The defendant appeals from a judgment of conviction upon an indictment for larceny in the first degree, the second count of which charged that he and one Schlessinger, on November 16,1899, “ one thousand dollars in the money and lawful currency of the United States, of the value of One thousand dollars of the goods and chattels and property of one Catherine Moeser then and there being found feloniously did steal, take and carry away, to the great damage of the said Catherine Moeser against the form of the statute in such case made and provided.”
At the close of the evidence the defendant moved:
“ First, that the indictment be dismissed and the defendant discharged on the ground that the testimony on the part of the People fails to show that the crime of larceny has been committed as set forth in the indictment.
*462“ Second, that the indictment be dismissed and the defendant discharged on the ground that there" is a fatal variance between the proofs offered by the People and the allegations of the indictment upon which the defendant is being tried.”
The defendant moved “ that the Court may advise the Jury to acquit the defendant on the following grounds:
“ First, that the evidence is insufficient to warrant a conviction.
“Second, that there is no evidence for the. Jury, and that the evidence on the part of the People is not sufficient on which to base a conviction.
“ Third, that the People have failed to prove beyond a reasonable doubt that the defendant is guilty of the crime charged in the indictment.”
The court denied the motions, and after counsel had sumnied up and the court had charged the jury, a verdict of guilty was returned. Thereupon the defendant moved for a new trial on the following grounds:
“ First. Because the verdict is contrary to the law.
“ Second. Because the verdict is clearly against the evidence.
“ Third. Because the verdict is against the weight of evidence.
“Fourth. Because the Court erred in denying the defendant’s motions to dismiss the indictment and to discharge him from custody.
“Fifth. Because the Court erred in denying the defendant’s motions to advise the Jury to acquit.
“Sixth. Because the Court at the trial admitted illegal and improper evidence, against the defendant’s objection, and excluded legal evidence offered by him, and the defendant, at the trial, excepted to such admission and exclusion.
“ Seventh. Because the Court, at the trial, misdirected the Jury in matters of law, and refused to instruct them as requested by the defendant, and the defendant, at the trial, excepted to such misdirection and refusal.
“Eighth. Because it does not appear from the record of the verdict of what crime the defendant has been found guilty.
“ Those are the different grounds upon which the defendant asks for'a new trial. '
“By The Court.— Those motions are denied.
*463“ By Mr. House.— The defendant takes . an exception to the denial on the several grounds specified. The defendant now moves for an arrest of judgment on the following grounds :
“First. Because the facts stated in the indictment do not constitute a crime.
“ Second. Because the indictment charges more than one crime in a single count.
“ Third. Because it does not appear from the record of the verdict of what crime the defendant has been found guilty.
“ Fom'th. For errors apparent upon the face of the record.”
The motions were denied and the defendant excepted, whereupon the court sentenced the defendant to be confined in the State prison at Sing Sing, at hard labor, for the term of ten years.
The learned counsel for the defendant have furnished the court with elaborate briefs in which numerous authorities are cited to show that the defendant was not guilty of larceny at common law. I cannot discover the relévancy of these citations. The defendant was indicted under a statute, which, taking the place of the common law, specifically defines the crime of larceny, and the question involved was whether or not the defendant was guilty of the crime thus defined. As I read the statute it embraces in one paragraph the former crime of obtaining money by fraudulent or false representation, the crime of obtaining it by false or fraudulent pretense and larceny at common law and was intended to meet and obviate the nice distinction between these crimes, discussed in the previous authorities, a distinction by reason of which many convictions were reversed on the ground that the indictment charged the one crime, while the evidence showed the defendant to have been guilty of the other. It is to this class of authorities that many of the defendant’s citations relate. They are not relevant to the inquiry before us on this appeal.
The Penal Code (§ 528), so far as it relates to the offense charged, reads as follows:
“ Larceny defined.—A person who, with the intent to deprive or defraud the true owner of his property, * * * or to appropriate the same to the use of the taker, * * * either
“ 1. Takes from the possession of the true owner, * * * or obtains from such possession by color or aid of fraudulent or false *464representation or pretense * * * or appropriates to his own use * * * any money, * * * steals such property, and is guilty of larceny.”
