dissenting. — I dissent. The foregoing opinion drawn up by McFarland, J., as to the charge to the jury by the trial court, directly conflicts with People v. Smallman, 55 Cal. 185, where the point passed on in this case is distinctly made, considered, and decided.
The obtaining possession of personal property by artifice or fraud, where title does not pass to the taker, with an intent at the time of the taking to convert it to the taker’s use, and the subsequent conversion of it to his use by the taker, is a felonious taking, and is larceny. (People v. Smallman, supra; United States v. Durkee, 1 McAll. 193-206.) I am of opinion that the judgment should be affirmed.