(dissenting). With all due respect for tbe opinion of tlie majority, I cannot bring’ myself to tbe point-of concurring in the majority opinion. I therefore respectfully dissent.
Under the undisputed evidence in the case, I think that Boyer was guilty of larceny, rather than of obtaining money under false pretenses. I shall state my reasons as briefly as I can.
Under the authorities, it is sometimes difficult to determine whether, under a given state of facts, a party is guilty of larceny or of false pretense. I am inclined to think that, in some cases, a situation might be such as to involve either one. 17 Ruling Case Law 8. In some jurisdictions, all distinction between the two crimes of obtaining property by false pretenses and larceny has been abolished. Zink v. People, 77 N. Y. 114. In some of the old English cases, the difference between the two is more artificial than real, and rests purely on technical grounds. Much of the nicety is due to the fact that, at the time many of the English cases were decided, larceny was a capital felony in England, and the judges naturally leaned to a more merciful interpretation of the law. 17 Ruling Case Law 8. A conviction or acquittal of one was a bar to a prosecution for the other. 12 Cyc. 286, Note. It has been held otherwise in this country. Dominick v. State, 40 Ala. 680. But see State v. Reiff, 14 Wash. 664. This being so, I am not so sure but that the rule ought to apply that there is an ambiguity in the policy, which should, under familiar rules, be construed against the party who prepared- his own contract. But I shall not discuss that feature of the case.
In this state, we have larceny by embezzlement, by bailee, and other embezzlements. Code Sections 4841 and 4842. See, also, Code Sections 4844 and 4852. By these sections, different kinds of embezzlement are made larceny. See, also, Code Sec*886tions 4839 and 4838. The last named section makes it larceny to falsely personate • another. To falsely personate another would clearly be falsely pretending to be another- — -a false pretense. In Beasley v. State, 138 Ind. 552 (38 N. E. 35), a conviction for larceny was sustained where defendant, by threats and at the point of a pistol, compelled the owner to part with the money against her own free will, thus placing the parting with possession on the same footing as though there had been a promise or trick. Ordinarily, this would be robbery; but there are many cases holding that, when the taking is done with consent which is not a voluntary one,' as the result of fear, induced by threats, it is a taking without the owner’s consent, and a larceny. State v. Kallaher, 70 Conn. 398; 17 Ruling Case Law 18. In State v. Hall, 76 Iowa 85, 87, we said:
“If possession is obtained by a trick, artifice, or false pretense, with the felonious intent on the part of accused to convert them to his own use, he is guilty of larceny. These are familiar rules of law.”
In Towns v. State, 167 Ind. 315 (78 N. E. 1012), it was held that, where one procured contributions by falsely representing that he was a representative of a national organization whose object was to construct homes for convicts, and that his mission was to raise funds for such a home, and he converted the amount’ contributed to his own use, he was guilty of larceny, and not merely of obtaining money under false pretenses. The distinction between larceny by trick and obtaining property by false pretense is a narrow one. In both, the property is voluntarily Relinquished by the owner, and possession is secured through a trick or false pretense; and in both, the accused secures the property with intent to convert it to his own use. The distinction between the two crimes lies in the intention with which the owner parts with the property. If his intention is to invest'the accused with the mere possession only of the property, and the latter, with the reqhisite intent, receives and converts it to his own use, it is larceny. 25 Cyc. 10, 11; People v. Rae, 66 Cal. 423, and other cases cited in the note; State v. Loser, 132 Iowa 419, 427. But if the owner, in parting with the property, intends to invest the accused with the title also, the latter has committed the crime of obtaining the property by false pretense. 25 Cyc. *88711, and cases; State v. Loser, 132 Iowa 419, at 427. Ordinarily, to constitute the crime of obtaining money or property by false pretenses, there must be a false representation of a past or existing fact, knowledge of its falsity, intent to deceive, reliance thereon, etc. 25 Corpus Juris 589. The gist of the crime is the falsehood of the pretense. United States v. Watkins, 3 Cranch (C. C.) 441; State v. Merry, 20 N. D. 337 (127 N. W. 83). In State v. Foxton, 166 Iowa 181, we held that one who issues a check upon a bank in which he has no account and no funds, with no reasonable expectation that it would be paid, is. guilty of obtaining money by false pretenses, even though no representation was made. There are numerous cases, however, holding that such would not be a criminal offense unless some express representation was made. Williams v. State, 10 Ga. App. 395 (73 S. E. 424); Maxey v. State, 85 Ark. 499 (14 Ann. Cas. 509). In some jurisdictions,, there are special statutes covering this subject. People v. Pindar, 210 N. Y. 191 (144 N. Y. Supp. 242, 104 N. E. 133). It is so in Iowa. Chapter 268, Acts of the Thirty-seventh General Assembly, covers such a situation precisely ; but this enactment does not make such a transaction obtaining money by false pretenses. It simply makes such a transaction a crime. It will be observed that that statute was passed some three years after the decision in the Foxton case, and was wholly unnecessary, under that holding.
