185 N.Y. 497, 78 N.E. 169 (1906)
The defendant Samuel Jaffe operated a small tailor shop in New York.1 Prior to October 6, 1902, a clerk named Sadler employed by the copartnership J. W. Goddard & Sons stole goods from the firm and sold some of them to Jaffe.2 On October 6, 1902, Sadler stole a roll of cloth from Goddard & Sons, rewrapped it, and had another employee named Donegan take it to a shoe store.3 Sadler later retrieved the roll from the shoe store.4
Goddard & Sons discovered the theft.5 Their manager Marratt, acting with police detectives, followed Sadler to police headquarters.6 There the cloth was identified as belonging to Goddard & Sons, cut into three parts, and marked for identification.7 Marratt then handed the cloth back to Sadler with instructions to sell it to Jaffe pursuant to an arrangement with the police.8
Sadler took the cloth to Jaffe, who examined it, was told where it came from, measured it, and paid Sadler $2.50 for the goods.9 The district attorney conceded at trial that the owners had recovered the property before it was delivered to Jaffe, so the goods had lost their character as stolen property at the time of the transaction.10 Jaffe was indicted for the crime of criminally receiving stolen property.11
The case proceeded to trial on the assumption that the goods were not stolen when received by the defendant.12 The jury found Jaffe guilty of an attempt to commit the crime charged in the indictment.13 Jaffe appealed to the Court of Appeals, which heard the case in June 1906.14
Whether a defendant may be convicted of an attempt to commit the crime of receiving stolen property knowing it to have been stolen, when the property had been recovered by the owner prior to the transaction and was not stolen at the time of the attempted receipt?15
Section 34 of the Penal Code provides that an act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.16 The crime of criminally receiving stolen property under section 550 requires that the property be in fact stolen and that the defendant know it to have been stolen.17 If the completed act would not constitute a crime, even when done with full criminal intent, no attempt has occurred.18 The test for attempt focuses on the actor's mind and conduct only when the intended act itself would be criminal if consummated.19 A mistaken belief that non-stolen property is stolen cannot supply the missing element of actual stolen character.20
No. The established facts demonstrate that Sadler stole the roll of cloth from Goddard & Sons, after which Marratt, acting with full authority from the owners and in coordination with police detectives, recovered the cloth at police headquarters, identified it, cut it into three parts, marked each piece, and then returned it to Sadler with instructions to sell it to Jaffe.21 The district attorney expressly conceded at trial that the owners had recovered possession before delivery to the defendant, so the goods had lost their character as stolen property. Jaffe examined the cloth, was told its origin, measured it, and paid $2.50, all while believing it stolen.22 Because the completed purchase would not have satisfied the statutory requirement that the property actually be stolen, Jaffe's intent and overt acts could not constitute an attempt under the Penal Code.23
The pickpocket and extortion precedents do not control, as those cases involved intended acts that would have been criminal if completed, whereas here the intended transaction was legally innocent once the owners regained control.24