(dissenting). I agree with the majority that, for the reasons stated in the opinion, the indictment can not be sustained under section 1837 of Kirby’s Digest. It appears to have been prepared under section 1842, but it can not be sustained under that statute for several reasons; first, that school directors do not fall within the terms of the statute, nor are they custodians of any public funds, and the indictment does not contain the required allegation that appellant had taken the oath of office. Wood v. State, 47 Ark. 488. It is now held by this court that the indictment is good under section 1839, which makes it embezzlement for any “carrier or other bailee” to embezzle or convert to his own use property “which shall have come to his possession or have been delivered to him or placed under his care or custody.” The indictment can not, in my opinion, be sustained under that section of the statute, for the word “bailee” as there used must be construed in its limited sense, and not in the broad sense which includes one who wrongfully comes into possession of the property of another Dotson v. State, 51 Ark. 119; Settles v. State, 92 Ark. 202; Whart. Crim. Law, § 1855; Krause v. Com., 93 Pa. St. 148. Any other view entirely eliminated, the distinction between larceny and embezzlement, which in one case involves an unlawful taking of property and in the other unlawful conversion. Fulton v. State, 13 Ark. 168. The facts alleged in the indictment do not, however, make out a case under section 1839. If the indictment had alleged that defendant embezzled funds of the district which the school board had drawn out of the county treasury and intrusted to him for some purpose, or that the school board had authorized him to draw a warrant on the treasurer and to receive the money thereon and pay it .over to a creditor of the district, and that he embezzled such funds, I am not prepared to say that it would not have been a good indictment under this section. But it falls far short of alleging such a state of facts. It does not allege that defendant was intrusted with funds of the district for any purpose, nor that he received the funds as the property of the district, nor that he failed to account to the owner for the funds so collected. The substance of the allegations is that he and the president of the board drew a warrant, which specified that it was for a fee due S. H. Mann, and which was payable to the order of defendant as secretary. Now, reading these allegations in the light of the statute, which requires that all school warrants shall be drawn in favor of the person to whom the money is due, it can only be construed to mean either that the warrant was rightfully drawn in favor of defendant as agent of Mr. Mann, or that it was fraudulently and wrongfully drawn in defendant's favor. In the former case, the money became the property of Mr. Mann on being drawn from the treasury, and defendant is not charged with embezzling the property of Mr. Mann. It is true the allegation is that, after the money was drawn out of the treasury, it was the property of the school district, but that is merely the statement of a conclusion, and one, too, that is inconsistent with the facts stated; for, if the warrant was rightfully drawn by the president and secretary, the money received thereon did not become the property of the district. Nor is the defendant charged with having fraudulently drawn the warrant. I can not see how, in any view of the contradictory allegations of the indictment, it can be said that sufficient facts are stated to make out a public offense. It is not sufficient merely to allege, in an indictment for embezzlement under this statute, that the accused embezzled and converted to his own use pi-operty belonging to another person. It is essential that it be charged that the property came into the hands of the accused as bailee for the person named, or facts should be alleged sufficient to show that funds came into his possession as bailee of said person. Here the allegation is that the funds came into the defendant’s hands as secretary of the school board, which could not under the law be true. In the absence of a specific allegation that he was entrusted with the funds by the school board for a certain purpose, the language of the indictment can only mean either that the warrant was rightfully drawn and the funds, when received from the treasurer, became the property of Mr. Mann, or that the warrant was fraudulently drawn on the treasurer. There is nothing in the indictment which amounts to an allegation that the defendant was a bailee of the school district, and, in my opinion, the indictment, without containing such an allegation, does not charge a public offense. The case made by Mr. Derrick’s testimony is that defendant was authorized by the school board to draw and collect a warrant for $50.00 due Mr. Mann, and that he fraudulently drew the warrant for $100.00 in excess of the amount due Mr. Mann and converted the excess to his own use. The indictment does not even hint at that state of facts, and the proof is wholly at variance with the accusation. As the indictment does not state facts sufficient to constitute a public offense, the defect could be taken advantage of by motion in arrest of judgment as well as by demurrer.”