dissenting:
I am unable to concur in the views of my learned associates in this case. In my judgment, the undisputed evidence in this case establishes such a consent upon the part of the Goldfield Milling and Transportation Company to the asportation of the amalgam by the defendant Miller as to remove from the taking the essential element of trespass going to make up the crime of larceny.
It appears from the testimony on the part of the State that the taking of the amalgam from the plates of the Goldfield Milling and Transportation Company had been going on at different times with the knowledge and acquiescence of the agents of the said company for a period of about a month prior to the arrest of the defendant Miller.
It has not been contended, upon the part of the state, that Zimmerman and Sage were not acting as the agents of the said milling and transportation company. They represented said company, in so far as their acts were concerned. It is also manifest from their testimony that both Zimmerman and Sage were deputy sheriffs, and that the removal of the amalgam from the plates could not have been accomplished without the cooperation of Zimmerman, unless Zimmerman himself be conceded to be an accessory before the - fact. Miller testified that he never had any conversation with Hildebrandt prior to the time Zimmerman told him, "All right, go ahead.” Miller further testified that he never would have attempted a theft of the amalgam, without having an understanding and agreement with Zimmerman.
It appears that when Zimmerman said to Miller, "All right,” on the 16th of January, that Miller was not *461entirely satisfied to go ahead upon that occasion, but requested a conference with Zimmerman the following day. This conference was had in pursuance of Sage’s instructions to Zimmerman, and all subsequent acts upon the part of Miller in taking amalgam from the plates were in pursuance of the understanding which he had with Zimmerman upon the afternoon of the 17th of January. It is manifest from the testimony that it was practically impossible for Miller to remove the amalgam without the cooperation of the watchman Zimmerman, and Zimmerman so testified. The amalgam was removed from the plates in the presence of Zimmerman and with his consent, and Zimmerman’s actions were in accordance with the directions of Sage, the chief detective of the company, and with the approval of the attorney of the corporation. Zimmerman not only entered into an agreement with Miller as to the manner in which the amalgam was to be taken, but further agreed that he was to give certain signs to Miller, if necessary, that would warn him against possible detection by other employees of the company. While it is true that Zimmerman did not participate in the original design to steal amalgam from the plates of the milling company, he did cooperate with Miller in perfecting the plan by which all of the amalgam was subsequently taken by the defendant Miller.
Something is attempted to be made of the point that there was some disagreement in the testimony of the state’s-witnesses, Miller and Zimmerman, and that the latter testified that the former was in error in saying that he said, "All right,.go ahead”; that he only said, "All right.” This, to my mind, is a distinction without a difference, when it was the understanding that the words "all right” were to be the signal for Miller to go ahead. Zimmerman himself testifies that on the night following the second taking of amalgám, when Miller gave him $14 as his part, that Miller said: "It wasn’t hardly worth taking that small amount off. He said we might as well take more, to which I just assented.” Upon another occasion (the last), prior to Miller’s arrest, *462Zimmerman testified relative to a conversation with Miller as follows: "After he had looked at the plates and got ready to go to work, he says, 'Well, we might as well go a little stronger and wind this thing up. ’ I says,' Sure. ’ ”
True, Sage testifies that he instructed Zimmerman not to consent, but there can be no question but that Zimmerman was instructed to assume the attitude of consenting. Zimmerman testified that he reported everything to Sage, and that he was acting under Sage’s instructions.
There is no conflict in the authorities upon the proposition of law that, where the taking is with the consent of the owner, there is no larceny; but the difficulty is in applying the law to the facts of the given case. It is conceded in the prevailing opinion that this is a borderline case, and the only difference between my associates and myself is as to which side of the line it falls. In cases of this kind, it is necessary to keep clearly in mind that it is the question of consent or nonconsent, and not the mala fides of the defendant, which makes the taking a larceny or not.
