I dissent. In Smith v. The People, 53 N. Y. 111 , the New York court of appeals says: “ If by trick or artifice the owner of property is induced to part with the custody or naked possession to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but the right of property also, the offense of the party obtaining them will not be larceny, but that of obtaining goods by false pretenses.” In an earlier case the saipe court said: “ The only question remaining in any case is whether the taking was with the consent of the owner; for if so, although the consent was obtained by gross fraud, there is no larceny.” (Bassett v. Spofford, 45 N. Y. 387 .)

And Bishop says: “ Where the consent is as broad as the taking, going to the relinquishment of the ownership in the property, it is effectual, though obtained by fraud; in other words, by reason of the consent, even when procured by fraud, there is still no trespass, therefore no larceny.” (2 Crim. Law, 811.)

*428 It is claimed in this case that the prosecuting witness did not consent to part with his- right of property in the money which he parted with the possession of. The bill of exceptions shows that when testifying he was asked, “ You thought that Morgan (defendant) wanted to pay Turner what he owed him.?” Answer. “ Yes.”

Question. “You loaned him this $160, for the purpose-'of Morgan (defendant) paying Turner ?”

Answer. “ Yes, that was the idea.”

In the absence of fraud, I think his intention to part with the property in the money would be too clear to admit of doubt. He in effect says, that he lent the money to the defendant, understanding at the time that defendant was to pay it to a third person to whom he, defendant, was indebted. To say that the owner of the money intended to part with his property in the money if the representations made to him were true, but to retain his property in it if they were not, is in effect saying that if his consent to part with it was obtained by fraud he never consented, which is inconsistent with the doctrine that if the consent be obtained by gross fraud there is no larceny. And Bishop says this doctrine is too firmly established by the authorities to be overthrown by judicial power. (2 Grim. Law, 808.) But the court below in effect instructed the jury that if the consent of the owner to part with his property was obtained by fraud, the fact of such consent being given was quite immaterial. That consent, so obtained, was not consent.

After giving the jury the code definition of larceny, the court proceeded: “ When a person obtains property, whether it is money or other property, by artifice, stratagem, deceit and fraud, it would be stealing within the meaning of this statute. If it is done with intent at the time to obtain it, and to appropriate it to his own use, and to defraud the party of it, it is stealing when artifice and fraud are resorted to for the sole purpose of getting possession of the property. * * * Such artifice, stratagem, deceit and fraud, that so obstruct the reason of men that they cannot be said to consent, amounts to stealing, because the title of property does not pass from one man to another except by his consent; and as is said by Justice Baldwin of our former Supreme Court, in the case of Butler v. Collins, 12 Cal. 457 , *429 c consent requires something more than a mere formal act of the mind ’; and I will read to you what he says, and will charge you that that is the law of this State: 6 But consent in law is more than a mere formal act of the mind. It is the act unclouded by fraud, duress, deceit,’ and stratagem.”

But in Butler v. Collins , the court also said that the obtaining of goods by such means would be obtaining them by false pretenses, which is a different and distinct offense from larceny. And it is only by wholly ignoring the distinction that this charge can be sustained.

The charge confounds the case of obtaining the mere naked possession of property, with that of obtaining the property itself.

The court was requested by the defendant to give the following instruction:

The court gave only so much of it as precedes the words, “ even though you should find that the defendant fraudulently obtained the money by false pretenses.” The instruction as given", when read in connection with the charge tif the court, could not be construed to mean anything other than that, if the transaction was not infected by fraud, the defendant was not guilty of larceny.

In the charge given by the court, as well as in its refusal to give the instruction which it was requested by the defendant to give, the court evidently supposed that if the consent of the prosecuting witness to part with his property was obtained by *430 fraud so gross that no title passed, the transaction constituted larceny, whatever might have been the intention of the owner as to the transfer of the title when he parted with the possession of his money.

That theory is not countenanced by the authorities.

In support of it two cases are cited, both of which, in my opinion, recognize-it as an established rule, that if the possession of property be obtained even by gross fraud, the subsequent conversion of it, by the person so obtaining the possession of it, will not constitute larceny, if at the time of the transfer of the possession the owner intended to transfer the title as well. In one of those cases the court says: “ If the possession of such property is obtained by fraud, and the owner of it intends to part with his title as well as his possession, the offense is that of obtaining money by false pretenses.” (Commonwealth v. Barry, 3- 24 Mass. 325 .) In that case the prosecuting witness testified that he let the defendant have a twenty-dollar bill with which to purchase a quart of brandy, the cost of which was three dollars, and that he, the prosecuting witness, expected to receive back from the defendant seventeen dollars in change. But she failed to return. It was held that' the jury was justified in finding that the owner of the money only intended to part with the mere possession of it, and on that ground the judgment was affirmed.

Whether the decision is consistent with the rule to which the court gave its approval is, in my opinion, not very material. But Bishop say's: “ According to the more common doctrine, and in ordinary circumstances, if one takes another’s money by the latter’s permission or request, to return its value in change (that is, to change it or to get it changed), but retains the money, and refuses to deliver the change, he does not commit larceny; because, when the owner of the money relinquished his possession, he did not contemplate receiving it back, but parted with his ownership therein.” (2 Crim. Law, 812.) In support of this he cites several English cases.

A case which is claimed to be more directly in point, is Loomis v. The People, 67 N. Y. 322 , iu which the court said: “ Where title as well as possession is absolutely parted with, the crime is false pretenses. It will be observed that the inten *431 lion of the owner to part with his property is the gist and essence of the offense of larceny, and the vital point upon which the crime hinges and is to be determined.”

Is the charge of the court in this case in harmony with that rule ? I think not. On the contrary, I think the charge is clearly to the effect, that if the prosecuting witness was induced by fraud to part with his money, the act of procuring it by such means would constitute larceny, whether he, at the time, intended to part with his title to it, or not. Instead of treating the intention of the prosecuting witness as-the gist and essence of the offense, the court treated it as an immaterial circumstance.

In Loomis v. The .People, supra, the court said: “ The prosecutor was induced to place his money upon a game of hazard, upon the assurance of Lewis, one of the prisoners, that he was to win, and he would have his money back, or that in case of loss, other money would be procured upon a check which Lewis claimed to have in his possession, and paid in place of that losf.” The court further said there was no loss, and therefore, the contingency in which other money than that which he placed on the game was to be paid to him did not arise.

He himself placed the money on the game, and it was his until lost, and as it was never lost, the seizing and appropriating of it by the defendants was larceny ; as clearly so as if they had seized and appropriated it when he first laid it down. Even in that view, the court said the case was “ on the border line,” which separates the offense of obtaining money by false pretenses from that of larúeny.

It is quite clear that the intention with which the prosecuting witness parted with his money was wholly ignored in the case now before us.

If it be desirable to change the law, the power of the legislature is ample. It has been changed in Texas, and may be changed here. But, with Bishop, I think the courts have not the power to do it.

Therefore, I think the judgment and order should be reversed.

McKinstry, J., concurred.

Rehearing denied.