Hirschberg, J.:
The details of the defendant’s swindling scheme are fully set forth in the dissenting opinion of the presiding justice. By falsely pretending to form a syndicate connected with membership in the New York Stock Exchange and by further falsely pretending that thereby he was enabled through inside tips to reap great financial benefit in stock transactions, he induced many of' the ignorant and unthinking to furnish him with money under the guise of purchasing shares in the alleged syndicate and on his promise to pay them ten per cent weekly on the investments and to refund the money on one week’s notice. The whole scheme was fraudulent and felonious. He was not in any way connected with the Stock Exchange ; he did not gamble in securities or otherwise, so far as the evidence shows ; there were no syndicate shares to sell and the principal sums received were used by him to pay the weekly interest and to make good such items of principal as were demanded. The evidence warrants the inference that the intent from the inception of ithe scheme was to cheat and defraud the owners'out of the money deposited, less such ■ repayments as might be necessary during the period preceding detection and flight, so that on the whole case no doubt need be entertained that in receiving the complainant’s money the defendant may have been guilty of the crime of grand larceny with which he is charged, in some one of the forms of that offense as defined in the Penal Code.
The indictment, however, contains two counts, one charging a common-law larceny of the complainant’s money, viz., that on a certain day the defendant did feloniously steal, take and carry .away $1,000 of money belonging to .Catherine Moeser; and the other charging grand larceny as a felonious breach of trust,, to wit, that [453]*453having in his possession on that day such money, as her agent bailee or trustee, he feloniously appropriated it to his own use. There was no charge made to the effect that he was guilty of larceny because he had obtained possession of the money by color or aid of fraudulent or false representation or pretense with the intent to deprive or defraud the owner of her property. The learned district attorney elected upon the trial to proceed upon the common-law count alone, and the point urged by the defendant upon this appeal is not so much that his crime does not constitute larceny in some of the forms as defined in section 528 of' the Penal Code, but that, if so, it only constitutes larceny as then for the first time made such by statute, but formerly known as the crime of false pretense, and that he could, therefore, only lawfully be convicted under an. indictment specifically charging him with the crime as created by the statute. In other words, the point is made that a defendant cannot be convicted of a statutory crime under a common-law indictment. The argument underlying the question presented is undoubtedly sound, the Code of Criminal Procedure expressly requiring a statement of the act constituting the crime to be set forth in the indictment (§ 275, subd. 2), and the conviction of the defendant must, therefore, be reversed unless his crime was larceny at common law. (People v. Dumar, 106 N. Y. 502.)
Section 528 of the Penal Code is so framed as to embrace under the general crime of larceny not only that offense as defined at common law but also embezzlement, obtaining property by false pretenses and felonious breach of trust. But while each and every of these offenses is now' larceny, it does not follow that proof of one will justify a conviction for the. other. If the charge is common-law larceny the proof must support it, and evidence of embezzlement or false pretense will not justify conviction. Such a conviction would be subject to the criticism which was expressed in the case of People v. Dumar (supra, 508), that “ as to the act charged there was no proof; as to the act proved, no allegations.”
Larceny at common law was accomplished by either trespass or trick. That the property or money was voluntarily delivered or paid over to the thief was no defense provided the delivery or payment, if not effected by trespass, was the result of a device practiced with the intent to steal, and the complainant did not part or intend [454]*454to part with the title to the property.- The Tatter element was essential, for if by any swindling trick, or dé.vicé the victim could be induced to part with the title voluntarily, absolutely and not conditionally, the crime was other than larceny. Wliarton* in his work on Criminal Law (9th ed. § .964), states the rule as follows.: “ At common law the principle is, that where the owner retains the property of the goods in himself, and only parts with the possession, he may maintain larceny against the person who ani/mo fwrdndi obtains from him such jxpssession and then converts the goods. * * * T.he same rule applies.to all cases of ba/repossession obtained by trick or fraud. * * * Sec. 965. If, however, the property in the goods is passed, not conditionally but absolutely, then at common law * * * a prosecution for larceny must fail.” Bishop, in his work on Criminal Law (Vol. 1 [7th ed.], § 583), states : “ If one, méáning to .steal another’s goods, fraudulently prevails, on the latter to deliver them to him .under the understanding that the property in them is to pass, he commits neither larceny nor. any other crime by-the taking, unless the transaction amounts to. an indictable cheat. But if, with the like intent, he fraudulently gets leave to take the possession only, and tabes and converts the whole to himself, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained, covers no more than the possession.”