In the instant case, we have more than the mere passing of a worthless check. It is very clear that this entire transaction from the very first was a cleverly laid plan by Boyer and a confederate to obtain the money, — a trick, pure and simple. There was not only the presentation of the check, but there was the trick of having someone telephone the teller to come to the hospital at an opportune time, — also a previously designed plan. The cases hold that the correct distinction between larceny and obtaining money by false pretenses is that if, by means of any trick or artifice, the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner parts with not only the possession, but with the right of property or title also, and such is his intention, the offense will be obtaining goods-by false pretenses. This is the rule of State *888v. Dobbins, 152 Iowa 632 (42 L. R. A. [N. S.] 735); State v. Ryan, 47 Ore. 338 (1 L. R. A. [N. S.] 862), and note. The character of the crime depends on the intention of the parties,— the intention of the owner to part with the possession and with the property. Loomis v. People, 67 N. Y. 322 (23 Am. Rep. 123); 88 Am. St. 571, note. It seems to me that it is idle to say that the officers of plaintiff bank intended to voluntarily part with both the possession and the title to the money. Clearly, they would not pay over $12,400 on the two checks when Boyer had only $6,200 on deposit when the first check was cashed, and nothing when the second one was cashed. This would be throwing away $6,200 to a stranger, without any reason for it. There can be no question but that it was Boyer’s intention at the outset to secure and convert the money. The possession was obtained by trick, which it is conceded is the equivalent of trespass. Larceny always includes the taking and conversion of property against the will, or without the consent of the owner. It in--volves a trespass, and there can be no larceny where there is a consent to the taking of the property with the intention that the possession and title shall pass. 17 Ruling Case Law 12. Concededly, possession obtained by trick is, in law, no possession at all. Some of the cases put it that the taking may be constructive, as where the possession is obtained by fraud, trick, or deception. Frazier v. State, 85 Ala. 17 (7 Am. St. 21, and note). So, too, the consent of the owner so obtained is no consent. Possession so obtained is against his will. There is a distinction, I think, between money and other forms of personal property, as a horse, and the like. Money passing from one person to another would not ordinarily be subject to identification if the owner sought to follow it. Some of the cases hold that a test for distinguishing, in a given instance, between larceny and obtaining property other than money by false pretenses, is whether the offender could confer a good title on another by the sale and delivery of the property. Zink v. People, 77 N. Y. 114 (33 Am. Rep. 589).
I think that this ease comes within the rule announced in State v. Dobbins, cited in the majority opinion. Mr. Justice Weaver,' who wrote the Dobbins case, so considers it. That was a criminal case, and a conviction was sustained. It was there *889said that tliere is a technical distinction between larceny and cheating by false pretenses, in that the former crime involves the felonious taking, but that the fraud or trick supplied the place of trespass. In that case, the money was obtained on the representation that the transaction amounted to a deposit for a certain purpose, and that the money would be returned. I suppose that the significance of the promise to return is that, if the possession was given voluntarily, and therefore lawfully, a conversion thereafter would not be larceny; but where the promise is coupled with a previously formed design not to return the money, this constitutes the fraud.or trick which makes the parting with possession unlawful, and the conversion relates back to the possession by fraud or trick. But the promise as in that case is not the only way such a fraud may be perpetrated. There are many ways in which the same result may be accomplished, and with the same effect, without such a promise. In other words, that is simply one form of trick. The books are full of cases illustrating this, where there is no promise. Where one comes lawfully into possession of the goods of another, with his consent, a subsequent felonious conversion does not constitute larceny, because the felonious intent is wanting at the time of the taking. 17 Ruling Case Law 12; Smith v. Commonwealth, 96 Ky. 85 (49 Am. St. 287); State v. Coombs, 55 Me. 477 (92 Am. Dec. 610, and note).
