State v. Cusack

27 Del. 469, 4 Boyce 469

• Court: New York Court of General Session of the Peace
• Decided: September 17, 1913
• Status: Published

Opinion

Woolley, J.,

charging the jury:

[1, 2] Gentlemen of the jury:—The defendants in this case are jointly indicted for a violation 'of the statute entitled “An act for the protection of owners of motor vehicles,” one of the provisions of which is that “any person who shall take and operate the motor vehicle of another without the consent of the owner thereof, or a person having the same in charge, shall be guilty of misdemeanor and upon conviction thereof” shall be subjected to a certain penalty. Section 3, Chapter 146, Volume 26, Laws of Delaware; Section 1, Chapter 138, Volume 27, Laws of Delaware.

This statute was designed to protect the owners of motor vehicles in the possession and operation of their cars, and indirectly to protect the public from the consequences of the improper use of motor vehicles. According to this statute the offense consists of the taking or operating of the motor vehicle of another without the consent of the owner. In cases where this charge is made, the important point in controversy is very apt to be the' matter of consent.' The scope of this statute is not restricted to the taking and operation of a motor vehicle by one who has no relation whatever to the owner, but extends to and includes one who may have a general relation or a special relation to the owner, such as servant or bailee, for it is intended by the statute to prevent a servant or a bailee improperly taking and operating a motor vehicle quite as well as it is intended to protect the owner and the public from the taking of the same by a stranger. In other words, a chauffeur employed to operate a machine, or a garage manager or a garage employee engaged to care for or repair a machine, who exceeds the contract of his employment by taking and operating his employer’s machine without his employer’s consent, is just as amenable to the provisions and punishments of this law as one, who without any relation to the owner, takes and operates a machine without the owner’s consent.

In the case under consideration the first question is not simply whether Hickman was the servant or chauffeur of the owner, for the determination of that question alone would not determine the issue of his guilt or innocence under this statute, but whether as the servant or chauffeur of the owner or in any other capacity, he took and operated the machine without the owner’s consent. If he was the servant or the chauffeur of the owner and did not have the' consent of the owner to take and operate the machine for his own private purpose and pleasure, then he violated the provision of this act. If on the contrary he has satisfied you from the evidence, that in taking and operating the machine, which facts are not denied, he did not take and operate the machine for his own pleasure and purpose, but did so under the particular direction and for the special purpose indicated by the owner, then he is not guilty.

With respect to Hickman, therefore, the question for your determination is whether he took and operated the machine without the owner’s consent.

[3] The second question is whether Cusack took and operated the machine without the consent of the owner. Cusack denies either taking or operating the machine. You are to decide whether Cusack took the machine at all, and if you find, as it is not denied that Cusack went with Hickman, that he went with Hickman knowing or believing that the machine was taken by Hickman without the consent of the owner, or under circumstances sufficient to make him believe that Hickman was taking the machine without the consent of the owner, then Cusack is an accomplice and is equally guilty with Hickman, should Hickman be found guilty. But if you have reason to believe the machine was taken by Hickman with the owner’s consent and not in a manner violative of the law, or under circumstances that would justify Cusack in believing that Hickman’s possession of the machine was a lawful possession, then Cusack is not guilty.

[4] Giving to the defendants the benefit of all reasonable doubts in the case, you are instructed that you may render one <of several verdicts, namely, that the two defendants are not guilty, that one or the other of the defendants is guilty, or that ■footh of the defendants are guilty.

Verdict, not guilty.