121 N.Y.S. 1004 | N.Y. App. Div. | 1910
This is an action for false imprisonment. The plaintiff was the manager of the Majestic Automobile Company, a domestic corporation having its place of business at Fifty-fourth street and Broadway, borough of Manhattan, New York. The appellant was the owner of a “ Queens ” automobile which he purchased of the Majestic Automobile Company on the 12th day of June, 1906, in exchange for one which he had purchased of.it on the fifth day of the preceding month, and a cash consideration of $200. The defendant McGowan was a member of the police force of the city of Greater New York, detailed to detective duty. On the 22d day of September, 1906, the plaintiff was arrested at his place.of business by the defendant McGowan, without a warrant, and taken to the Forty-seventh street police station accompanied by the appellant and the latter’s chauffeur and one Maley, who was a member of the bar, and there detained and arraigned in court next day. The evidence is conflicting with respect to the circumstances under which the arrest was macle and with respect to what occurred at the police station. It tends to show that the ground assigned at the plaintiff’s place of business for the arrest was his refusal to deliver the appellant’s automobile which was in the garage at that place and under his immediate charge, or his having received and retained the automobile, knowing that it had been stolen, or both. It quite satisfactorily appears that the material facts bearing upon both charges were discussed and were known to the plaintiff and to all the parties. It is undisputed that on the refusal of the plaintiff to surrender the automobile the detective stated that he would arrest plaintiff pro
The automobile when not in use was left in the garage of this, company. The appellant became indebted to the company for certain storage and repairs, and he deemed bills rendered by the company excessive in that certain items would be covered by a guaranty: received from the company on the purchase of the first automobile which he claimed applied to the second. Efforts to adjust their differences were unsuccessful. Finally plaintiff refused to permit appellant to take the automobile from the garage until the account was settled. On the 18th day of September, 1906, plaintiff offered to accept $550, which was'considerably less than the amount claimed in full for the account rendered, or $394.80 in full for the account for the months of May and July — the account for June had been paid — and ■gave the appellant to understand that unless he accepted one or the-other of these propositions he would not be permitted to use the car. Before leaving his office on that day plaintiff left instructions with the ■ night watchman not to let the car .out unless appellant paid one of these amounts, and he also left with the watchman receipts to be ■ used in either contingency. The appellant called for his car that night and on being informed by the night watchman what his ■instructions were, gave a check for $394.80, drawn on a bank in Boston, in which he had an account, to the order of the company, and the car was then delivered to him. The appellant did not
The court submitted the case to the jury upon the. theory that the appellant ordered the arrest of the plaintiff upon the ground that he received and held the automobile, knowing that it had been stolen, and refused to surrender it on demand, and instructed the jury that the liability of the appellant depended upon whether or not the plaintiff was guilty of a felony. It was sufficient to justify the arrest if a felony had been committed and there was reasonable ground for believing that plaintiff committed it. (Code Crina. Proc. § 177.) This does not mean, however, that it was incumbent upon the appellant to show, as it would be upon the People on a criminal prosecution, by evidence which satisfied the jury beyond a reasonable doubt, that the plaintiff was guilty of a felony. The arrest was made by a police officer, and not by the appellant. The appellant, therefore, is doubtless entitled to any defense that was available to the officer, and hy virtue of the provisions of section 177 of the Code
Counsel for the appellant requested the court to instruct the jury that “ Under the facts adduced in this action the person who caused the automobile to be taken from the public highway for the purpose of compelling its owner to pay a debt to the Majestic Company was guilty of,the crime of larceny ; ” also, “ that under the evidence adduced in this action the person who took the automobile from the public highway and ran it into the Majestic Garage was guilty of the crime of larceny, and the person who induced him . to do so, if any, was likewise guilty, and further, that the person who withheld such property with the knowledge that it,had been taken was equally guilty of the crime of larceny; ” also, “ that if the jury find that the plaintiff Greene knew that the defendant’s automobile had been taken from the public highway and placed in the Majestic Garage by some person other than the owner or his agent, or some person who had not a lawful right to do so, and without the consent of the owner, and when the possession and delivery of the automobile Was demanded from the plaintiff Greene and he thereafter refused to deliver possession thereof to the true owner, he was guilty of a felony, and the verdict in this case must be for the defendant Fankhauser, who, under the circumstances,, was justified in causing the plaintiff’s arrest, if the jury finds that .defendant' Fankhauser caused plaintiff’s arrestalso, “ that the plaintiff Greene must have intended the consequences of his own act ' and if he, by withholding the defendant Fankhauser’s property, in fact deprived or defrauded the owner of its -use until such time as the owner should pay the bill owing to the company of;- which plaintiff was manager, then Greene committed a felony, no matter how openly it -was done; ” also, “ as a matter
