Mr. Justice Rabin is eminently correct when he states that the trial court’s charge with respect to the defendant’s affirmative defense was confusing and misleading. It not only failed to charge that the burden of the prosecution to prove the defendant’s guilt beyond a reasonable doubt never shifts, but also compounded the error by implying that the prosecution’s burden is somehow either diluted or minimized where an affirmative defense is imposed.
However, I do not subscribe to my colleague’s second contention, namely, that the forcible retaking of one’s gambling losses constitutes the crime of robbery, which, in this case, is the alleged crime upon which the subject felony murder indictment is premised. The crimes of robbery and larceny, at common law and under present New York law (Penal Law, §§ 155.05, 160.00), both require a felonious taking and carry*12ing away of the property of another without the latter’s consent. The crime of robbery is distinguishable in that the taking is accomplished by force or violence, actual or constructive. In this State, as in most other American jurisdictions, the law is settled that an individual who wins money or other consideration from another in an illegal game of chance does not acquire title to the winnings (Meech v Stoner, 19 NY 26, 28; People v Stedeker, 175 NY 57, 62; Ruckman v Pitcher, 20 NY 9; Davidson v State, 200 Ark 495; People v Rosen, 11 Cal 2d 147; State v Price, 38 Idaho 149; Sikes v Commonwealth, 17 Ky L Rep 1353; People v Henry, 202 Mich 450). One who wagers with a gambler never parts with the title to his money (People v Stedeker, supra, p 62); the law affords no protection at all to a gambler (Hofferman v Simmons, 290 NY 449; Bamman v Erickson, 288 NY 133). A person may neither acquire nor vest himself with title by crime (Flegenheimer v Brogan, 284 NY 268).
Thus, consistent with the proposition that the winner in a gambling endeavor acquires no title to his illegally acquired gains, it has been generally but not universally held that a charge of larceny or robbery may not be sustained where one who had lost money or other property at gambling, compelled the return of his gambling losses by force or threats (People v Rosen, supra; People v Rogan, 1 Cal 2d 615; People v Henry, supra; Davidson v State, supra; contra Cates v State, 21 Md App 363).
I also disagree with the majority’s argument that since section 5-421 of the General Obligations Law provides a civil remedy for recovery of gambling losses in excess of $25, the use of violent self-help to recover such losses somehow raises a presumption of a felonious intent on the part of the loser to steal the property of another. Such conclusion is a non sequitur. Firstly, it unrealistically presupposes that the loser, usually not schooled in the law, is aware that such a civil remedy exists. Secondly, the more logical conclusion would seem to be that the loser sought to reclaim, albeit by violent action, that which he believed belonged to him. Such a conclusion would be even more logical in a situation such as herein, where the defendant alleges that the winner prevailed in the illegal game because he used "crooked” or "loaded” dice (see Murphy v State, 133 Tex Crim 189; Ann. 77 ALR3d 1363, 1374-1375, 1378-1379).
Furthermore, and contrary to the position taken by the *13majority, I do not believe the determination in People v Banks (55 AD2d 795) is controlling in this instance. In Banks, the forcible taking was committed by a creditor from his debtor. As succinctly noted by the Appellate Division, First Department, in People v Richardson (55 AD2d 514, 515), the debtor "had a superior right to possess the [money owed] * * * notwithstanding the alleged debt.”
Thus, the argument advanced by the majority, that after the transfer of possession the gambling loss "assumes the status of a common debt, with the winner in the role of debtor and the loser as creditor”, has no merit. Since the possession of the money by the winner is illegal and tainted from its inception, it cannot constitute what is referred to in Hechtman’s Practice Commentary as "lawful possession of the moment” (McKinney’s Cons Laws of NY, Book 39, Penal Law, § 155.00, pp 104-105). Indeed, the majority’s concept is nowhere evidenced in the Debtor and Creditor Law of this State.
In taking the position that one is not guilty of robbery for forcibly retaking his gambling losses from the winner, I am not suggesting that the loser, as the majority intimates, has a right "to engage in self-help”. There are other serious crimes for which such an individual can be charged, which carry severe penalties, such as assault in the first degree. Furthermore, since a homicide ensued in this instance, the defendant was also susceptible to being charged with common-law murder.
Generally, under the statutes or the common law, it is an essential element of larceny that the item taken and carried away be the property of another, that is, someone other than the taker must have, in the item, a general or special property right which is invaded by the trespass committed in the taking. It is not larceny for a person to take his own goods from one who has no legal right to withhold them from him, even though he commits a trespass in taking them (52A CJS, Larceny, § 13; cf. People v Dye, 134 Misc 689).
However, I do not contend that under no view of the facts in this case could it be found that the defendant did not commit the underlying crime of robbery by forcibly taking gambling moneys from the victim. In most jurisdictions which hold that forcible taking of one’s own gambling losses from the winner does not constitute either larceny or robbery, it has also been held that if the loser compels the surrender of more money than he lost, he is guilty of larceny or robbery (Jackson v *14State, 30 Ala App 468; State v Hardin, 99 Ariz 56; Ann. 77 ALR3d 1363, 1375-1378). In the instant case, there is disputed testimony both as to the amount won by the victim and the amount lost by the defendant. One witness testified that the victim won $300 and that the defendant was not even involved in the game. Another witness said that the victim won $700 and there was evidence that the defendant lost about $200 or $250.
Therefore, since questions of fact are present as to whether the defendant used or participated in the use of force to compel surrender by the victim of more money than he lost, I am of the opinion that, on the retrial, the jury should be charged, inter alia, that although it is not larceny or robbery for the loser in a gambling game to compel by force the return of the money he lost, if the loser compels the surrender of more than he lost, he is guilty of larceny and robbery (see Gant v State, 115 Ga 205; Turner v State, 177 Miss 272).
Gulotta and Margett, JJ., concur with Rabin, J.; Titone, J. P., concurs in the result, with an opinion.
Judgment of the Supreme Court, Kings County, rendered April 3, 1975 (the date on the clerk’s extract is May 22, 1975), reversed, on the law, and new trial ordered.