The distinction is elementary and has been repeatedly pointed out by the courts in this State., In Smith v. People (53 N. Y. 111) it is stated in the head note as follows: “ If by a .trick or artifice the owner of property ;is induced to part with the custody or naked possession for a-special purpose to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking is larceny ;• but if the owner part not only with the possession, but the "right of property also, the offense "of the party obtaining them "willfriót'be larceny, but that of obtaining goods under false pretenses.” In'. Loomis v. People (67 N. Y. 322) the court said (p. 329)': “There is, to be sure, a narrow margin between a case of larceny and one where the property has been obtained: by false pretenses. The" distinction is a very nice one, but still very important. The character of the crime depends upon the intention of the parties, and that intention determines the nature of the [455]*455offense. In the former case, where by fraud, conspiracy or artifice the possession is obtained with a felonious design, and the title still remains in the owner, larceny is established. While in the latter, where title as well as possession is absolutely parted with, the crime is false pretenses. It will be observed that the intention 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.”
To the like effect are Hildebrand v. People (56 N. Y. 394); Zink v. People (77 id. 114); Justices, etc., v. People ex rel. Henderson (90 id. 12); Thorne v. Turck (94 id. 90); People v. Morse
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Hirschberg, J.:
The details of the defendant’s swindling scheme are fully set forth in the dissenting opinion of the presiding justice. By falsely pretending to form a syndicate connected with membership in the New York Stock Exchange and by further falsely pretending that thereby he was enabled through inside tips to reap great financial benefit in stock transactions, he induced many of' the ignorant and unthinking to furnish him with money under the guise of purchasing shares in the alleged syndicate and on his promise to pay them ten per cent weekly on the investments and to refund the money on one week’s notice. The whole scheme was fraudulent and felonious. He was not in any way connected with the Stock Exchange ; he did not gamble in securities or otherwise, so far as the evidence shows ; there were no syndicate shares to sell and the principal sums received were used by him to pay the weekly interest and to make good such items of principal as were demanded. The evidence warrants the inference that the intent from the inception of ithe scheme was to cheat and defraud the owners'out of the money deposited, less such ■ repayments as might be necessary during the period preceding detection and flight, so that on the whole case no doubt need be entertained that in receiving the complainant’s money the defendant may have been guilty of the crime of grand larceny with which he is charged, in some one of the forms of that offense as defined in the Penal Code.
The indictment, however, contains two counts, one charging a common-law larceny of the complainant’s money, viz., that on a certain day the defendant did feloniously steal, take and carry .away $1,000 of money belonging to .Catherine Moeser; and the other charging grand larceny as a felonious breach of trust,, to wit, that [453]*453having in his possession on that day such money, as her agent bailee or trustee, he feloniously appropriated it to his own use. There was no charge made to the effect that he was guilty of larceny because he had obtained possession of the money by color or aid of fraudulent or false representation or pretense with the intent to deprive or defraud the owner of her property. The learned district attorney elected upon the trial to proceed upon the common-law count alone, and the point urged by the defendant upon this appeal is not so much that his crime does not constitute larceny in some of the forms as defined in section 528 of' the Penal Code, but that, if so, it only constitutes larceny as then for the first time made such by statute, but formerly known as the crime of false pretense, and that he could, therefore, only lawfully be convicted under an. indictment specifically charging him with the crime as created by the statute. In other words, the point is made that a defendant cannot be convicted of a statutory crime under a common-law indictment. The argument underlying the question presented is undoubtedly sound, the Code of Criminal Procedure expressly requiring a statement of the act constituting the crime to be set forth in the indictment (§ 275, subd. 2), and the conviction of the defendant must, therefore, be reversed unless his crime was larceny at common law. (People v. Dumar, 106 N. Y. 502.)
