¶1Upon the facts which are recited in the prevailing opinion and which, we will assume, were properly established upon the trial of this case, the defendant was guilty of the crime of larceny in having appropriated under the circumstances plaintiff’s money to his own use. Section 528 of the Penal Code provides:
“A person who, … 2. Having in his possession, custody or control as a bailee … any money … appropriates the same to his own use … steals such property and is guilty of larceny.”
¶2Clearly upon the facts recited in the prevailing opinion the defendant was guilty of having stolen plaintiff’s money. We think no well-considered authority cambe found which sustains the proposition that under such circumstances such guilty party may avoid liability to the person whom he has thus wronged by filing a voluntary petition in bankruptcy and obtaining a discharge. The provisions of the Bankruptcy Law were not, in my opinion, intended to permit such a palpable wrong to be successfully consummated.' If the defendant in this case had taken from plaintiff’s till $150 without the knowledge or consent of the plaintiff he would only have been guilty of larceny, and yet it would hardly be contended that his liability to the plaintiff for such act might be discharged by filing a petition in bankruptcy and obtaining his discharge thereon.And yet he was only guilty of the crime of larceny. Under the facts assumed to have been proven in the case at bar the defendant was equally guilty of such crime. It seems to me absurd to say that he may avoid liability to the person whom he has wronged by any provision of the Bankruptcy Act.
¶3If the views expressed in the prevailing opinion are correct, then it follows that one person may obtain the money of another by stealing the same and then be relieved from liability for such theft by a discharge in bankruptcy. However fine spun may be the argn*102ment of some of the cases to which attention has been called, as to what is included or meant by “fiduciary capacity,” we think no case can he found where it has. been held that where a person obtains the property, or money of another under such circumstances as to constitute grand larceny, that the obligation to restore such property or' repay such money has been abrogated by discharge in bankruptcy.
¶4I think the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
¶5Judgment and order affirmed, with costs.