The section is multifarious, embracing several distinct offenses. The crime of larceny as therein defined was committed by the defendant if either of the following conditions appear upon the evidence:
Fi/rst. If the defendant, with intent to deprive or defraud Mrs. Moeser of her money, or to appropriate the same to his own use, took the $1,000 from her possession.-
Second. If the defendant, with intent to deprive or defraud Mrs. Moeser of her money, or to appropriate the same to his own use, obtained, the money from her possession by color or aid of fraudulent or false representations or pretense.
Third. If the defendant, with intent to deprive or defraud Mrs. • Moeser of her money, or to appropriate the same to his own use, took the money from her possession and appropriated the same to his'own use.
• Fourth. If the defendant, with intent to deprive or defraud Mrs. Moeser of her money, appropriated the same to his own use.
In People v. Jeffery (38 N. Y. St. Repr. 313) it was held :■ “ In our Penal Code there is no such crime as obtaining property under false pretenses. The offense of obtaining property under false pretenses, ■ which was formerly a crime, standing by itself and well defined, is now included under the gener'al term of larceny. Under chap. 4 of this Code, larceny includes not only the offense as it was defined at common law and by the Revised Statutes (2 R. S¡ 679, 690), but also embezzlement, obtaining property by false pretenses, and felonious breach of trust. By § 528 of that Code any person who is guilty of the acts by which he appropriates property to the use of himself or any othér person, is guilty of larceny.”
In People v. Dumar (106 N. Y. 502) the court, Danforth, J., writing, said that under our former system a -substantial distinction was recognized between the crimes of lai’ceny and false pretenses.
“ But the Penal Code recognized that the moral guilt of the two offenses was the same and swept away the theory by which. the courts had felt constrained to distinguish them in principle. By it larceny is so treated (chap. 4) as to include not only that offense as *465defined at common law and by the Revised Statutes (2 R. S. 679, 690), but also embezzlement, obtaining property by false pretenses and felonious breach of trust. We find in section 528 of that act certain acts enumerated, either one of which performed by any person with intent to defraud the true owner of his property or of its use or benefit, or to appropriate the same to the use of the taker or of any other person makes him guilty of larceny, and he, in the language of the Code, ‘ steals ’ such property. The crime is committed when with that intent a person * "x" * second, obtains it from such possession (that of the true owner) by color or aid of fraudulent or false representations or pretense.”
In People v. Laurence (137 N. Y. 517, 522) the court said: “ Larceny is defined in section 528 of the Penal Code so as to include not only that offense as constituted at common law and under the Revised Statutes, but also embezzlement, obtaining property by false pretenses and the felonious breach of a trust. To constitute larceny it is not needful that the property stolen should have been taken from the possession of. the owner by a trespass. But, if a person obtains possession of property from the owner for a special purpose by some device, trick, artifice, fraud or false pretense, intending at the time to appropriate it to his own use, and he subsequently does appropriate it to his own use and not to the special purpose for which he received it, he is guilty of larceny ; and so it has repeatedly been held. (Smith v. People, 53 N. Y. 111; Loomis v. People, 67 id. 322; People v. Morse, 99 id. 662.) In such a case it is essential for the People to show not only that the person obtained possession of the property in that way, but that he did it a/nimo furandh with the intention at the time of subsequently appropriating it to his own use.”
This brings us tó a consideration of the evidence for the purpose of ascertaining whether it was sufficient to warrant a verdict finding the defendant guilty of the crime charged in the indictment.
There is evidence tending to show the following facts: In March 1899, the- defendant devised and began to put into operation a scheme for securing the deposit with him of money by persons who might desire to enter into stock speculations. This scheme, in its infancy, was quite moderate in extent, but grew by what it fed upon *466until the defendant had received enormous deposits from-all sections of this country, Canada, and one from Europe. . Originally he promised that for every ten dollars or more deposited with him he would pay the depositor ten per cent weekly until the deposit was withdrawn, the deposit being guaranteed against loss by “ surplus ” and withdrawable at any time on one week’s notice.
