
    JONES v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10834.
    Decided June 23, 1930
    A. G. Levine, Cleveland, for Jones.
    Ray T. Miller, Cleveland, for State.
   LEVINE, J.

The evidence seems to us conclusive that while it is true that Russell took the automobile without the owner’s consent, he did not intend to appropriate the same to his own use and thus deprive the owner permanently of its use.

Russell Jones is eighteen years of age and the record discloses that this act of his occurred on the occasion of a New Year’s eve celebration at ,a place where he and others were drinking intoxicating liquor; that he wandered off by himself, took this machine which was stationed on the street, and after driving it for some distance returned it to the original place.

The evidence is overwhelming that he did not intend to deprive the owner permanently of his property.

Had the jury returned a verdict under the second count, namely that of driving the .automobile without the owner’s consent, this court could not interfere with such finding. It is clear, however, that the verdict finding him guilty of larceny is manifestly and overwhelmingly against the weight of the evidence.

Holding as we do the judgment of the Common Pleas Court is ordered reversed and the case is remanded for further proceedings according to law.

Vickery, PJ, and Sullivan, J, concur.  