Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1972, No. 2510, in case of Commonwealth of Pennsylvania v. Daniel L. Compel.
Thomas D. MacMullan, with him Brandt, McManus, Brandt & Malone, for appellant.
Robert L. Eberhardt, Assistant District Attorney, with him John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Price, J., did not participate in the consideration or decision of this case.
[ 236 Pa. Super. Page 406]
Appellant was convicted by a judge sitting without a jury of burglary, larceny and receiving stolen goods. The conviction arose from the fact that on the evening of November 9, 1971, appellant took four horses from the Valleybrook Stables in South Park Township, Allegheny County. Appellant admits he took the horses; however, he contends he did not steal them because he reasonably believed the horses were his.
"'Larceny may be defined to be the fraudulent taking and carrying away of a thing without claim of right, with the intention of converting it to a use other than that of the owner, without his consent': 2 Wharton's Criminal Law, Sec. 1097. . . . It has been repeatedly held that when one takes property under a claim of right, even though mistaken, larceny is not committed: Com. v. Wilson, 266 Pa. 236, 109 A. 913; Com. v. Swayne, 1 Pa. Superior Ct. 547; 2 Wharton's Criminal Law, Sec. 1123." Thomas v. Kessler, 334 Pa. 7, 9, 5 A.2d 187, 188 (1939).
[ 236 Pa. Super. Page 407]
"A bona fide, reasonable mistake of fact will negative [the] criminal intent" necessary for conviction of larceny. Commonwealth v. Meinhart, 173 Pa. Superior Ct. 495, 500, 98 A.2d 392, 395 (1953). See also Commonwealth v. English, 446 Pa. 161, 279 A.2d 4 (1971). It is not necessary that the facts be as the actor believed them to be; it is only necessary that he have "a bona fide and reasonable belief in the existence of facts which, if they did exist, would render an act innocent." Commonwealth v. Lefever, 151 Pa. Superior Ct. 351, 353-54, 30 A.2d 364, 365 (1943). See generally, Morissette v. United States, 342 U.S. 246 (1952).
Accordingly, if appellant did reasonably believe the horses were his, he did not commit larceny; nor did he commit burglary, when he entered the stables with intent to take the horses; nor did he receive any stolen goods. The question, therefore, is, what does the evidence show regarding appellant's state of mind?
On June 6, 1971, appellant arranged to board his four horses with Nicholas Lake, trading as Valleybrook Stables in South Park Township, Allegheny County. The horses were a registered stallion, two brood mares, and a three-week old colt. On July 21, 1971, appellant paid Lake $159.00 in board.*fn1 In the September, appellant brought a fifth horse, a four-month old filly, to board at the stables. Appellant visited his horses in the evening, after he finished his work as a teacher during the day. He fed the filly and the colt exclusively with his own feed and supplemented the feeding of the older horses. He frequently permitted others to ride his horses. Approximately a week after boarding the filly, he was informed by a woman who frequented the stables that his colt was ill. Appellant called a veterinarian, who diagnosed the illness as lead
[ 236 Pa. Super. Page 408]
paint poisoning caused by Lake's use of water buckets formerly used by the County to hold lead-based paint. The veterinarian ordered injections for the colt twice daily. Appellant administered one injection when he visited the stable in the evening; he relied on Lake and his staff to give the daytime injection.*fn2 Nevertheless, the colt deteriorated and either in late September or during October (the record is unclear) had to be destroyed. On the advice of counsel, in January, 1972, appellant filed a civil suit against Lake for compensation for the loss of the colt, alleging that the loss was due to Lake's negligence in using paint buckets to water the colt.
Lake testified that on October 17, 1971, in the presence of a witness (who was not called to testify), he told appellant that he was $845.00 in arrears in his board, and that on October 18, in the presence of another witness (who did not testify), he gave appellant a written statement of the arrearages and posted on the bulletin board in a passageway near the front door of the stables and in the stables office a notice of a public auction of the horses ...