The defendant was a member of a prominent Brooklyn church and at one time president of the Christian Endeavor Society attached to that church. In this connection he became intimate with young men attending the Sunday school, three- of whom, Hartman, Bergstrom and Bragge, from seventeen to twenty years of age, he induced to invest small sums of money with him. He claimed to be able to pay them ten per cent per week on their investments, stating that he had secured “ inside information ” which would enable him to make the promised returns. Bergstrom, apparently, was the first investor, and on March 16,1899, received from Miller a paper reading as follows:
“ Miar. 16, 1899.
“ Received C. Oscar Bergstrom
“ Ten Dollars..................................,......00/100
“ for aje Speculation in Stocks :
“ The principal guaranteed against loss.
“ Dividends weekly from $1 upwards till principal is withdrawn.
“WM. F. MILLER.”
On April eighth Bergstrom invested a.further sum of ten dollars and received the following receipt: .
“ April 8, 1899.
“ Received from C. Oscar Bergstrom the sum of Ten ($10.00) Dollars, principal guaranteed against loss, and may he withdrawn at any time, dividends to be paid weekly in sums of One ($1.00) Dollar and upwards. WM. F. MILLER.”
At this time Miller had made his headquarters at the store of Heber & Brandt, on the corner of Marcy and Park avenues^ Brooklyn. In the latter part of February he hired the top floor of Ho. 144 Floyd street, a two-story frame dwelling house in a • residential neighborhood; and some time in October he hired the whole house. At first he occupied one room, the furniture consisting of two or three chairs, a small table, a desk and a safe. In August he *467employed three boys about fourteen years of age, John and Louis Miller and Charles Scherer, and they also became investors. His working force gradually'increased, there being at one time twenty-two persons engaged in writing out dividend checks alone.
On April twentieth he persuaded Brandt to invest ten dollars; on the twenty-second, another ten dollars; in June, one hundred dollars ; in August, ten dollars, and on Hovember seventeenth, fifty dollars. Some other depositors had been secured early in the life of the scheme,- and from the outset he offered asan inducement five per cent commission upon'the amount of any deposits secured by any person, and this continued during the entire existence of the scheme.
The business grew with great rapidity. The commission of five per cent and the actual payments of the weekly dividends encouraged investments. The ten per cent was promptly paid each week. It is apparent that this percentage was paid out of the receipt.1: from customers, and not from speculations or investments.
In the early days of what the defendant called the syndicate some of the receipts were written upon stray scraps of paper, or upon slips headed with the name and business of Brandt & Heber, but in August appeared elaborately printed receipts reading as follows :
“ An investment of $10.00 will net you a profit of $52.00 a year.
“William F. Miller, Mgr. Franklin Syndicate “ Stock Exchange
“ Daily from 10 a. m. to 3 p. m. Bankers and Brokers
“ Stocks, Bonds, Wheat, Cotton.
“ Residence & Mail Address
“ 144 Floyd St., [Picture Ben. Franklin.]
“ Brooklyn, FT. Y.
“ Hew York,
“ The way to wealth is as plain as the road to market.— FrankVm..
“Brooklyn, Hew York, Aug. 24, 1899.
“ Received from Mr. Gns. Brandt the sum of Ten Dollars, ($10.00) for a one share interest in the Franklin Syndicate; (principal guaranteed) against loss and may be withdrawn at any time, dividends to be paid weekly in sums of One Dollar and upwards per share, until principal is withdrawn.
“WILLIAM F. MILLER.”
*468The defendant never was a member of the Stock Exchange and was not entitled to any privilege of the floor, and he was not an individual banker under the statute of this State.
Later appeared another certificate, a finely engraved instrument, as follows: .
“ William E. Miller,
'“ Mgr.
