The defendant was convicted of the crime of grand larceny, under an information filed by the district attorney charging him with that offense. What he did was this: In company with a confederate, who passed by the name of Turner, he boarded an emigrant train of the Central Pacific Bail-road Company, and engaged the prosecuting witness, who was a passenger on the train, in conversation. He represented himself to be a dealer in furs, and said he was traveling on the emigrant train because of the convenience it afforded him of stopping along the route for the transaction of his business. He asked the prosecuting witness if he knew a Mr. Turner of the firm of Turner & Co., of Boston, and told him he had telegraphed Turner to meet him at the point the train then was, but had not seen him. Just as the prosecuting witness answered that he did not know such a man, the pretended Turner opportunely appeared in the car, when the defendant looked up and said, “ Oh, here is the gentleman, coming now.” Defendant introduced his confederate to the prosecuting witness. The confederate then said to the defendant, “ I got your telegram and I have got your goods all fixed up. ” Defendant replied, “ I am very glad—how are you sending them—by express?” The confederate replied, “ Yes, by express. Bo, by transfer ; they will not touch any, unless prepaid.” Defendant then produced two currency notes, saying that was all the change he had, and that he did not know how he was going to arrange the matter, unless Turner could change “ this bill ”—at the same time producing what bore a slight resemblance to a United States bond for one thousand dollars, with coupons attached. Turner said he could not change it, when defendant asked the prosecuting witness how much money he had, who replied that he had about one hundred dollars or so. Defendant then said he was in a bad fix and did not know what he was going to do, and then asked the prosecuting witness to let him, defendant, have what money he had, until he (defendant) could go to the baggage-car and get what money he wanted, and that they could settle up as they went along—at the same time offering the prosecuting witness the pretended bond as temporary security. In response to that request, the prosecuting witness handed defendant one hundred and sixty dollars of his money; and de*425fendant, saying that he would be back in half an hour, and asking the prosecuting witness to retain his seat for him in the meantime, left the car. Of course, instead of returning, he left the train with the money and his confederate.
It is claimed for the appellant that the offense thus committed was not larceny, but the obtaining of money by means of false pretenses. The distinction between the two crimes is sometimes very narrow, but yet it is well defined. Where, by means of fraud, conspiracy, or artifice, possession of the property is obtained with felonious intent, and the title still remains in the owner, larceny is established. While the crime is false pretenses, if the title, as well as the possession, is absolutely parted with. No one, we presume, would seriously deny the sufficiency of the evidence to justify the finding of a felonious intent on the part of the defendant in taking the money in question. And under the circumstances of the case, there can be as little doubt of the proposition that there was no intention on the part of the prosecuting witness to part with his ownership of the money. The criminal and fraudulent conduct of the defendant and his confederate in no way operated a transfer of the title to them, or either of them, or at all changed the ownership of the money. It remained the money of the prosecuting witness. In Commonwealth v. Barry, 124 Mass. 325, there was evidence that as A was passing a bar-room, the defendant, a girl, called him in, and he, at her request, gave her money to buy ¿‘bottle of brandy. They went upstairs together, and she said this bottle would not be enough for the night, and asked for more money with which to buy another bottle. A thereupon gave her a twenty-dollar bill to get a quart of brandy, the price of which was three dollars, not expecting to receive the bill back, but the change, after deducting the price of the brandy. The defendant went out, and soon returned with another girl, saying she could not get it. The other girl said she knew where to get it,„and the two girls went out, and he saw no more of them or his money. Upon this evidence the Supreme Court of Massachusetts had no difficulty in holding the defendant properly convicted of larceny. In principle, that case is like that now here. Still closer as respects the facts, and therefore more directly in point, is the case of Loomis et al. v. The People, 67 N. Y. 322. There it ap*426peared that Lewis, one of the prisoners, made the acquaintance of Olason, the prosecutor, and under the pretense that he had a check for five hundred dollars he desired to get cashed at a bank, invited Olason to go with him. He led him into a saloon, where was the prisoner Loomis, whom the evidence showed to be a confederate of Lewis. Lewis proposed to Loomis to throw dice; they did so for five dollars, and Loomis lost. They then proposed to throw for one hundred dollars. Lewis asked Ola-son to lend him ninety dollars, saying, “ I am sure to beat him again, and you can have your money back. If I do lose, I have got the check for $500, and we will go up to the bank and get the check cashed, and you can have the money.” Olason let him have the ninety dollars ; the dice were thrown,, and Lewis lost. Olason insisted on the return of his money. The purported check was then put up against $100, and Lewis again lost. Loomis and Lewis thereupon went away. The court charged the jury in substance, that if satisfied beyond a reasonable doubt that the two prisoners conspired fraudulently and feloniously to obtain the complainant’s money, and to convert it absolutely without his consent and against his will, they could convict of larceny; and it was held on appeal no error, and that the evidence was sufficient to sustain the conviction— the court observing : “ It was a clear case of larceny, as marked and significant in its general features as if the prisoners had wrongfully seized and appropriated it when first produced. The form of throwing the dice was only a cover; a device and contrivance to conceal the original design, and so long as there was no consent to part with the money, does not change the real character of the crime. While the element of trespass is wanting, and the offense is not larceny, where consent is given, and the owner intended to part with his property absolutely, and not merely with a temporary possession of the same, even although such consent was procured by fraud, and the person obtaining it had an animus furandi, yet, as is well said by a writer upon criminal law: ‘ It is different where, with the animus furandi, a person obtains consent to his temporary possession of property, and then converts it to his own use. The act goes farther than the consent, and may be fairly said to be against it. Consent to deliver the temporary possession is not consent to *427deliver the property in a thing, and if a person, animus furandi, avail himself of a temporary possession for a specific purpose, obtained by consent, to convert the property in the thing to himself, and defraud the owner thereof, he certainly has not the consent of the owner. He is, therefore, acting against the will of the owner, and is a trespasser, because a trespass upon the property of another is only doing some act upon that property against the will of the owner.’ In the case at bar, there was no valid agreement to part with the money absolutely, and no consent to divest the owner of his title. It was passed over for a mere temporary use at most, and the legal title remaining in the owner, the conversion of it by the prisoners within the rule cited was larceny. The reports are full of familiar illustrations of this rule, as a reference to some of the leading cases will show. ” And the court proceeded to refer to many of them, which may be consulted by turning to the case from which this extract is taken.
Judgment and order affirmed.
Myrick J., Thornton, J., and Morrison, C. J., concurred.