The instruction on the subject of criminal intent was unquestionably erroneous. In those offenses where intent is an element, the intent and the overt act must concur in point of time, or, in the language of the Penal Code, “there must be a. union or joint'operation of act and intention.” §31. Hence it is, that if one lawfully obtains possession of another’s property, with no intent at the time to steal it, he is not guilty of simple larceny, although he may afterwards convert the property pursuant to a subsequently formed intent. 18 Am. & Eng. Enc. Law (2d ed.), 506, and numerous cases cited in note 6; Clark’s Crim. Law (2d ed.) pp. 56, 297. See also, in this connection, Harris v. State, 81 Ga. 758; Mobley v. State, 114 Ga. 544; Johnson v. State, 119 Ga. 563. Where the original taking was a trespass, the authorities differ as to whether a conversion pursuant to a subsequently formed intent to steal would be larceny. See 18 Am. & Eng. Enc. Law (2d ed.), 507-508. This question is not involved in the present case, because here the taking was with the express consent of the owner. The expression of a desire to plead guilt}’’, when made out of court, is in effect a *172confession of guilt, and is admissible in evidence. Whether, when such an expression is 'made in court, either to the judge or to some one acting in behalf of the court, it would be admissible as a confession, is not now determined. See, in this connection, White v. State, 51 Ga. 289 ; State v. Briggs, 85 Iowa, 417 (9), 424; Rice v. State, 22 Tex. App. 654; 4 Cyc. 473, and cit. Hence there was no error in charging on the subject of confessions. The court should also, under the peculiar facts of this case, have instructed the jury distinctly that they might acquit one of the accused though the other was convicted.
The rulings in the headnotes on the sufficiency of tiie pauper affidavit need no elaboration.
Judgment in each case reversed.
All the Justices concur.