Cite as Kosrae State v. Tulensa, Kosrae St. (1990)
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     Defendant Damian K. Tulensa was charged with one count, Disturbing Peace, KC 13.503. The matter was tried before the Court on October 10, 1989 and after government rested its case, defendant decided not to take the stand. At summation, defendant moved for acquittal on the ground that defendant's act was unintentional, and further arqued that the act of taking the rope from victim on April 21, 1989 was an honest mistake and does not warrant conviction.

     The facts in this case are as follows. On the early morning of April 21, 1989 in Utwe, victim Alma Kotaro and her daughter were inside their cooking house weaving a local thatch roof. On the previous day, April 20, 1989 a rope was given to them by one, Palik Lulu to be used in their weavingt.1

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     Defendant, while passing the place where victim was working incidentally saw a rope inside the cooking house where victim was. Defendant saw the rope and went directly to where the rope was hanging, and took the rope and proceeded to his house. Plaintiff followed defendant and kept demanding that defendant return the rope, but was not successful in her attempts.

     While following the defendant to his house, defendant advised plaintiff that, "it is my rope, you stole it from my chest."

     Plaintiff was unable to get the rope back. She went directly from there and called the police and find the complaint.
     After defendant got to his house, he realized that it was not his rope, he then gave it to his son to return it to the victim.

     During the trial, defendant chose not to stand as a witness. After government rested with its case and summation, defendant moved that the Court acquit him from the charge of Disturbing the Peace.

     Defendant, in his summation, argued that the act of taking a rope from plaintiff was unintentional and a "honest mistake" which does not warrant conviction.

     The facts in this above matter are not disputed and therefore the Court is left to determine the issue of whether or not the act of defendant in taking the rope from victim is an honest mistake and whether such mistake is justifiable to acquit defendant from this action.

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     Black's Law Dictionary, 5th Edition, page 903 defines mistake in part:

IA] mistakes exist when a person under some erroneous conviction of law of facts, does or omits to do some act which, but for erroneous conviction he would not have done or omitted. Id.

     Generally, mistake of fact can be used to negate the general criminal state if mind (mens rea), which is a part of the definition of every crime.

It is said that ignorance or mistake of fact, guarded by an honest purpose, affords at common law a sufficient excuse for a supposed criminal act. To put it conversely, at common law an honest and reasonable belief in the existence of circumstances which, if true, would have made the act done innocent, is a good defense. 21 Am Jur 2d Criminal Law Section 141, p.276.

     As the above-quoted passage indicates, the belief must be reasonable. or as stated by the Supreme Court of Hawaii, the mistake must not be due to the negligence or carelessness of the defendant. State v. Dizon 47 Hawaii 444, 390 p.2d 759.

     In the present case, the Court cannot find that the mistake was reasonable, let alone that a mistake indeed occurred. Defendant chose not to testify, offering his "defense" of mistake only through counsel in closing argument. Therefore, the Court has no evidence upon which to proceed.

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     Furthermore, assuming that there was some evidence of mistake, the Court would find the mistake due to defendant's own careless and negligent conduct. Had even the slightest degree of care been exercised by defendant he could have ascertained the true ownership of the rope without a breach of the peace.

     Defendant could have reasonably approached victim in a peaceful manner to find out if it was the rope he claimed, but instead he proceeded directly to where the rope was without consulting with victim, picked up the rope and left to his house. After plaintiff failed to retain the rope, and after defendant found out that it was not his rope, he then gave the rope to one of his son to return it, instead of returning the rope himself.

     In applying the test of decree of care, this Court disagrees with the defense of honest mistake. Had defendant taken the stand to testify during trial, at least some facts or testimony by defendant could have been considered.

     The facts clearly reveal to this Court that defendant, by his own negligent act and misconception has precluded the use of the defense can not support his motion for acquittal.

     It is therefore the opinion of this court that the act of defendant in taking the rope from victim in such a manner constituted the offense of Disturbing the Peace under KC 13.503.

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     SO ORDERED this day of 10th day of October 1989.

Harry H. Skilling
Chief Justice

     Entered this 24th day of January 1990.

Chief Clerk of Court

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1.  Kosraean uses the rope in weaving local thatch roof. (Back to Opinion)