“ Investmentsi
“ Correspondence Bureau &
“ Mail address:
“ 144 Floyd St. (Ben.)
“ Brooklyn, N. Y. ( )
“ (Franklin).
Investors guaranteed against loss. Franklin Syndicate. Stocks, Bonds, Wheat, Cotton.
Brooklyn and
“New York, Charlestown, Mass.
“ The way to wealth is as plain- as the road to market.
—Franklin.
00 $50 — 100
“Brooklyn, New York, Nov. 17, 1899.
“ Received from- August H. Brandt the sum of. Fifty dollars 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.
“WILLIAM F. MILLER.”
: “No.,: 13005 :
In October, after the defendant had rented the whole house on Floyd street, a literary bureau under the management of Cecil Leslie was added, and circular letters were issued, one of which reads as follows:
. “ To my Depositors :
“ Owing to the enormous success of the Franklin Syndicate in the past, and to the urgent request of a large majority of my depositors, I have.-decided to incorporate the Franklin Syndicate on December 2nd next with a capital of $1,000,000. I take this action not alone for the benefit but for the protection of all investors as well. *469The names of the incorporators and officers of the Franklin Syndicate will be announced later are the names of men well and favorable* known in the financial world. As all depositors are entitled to stock certificates in the corporation, it will be necessary to compare the receipts you now hold with my books, and just as soon as I receive your receipts-1 will immediately send you your stock certificate to which you are entitled for the same number of shares which you now hold. The holders of the stock certificates in the Franklin Syndicate (incorporated) will be entitled to all the privileges and profits of each transaction. The Franklin Syndicate (incorporated) will continue to do business just the same as heretofore,- and depositors will not be restricted to their dividends as before. I am positive that all stock certificates will be selling at a very large premium after January 1st, and I desire to say to all those who are not conversant with the dealings of Wall Street, that such stocks as the American Sugar Refining Company, which pays 12 per cent a year dividends, is now selling at 155,'and it is my firm belief that the Franklin Syndicate shares will be selling at $400 to $500 a share before March 1st, next.
“ I shall continue to receive deposits the same as heretofore until January 1st. After December 2nd, which is the day of incorporation, I shall open no new accounts' for less than $50. All accounts which I now have of less than $50 will have to deposit sufficient to make their account $50 or they will not be taken into the new corporation on January 1st. Their money now on déposit will be paid them. Everybody is requested to send or bring in their certificates immediately so as to facilitate the exchange. In conclusion I desire to congratulate all those who have been depositors in the Franklin Syndicate on the wonderful success the Franklin has had under my management, and I shall continue in the future to give you my very best efforts, as in the past.
“ Yours very truly,
“ WILLIAM F. MILLER
“ P. S. The stock of the Franklin Syndicate (incorporated) is full paid and non-assessable, and it is the intention of the Franklin Syndicate (incorporated) to continue paying 10^ a week.”
*470There never was an incorporation such as was described in this letter.
In another letter he said:
“My ambition is to make the Franklin Syndicate one of the largest and strongest syndicates operating in Wall Street, which will enable us to manipulate stocks, putting them up or down as we desire, and which will make our profits five times more than they are now; as to that I have no doubt, for it benefits its investors by paying weekly dividends and doubles their money in a very short time.
“Yours truly,
“ WM. F. MILLER.”
Another letter contained the following sentences :
“We also guarantee you against loss, there being absolutely no risk of losing, as we depend entirely on inside information. The information we receive comes from most reliable souroes, which fact many who have dealings with us can substantiate. Our business is honest, safe; legitimate and profitable ; this has been satisfactorily demonstrated to all our customers.
“ An investment of Ten Dollars.
