The defendant was charged with embezzlement, and convicted. He appeals from the judgment, and order denying his motion for a new trial.
1. The court erred in admitting the testimony of the witness Briggs, as to the description of the defendant given him by the prosecuting witness before the arrest of defendant. This-was hearsay, and, considered with reference to the other evidence in the case relating to *266the identity of defendant as the person who took the money alleged to have been embezzled, was a material error.
2. The verdict is against the evidence, as, upon the facts shown, defendant was guilty of larceny, and nothing else.
The following is the testimony of the prosecuting witness as to the manner in which the defendant obtained his money: “ We went in to get a drink, and while we were at the bar a man came up to us and asked us if we would like to buy a Louisiana lottery ticket. I said, No; that I did not care about it, as I never gambled. He said he was the agent of the Louisiana Lottery Company, sent out on purpose to this coast to explain the way the drawings were had to the people, and if we would go into the back room he would explain it. I did not want to go into the back room, but this other man who was with me said, ‘ Let’s go in and see ’; so we went in; when we got in the back room there was a table there, and the defendant spread a paper on the table, full of squares and figures, and said if I would put down a half a dollar or some money on the table he would explain it to us. I did not want to put any money on the table, but this other man said he would put in a half a dollar, and so I did the same, and afterwards I put in a dollar; after that was lost I put in five dollars and lost that. I then wanted to get out, but there were other men them who said, ‘ Go on and play/ and I was afraid to go out, as I put up twenty dollars, and afterwards twenty dollars more. After that was lost I asked for my money, and did n't get it. The defendant at all times told me that I would get my money back as soon as he had explained the game."
It is sometimes difficult to determine upon a trial for larceny whether the offense is larceny or embezzlement, when there has been a bailment of property to the defendant, and thereafter a conversion by him. Upon such facts, when the charge is larceny, the prosecution is required to show that the defendant, when he received the property originally, intended to steal it. But *267no such difficulty is presented here, for there never was any bailment of the property, the prosecuting witness^ never consenting to part with the possession; indeed,; even its bare custody for a temporary purpose was not given to defendant; the money was simply placed upon a table on some squares and figures, that defendant and his confederate might illustrate the manner in which the drawings of the Louisiana lottery are had,; and all of this was to be done in the presence of the prosecuting witness. He never contemplated or con- j sented that the money should be taken from his sight, or that it should be transferred from the table to the pockets of the defendant. Upon this state of facts, a finding that the possession of the money was intrusted to defendant by the prosecuting witness is entirely without any support, and the crime which defendant committed is described with absolute precision in Loomis v. People, 67 N. Y. 327; 23 Am, Rep. 123. “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.”
In the case of Commonwealth v. O'Malley, 97 Mass. 585, the defendant was convicted of embezzlement, upon the following state of facts: The prosecuting witness had thirty-eight dollars in bank bills; the defendant asked her to loan him a dollar, and she agreed to do so, and showed him the roll of bills, which she had just received in payment of,her wages; he then asked her to let him take the money and count it, she not being able to read or write, and she let him take it for that purpose; he counted it over several times in her presence, and then refused to return it to her, and went off with the money. The trial court instructed the jury as follows: “If they were satisfied that the defendant, when he took the bills from the hands of the witness McDonald, had the guilty intent of entirely depriving her of them, and of converting them to his own use, and his taking the money to count was only a trick or device to obtain possession of the same, it would be larceny, and they must acquit him; *268but if they were satisfied, beyond a reasonable doubt, that he had no such intent at the time, but received the bills by her permission, for the purpose of counting them for her and receiving the dollar which she had consented to loan him, and after the money came into his hands, he then first conceived the-guilty purpose of defrauding her, they might find him guilty. ” The conviction for embezzlement was set aside by the supreme court, in an opinion which states with great clearness the distinction between larceny and embezzlement. The court there said: “We are of opinion that there was no evidence to sustain the indictment for embezzlement, and that the conviction was wrong.....To constitute the crime of embezzlement, the property which the defendant is accused of fraudulently and feloniously converting to his own use must be shown to have been intrusted to him so that it was in his possession, and not in the possession of the owner. But the facts reported in the bill of exceptions do not show that the possession of the owner of the money was ever divested. She allowed the defendant to talce it for the purpose of counting it in her presence, and taking from it a dollar which she consented to lend him. The money is alleged to have consisted of two ten-dollar bills, three five-dollar bills, one two-dollar bill, and a one-dollar bill, amounting in all to thirty-eight dollars. The one dollar he had a right to retain, but the rest of the money he was only authorized to count in her px’esence and hand back to her. He had it in his hands, but not in his possession, any more than he would have had possession of a chair on which she might have invited him to sit. The distinction pointed out in the instructions of the court, between his getting it into his hands with a felonious intent, or forming his intent after he had taken it, was therefore unimportant. The true distinction, upon principle and authority, is that stated by the cases upon the defendant’s brief, that if the owner puts his property into the hands of another, to use or do some act in relation to it, in his presence, *269he does not part with the possession, and the conversion j of it animo furandi is larceny.” i
The law as thus declared is sustained in the following cases: Smith v. People, 53 N. Y. 111; 13 Am. Rep. 474; Loomis v. People, 67 N. Y. 322; 23 Am. Rep. 123; People v. Call, 1 Denio, 120; 43 Am. Dec. 655; and many more which might be cited to the same effect. Indeed, our attention has not been called to any case which holds to the contrary.
Judgment and order reversed.
Harrison, J., Paterson, J., Sharpstein, J., and Garoutte, J., concurred.