State v. Boyd, 28 Del. 508

State v. Boyd

28 Del. 508 | New York Court of General Session of the Peace | 1915

Rice, J.,

charging the jury:

Gentlemen of the jury:—John Boyd, the defendant, is charged in this indictment with using a milk bottle, the property of William C. Galigna, without his, the said William C. Galigna’s permission, said bottle being used by the defendant in the sale and delivery of milk.

[1] The defendant contends that he was justified in the use of the bottle for the purpose of delivering milk, by reason of the bottle in question being left with one of his customers in place of one of his bottles; that therefore he had the right, in law, to use it.

The statute under which this indictment is found (Section 3594, Rev. Statutes of 1915) provides:

“No person, other than the owner or owners thereof, shall hereafter use milk bottles, milk cans, or any other receptacles used in the sale and delivery of milk, cream and other dairy products, without the express permission of the owners of the same.”

The defendant requests the court to charge you that if you believe he did secure the milk bottle in question in exchange for one of his bottles which was taken by some one else, the bottle in question being left by that other person, that that would constitute permission within the statute. We decline to so charge you.

The question for your determination is a simple one, namely, whether the defendant used a bottle or other receptacle used in the sale and delivery of milk, without the express permission of the owner of the same.

[2] If you should believe beyond a reasonable doubt, from the evidence in this case that the bottle in question did not belong to the defendant, and did belong to the prosecuting witness, and that the defendant used the bottle without the express permission of the prosecuting witness, or of someone authorized by the prose-*510exiting witness to give that permission, your verdict should be guilty. Otherwise your verdict should be not gxiilty.

(Usual charge on presumption of innocence and reasonable doubt.)

Verdict, guilty.