I have tried to show, and it is very clear to me, that in this case Boyer had the felonious intent at the very time of securing, and before he secured, possession of the money. The different acts of Boyer prior to the final consummation were a part of the scheme or trick. I have cited a number of cases which are not directly in point, but which, I think, have a bearing tending to show how closely related larceny is to other crimes, and as showing that, even though acts might properly be held to be robbery, larceny from the person, embezzlement, and false pretenses, convictions for larceny were sustained. The rule of the Dobbins case has been applied to cases where a person takes a piece of money from another to change it, and keeps it, with the unlawful intent to convert it to his own use, and refuses to deliver the money given him, or the change therefor, on demand; and the fact that the taking was open and from the owner is of no consequence, if the intent to steal existed.’ State v. Anderson, 25 *890Minn. 66 (33 Am. Rep. 455, and note); Verberg v. State, 137 Ala. 73 (97 Am. St. 17, and note). This is so for the reason that the delivery of money to another for the sole purpose of getting' it changed is a parting with the custody only, and not with the title. So it is in this case, I think. The teller parted with the possession of the second $6,200 solely because of the trick perpetrated, and this trick was not alone the presentation of the check, but the combination of circumstances, the telephoning, and so on. The possession would not have been parted with but for the trick, and it would seem clear that there was no intention or purpose to part with the title thereto. Of course, if possession had not been given, it would be impossible to pass title. And we have seen that possession by fraud is no possession. The mere manual act of passing over the money because of the trick could not constitute legal change of possession or change of title, or constitute intent to do so. Clearly, had the teller known of the trick, he would not have parted with the possession; and in that case, it could not be maintained, with any degree of plausibility, that the title was parted with, or that it was so intended. If he did not so intend, it is larceny. 25 Cyc. 10, 11; People v. Rae, supra; State v. Loser, supra. I should have said before that the distinction between the two offenses depends largely, if not wholly, upon the intent of the prosecutor. State v. Loser, supra; State v. Anderson, 47 Iowa 142; State v. Hall, supra. To my mind, every element of the crime of larceny is present in this case. There is the obtaining of possession by a trick, which is equivalent to the taking or trespass; it was against the will of the owner, and without his consent, because consent obtained by trick is no consent; there was previously formed design on the part of Boyer; the fraud vitiates the whole transaction; it was not the intention to pass title; and there was a felonious conversion and intent to steal and to deprive the owner of his property, to his injury. I think that all the circumstances ought to be taken into account: the conduct of Boyer prior to the day the last $6,200 was paid, as well as that immediate transaction. I have no doubt, and no one can have doubt from reading this record, that, from the very first, when the money ‘was originally deposited, it was the intention of Boyer to perpetrate just such a fraud. It was a preconceived design on his part to secure this *891money and appropriate it to bis own use. The ruse, carefully planned from the beginning of the entire transaction, made the use of the second check possible. The trap had been already set when the check was presented. Boiled down, the proposition is tersely stated thus: If a person with a preconceived design to appropriate property to his own use obtains possession of it by means of fraud or trick, the taking of it under such circumstances amounts to larceny, because in such eases the fraud vitiates the transaction. 17 Ruling Case Law 13.
In Rapalje on Larceny and Kindred Offenses 14, the rule is stated thus:
‘ ‘ If, by trick or artifice, the owner of property is induced to part with the custody or naked possession of it to one who receives the property animo furandi, the owner still meaning to retain the right of property, the taking will be larceny.”
Smith v. People, 53 N. Y. 111 (13 Am. Rep. 474); Huber v. State, 57 Ind. 341; Loomis v. People, 67 N. Y. 322 (23 Am. Rep. 123); State v. Bryant, 74 N. C. 124; Regina v. Hollis, L. R. 12 Q. B. 25 (49 L. T. [N. S.] 572); Walters v. State, 17 Tex. Ct. App. 226 (50 Am. Rep. 128).
