The state presents its motion for rehearing, and through Hon. Jed C. Adams, special prosecutor, a forceful oral argument, in which the proposition is urged that if the pretended purchaser has in his mind at the time of purchase the fraudulent intent never to pay for the article so obtained that it is a fraud upon the seller, and that in fact their minds never met on the contract and that no title to the property should be held to have passed. The question is not free from some difficulty, but this court in giving practical application to the statute under consideration has consistently held that where the seller parts with the possession of his property at the same time intending to part with the title thereto no offense of theft can be predicated on the transaction.
Believing our former opinion to be in harmony with this construction of the statute the state's motion for rehearing is overruled.
Overruled.