Arizona republican., 1921-03-13
JUDGMENT REVERSED.
 NEW TRIAL GIVEN, IN CASE OF HARRY HURLEY

The judgment of the superior court division No. 1, Maricopa county, in the case of Harry Hurley, convicted of the l<rceny of about 1200 sacks of cement the property of the state, was reversed yesterday in an opinion by the supreme court and a new trial was granted. The case was reversed on an instruction of the lower court in rela- ton to the transaction between the de- fendant and w. E. Springer, the custo- dian of the supplies of the state then being used in road construction.
 The defendant claimed that he had borrowed the cement from Springer, to be used in building a silo and other construction on his ranch, and, pending the time he would use it. he removed it from a car at Tempe and had 1t stored in a warehouse he had rented there. He said that he had agreed to return it when the state should be ready to use it in the construction of the Mesa Tempe highway, and did so return 1t.
 The instruction which the court found to be faulty was:
 Tn this behalf I instruct you that if the employe, w. E. Springer, gave the defendant permission to take the cement in question, and if the defend ant at the time of the taking honestly believed that such employe had au- thority to give such permission, and the defendant took the cement in ques- ton, pursuant to such permission, then there would be no felonious taking by defendant and the crime of larceny would not be made out In other words, if W. F. Springer gave the defendant, Harry Hurley, permission to take the cement described in the information, and if ". F. Springer claimed or pro- fessed to have authority to give such permission, and the defendant Harry IT ItIr1n ir1r fni 101ir hof W. F. Springer had authority to au- thorize him to take said cement, then the act of taking would not amount to larceny On the other hand how ever, if the defendant, Harry Hurley, at the time of taking the cement in question had reason to know and did know that the state employees. if any, assuming to authorize the taking had no authority (the words in quotation being supplied by the court), then the defendant could not successfully de- fend on the ground that he actually had the consent of such employees"
 This instruction the court held would be very appropriate if the defendant were being sued for conversion but it it too narrowly limits the defendant right of defense in a prosecution for larceny. While the court knew of no law authorizing any officer or employe of the state to lend the states prop erty, such a transaction does not nec- essarily impute moral turpitude.
 Further. the opinion says: "If the instructions are contradictory on the main point in question, how is the jury to know which to follow or which Is correct statement of the law? It will not do to tell the jury in one breath that if they find that Springer had no authority to loan the cement and defendant knew 1t. he may be found guilty, and in the next breath tell them that if the defendant got the cement from Springer with an ar rangement or understanding that he would return it. he-w guilty of no offense. That is in effect what the court did in this case, and in doing so, we think, left the jury at sea as to what the law in the case was and com mitted serious error against the rights of the defendant"