where it appears that the witness was innocently mistaken, but even when the evidence may collaterally have the effect of showing that he was generally unworthy of belief." The same rule is stated in substantially the same way in 40 Cyc. 2766, with a multitude of citations from the federal courts and the courts of upward of thirty states. The above quotation from Greenleaf on Evidence is cited and approved in Norwood v. Kenfield, 30 Cal. 394. Commenting upon this precise point, the supreme court of Maine, in Brown v. Osgood, 25 Me. 505, says: "But as to the matter of surprise it is believed to be referable, legitimately, only to the question whether, when a party has produced a witness who testifies adversely, he shall be allowed to show that the witness had on a former occasion made a different statement."

We believe that the excluded testimony was admissible under section 2049 of the Code of Civil Procedure. But in any event, the palpably erroneous and misleading instructions justify the granting of a new trial.

The judgment is reversed.

Finlayson, P. J., and Thomas, J., concurred.

[Crim. No. 677. Second Appellate District, Division Two.-October 20, 1919.]

THE PEOPLE, Respondent, v. EDWARD SHWARTZ, Appellant.

[1] CRIMINAL LAW-DISTINCTION BETWEEN LARCENY AND FALSE PRETENSES. The distinction between larceny and false pretenses is that in larceny the owner of a thing has no intention to part with his property therein to the person taking it, although he may intend to part with possession, while in false pretenses the owner does intend to part with his property in the money or chattel, but it is obtained from him by fraud.

[2] ID.-OBTAINING MONEY BY FALSE REPRESENTATION-INTENTION OF PERSON PARTY PAYING-NATURE OF OFFENSE.-Where in a pros

1. Distinction between larceny and obtaining money by false pretenses, note, 2 Ann. Cas. 1010.

ecution for the crime of grand larceny it is shown by the evidence that the money which the defendant is charged with having unlawfully and feloniously converted to his own use was delivered to him by the complaining witnesses upon the false representation that he had influence with the police commission and that he could obtain for them with the money a license to conduct a certain business, it being also shown that it was not the intention when the money was delivered that it should become the property of the defendant, but was to be paid by him to some unknown and supposed to be actually existing person, but who as a matter of fact was a spurious and mythical individual, the offense is grand larceny and not obtaining money by false pretenses. [3] ID. DISTINCTION BETWEEN LARCENY AND FALSE PRETENSES-INSTRUCTION PROPER.-Where possession of money is obtained by fraud, trick, or device, the question whether the crime, if any there be, is larceny or false pretenses often depends upon a nice analysis of facts and legal principles; therefore, in such a case, it is allowable to give an instruction pointing out the distinction between these two classes of crime in order that, if the jurors believe the money was obtained by fraud or trickery, they may acquit the defendant of the charge of larceny if they also believe that the complaining witness intended parting with the title to defendant.

[4] ID.

INDICTMENT CHARGING SEVERAL COUNTS-FORM OF VERDICT AND JUDGMENT.-A separate verdict on each of the ten counts upon which a defendant is convicted constitutes a sufficient compliance with section 954 of the Penal Code, as amended in 1915, whereby it is provided that every "offense upon which the defendant is convicted must be stated in the verdict"; and there is no impropriety in the court pronouncing, and the clerk entering, a separate judgment upon each of the ten verdicts-each judgment being in the form of an indeterminate sentence as provided by the indeterminate sentence law.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank R. Willis, Judge. Affirmed, except as to the one count.

The facts are stated in the opinion of the court.

Warren L. Williams for Appellant.

U. S. Webb, Attorney-General, Joseph L. Lewinsohn and Arthur Keetch, Deputies Attorney-General, and Jerry H. Powell for Respondent.

FINLAYSON, P. J.-Defendant, who was convicted of the crime of grand larceny, appeals from the judgment and from an order denying a new trial.

The grand jury of Los Angeles County returned an indictment against defendant containing twenty-eight counts. In fourteen counts defendant is charged with the crime of grand larceny; in the remaining counts he is charged with the crime of obtaining money by false representations and pretenses. Before the submission of the cause to the jury the court, for insufficiency of the evidence, withdrew from the jury's consideration all the counts wherein defendant is charged with the crime of obtaining money by false representations and pretenses, and, for the same reason, withdrew from the jury's consideration four of the counts wherein larceny is charged. Defendant was convicted of grand larceny, as charged in each of the remaining ten counts.

