198 A.D. 41 | N.Y. App. Div. | 1921
There is very little dispute about the essential facts. The defendant went to the automobile livery of one Loukes, in
The jury brought in a verdict of guilty, with a strong recommendation for clemency, and defendant moved to set aside the verdict as against the weight of evidence and contrary to the law; and the question is presented upon this appeal whether the court correctly stated the law to the jury.
It is conceded that at common law the defendant would not be guilty of any crime; he would not be hable at common law for conversion without a demand for the return of the property, he having come into possession lawfully. The statute here under consideration is penal in character; it makes that larceny which might not otherwise constitute the crime. In other words, it changes the common law upon the subject of larceny in respect to automobiles, establishing a different standard from that prevailing in respect to other personal property. Statutes changing the common law are to be strictly construed, and the latter will be held to be no
If the owner of the car had demanded the car, and the defendant had refused to deliver it, there would have been a conversion, entitling the owner to damages, with the aid of an execution against the body; but there is nothing in the statute which suggests an option on the part of an owner of a car to give his consent to the use of a vehicle in such a manner as to involve the hirer in a crime by a mere lapse of time.
The judgment appealed from should be reversed.
All concur.
Judgment of conviction reversed and indictment dismissed.