(dissenting).
I cannot agree to the proposition that it is competent evidence for the defense, on a trial for larceny by bailee, to show that the accused was told, by one who had no interest in the money which he held in trust, to keep the money and appropriate it to his own use. The money which the plaintiff in error had in his' possession did not, as he was *849well aware, belong to Cook. Both Cook and he were parties to a written agreement by which Cook assigned his lease to Keyes, and whereby the latter was obligated to pay all sums realized upon clean-ups pro rata to Cook’s creditors. In pursuance of that agreement the plaintiff in error had been intrusted with the proceeds of the first clean-up, and had taken it to Fairbanks, and had returned with the money for the payment of creditors pro rata in pursuance of the agreement. He was intrusted in the same manner with the proceeds of the second clean-up. He was well aware of the terms of the agreement, and of the understanding under which the mine was operated. It is true that one who appropriates money under authority of another, under the bona fide belief that he is authorized, is not guilty of larceny, although his belief is mistaken.
“It is necessary, however, in all cases, that the claim of right be a bona fide one.” 25 Cyc. 50.
It is not shown, and there was no offer of proof, that the plaintiff in error was influenced in any degree by Cook’s statements; on the contrary, his whole evidence is that he never at any time appropriated, or intended to appropriate, or keep the money. He testified that after his conversation with Cook he continued on his way to the mine, and that he returned to Fairbanks only on account of the lameness of his horse, that he intended to go out with the money on the train on the following morning, and that he would have done so, but for his arrest.
I agree with Judge HUNT that it was not reversible error to sustain the objection to the question propounded to the plaintiff in error: “Q. Did you act upon the advice of any attorney in holding the gold dust, as you have testified you did hold it, on Sunday, the 2d day of June, 1917?”
The plaintiff in error had testified that he held the gold dust on Sunday, the 2d day of June, in trust for the true owners thereof, and that he intended to take the same to the mine, there to be disbursed in accordance with the agreement of the parties. It was immaterial whether or not, in so holding it, he was acting under the advice of an attorney.