(dissenting.)—I think all the authorities without exception hold that the gist of the offense of embezzlement is a breach of trust, and the provisions of the statute do not apply to appropriation of property by a person, unless he held a relation of confidence or trust towards the owner, and had possession of the property by virtue of such relation, and converted it in violation of the trust reposed in him. Tipton v. State, 53 Fla. 69, 43 South. Rep. 684.
In writing of the confidence of the defrauded person in the one embezzling, Mr. Bishop says: “The leading doctrine of this sub-title is that the statutes are for the protection of employers against the frauds of those in whom they háve confided; and where» no confidence. is reposed, and none is violated, the offense is not committed.” 1 Bishop’s New Crim. Law (8th ed.) §352. Mr. Clark says: “The gist of the offense is a breach of trust,, and it is held that the statutes do not apply to the appropriation of property by any person unless he held a -relation of confidence or trust towards the owner, and had possession of the property b)*- virtue of such relation, and converted it in violation of the trust reposed in him.”
*145In 10 Am. & Eng. Ency. Law (2nd ed.) 990, it is said: “By some statutes it is required that the property shall have come into the possession of the servant ‘by virtue of his employment.’ ” or “in the course of his employment.” Under such a statute as this a person who receives money belonging to another and fraudulently converts the same to his own use, is not guilty of embezzlement unless he received the same by virtue of or in the course of his employment, as the statute expressly requires this.
I am of the opinion that the breach of trust or violation of confidence here contemplated must have been intentionally reposed by one party and voluntarily assumed by the other. See Commonwealth v. Hays, 14 Gray (Mass.) 62, S. C. 74 Am. Dec. 662. In the Hays’ case the court held that where property delivered through mistake has been misappropriated or converted by the ■party receiving it, there is no breach of a trust or violation of a confidence intentionally reposed by one party and voluntarily assumed by the other.
Our statute provides that if any servant embézzles, or fraudulently disposes of, or converts to his own use, or takes or secretes with intent so to do anything of value which has been entrusted to him shall be punished as if he had been convicted of larceny. I do not think any one could entrust anything to another through mistake. To entrust is to commit with confidence, give in trust, confide, to place in charge, to commit something to as a trust.
The other clause of our statutes, “or has come into his possession, care, custody or control by reason of his employment,” is equivalent to the preceding clause, “which has been entrusted to him.” The words “by reason of his employment” must have reference to the property which came into his possession, care, custody or control and which was embezzled.
*146The soiled clothes were in the possession, care, custody or control of the defendant by reason of her em-' ployment as laundress. Her employment had reference to the washing of the soiled clothes. A misappropriation of the clothes would be embezzlement clearly. _ The defendant’s employment had no reference to the money put into the basket by accident. The conversion of the money by the defendant was larceny.
In Hughes’ Crim. Law & Proc. section 493, the author says: “In order to constitute the crime of embezzlement it is necessary that the property embezzled should come lawfully into the hands of the party embezzling, and by virtue of the position of trust he occupies to the person whose property he takes.” In section 496, the same -author says: “Before embezzlement can be maintained it must appear that the property was delivered to the accused in some fiduciary capacity—a relation of trust and confidence.” The very property converted, then, must have been delivered to the accused. in a fiduciary capacity to make him guilty of embezzlement. The property converted, the bag of money, was not delivered to the accused in a. fiduciary capacity. It was not delivered to the accused at all. The soiled clothes were delivered to the accused, and the money was taken with the clothes by mistake. The owner of the money did not intend that the defendant should take the money, only the clothes.