The defendant has been convicted of grand larceny, second degree. The main question involved is whether the conviction was warranted under the indictment, which, as submitted to the jury, contained only a count ofjvvmmon-law W-p.p.nv, If the evidence warranted a finding by the jury that there was larceny by trick and device, as distinguished from false pretenses, conviction would be proper under a common-law count, though there was no proof of actual trespass. (People v. Miller, 169 N. Y. 339.)
The facts in this case, briefly stated, are that the defendant obtained $200 in cash from the complaining witness after the parties had discussed the merits of a stock known as the Vancouver Island Gold Mine Company. Defendant told the witness that he had controlling interest in the stock, and could get 2,000 shares thereof *481at ten cents a share, and that it would open on the exchange on a specified date at not less than fifty cents a share. It was agreed that the 2,000 shares would be delivered by defendant as soon as an additional fifty-dollar transfer fee was paid. The complaining witness testified that he did not loan defendant the money, but gave it to hun specifically^to buy Vancouver Island Gold Mine~stocE. He testified further"that he did not know where the stock he was to receive was to come from, whether it was defendant’s stock or that of a corporation; that the 2,000 shares were to be held in defendant’s name until the witness demanded it. There was evidence to the effect that defendant never had any Vancouver stock that was his own; that he did not use complainant’s money to acquire any.stock.
The trial court left to the jury the question as to whether the defendant obtained possession of the money for the special purpose of purchasing 2,000 shares of Vancouver Gold Mine stock, and whether it was thus obtained by trick, fraud or scheme, with intent to steal. It advised the jury that if the money was given to invest as the defendant~saw~fit, there would be nd larceny.
We think that the Vvidence'warranted the jury in finding that the money was obtained by trick and device under circumstances amounting to larceny.
The appellant contends that the evidence showed at most an obtaining of money by false pretenses.
There is often a very narrow distinction between a case of larceny and one where the property is obtained by false pretenses. The character of the crime depends onjihe .intention of the parties'and" that intention determines The nature of the offense.. In the former case the possession "of the thing alleged to be stolen is obtained by fraud or artifice with a felonious design, and the title still remains in the owner. In the latter case, title as well as possession is absolutely parted with. (Loomis v. People, 67 N. Y. 322, 329.)
If there was sufficient evidence to permit the jury in this case to find that the complaining witness intended to part merely with possession, but not with title to his $200, then the conviction for common-law larceny was warranted, for there.was proof that possession was obtained by fraud and artifice, and that there "Was felonious design, i. e., an intent to steal. "
There was" evidence that the complaining witness intended to give the money for the limited purpose of enabling the defendant to procure 2,000 shares of Vancouver stock-with it. The money, therefore, was to be passed to the owner of that stock and used for no other purpose. Defendant would get no title under such circumstances. True, the complaining witness did not know *482whether defendant was to deliver 2,000 shares of stock he controlled, or stock he obtained in the open market, but the proof showed that no present purchase from defendant was intended.
This case differs from People v. Noblett (244 N. Y. 355), relied on by appellant, for there the.owner parted with title to, as well as possession of, his money. He vested in defendant full and complete right to use the money for his own purpose and benefit. The money was given in return for the promise to deliver possession of a certain apartment on a fixed date. Nothing-w-as-said, that the delivery of the money was_cmditional on delivery-nf_ possession_ol the apartment. On the contrary, it was understood that defendant Had the right to use the money as his own and not for any specific purpose imposed by the owner.
Here the jury was entitled to find that there was no intention on the part of the owner to permit the money to be used for any purpose except purchase of 2,000 shares of Vancouver Island Gold Mine stock. Therefore, he did not part with title to, as well as possession of, the $200. The other elements of the crime being present, a conviction for larceny under a common-law count was warranted.
The judgment should be affirmed.
Martin, P. J., Townley and Cohn, JJ., concur; Untermyer, J., dissents and votes to reverse and dismiss the indictment.