“ $10 will give you a profit of $1 and upwards each week “100 (6 66 66 10 66 66 “ 500 66 (6 66 50 66 66 “1000 66 66 ' 66 100 66 66
“ This may look impossible to you, but you know there must be a way where one can double their money in a short time, or else there would be no Jay Gould, Yanderbilt, or Flower Syndicate and other millionaires and Syndicates who have made their fortunes in Wall Street^ starting with almost nothing,”
Intending depositors were referred, among other persons, to Bragg, Bergstrom, Hartman, Heber .and Brandt, as customers with whom the-defendant-had dealt,'and many letters of inquiry were received and answered by them, some being typewritten letters furnished to them by the defendant.
In other letters sent out by Miller occur the following: “ The equilíbrala of-Wall Street is maintained by the fluctuations between the vast army of losers and the privileged few who win. * * * *471This profit, undoubtedly, seems phenomenal to you, but it is a mere drop in the bucket to those accustomed to. the enormous gains noted in the gigantic deals on the Exchange floors of this City. You ask how we do it and from whence we obtain our exclusive information to so successfully and continuously manoeuvre our operations; Therein lies the secret of it all. Our ‘ inside tips ’ are from the fountainhead of speculative interests and never fail us. This advantage we not only possess here, but over the Washington wire as well. * * * This concern has been in operation during the past eight years, during which time it has enjoyed the Confidence of the most conservative monied institutions. * * * The investor assumes no liability, his money being treated as a simple deposit, which is guaranteed against loss by the immense surplus fund of the Franklin especially reserved for that purpose.”
Besides the circulars a number of “ slips ” were issued and placed in envelopes in which the dividend checks‘were sent to depositors, and these were scattered over the whole country. Some of them are headed respectively : '
“ Confidential ‘tip’ to Our Friends.”
“ Another Chance For You.”
“ Timely Hint to Investors.”
■ “ Franklin syndicate.”
“ Observe This Fact.”
“ A Big Profit Certain.”
Not satisfied with his circulars and slips, the defendant secured the services of a newspaper advertising agent who inserted advertisements in 600 or 700 newspapers, the defendant paying therefor about $32,000. Miller also secured the insertion in various financial and other newspapers of articles, one of which, taken from a western paper, was headed:
“WALL STREET ASTONISHED.
“ William F. Miller’s Franklin Syndicate a Big Winner.
“ 10 Per Cent. A Week Profit.
“ All Former Efforts in Financial Operations Eclipsed by a New Wizard in the Realms of Stock Manipulation.”
*472The article refers to the defendant as “ The Napoleon of Finance,” and it was hinted that he had received pointers from the “ Senatorial clique” at Washington. This article is signed by Leslie.
Many other notices were published in various newspapers, among them, the New Forh Mercantile Financial Examiner, for all of which Miller paid liberal sums of money.
On November sixteenth, he gave one of his employees a telegram, to be sent to all of the subscribers, reading as follows:
“ ‘Important.’ We-have inside information of a big transaction to begin Saturday or Monday morning. Big Profits. Remit at once so as to receive the profits;
“ WILLIAM F. MILLER,
“ Franklin Syndicate.”
This employee took to the .telegraph office a list of the names of 10,000 persons to whom the telegram was to be sent at the expense of the receivers. The defendant deposited $300 to pay for uncollected messages, and- the message was actually sent to 1,483 persons. •
In October and November large sums of money were received daily, the scheme having reached its greatest success. ■ There were over 72,000 subscribers. At first accounts were kept in books, but, owing to the multitude of deposits, a case or slip system was substituted. The defendant employed many clerks, working from early in the morning till late at night. Crowds of depositors appeared at the house, some to deposit money and others to receive their dividends. They extended in long lines from the office to the street, awaiting their turn, each in sight of the other, those depositing receiving encouragement to deposit by seeing the dividend drawers taking their profits. At one time the front stoop broke down on account of the crowds. Money was strewn in packages in drawers and about the floor of. the office. The defendant’s books and slips show that during October and November the sums received daily often amounted to from $20,000 to more than $63,000, and the whole amount actually due depositors on November twenty-fourth was $1,156,000.
