Concurring. — I concur in the conclusion reached that the judgment must be affirmed, but I am unable to concur in some of the views expressed in the foregoing opinion.
The law under which the appellant was charged and convicted (sec. 60, Sess. Laws 1911, p. 404) provides that “every .... cashier .... who embezzles .... any moneys, funds, credits or other property of the bank or company and owned by it ... . upon conviction thereof shall be imprisoned in the state prison not to exceed twenty years.”
This statute contains no definition of the word ‘ ‘ embezzle.” In order to determine the charge against appellant contained in the information, it is necessary to turn to see. 7065, Rev. Codes, where embezzlement is defined as follows: “Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.”
Sec. 7068, Rev. Codes, has no application to the case under consideration.
The charge in the information is that the appellant feloniously did embezzle, steal, take, appropriate and convert to his own use a credit belonging to the bank of which he was cashier, such credit consisting of an overdraft in the personal account of appellant. In other words, appellant was charged with embezzling his own overdraft with the bank of which he was cashier.
As applied to banks an overdraft arises when a bank at the request of the depositor, express or implied, pays out money in excess of his deposit. From the standpoint of the bank an overdraft is a credit and from the standpoint of the depositor an overdraft is a debt. Considered as property it is the right which the bank has to be repaid the amount of money represented by the overdraft. It is a right of action. The cheek, draft or order which was honored by the bank in creating the overdraft and the books and papers of the bank are mere evidences by which the overdraft may be established, but are not the overdraft and are not the species of property referred to in the information. Being *826intangible, is it such property as may be the object of embezzlement? The difficulty arises from the intangibility of the property and the relation of the appellant to it as being both the debtor and the person intrusted with the custody and control of the debt.
I am constrained to the view that, under certain circumstances, a cashier might hold his own overdraft adversely to the bank, and in effect deprive the bank of its use. It is true he could not pay the debt and finally deprive the bank of its right of action, but a distinct act of taking is not necessary to constitute embezzlement (Rev. Codes, sec. 7071), and embezzlement in the case of intangible property may, in a sense, consist in a mere act of the mind of fraudulent appropriation without any outward or visible trespass. (State v. Baumhager, 28 Minn. 226, 9 N. W. 704.)
Since the record of the proceedings of the trial are not before this court, and cannot be reviewed, and the only question .is as to whether the information states a public offense, I concur in the conclusion that the judgment must be affirmed.