It is quite likely that error could not be predicated upon each one of these refusals to instruct the jury, if the request stood by itself, for they are not all technically correct propositions of law, but several of them are, and taking them all together we are convinced that the jury was not properly instructed with respect to the law, and that the rights of the appellant have been prejudiced thereby. It was very important that the jury should understand by specific instructions to that effect from the court that the automobile company had no lien upon the automobile and had no right to retain possession of it. It was expressly conceded at the commencement of the trial by counsel for the plaintiff that the company had no lien on the car at the time plaintiff refused to surrender it to the appellant, and that the company had no right to keep it because he owed it money; but the jury may well have lost sight of that during the progress of the trial, and may not have fully appreciated that that concession was binding upon the plaintiff and was a correct rule of law, and that it followed therefrom that plaintiff had no right to retain the car. The material facts constituting the crime of larceny in taking the automobile from the street and in detaining
“ A person who, with the intent, to deprive or defraud the true owner of his property, or'of the Use and benefit thereof, or to appropriate the samé to the use'of the taker or of any other person, either “ 1. Takes from the possession of. the true owner, or of any other person; ' * * *. or secretes, withholds or appropriates to his own use, or that of any person' other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind; * * * ■
“ Steals such property and is guilty of larceny. . *
- The value of the' automobile was concededly over $500, and, therefore, if any crime Was/committed, either in taking the car from the street or receiving it or holding it, it -was grand larceny, which ■is a felony. (Penal Code, §§ 530, 533* 550 and 5.) There is no express provision of the statute that the act of the party must be willful or with a criminal intent. The' statute operates upon one “ who, with the intent to deprive * * * the true owner of Ms property, or of the use and benefit thereof * * * secretes [or] withholds * * * any * * •* personal property,”' and declares such act to be stealing, and to constitute the crime of larceny. Of course, it is well settled that <there must be a criminal intent in order to constitute a crime, but the criminal intent, is the doing of the act prohibited with the intent specified in the statute. The Court of Appeals, in People ex rel. Hegeman v. Corrigan (195 N. Y. 14), recently removed the' doubt on this point created by its former decision in People v. Wiman (148 id. 29). In People ex rel, Hegeman v. Corrigan, Chief Judge Cullen, writing for
In the circumstances developed upon the trial with respect to the taking of the car from the public street and the detention of it and the claim made by the plaintiff, I am of opinion that the plaintiff was not shielded, at least not against the claim of justification for his arrest interposed as a defense-in an action for false arrest and imprisonment, by the provisions of section 548 of the Penal Code. That section provides as follows: “ Upon an indictment for larceny it is a sufficient defense that the property was appropriated openly and avowedly under a claim of title preferred in good faith, even though such claim is untenable. But this section shall not excuse the retention of the property of another, to offset or pay demands held against him.”
It may well be.that if the plaintiff had the lawful possession of the automobile and erroneously but in good faith asserted ownership or a lien thereon, the provisions of this section would relieve Mm of the charge of larceny in detaining the property; but he asserted no lien, and if it might be inferred that that was the theory upon which he was withholding the property, still the section would not apply, for if it applies to the assertion of a. right to a lien at all it must relate only to a case where the possession has been obtained lawfully. If this be not so, then a creditor is at liberty to seize the personal property of his debtor anywhere and detain it until the account is settled; and if he act in good faith, believing that he had a right to, he would not be subject to a criminal prosecution. It is not entirely clear that the claim of title referred to in this section would include a claim of a right to a lien upon property, and it may well be that it only relates - to the ownership, and, since it. is not
It would not redound to the credit of the administration Of justice if the owner of property may not call upon a police officer to pursue and overtake one who is unlawfully taking it from Iris possession or control and demand its return, and then, if he do not acquiesce in the refusal to comply with the demand, but encourages the officer to make an arrest, he fenders himself liable to respond in damages to the individual who unlawfully took and retained his property. The plaintiff brought .the arrest upon himself. By holding the automobile and, with knowledge of all the facts, refusing to deliver it to the owner, he adopted the acts of Murphy and Daly as if he had personally seized the car in the public street. It is possible, but not probable, that a man holding the position of general manager of an automobile company thought he had á right to thus seize the car, but it is highly probable that he has heard of the remedy afforded by an action in replevin to obtain possession of personal property, and instead of resorting to it he took the law into his own hands and thus brought it to bear upon himself, and has no just ground of complaint according to this record.
It follows, therefore, that the judgment and order should be reversed and a new trial granted, with, costs to appellant to abide the event.
Ingraham, P. J., and McLaughlin, J., concurred ; Miller and Dowling, JJ., dissented.
Judgment and order reversed, new trial ordered, costs to appellant, to abide event.