Section 528 of the Penal Code is so framed as to embrace under the general crime of larceny not only that offense as defined at common law but also embezzlement, obtaining property by false pretenses and felonious breach of trust. But while each and every of these offenses is now' larceny, it does not follow that proof of one will justify a conviction for the. other. If the charge is common-law larceny the proof must support it, and evidence of embezzlement or false pretense will not justify conviction. Such a conviction would be subject to the criticism which was expressed in the case of People v. Dumar (supra, 508), that “ as to the act charged there was no proof; as to the act proved, no allegations.”
Larceny at common law was accomplished by either trespass or trick. That the property or money was voluntarily delivered or paid over to the thief was no defense provided the delivery or payment, if not effected by trespass, was the result of a device practiced with the intent to steal, and the complainant did not part or intend [454]*454to part with the title to the property.- The Tatter element was essential, for if by any swindling trick, or dé.vicé the victim could be induced to part with the title voluntarily, absolutely and not conditionally, the crime was other than larceny. Wliarton* in his work on Criminal Law (9th ed. § .964), states the rule as follows.: “ At common law the principle is, that where the owner retains the property of the goods in himself, and only parts with the possession, he may maintain larceny against the person who ani/mo fwrdndi obtains from him such jxpssession and then converts the goods. * * * T.he same rule applies.to all cases of ba/repossession obtained by trick or fraud. * * * Sec. 965. If, however, the property in the goods is passed, not conditionally but absolutely, then at common law * * * a prosecution for larceny must fail.” Bishop, in his work on Criminal Law (Vol. 1 [7th ed.], § 583), states : “ If one, méáning to .steal another’s goods, fraudulently prevails, on the latter to deliver them to him .under the understanding that the property in them is to pass, he commits neither larceny nor. any other crime by-the taking, unless the transaction amounts to. an indictable cheat. But if, with the like intent, he fraudulently gets leave to take the possession only, and tabes and converts the whole to himself, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained, covers no more than the possession.”
The distinction is elementary and has been repeatedly pointed out by the courts in this State., In Smith v. People (53 N. Y. 111) it is stated in the head note as follows: “ If by a .trick or artifice the owner of property ;is induced to part with the custody or naked possession for a-special purpose to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking is larceny ;• but if the owner part not only with the possession, but the "right of property also, the offense "of the party obtaining them "willfriót'be larceny, but that of obtaining goods under false pretenses.” In'. Loomis v. People (67 N. Y. 322) the court said (p. 329)': “There is, to be sure, a narrow margin between a case of larceny and one where the property has been obtained: by false pretenses. The" distinction is a very nice one, but still very important. The character of the crime depends upon the intention of the parties, and that intention determines the nature of the [455]*455offense. In the former case, where by fraud, conspiracy or artifice the possession is obtained with a felonious design, and the title still remains in the owner, larceny is established. While in the latter, where title as well as possession is absolutely parted with, the crime is false pretenses. It will be observed that the intention 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.”
To the like effect are Hildebrand v. People (56 N. Y. 394); Zink v. People (77 id. 114); Justices, etc., v. People ex rel. Henderson (90 id. 12); Thorne v. Turck (94 id. 90); People v. Morse (99 id. 662); People v. Cruger (102 id. 510); People v. Laurence (137 id. 517); People v. Dean (35 N. Y. St. Repr. 931); Weyman v. People (4 Hun, 511; affd., 62 N. Y. 623); Kelly v. People (6 Hun, 509); People v. Gottschalk (66 id. 64); People v. Evans (69 id. 222); People v. Hughes (91 id. 354); People v. Sumner (33 App. Div. 338).
