The opinion
Felton, J.,
dissenting. I am of the opinion that as a matter of law the jury was not authorized to find that the prosecution was instituted without probable cause. There is a sharp conflict in the cases,from other jurisdictions as to whether it is a good defense to the charge of larceny after trust that the defendant appropriated the money or property entrusted to him under a bona fide claim of right, based on a claim of title to the money or property or on a claim of indebtedness by the prosecutor to him, whether the claim was well founded or not. There is a similar conflict of authority on the question whether such a bona fide claim is a good defense to the charge of armed robbery. The cases holding that such a claim is a good defense are based on the theory that since the taking was under a claim of right the element of intent to steal is lacking. The Supreme Court of this State in
Moyers
v.
State,
186
Ga.
446 ( 197 S. E. 846 , 116 A. L. R. 981). repudiated such a theory, and decided that a bona fide claim would not justify a violent taking. Such a defense applied to a charge of larceny after trust would apply for the same reason. In fact the Supreme Court in the opinion discussed this very question and cited cases involving the identical question, particularly the case of
*63
McKenzie
v. State, 8
Ga. App.
124 ( 68 S. E. 622 ). In the
McKenzie
case the court charged the jury that the defendant “would have no right to be guilty of larceny after trust because” the prosecutor '“owed him money.” This charge was excepted to, and the court ruled on the exception, stating: “ One can not collect a debt due him by taking the property of another in payment thereof without the owner’s consent.” In
McJenkin
v. State, 62
Ga. App.
321 ( 7 S. E. 2d, 812 ), it was held that if the prosecutor and the defendant had a business transaction in which the defendant openly and in good faith retains money entrusted to him by the prosecutor for a specific purpose, under a claim growing out of the same transaction that the prosecutor owes him more than the sum retained, the defendant is not guilty of larceny after trust. Whether the debt claimed to be due by a defendant arose before or simultaneously with, or after he was entrusted with the money or property appropriated by him might be of vital significance. If there is any conflict between the cited decisions of this court, in the absence of a specific ruling by the Supreme Court on the question, the older will govern until overruled. In the case at bar the indebtedness claimed to be due by the plaintiff arose before he was intrusted with the money he was charged with misappropriating. He was fully aware of the debt when he accepted the trust. His duty was to collect money on the laundry tickets from customers and deliver it to the prosecutor. He admitted that such money so collected belonged to the prosecutor. Under the ruling in the
McKenzie
case, supra, there was probable cause for the prosecution under the circumstances pretermitting the question as to whether, if this case were not the law, the taking was so openly and avowedly done as to be the basis of a defense. I think a new trial should have been granted.