(dissenting). I dissent from reversal of the judgment of conviction and vote to affirm upon the authority of People v. Shears (158 App. Div. 577, affd. 209 N. Y. 610). That case has settled the interpretation of section 1307 of the Penal Law, formerly Penal Code, section 549, contrary to the contention of defendant. An examination of the record on appeal in that case (p. 98) shows that the Trial Justice charged the jury that section 1307 should be read as two sections, to wit: (1) The fact that the defendant intended to restore the property stolen or embezzled is no ground of defense; and (2) the fact that the defendant intended to restore the property stolen or embezzled is no ground of mitigation of punishment, if it has not been *699restored before complaint to a magistrate charging the commission of the crime. The charge of the court, and the rulings during the trial in the present case are in accord with the charge and rulings in People v. Shears (supra). It may be added that a similar provision of the Penal Code of California (§ 512) on the subject of embezzlement has received a construction by the courts of California like that applied in the Shears case, (People v. Kirwin, 87 Cal. App. 783; People v. Baker, 64 Cal. App. 336; People v. Kay, 34 Cal. App. 2d 691; People v. Harris, 100 Cal. App. 78; McLaughlin v. Standard Acc. Ins. Co., 15 Cal. App. 2d 558.)
Cabswbll, Acting P. J., and Lewis, J., concur with Johnston, J.; Aldrich, J., dissents and votes to affirm in memorandum in which Adel, J., concurs.
Judgment of the County Court of Kings County convicting defendant of the crime of grand larceny in the first degree reversed on the law and a new trial ordered.