The judgment should be reversed and a new trial granted,
All questions- of fact have been settled by the verdict of the jury in favor of the People and against the defendant. The only question here-is one of law, whether the statute under which the indictment was found and defendant was tried, covers this case. The defendant was a joint owner of a lot and monument standing thereon in Brookside Cemetery, in the city of Watertown, H. Y. Other members' of the family were joint owners'with him of the lot and monument. He was not the sole owner. The statute pro-, vides that “ Any person who *' * * not being the owner thereof, and without lawful authority, wilfully injures,- disfigures, removes or destroys a * * * monument * * * in a *427cemetery * * * is guilty of a misdemeanor.” (Penal Law, § 1427,' subd. 2.)
The defendant was tried and convicted upon the theory and instruction to the jury that the words “ not being the owner thereof ” mean not being the sole owner “ thereof.” I think this is not a proper construction of the statute. The question is not whether the defendant had a legal right to remove the Cad well inscription from the monument but whether such act was a crime under this statute. It may well be that under the circumstances developed in the evi- ' dence the Cadwell inscription was properly placed upon the monument and the defendant had no legal right to remove it therefrom. For such illegal removal the law would furnish a remedy. ' That is not the question here involved. When various members of a family are jointly interested in a monument differences are liable to arise as to the rights of parties, that is, where their respective inscriptions shall be placed and whether the names of their relatives shall be put upon the monument, etc. When these differences arise, the courts will settle them, but if some one of the parties assumes to settle differences himself without the aid of the court, a.nd is mistaken as to his legal rights, can it be said he is liable under this statute for punishment as for a crime? Was it the intention by this statute to make the acts of a joint owner criminal or merely to protect the owners, one or many, against the acts of outsiders, persons having no interest in the monument whatever ? I do not think this statute was designed to cover a case like this where there are differences between persons jointly interested in a monument as members of a family. It does not at all follow that taking this view of the statute is equivalent to holding that any one of the interested persons may legally remove an inscription from a monument so jointly owned. The act may be illegal and the Legislature still not have chosen to make it" a crime.
Criminal statutes should be strictly construed in favor of a defendant. If the 'Legislature intended this statute to cover all owners except sole owners, it would have been very easy to put the word <c sole ” in the statute. Having left it out, the construction should not be such as practically to write it into the statute.
I am aware of no decisions bearing upon this question. It is not a matter of sentiment. It is not a question whether a person may *428lawfully deface a monument, but whether the act, if illegal, is a trespass or a crime under this statute. There are many illegal acts which the Legislature has not chosen to' make crimes. If they are not made crimes, they' are not, therefore, any less illegal, and there is no right to commit such illegal acts.
It will not do to say that if we hold this statute does not cover ■ joint owners we thereby hold a joint owner may lawfully injure or disfigure monuments.
If the statute does not cover joint owners, and it is desirable that' it should do so, the Legislature should amend it. The court should not attempt to make such amendment by a forced judicial construction.
To recapitulate: A person who is the sole owner of" a monument may do what he pleases to it. He may deface it* remove inscriptions from it, and mutilate it any way he" sees fit, and he not only commits no crime, but no illegal act, however much he may shock the community at large. He may do as he pleases with his own.
A person having no interest at all in a monument and who defaces, disfigures or mutilates it is not only- g'uilty of an illegal act, but commits a crime under this statute.
A joint owner interested with others in a monument, who removes an inscription therefrom under claim of, right to -do so, but who has no such right in fact, is guilty of an illegal act, but is not guilty of a crime under the statute.
. All concurred, Kruse, J., with a separate memorandum, except McLennan, P. J., and Spring, J., who dissented in an opinion by McLennan, P. J.