Bank accounts were opened with various banks and with the Wells-Fargo Express Company for the purpose of collecting out-of-town subscriptions. It is manifest that the weekly dividends, which *473sometimes amounted to $12,000, were paid out of the current receipts, but, notwithstanding this, the balance of money had increased to such an extent that on November sixteenth the defendant bought $60,000 in United States bonds and on November twenty-first $40,000. • On the latter day he purchased a certifícate of deposit of $100,000.
About October sixteenth Schlessinger appeared upon the scene and the proceeds were divided between him and the defendant, Schlessinger receiving, on November sixteenth, for one month’s share, one-third and the defendant two-thirds. It appears by the defendant’s books that Schlessinger, at the latter date, received $144,718 and Miller $289,436.
The only dealing in stock which appears in the evidence was a deposit of $1,000 with a firm of brokers as a margin for speculation, the enterprise resulting in loss of the entire amount with the exception of $5.36.
About November twenty-first the defendant’s operations had attracted the attention of the daily press and partly through comments therein and the visits of reporters and the publicity given thereby the entire scheme collapsed on the twenty-fourth of November, when Miller made a voluntary assignment to Daly,, one of his employees, for the benefit of creditors, and fled to Canada. The police took possession of the premises.
The evidence thus summarized was sufficient to require the submission to the jury of the question whether or not the defendant intended to deprive Mrs. Moeser of the $1,000,-or intended to appropriate the same to his own use; and whether or not he obtained the money by color or aid of fraudulent or false representations or pretenses, and whether or not he appropriated the money to his own use.'
Coining now to the connection of the" complainant, Mrs. Moeser, with the scheme, it appears that on October twelfth she gave one Wilson $100, which he deposited for her, receiving the usual receipt. She drew her weekly dividend upon this amount and on November sixteenth deposited the $1,000 mentioned in the indictment. Upon her first deposit of $100 she received four or five payments, and testified that when she put in the $1,000 she expected to receive the same dividend of ten per cent weekly. She had read in the papers the references' to Vanderbilt and Gould and the moneymakers of *474Wall street. At the time of the. deposit of $1,000 she had not received or read any circulars, but saw them lying about Miller’s office.
I do not find it necessary to discuss the question whether Mrs. Moeser parted with her. money on the faith of any representations made directly to her by the defendant. It is sufficient if there was a fraudulent or false representation or pretense by color or aid of which she was induced to part with the possession of the money, that is, if the defendant put before the public a scheme the general knowledge of which came to her, and she was induced thereby tó deposit the $1,000 with the defendant for the purposes of such scheme, he obtained possession of her money by color or aid of such scheme.
Her testimony is that two weeks before she deposited her $100, on October twelfth, she heard of the Franklin Syndicate and authorized Wilson to put in the money and that -he brought her back a receipt reading as follows :
“ Received from C.' Wilson the sum of One Hundred Dollars ($100.00) for a Ten share interest in the Franklin Syndicate; principal guaranteed against loss, and may be withdrawn at any time, upon one week’s notice and the return of this receipt; dividends payable weekly in sums of One Dollar’and upwards per share until principal is withdrawn.
“ WILLIAM F. MILLER.”
On this deposit she drew $10 a week for five weeks. Afterward she went to the house “ to see how people were going there to put any money in.” She subsequently made the $1,000 deposit personally and received a receipt from the defendant, reading as follows :
“ Brooklyn, Hew York, Nov. 16, 1899.
“Received from Catherine Moeser the sum of One Thousand Dollars, 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.
“ Ho. 12217 WILLIAM F. MILLER.”
She asked him if he would insure the money and he said “ the coupon was insurance, enough.” She saw circulars lying about but *475did not take any. She says, however, that they had a headline and picture like those in evidence.
