dissenting :
I feel compelled to differ with our learned brother in the conclusion to wdiich he has arrived in this case, and will state the reasons. John Schelly in accordance with an arrangement which he had made with Zink, the prisoner, consigned to him a quantity of malt, with directions to sell the same at a price designated, and after deducting expenses to remit the balance. Bills of lading in the usual form and without special conditions, accompanied the malt, which consisted of several shipments. Zink was to pay the freights and become liable therefor. (Davis v. Pattison, 24 N. Y., 317.) The malt was sold and notes were taken for the same; and there can be no doubt but that the purchasers acquired a good title thereto. It is quite apparent that Schelly was imposed upon by Zink, who doubtless deserves the punishment which the conviction would impose upon him; yet it should not be inflicted contrary to law. The prisoner was indicted and convicted of the offense of larceny, and the question presented is whether the facts established justified such conviction. We conclude that they did not, and consequently the judgment should be reversed. Schelly parted voluntarily with the actual possession of the malt, and by authorizing -the sale surrendered all claim to the constructive possession thereof. Zink was directed to sell all of the malt, and was invested by Schelly with the indicia of ownership. . Under such *402circumstances we cannot assent to the proposition that the charge of larceny was properly sustained. (Ross v. People, 5 Hill, 294; Mowrey v. Walsh, 8 Cowen, 238; The People v. McDonald, 43 N. Y., 61.) The following cases are cited by the learned district-attorney in support of the conviction: (Hildebrand v. People, 1 Hun, 19; Weyman v. People, 4 id., 511; Lewis & Loomis v. People, 67 N. Y., 322; Smith v. People, 53 id., 111.) In all of these cases an examination shows that the control of the property was not absolutely parted with by the owner. In the case first cited a treasury note of fifty dollar's was by the owner laid upon a counter, for the purpose of having it changed and paying ten cents for a glass of soda water. The prisoner seized and appropriated to his own use the entire note, and was convicted of the offense of larceny. In the second case, the prisoner received from the owner a quantity of jewelry for the purpose of enabling a customer of the former to select therefrom one article, and the residue to bo returned to the ownei, with the money for the article sold. The prisoner appropriated to his use all of the jewelry and was convicted of larceny. In that case the learned judge remarks : “ The distinction between this class of cases, and obtaining property by means of false pretences, seems to consist in the circumstance that in the latter the owner intends to part with his title with the change of custody ; while in the former no intention of that kind exists.” In the case we are considering, the facts show that Schelly did intend to part with the title to the malt, as well as the possession thereof. In the third case, Lewis induced Olason to accompany him to a bank to procure a $500 check cashed, and on the way led Olason into a saloon and there met Loomis, to whom Lewis jn-oposed that they should throw dice for $100, which was assented to by Loomis ; whereupon Lewis asked Olason to lend him ninety dollars, saying : “I am'sure to beat him again, and you can have your money back if I do lose ; I have got the check for $500, and we will go up to the bank and get the check cashed and you can have the money.” In that case Judge Miller remarks: “It is contended that the conviction was erroneous, because the prosecutor voluntarily -parted with his money, not expecting to receive back the same bills, but others in their place, and hence the crime is not made out. It must be *403conceded that in order to establish the offense of larceny, there must be a trespass, and without this element the offense is not complete, even although the owner is induced to part with his property by fraudulent means ; yet if he actually intends to part with it and delivers up possession absolutely, it is not larceny In the last case, Smith v. People, the prisoner procured a locket, chain and two dollars, with' directions from the owner to pawn them and procure twelve dollars to prevent the imprisonment of her husband. All the pretences in regard to the arrest of the husband were false. The prisoner appropriated the property to his own use, and was convicted of larceny. In that case the owner did not absolutely part with the property; she merely authorized the creation of a lien thereon. Judge AlleN says : “The owner did not part with the property in the chattel or transfer the legal possession. The accused had merely the custody; the possession and ownership remaining in the original proprietor.” It will be perceived that in all of these cases where a conviction for larceny has been sustained, the court has determined from the facts of the particular case, that there was the absence of an intention, on the part of the owner of the property, to part with the ownership, possession and control. In this controlling particular the case at bar differs with that class of cases, and the distinction rests upon principle. Schelly parted with the malt so effectually as to enable Zink to confer upon the purchaser a good title thereto.
We conclude that the evidence did not justify a conviction and the judgment should be reversed.
Judgment affirmed.