It is not always easy to apply the principle to the facts and to determine with precision when a complainant has or has not intended?, to part with the title to money or property. A good title, of course^ can never be acquired by crime, but the intention to confer title will characterize the grade and quality of the crime by which the intention was created. In Smith v. People (supra), which is probably the closest case in this State, the prosecutor was induced to deliver ninety dollars to one of the prisoners to be used in a throw of dice with the latter’s confederate on the assurance that if the prisoner lost he would get a ffve-hundred-dollar check cashed at the bank and thus repay the ninety dollars. The court concluded that, although the case was on the border line, it presented a fair question for the jury to decide as to the intention of the prosecutor to part with the ownership of the money. But even in that case it is apparent that the transfer of the money to the thief was notj absolute, but was wholly conditional upon his losing at the throw of the dice. " If he won, the identical money was to be returned to' the owner.
In many of the cases the delivery of the money or property was for a special'purpose. In Hildebrand v. People (supra) and Justices, etc., v. People ex rel. Henderson (supra) the money was given [456]*456to be changed only, the change to be,.returned at once to the owner. In People v. Morse (supra) it was deposited only as security, the identical money to be returned, as was also the case in People v. Gottschalk (supra) and in People v. Evans (supra). In People v. Laurence (supra) the cars were delivered to the defendant for the special purpose of having an electrical equipment attached, and there: was no pretense of the transfer of the title. In People v. Hughes (supra) the money was delivered for the sole purpose of the purchase of merchandise by the defendant on the joint account, with no intention on the part of the complainant of contributing the money as part of the copartnership capital until the defendant had paid in his promised contribution. And in People v. Sumner (supra) it was uncontradicted .that the money was delivered by the complainant to the defendant with strict instructions to hold it, and not to pay it over to any one until-authorized to do so by the ownér.. In all these cases, therefore, it is quite apparent that the owner of the money or other property involved was not induced by stratagem or otherwise to part, or to intend to part, with anything but the temporary custody of the money or chattels, and that as a consequence the conversion by the. defendant amounted in each instance to the crime of larceny at common law.
On the other hand, in Zink v. People (supra) the victim was induced by the false representations of the defendant to invest -the. latter with the indicia of ownership of property, and although the representations were made in. pursuance of. a previous design on the part of the defendant to obtain the goods for his own use and to cheat the owner out of them, the offense was- held to be the obtaining of property under false pretenses, and not larceny. The case of People v. Dumar (supra) is similar in fact and principle. In Thorne v. Turck (supra) it was held that where one called at the residence Of another and there told a wholly false story for the felonious purpose of obtaining money under the pretense that it was necessary to pay his expenses, the money having been voluntarily paid to 'him to use for his own purposes, there was no larceny. The court said (p. 95): “The money here was voluntarily parted with by the owner for the purpose of being expended, in the payment of the expenses of the person who obtained it. It [457]*457was not to be kept for the benefit of the owner or to be returned to' him, and no right was retained to the same. The most that can be said as to the owner’s right to the money is that there was a promise to pay back to him the same amount.” In Kelly v. People (supra) the defendant deposited with the complainant as security for the loan of fifty dollars certain spurious pieces in the form and similitude of .gold coin, and which he represented to be gold coin, and thereafter absconded with the fifty dollars so obtained, and his conviction for larceny was reversed upon the ground that the transaction amounted only to false pretenses.