Wilson, who made the first deposit for her, had himself invested $130. In the latter part of September or the beginning of October he received a copy of the Hew York Mercantile Financial Examiner containing the article already referred to, but does not say that lie showed it to Mrs. Moeser. She gave him the $100 to invest, and he paid it to the defendant, received the receipt therefor, which he gave to Mrs. Moeser. When the $1,000 was paid in he told Mrs. Moeser: “You are taking an awful risk, that if you lose it, don’t blame me, because I don’t want you to blame me after. She said : ‘ You say it is all right.’ I said : ‘ What I can see, it is; the money is coming in- fast there and you will have a chance to win out.’ So she said : 61 will put the money in.’ ”
From this testimony the jury had the right to infer that the defendant’s scheme, known generally as the Franklin Syndicate, had been made public by him; that Wilson knew of it; that Mrs. Moeser had learned of it and was induced to invest her $100, receiving a certificate or “ coupon ” bearing the name of the Franklin Syndicate promising to pay. ten per cent weekly ; that she received her weekly installments for five weeks and thereupon made her second investment of $1,000, induced thereto by her general knowledge of the scheme, by the apparent success of her first investment, by the payment to her of weekly dividends on that investment and by the general appearance of what was going on at the syndicate headquarters ; that the scheme of the defendant was a false and fraudulent representation or pretense that he had the ability to pay ten per cent weekly ; that the scheme was put forth for the purpose of accomplishing precisely what it did accomplish, and that the defendant obtained the money from Mrs. Moeser by color or aid of the scheme which he had published, and that the scheme was a false and fraudulent pretense, artifice, device or trick.
It is a familiar rule that a person is presumed to intend the natural consequences of his acts. It cannot be doubted that it was the intention of the defendant that his statements, receipts, circulars, publications and regular though temporary payment of dividends should secure the deposit of money with him. There was ample evidence to justify the inference that he was propounding a prepos*476terous scheme of “ device, trick, artifice, fraud or false pretense,” and that he obtained the money from Mrs. Moeser, intending at the time to appropriate it to his own use, and that subsequently he did so appropriate it.
In view of what is said in the early part of my opinion, as to the construction of section 528 of the Penal Code, I do not deem it essential to do more than refer to the charge of the court in which the jury were instructed that, in order to find the defendant guilty of larceny, they must find that Mrs. Moeser did not intend to part ■ with title to or dominion over the $1,000 when she delivered it to Miller, and that they must also find that he intended to apply it to his own use and to deprive her of the money. This charge was certainly most favorable to the defendant.
The appellant’s .counsel also contend that it was error to admit evidence of transactions with other persons of a similar character to that with Mrs. Moeser. The court admitted the testimony to show the intent of the defendant, and there is abundant authority for the ruling. ( Weyman v. People, 4 Hun, 511; People v. Peckens, 153 N. Y. 577; Mayer v. People, 80 id. 364.)
One exception to the charge requires consideration. Defendant’s counsel requested the court to charge the jury that “ they must find in order to convict the defendant that at the time he received the money from Mrs. Moeser he formed the intent to steal it. '. By the Court: I decline that charge in. its present shape. If at any time prior to the 24th of November he conceived the idea of appropriating it lie is guilty of larceny. By Mr. Ridgway: We except to the court’s refusal to charge as requested as well as to the court’s qualification and modification thereof.” •
If I have heretofore correctly analyzed the statute, the request was properly refused; for, under my fourth division, “ If the defendant, with intent to deprive or defraud Mrs. Moeser of her money, appropriated the sarhe to his own use,” he stole the same and is •guilty of larceny. It was not error to decline a request to charge that the intent to steal must be coincident with the reception of the money, for intent to steal might also be connected with the appropriation. Hence an intent to appropriate, conceived at any time prior to November twenty-fourth, the date of the appropriation, was sufficient to sustain the charge of the indictment, and the refusal *477to charge as requested was not error. It was also in accord with the rule laid down in People v. Laurence (supra), quoted above.
I find no failure of evidence sufficient to convict the defendant of the crime of larceny as defined by section 528 of the Penal Code, and no reversible error in the charge, or in the admission or exclusion of evidence, or in the denial of the several motions of the defendant. '
The judgment of conviction should be affirmed.
Judgment of conviction reversed and new trial ordered.
Sic.