In each of the counts upon which defendant was convicted it is charged that he willfully, unlawfully, and feloniously took, stole, and carried away a certain sum of money, the amount being specifically stated in each instance. There was a number of complaining witnesses. The theory of the prosecution was that each complaining witness was engaged in the business of conducting a bath and massage parlor in the city of Los Angeles, for the conduct of which a license from the city's police commission is required by law-a license that must be renewed every six months; that prior to obtaining each license or its renewal, defendant visited each complaining witness and falsely represented to her that he had influence with the police commission, and, for a certain designated sum of money, he could and would obtain the desired license or its renewal; and that, in each instance, the complaining witness, believing such false representation, delivered the stipulated sum of money to defendant, who thereupon unlawfully and feloniously converted it to his own use. In short, the theory of the prosecution was that defendant was guilty of grand larceny in that he obtained possession of the sums of money by fraud and trickery.

It is claimed by appellant that if the evidence shows him to be guilty of any crime, it is that of obtaining money by false pretenses, and not grand larceny-the crime of which

Oct. 1919.]

PEOPLE v. SHWARTZ.

he was convicted. In support of this claim it is contended. that the evidence shows indubitably that each of the complaining witnesses intended to part with the title to her money as well as its possession. [1] The distinction between larceny and false pretenses is substantially this: In larceny the owner of a thing has no intention to part with his property therein to the person taking it, although he may intend to part with possession. In false pretenses the owner does intend to part with his property in the money or chattel, but it is obtained from him by fraud. (People v. Delbos, 146 Cal. 734, [81 Pac. 131].) [2] There would be merit in appellant's contention if, when the complaining witnesses delivered the several sums to him, they had intended that the moneys should then and there become his property. So far from such being the case, it appears from the evidence that each complaining witness, at the time when she delivered her money to appellant, intended that it should be received by him for the purpose of carrying it and paying it to some person, unknown to the witness, whom, however, she supposed to be an actually existing person, but who, as a matter of fact, was a spurious and mythical individual, invented by appellant for the fraudulent purpose of tricking the witness into parting with the possession of her money. Thus, in support of the first count, Marie Savage-from whom appellant was charged in count one with taking, stealing, and carrying away $130-testified as follows: "I told him I would like to get a place, and he asked me if I had any money, and I told him yes, I had, and he asked me how much, and I told him I thought I had enough-that I understood it would be one hundred dollars to get the license; and I gave him He told me one hundred dollars to get me a license. that he could fix it all right. . . . He told me I was to give him one hundred dollars, and after I got the license I was to give him $25. . . . He told me he could not get it unless I did give him the money. Q. Well, was it to fix somebody? A. Understood to be. . . . Q. Did he say at any time that he would use that money for the police commission to get you a permit? A. Yes, sir. . . . Q. That money, as far as you were concerned, was for the intention or purpose, of corruptly bribing a public official, was it? Q. You understood this money, A. Well, I suppose so.

did you not, was to be given to some public official? Yes, but I didn't know who." Had the money been used by defendant, as Marie Savage supposed it would, when she delivered it to him for the purpose of being paid to an unidentified but supposedly existing corrupt public official, it would have remained her property until its final delivery to that person. She did not intend to part with the title to the money until it should be delivered to the public officer whom she supposed defendant had or would corruptly influence to issue or procure the issuance of the license. Defendant, as the complaining witness understood the transaction, was her agent to carry her money to the supposedly perfidious official. The title thus remaining in Marie Savage, it was subject to larceny as her property, and the fraudulent appropriation of it by the defendant to his own use, he having had the intention from the beginning to obtain possession of it for that purpose, constituted, in law, the crime of larceny. (People v. Delbos, supra.)

With one exception, presently to be noticed, what has just been said with respect to count one applies with equal force to each of the other counts upon which defendant was convicted. The evidence, in every instance where money was paid to defendant, justified the inference that, with the exception of certain smaller sums agreed to be paid to him. as a reward for his nefarious services in his assumed character as a corrupter of men, defendant received the sums delivered to him for the purpose of carrying and delivering them to some supposedly corrupt public official, who, as the evidence shows, did not exist.

[3] It is further contended by appellant that the court erred in that it gave an instruction which, according to appellant, misled the jury to his prejudice. It seems that, notwithstanding it had dismissed every count that charged defendant with obtaining money by fraudulent representations and pretenses, the court, nevertheless, gave an instruction wherein it pointed out the distinction between larceny and the crime of obtaining money by false pretenses. Appellant, conceding that the instruction itself embodies a correct statement of the law, argues that it prejudiced his case in that it was an invitation to the jurors to convict him of the crime of larceny if they believed him guilty of obtaining the moneys by false pretenses. We fail to see