Applying these cases to the facts now before us it is difficult to see how any question can be seriously entertained as to the character of the defendant’s crime. Undoubtedly influenced by his false and fraudulent representations, frequently made by means of public cir- ■ culars and advertisements, although not made _to_her in person, \ Mrs. Moeser was induced to voluntarily give to him the sum of $1,000 intending to invest him with the right of using it in specula-1 tion at_his own risk, although indirectly for her benefit. She paid J the money to him in currency, and took back his receipt, stating that he had received it, “ for an interest in the Franklin Syndicate; principal guaranteed against loss by surplus, and can be withdrawn at any time, upon one week’s notice and the return of this receipt; 10 per cent interest paid weekly on this deposit until principal is withdrawn.” In her testimony, Mrs. Moeser clearly state show she came to make the deposit and what her expectation was in reference tó it. She said: “ After reaching the place where Miller was sitting I gave him my thousand dollars. This thousand dollars was in United States currency ; it was in bills. I do not wish to mention where I got the thousand dollars from. I asked him if he would insure the money against loss, and he said the coupon was insurance enough.. By the coupon he referred to the, paper which he gave me. * * * Uo person acting for the defendant asked me to put in the thousand dollars. I conceived the idea myself that it would be a good thing to put in a thousand dollars, and receive a hundred dollars a week interest. * * * There was no representation made to me from the Syndicate, but I read something in the papers somewhere, I do not know where, that Vanderbilt, Gould and all them made money in Wall Street. I knew this was true, and I f [458]*458thought this money was to Toe used for the same purpose, and I 1 would get the benefit of it.” It is impossible to misunderstand this language, and no room is left for doubt as to her intentions at the time. She intended to give the defendant her inoney-to gamble with in his own name if he saw fit, only stipulating that she should ■ receive the interest for the use of the money and be repaid upon demand. The money was not delivered for any special purpose, or to be used or invested in any way for her. It was to be his money; that is to say, if he lost it in Wall street or elsewhere, it was to be his loss, not hers. She did not expect that it would lie idle and intact until she should choose to reclaim it, or that in that event the identical bills would be returned to her. In other words she did not intend to invest the defendant with the mere naked "custody and ¡Dossession of the money for safekeeping, nor did she give it to him with either instructions or expectation that he would ■ do any specific thing with it for her, but she gave it to him so ■that he might gamble with it in Wall street, if he saw fit, but whether he did or not and whether he won or not she expected interest for the use of the money, and on demand a return not of the same, money but of a like amount. Her consent to the use by the defendant of her money was not limited to its custody and possession, but included the right to hazard it at will. She, ■ therefore, intended to part with title to and dominion over the money. Whether the title actually passed while the defendant still retained possession of the bills is not the question* It is sufficient that she intended at the time to give him title. Tlie defendant’s crime in fraudulently inducing her to do so, by the public practice of a felonious scheme, may be larceny under the terms of the Penal Code, but as such schemes were effective in inducing, her to voluntarily part with the property right in the money aiid not the mere temporary possession, itzwas not the stealing, taking and carrying away of common-law larceny as charged in the indictment. The language of the court in Kelly v. People (supra 511) is quite applicable: “ When the bills were delivered it was the owner’s intention that they should become the property of the prisoner, who ■ received them. Those bills were not to be returned, but others afterward were, for the purpose of discharging the debt created by the. loan. The title passed from the owner of the bills with his con[459]*459sent; procured, it is true, by fraudulent representations. That did not constitute the crime of larceny, but that of obtaining money by false pretenses. The distinction between the offenses, although a narrow, is still a material one. When the possession of property is procured by artifice or trick, with a felonious design, while .the title of the owner remains unchanged, a case of larceny will be made out. But if the owner is deceived into the surrender of the title, as well as the possession of his property by means of fraudulent representations, then the offense will not be one of larceny, but of false pretenses.”
Nor is it necessary that any words should be spoken to the complainant to create a false pretense. (People ex rel. Phelps v. Oyer & Term., County of New York, 83 N. Y. 436.) It need not be made personally to the defrauded party. (Commonwealth v. Call, 21 Pick. 515; People v. Wakely, 62 Mich. 297.) And it may be ma de by advertisement. (Jackson v. People, 126 Ill. 139; State v. Sarony, 95 Mo. 349.)
