(dissenting). The evidence does not establish that the defendant was guilty of common-law larceny which was the only count submitted to the jury. The indictment contained no count charging larceny by false pretenses and there could, therefore, be no conviction for this. (People v. Dumar, 106 N. Y. 502.) The second count of the indictment charging embezzlement was dismissed at the trial. There could be no conviction for embezzlement under the count charging larceny “ with force and arms.” (People v. Cruger, 102 N. Y. 510; People v. Dilcher, 38 Misc. 89; Commonwealth v. Simpson, 9 Metc. [Mass.] 138; Commonwealth v. King, 9 Cush. [Mass.] 284.) z It is a cardinal principle of justice that a defendant shall'be informed of the nature of the crime with which he is charged. He is not thus informed when he is charged with unlawfully acquiring possession of property and is convicted of misappropriating property of which he acquired lawful possession. The two crimes are not only different in character but entirely inconsistent. Moreover, the evidence would not have sustained a charge of embezzlement, for the $200 was not intrusted to the defendant for any special purpose but^was paid to the defendant for his promise thereafter to deliver 2,000 shares of Vancouver Island Gold Mine stock.
*483On the uncontradicted facts the defendant was not guilty of the charge alleged in the only count of the indictment submitted to the jury. (Zink v. People, 77 N. Y. 114.) The complainant testified to an agreement under which he paid $200 as the purchase price of the shares of stock to be delivered by the defendant at a future time upon payment of a further sum of $50 to cover the charges for transfer of the shares into the complainant’s name. The complainant testified to statements by the defendant that he owned a controlling interest in the company and that the stock was in his name. Clearly, therefore, the complainant agreed to purchase the stock from the defendant and, in accordance with that agreement, intended to pass title of the purchase price to him. He testified to several conversations on the subject at each of which it was made very clear to him by the defendant that he was undertaking to sell stock which belonged to him and which stood in his name. He testified: “ He told me the same thing that he told me previously, that I could secure the stock at 10 cents a share, and that I could have the 2,000 shares which would cost me $200, and that it would open on the market at not less than 50 cents a share before Christmas of 1936, and told me that the stock was in his name; that he had the controlling interest in the stock and all the stock was in his name, and in order for him to deliver the stock to me that I would have to pay the transfer charges, the sum of which he named, was $50; and I didn’t have the $50 at that time. I only had the $200, and I told him that just as soon as I could raise the $50 for transfer charges that I would ask for the stock and that was agreed upon, and that the stock was to be delivered to me.” Again he testified: “ He told me that he owned the controlling interest in the Vancouver Island Gold Mines and that he was availing some of the stock to his friends and that I could have some of the stock at 10 cents a share and that it would be placed on the market at not less than 50 cents a share before Christmas in 1936.” When the complainant paid the $200 for the stock the following occurred: “ I delivered the $200 to him and he asked me if I wanted the stock which had been discussed before, left in his name or he was to put it into my name, and I told him that he had better do what he thought best about that because I was not so well informed on those points; and he explained to me thoroughly that in order to transfer the stock from his name into my name that it would cost him a certain amount of money — that I can’t recall. So I told him to do as he saw fit about that and gave him the money at that meeting.”
In the light of all this testimony given by the complainant, it cannot be maintained that the $200 was intrusted to the defendant *484for the purchase by the defendant of some other person’s stock. The complainant also testified: “ That Mr. Stiller owned the controlling interest in the Vancouver Island Gold Mine and that he had an amount of stock that he was availing to his friends at 10 cents a share, to be sold on the market at 50 cents before Christmas of 1936.”
It is true that in answer to a question by the defendant’s attorney, “ Therefore, you loaned him this money, you loaned him the money?” the complainant replied, “ I didn’t lend him the money. I gave him the money specifically to buy Vancouver Island Gold Mine stock.” The district attorney now suggests that the complainant intended to testify that he had paid the $200 to the defendant so that he, in turn, might buy the stock from others. But, of course, this testimony, especially when read in the light of the complainant’s other testimony to which I have referred, does not justify such an assumption. Indeed, when specifically interrogated by the court as to whose stock he intended to purchase, he testified as follows: “ Q. You testified that you had a series of conversations with this defendant wherein he told you that he had a controlling interest in this Vancouver Island Gold Mine stock? A. Yes. Q. And that he had a certain amount of stock to dispose of? A. Yes, your Honor. Q. And that he was ready to let you have 2,000 shares at 10 cents a share? A. Yes, sir. Q. And that the stock would be on the Exchange before Christmas at 50 cents a share? A. Yes. Q. Did he tell you whose stock he was going to give you or sell you? A. He said that he owned a controlling interest himself.”
It is entirely clear, therefore, that the complainant intended to pinchase from the defendant stock which he owned, or was believed to own, and which stood in his name, but which would not be deliverable until an additional $50, to cover transfer charges had been paid. It is evident, therefore, that the complainant parted with the purchase price, intending to pass title to the defendant, though upon representations which the jury found not to have been justified. Under the circumstances there could be no common-law larceny upon the theory that the defendant secured possession of the sum of $200 by trick and device. The situation did not greatly differ from the usual sale of stock for future delivery. The defendant’s failure to perform his contract, even assuming that he made it without any intention to perform, did not constitute larceny “ with force and arms,” as alleged in the indictment. (People v. Noblett, 244 N. Y. 355; Zink v. People, supra; People v. Cohen, 148 App. Div. 205.)
The judgment should be reversed and the indictment dismissed.
Judgment affirmed.