Opinion
May 22, 1935.
Appeal from Supreme Court of Wayne County.
Charles T. Ennis, for the appellant.
James D. Harris, for the respondent.
Present — SEARS, P.J., TAYLOR, EDGCOMB, THOMPSON and LEWIS, JJ.
The trial court declined to charge the jury that the detention of the plaintiff from Sunday morning until Monday morning was not unlawful if they found that the plaintiff was temporarily or partially deprived of her reason by drunkenness and that such detention was necessary to prevent her from committing injury to herself or another. The overwhelming evidence shows that plaintiff was drunk when arrested early Sunday morning. The evidence also shows that she was still drunk while she was confined in the Lyons jail on Sunday. We think that in view of the provisions of subdivision 6 of section 246 of the Penal Law the request to charge was proper and that the jury should have been so instructed. The error in our opinion was prejudicial and requires a reversal of the judgment.
All concur, except SEARS, P.J., and TAYLOR, J., who dissent and vote for affirmance.
Judgment reversed on the law and facts and new trial granted, with costs to the appellant to abide the event.