A majority of the court hold that the facts of this case did not authorize the prosecution for embezzlement, but that it comes appropriately under article 861, Penal Code, which relates to theft by means of some false pretext. I do not agree to this view. The only test prescribed by our code with reference to offenses is that they must be defined in order to constitute an offense, and then the only question is, do the acts shown in evidence bring the case within the statute? Our statute with reference to embezzlement of property or money requires that there should be a trust relationship established between prosecutor and defendant, such as agency, etc., and that on account of such agency the property or money was deposited or intrusted with the party; and that afterwards the agent or trustee converted the money or property to his own use. Trying the facts of this case by our statute of embezzlement, it comes clearly within the terms thereof. In my opinion it does not matter how appellant came to be agent or trustee of the prosecutor. He would not be permitted in answer to a charge of embezzlement to say that he became agent of the prosecutor by means of some false representation made by him to prosecutor. The law concerns itself only to ascertain that he was such agent. One can not set up his own wrongful act in such case to defeat a prosecution. 2 Bishop Crim. Law, 363, 364, 366; Ex parte Hedley,31 Cal. 108; Ex parte Ricord, 11 Nev. 287.
Nor is it an answer to the proposition that he might be guilty of some other offense, such as theft by false pretext. The same acts may be covered by two different statutes and be an offense under either.