That the present indictment is insufficient as the basis of a conviction on the facts as we find them was expressly held in People v. Dumar (supra). The court decided in that case that a conviction could not be sustained where the pleading was in the common-law form, but the proof established guilt in some one of the other forms now embraced together as larceny in the Penal Code. There the indictment was for larceny as at common law, while the proof established larceny by false pretense. Here, as there (p. 511), “ the difficulty is that the act stated was not proven, and that the act proven was not stated.”
If the views herein expressed are sound there was no legal justification for the submission to the jury of the question whether Mrs. Moeser intended to part with her money when she gave it to the defendant. If they are unsound, and the question of her intention may be assumed to be open and debatable, there must still be a reversal, because of the conflicting charges upon the subject mainly discussed. Before the jury retired the learned county judge was reqiiested by the defendant to charge them that “ If the' defendant obtained the use of the money of the complaining witness by means of false and fraudulent representations, then they must acquit the defendant; ” to- which the court replied: “ That is so. He is not [460]*460on trial for obtaining money by false representations;; he is on trial for common-law larceny.” After the jury had deliberated for some time they returned for further instructions with the following message, viz.: “ Did you charge as follows: If the defendant obtained the one thousand dollars from Mrs. Moeser under false pretenses, he is guilty of larceny as changed in the indictment.” To this the court responded: “ I do not now know whether I used that exact language or not, but I did intend to say to you that, if- by means of false pretenses which were used as a part of the device or scheme, trick or artifice, for the purpose of obtaining this money from Mrs. Moeser, while the defendant intended to appropriate the property to his own irse, he appropriated it and did not use it for the purpose for which it was given to him, then he is guilty of grand larceny under this indictment.” And after quoting from the prevailing opinion in People v. Summer (supra), the court added: Wherefore, it is the law, that if this defendant, intending to appropriate the thousand dollars of Mrs. Moeser, by a false representation, pretense, artifice, trick or device, got posséssion of it for a special purpose and applied it to his own use, or at any .time thereafter, conceived the intent of applying it to his own use and did so, he is guilty of larceny under this indictment.” Thereafter the defendant’s counsel said: “ I respectfully request your honor to say to the jury, in view of the requests of the jury, that if the defendant obtained this money by false representations he cannot be convicted undér this indictment,” but the court refused this time so to charge, and the defendant’s counsel duly excepted.
It is impossible to say that the defendant was not prejudiced by this refusal, or indeed to say upon what theory the verdict was-finally reached. ' The refusal to charge that the defendant could not be convicted under this indictment of the larceny involved in obtaining money by false representations might be justified under ordinary circumstances, on the ground that it had already been once distinctly charged. But where the jury manifestly misunderstood the charge, apparently taking it. just the other way from that intended by the court, the defendant was certainly entitled to have it plainly repeated, notwithstanding the efforts of the court to explain to the jury the distinction between false representations as. the basis of a criminal accusation, and such representations as a mere incident to some other [461]*461and independent felonious scheme or device. In view of the jury’s message and the explanation with which it was met, including the suggestion by the court that their obvious misconstruction was not in the exact language of the contrary instruction previously given, the final refusal must be regarded as equivalent in effect to a charge that the defendant could be convicted for obtaining complainant’s money by fraudulent representations under an indictment which charged only common-law larceny.
It may be conceded that courts should not indulge in nicé or metaphysical distinctions for the benefit of wrongdoers, The chief objection presented in this case, however, relates to a matter of substance absolutely necessary to the preservation of .'the rights of the innocent who may be unjustly accused. Such rights would be maintained with difficulty, if at all, were indictments to be deemed adequate, although wholly failing to state the act constituting the crime. And, on the other hand, it should' be constantly borne in mind that in a civilized country even the meanest criminal is entitled to be accompanied to his cell by all the essential forms of law.
The judgment of conviction should be reversed and a new trial ordered.
Woodward, Jenks and Sewell, JJ., concurred; Goodrich, P. J., read for affirmance.