true owner, and who appropriates suih property, without trying to find the owner and restore the property to him, is guilty of larceny, relates in terms to property lost and found, and does not apply to a case where property comes into the possession of a party who does not know or suspect it to be the property of another; and an instruction based on that section, given in such a case, where there is no evidence of the finding of any lost property, is prejudicially erroneous.</p> <p>Id.—Inapplicable Instruction — Misleading Jury — Prejudicial Error. — Although in some cases an inapplicable instruction which is correct as matter of law can do no harm, yet when it is liable to mislead a jury to the prejudice of one of the parties, it becomes as grave an error as though it were not correct as an abstract proposition of law.</p> <p>Id. —Prejudicial Conduct of District Attorney—Allusions to Offense not in Issue — Felonious Intent. — Statements, questions, and remarks by the district attorney, in the presence of the jury, in reference to incompetent proposed evidence of previous similar offenses of the defendant, not in issue, for the purpose of leading the jury to believe that the offense charged was committed with felonious intent, the contrary being claimed and testified to on behalf of the defendant, a