The following excerpt from the case of Williams v. State, 55 Ga. 391, has been frequently cited with approval in cases of this character: "It seems to be settled law that traps may be set to catch the guilty, and the business of trapping has, with the sanction of courts, been carried pretty far. Opportunity to commit crime may, by design, be rendered the most complete, and if the accused embrace it he will still be criminal. Property may be left exposed for the express purpose that a suspected thief may commit himself by stealing it. The owner is not bound to take any measures for security. He may repose upon the law alone, and the law will not inquire into his motive for trusting it. But can the owner directly, through his agent, solicit the suspected party to come forward and commit the criminal act, and then complain of it as a crime, especially where the agent to whom he has intrusted the conduct of the transaction, puts his own hand into the corpus delicti, and assists the *463accused to perform one or more of the acts necessary to constitute the offense? Should not the owner and his agent, after making everything ready and easy, wait passively and let the would-be criminal perpetrate the offense for himself in each and every essential part of it? It would seem to us that this is the safer law, as well as the sounder morality, and we think it accords with the authorities. * * * It is difficult to see how a man may solicit another to commit a crime upon his property, and when the act to which he was invited has been done be heard to say that he did not consent to it. In the present case, but for the owner’s incitement, through his agent, the accused may have repented of the contemplated wickedness before it had developed into act. It may have stopped at sin, without putting on the body of crime. To stimulate unlawful intentions, with the motive of bringing them to punishable maturity, is a dangerous practice. Much better is it to wait and see if they will not expire. Humanity is weak; even strong men are sometimes unprepared to cope with temptation and resist encouragement to evil. ”
In the case of Love v. People, 160 Ill. 501, 43 N. E. 710, 32 L. R. A. 139, the court said: "A contemplated crime may never be developed into a consummated act. To stimulate unlawful intentions for the purpose and with the motive of bringing them to maturity, so the consequent crime may be punished, is a dangerous practice. It is safer law and sounder morals to hold, where one arranges to have a crime committed against his property or himself, and knows that an attempt is to be made to encourage others to commit the act by one acting in concert with such owner, that no crime is thus committed. The owner and his agent may wait passively for the would-be criminal to perpetrate the offense, and each and every part of it, for himself, but they must not aid, encourage, or solicit him that they may seek to punish. ”
Where the plan originates with the accused, and the *464owner, upon learning of the same, actively urges or encourages the defendant on to its commission, the owner will be deemed to have consented.
In the recent case of Tópolewski v. State, 130 Wis. 244, 109 N. W. 1037, 7 L. R. A. (N. S.) 756, 118 Am. St. Rep. 1019, 10 Am. & Eng. Ann. Cas. 627, which upon the facts is similar in many respects to the case at bar, the court said: "The logical basis for the doctrine above discussed is that there can be no larceny without a trespass. So if one procures his property to be taken by another intending to commit larceny, or delivers his property to such other, the latter purposing to commit such crime, the element of trespass is wanting, and the crime not fully consummated, however plain may be the guilty purpose of the one possessing himself of such property. That does not militate against a person’s being free to set a trap to catch one whom he suspects of an intention to commit the crime of larceny, but the setting of such trap must not go further than to afford the would-be thief the amplest opportunity to carry out his purpose, formed without such inducement on the part of the owner of the property as to put him in the position of having consented to the taking. If I induce one to come and take my property, and then place it before him to be taken, and he takes it with criminal intent, or if, knowing that one intends to take my property, I deliver it to him, and he takes it with such intent, the essential element of trespass involving nonconsent requisite to a completed offense of larceny does not characterize the transaction, regardless of the fact that the moral turpitude involved is no less than it would be if such essential were present. ”
When Zimmerman, under instructions from Sage, said to Miller, "All right,” or "All right, go ahead,” whichever was the language used, and Miller declined to proceed without a more thorough understanding with Zimmerman,, which understanding was had by directions from Sage to Zimmerman, and thereafter the amalgam was taken in pursuance of that understanding and in the immediate presence of Zimmerman, and with his knowl*465edge and apparent approval, under instructions from his superiors, I think a case is presented which amounts to consent on the part of the milling company.
The fact that there is evidence in this case that would support a conclusion by the jury that the several defendants had originated the plan to commit a larceny, and had conspired to that end, is not alone sufficient to constitute the asportation of the amalgam, in pursuance of that conspiracy,- a larceny.
■ The several rules deducible from the authorities are, in my judgment, substantially as follows:
Where the owner, suspecting criminal intentions upon the part of the defendant, originates a plan to entrap him and actively aids in carrying it out, the courts universally hold no larceny is committed.
Upon the contrary, where the scheme originates with the accused, a larceny is held to have been committed, where the owner goes no farther than to facilitate the previously designed plan, and passively permits its being carried out by the accused in every material part.
But, although the scheme originates with the accused, if the owner, upon becoming aware of the same, actively encourages or aids the accused to carry out the plan, in order that he may seek to punish, no larceny is committed, for the reason that such aid or active encouragement is deemed to amount to consent. Especially is this so where the scheme is not feasible without the cooperation of the owner’s agent, and the owner, as in this case, directs the agent to so cooperate.
Some very serious questions are presented upon the record as to the admissibility of evidence; but, if my view of the case is correct upon the main point, it would be unnecessary to consider them, and for that reason I express no opinion upon them.
I think the judgment should be reversed.