The following opinion was delivered by the General Term:
Daniels, J.It is conceded by the learned counsel presenting .the case on behalf of the appellant that he could properly have .•been convicted of the crime of petit larceny, and it is claimed by him that the verdict should not have been permitted to exceed the bounds of that offense.
The offense itself was committed by depriving the complaining witness of certain English gold coin owned by him, with a felonious intent on the part of the defendant and certain confederates acting in concert with him. One half the amount which was lost, and not exceeding the amount of twenty-five .dollars, was staked upon a pretended drawing in what was represented to be an art lottery. The complaining witness had been induced to participate in the drawing by the defendant and his confederates with the intent, by means of a trick and device, to deprive him of his money. This constituted the crime -of larceny within the cases of Smith v. People, 53 N. Y. *101111, and Loomis v. People, 67 Id., 322. After this first amount had been deposited upon the table the defendant took it up and within three minutes placed it upon what appeared to be bank-notes. There it was permitted to remain until another deposit of the same amount was made by the witness, and, after ■ that deposit was made and the second drawing took place, all the money was taken together in one lot and delivered by the prisoner to one of the confederates, by whom it was appropriated and detained from the witness. The final taking included a larger amount than has been required by the statute to create the crime of grand larceny. But that offence was not committed by what was shown to have taken place, if the taking of the first amount by the defendant created the crime of larceny.
The case was fairly submitted to the jury upon the point' whether the defendant, in taking up and putting down the first amount, intended to steal it, or whether the intent to steal was not restricted to the final taking when the whole amount of money was taken by the defendant and passed over to a confederate.
"Why the defendant first took up the coin which the witness had placed upon the table does not otherwise appear than by the act of simply taking it up from the place where it had been deposited upon the table, and then placing it upon what appeared to be bank-notes. JSfo other act was performed by him from which it could be inferred that he, at that time, by what he did, intended to steal this particular sum of money. The act itself surely did not deprive the witness of his property. It was as much within his control when it was placed upon the notes as it previously had been when it stood upon the table. And as the defendant did nothing more with the money at that time than to take it from one place on the table and deposit it upon the other, it may reasonably be presumed that this was all that he intended at the time when he took up the coin. All that he did was to transfer the coin from one place to another place, upon the table, and in the absence of any other circumstance tending to warrant the conclusion that by that act he intended to appropriate the money feloniously to his own use, the presumption arising would be that such was not his intention, but that he was actuated by the mere purpose of changing the loca*102tion of the money upon the table. This was the effect of what he did, and persons may ordinarily be presumed to intend only what by their acts they at the time accomplish. People v. Herrick, 13 Wend. 87, 91; Van Pelt v. McGraw, 4 Coms. 110, 114.
This principle is directly applicable to this case, and the jury were warranted by it in inferring that the defendant at the time when he changed the position of the coin did not intend to steal it, but that the intent to steal was only carried into effect when he took up the entire amount of the coin exceeding the sum of twenty-five dollars and transferred it to his confederate. And that rendered the case one of grand larceny.
The case was sufficiently sustained by the evidence to render this question of intent a proper subject for the determination of the jury. And as this point is the only one upon which the propriety of the conviction has been assailed, and it was rightly disposed of on the trial, the judgment from which the appeal has been taken should he affirmed.
Beady, J., and Davis, P. J., concur.
Hpon appeal to the court of appeals, it was agreed to affirm the judgment upon the opinion of the General Term.
All concurred.