dissenting.
I respectfully dissent.
Fraudulent breach of trust is defined in TCA § 39-4226 as follows:
The fraudulent appropriation of personal property or money by anyone to whom it has been delivered on deposit, pledge, sequestration, or to be carried or repaired, or in whose hands or under whose control it may be by his position as clerk, agent, factor, or bailee, or on any other contract or trust by which he was bound to deliver or return the thing received or its proceeds, is a fraudulent breach of trust. So is the fraudulent appropriation of certain specific property by anyone to whom it has been delivered on a contract of loan for use, or of letting and hiring, after the time at which, according to the contract, the right of use acquired thereby has ceased, or before that time, by a disposition not authorized by the contract.
This criminal offense first came into our law in Chapter 113, Section 17 of the Acts of 1855-1856. The intent of the legislature was to make the failure and refusal to return the thing received or its proceeds a felony. State v. Leonard, 46 Tenn. (6 Cold.) 307, 309-310 (1869).
The essence of fraudulent breach of trust does not embrace any intent to deprive the true owner of his property, but fraudulently to “appropriate” the same to the defendant’s use. Raine v. State, 143 Tenn. 168, 226 S.W. 189, 196 (1920).
The various definitions of “appropriate” are found at 6 C.J.S. (Appropriate), p. 122, as follows:
*415In its primary sense, the word has been defined as meaning to claim or use by an exclusive right; to deprive or take away from one to whom a chattel belongs, and to devote it to the exclusive use and benefit of him who appropriates it; to exercise dominion over an object to the extent and for the purpose of making it subservient to one’s own proper use or pleasure; to make a thing one’s own; to set apart for a use in exclusion of all others; to take as one’s own by exclusive right; to use an article of property as an exclusive and preeminent right; to take from another to one’s self, with or without violence; to take to one’s self to the exclusion of others.
It matters not how good the intention of the defendant may have been at the time of the misappropriation, and matters not how honestly he intended to return the property he misappropriated. Raine v. State, supra. Good faith is not a defense to fraudulent breach of trust. McCommon v. State, 185 Tenn. 613, 207 S.W.2d 333, 335 (1948).
Venue is laid in fraudulent breach of trust cases where the “appropriation” of the property takes place, not necessarily where the possession was obtained. Lovelace v. State, 80 Tenn. (12 Lea.) 721, 723 (1883). However, venue need only be proven by a preponderance of the evidence, which may be either direct or circumstantial or both. Smith v. State, 607 S.W.2d 906, 907 (Tenn.Cr.App.1980).
In circumstantial evidence cases the circumstances must be consistent with guilt and inconsistent with innocence, and must exclude every other reasonable hypothesis except that of guilt. Lancaster v. State, 91 Tenn. 267, 18 S.W. 777, 781 (1892). The facts must establish such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that the accused is the one who committed the offense. Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 456 (Tenn.1958).
Viewing the controverted proof in light of these well established principles, it is clear to me that any rational trier of fact could find the appellant guilty beyond a reasonable doubt. The circumstantial evidence was sufficient to establish all the elements of the offense, including the fact that the appellant fraudulently “appropriated” the piano parts to his own use, and that the fraudulent misappropriation took place at the time he took them from the victim’s home in Shelby County. His prior conviction in Davidson County for the same offense was strong evidence of fraudulent intent, rather than the good faith ascribed to the appellant by the majority, at the very moment of the taking. Rule 13(e), T.R.A.P., Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2786-2792, 61 L.Ed.2d 560 (1979).
The rules concerning appellate review are well settled. The findings of the trial judge at a bench trial have the weight of a jury verdict. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978). The guilty verdict accredits the testimony of the state’s witnesses and resolves all conflicts in favor of the theory of the state. Id. On appeal the state is entitled to the strongest legitimate view of the evidence and all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).
The majority holds that on June 13, 1979, in Shelby County, Tennessee, the appellant did not “fraudulently appropriate” the goods, because any appropriation of the property to his own use must have occurred later. Somehow, the majority has looked into the mind of the appellant and found that he had no fraudulent intent at that time.
The action of the majority in reversing and dismissing this conviction is, in my opinion, a substitution of this Court’s judgment for that of the trial judge who saw and heard the witnesses in person and who was in a far better position to judge their credibility than are we, who have the benefit of only the cold record in written form. On appellate review of the sufficiency of the evidence, the inquiry is not whether the judges of the reviewing court believe that the evidence at trial established guilt beyond a reasonable doubt. Rather, “the rele*416vant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”. (Emphasis in original) Jackson v. Virginia, supra, 99 S.Ct. at 2789. Examining this case in light of these principles, I am convinced that a rational trier of fact could find the appellant guilty beyond a reasonable doubt.
Thus, I would affirm the judgment of the trial court.