‘ ‘ It is larceny where the defendants so fraudulently conduct a gambling game or lottery as to give the prosecutor no chance of winning, and he parts with his money through fraud or fear.” Rapalje, supra, and cases.
“A conviction of larceny is warranted on proof that the defendant went into a shop and asked to buy the chattel, but was referred by the clerk to the owner, who refused to sell it to him except upon his father’s order, which was not obtained, and thereafter defendant asked the clerk to be shown the chattel, which he took and carried away, saying to the clerk that he had made it all right with the owner. [Commonwealth v. Wilde, 5 Gray (Mass.) 83 (66 Am. Dec. 350)]. If the property is obtained by defendant through the connivance of a servant of the owner, the defendant may be guilty of larceny though the servant’s offense is embezzlement. [State v. McCartey, 17 Minn. 76].” Rapalje on Larceny 14.
The obtaining possession of a soldier’s discharge paper by falsely personating the owner is held larceny. Commonwealth v. Low, Thach. Cr. Cas. (Mass.) 477.
*892A case directly in point, as I think, wherein an insurance company was held liable for theft of property, is Overland-Reno Co. v. International Indemnity Co., 111 Kans. 668 (208 Pac. 548). The court there said:
“The question in the case is whether the obtaining of the automobile in the way described constituted a larceny, under the contract of insurance. It provided insurance against theft, robbery, or pilferage, excepting that committed by persons in the household service or employment of the assured. The plaintiff insists the term ‘theft,’ as used, is equivalent to larceny, and that, as Dolson fraudulently gained possession of the automobile by a preconceived plan, with the intention of depriving the owner of its property, a theft was committed. As will be observed, the facts pleaded are quite similar to those involved in Motor Co. v. Insurance Co., 111 Kans. 225 (207 Pac. 205). That decision, which was made since the judgment in this was rendered, is controlling here. It was decided that: ‘ The prevailing rule is that any scheme, whether involving false pretenses or other fraudulent trick or device, whereby an owner of property is swindled out of it with the preconceived intent of the swindler not to pay for it, is classed as larceny, and is punished accordingly.’ ”
In the Hill Motor Co. case, the provision of the policy was like the policy in the Overland case. The insured was deprived of property by the swindler by means of a preconceived plan, which involved impersonation, misrepresentation, and fraud. It was held that this was a species of theft, for which the insurance company was liable..
It seems to me that my conclusion, and appellee’s contention, is sustained by the foregoing authorities. See, also, 17 Ruling Case Law 13, and many cases cited in the note, some of which are as follows: Frazier v. State, supra; People v. Rae, supra; State v. Kallaher, 70 Conn. 398; State v. Levine, 79 Conn. 714 (10 L. R. A. [N. S.] 286); Harris v. State, 81 Ga. 758 (12 Am. St. 355, and note); Slaughter v. State, 113 Ga. 284 (84 Am. St. 242, and note); Doss v. People, 158 Ill. 660 (41 N. E. 1093); Luddy v. People, 219 Ill. 413 (76 N. E. 581, 3 L. R. A. [N. S.] 508); Beasley v. State, 138 Ind. 552 (38 N. E. 35); Williams v. State, 165 Ind. 472 (75 N. E. 875); Towns v. State, 167 Ind. 315 *893(78 N. E. 1012); State v. Hall, supra; Commonwealth v. Lannan, 153 Mass. 287 (26 N. E. 858); Commonwealth v. Flynn, 167 Mass. 460 (45 N. E. 924); People v. Shaw, 57 Mich. 403; People v. Miller, 169 N. Y. 339 (62 N. E. 418); Vought v. State, 135 Wis. 6 (32 L. R. A. [N. S.] 234). See, also, Murphy v. People, 104 Ill. 528; State v. Skilbrick, 25 Wash. 555 (66 Pac. 53); Smith v. National Surety Co., 77 Ore. 17 (149 Pac. 1040).
I would affirm.
WeaveR, J., concurs in this dissent.