dissenting: The uncontradicted evidence was that the ' defendant, in October, 1917, bought the car in question from J. E. Clayton for $600, paying $100 cash and giving his notes for the balance. In 1918 the defendant sold the automobile to Willie Waters, the prosecuting witness, for $475. Waters paid $350 cash, and gave a note and mortgage on the car for $125. A few days afterwards, Waters being a shoemaker and finding that he could not operate the car, applied to the defendant to take it back. This he agreed to do upon Waters appointing him, the defendant, his agent to sell the car. The agreement was that the proceeds of the sale of the car by the defendant should first be applied to the payment of the $125 note, then the remainder of it not to exceed $350, which was the amount of the cash paid by Waters, was to be returned to him.
As soon as the defendant had secured possession of the car under this agreement, he returned it to Clayton, who took the car for the balance due him upon the notes. Clayton turned over to Flowers $400 in notes *692of Flowers, marking them paid. Clayton testified that at this time the car was worth $300. The defendant at no time after the settlement with' Clayton accounted for any part of the proceeds of the sale.
In order to convict the defendant of embezzlement, four facts must be established: (1) That the accused was the agent of the person alleged, and that by the terms of his employment he was charged with receiving the money or property of his principal; (2) that he did in fact receive such money; (3) that he received it in the course of his employment; and (4) that he, knowing that it was not his own, converted it to his own use. All of the elements of the crime, as shown upon the evidence, are set out in this case and justified the verdict. S. v. Gulledge, 173 N. C., 746; S. v. Long, 143 N. C., 674; S. v. Connor, 142 N. C., 708; S. v. Summers, 141 N. C., 843; S. v. Blackley, 138 N. C., 620.
The written agreement signed by Waters that he released and transferred back to Flowers the automobile merely placed the title back in Flowers to make sale of the same. The testimony of Waters that Flowers, as agent, was to sell the car and bring him the proceeds after paying the $125 he owed Flowers was a valid verbal agreement.
The written part of the contract was not in contradiction of the verbal conditions on which Flowers was to dispose of the property and was competent. Nissen v. Mining Co., 104 N. C., 309, and numerous citations thereto in Anno. Ed. Otherwise, the written agreement would have been a gift by Waters of the property without consideration, when the only reasonable construction is, as Waters testified, that it was to be sold by Flowers and accounted for. Flowers not having done this, was guilty of embezzlement.
The defendant further contended that because of the condition that the proceeds of the car, when sold by Flowers, should be applied to the payment of the $125 note due by Waters, then the remainder of it to the extent of $350 cash, which had been paid by Waters, was to be returned to Waters, and all above should be divided equally between them (but there was nothing in excess) amounted to a joint ownership, and hence the appropriation of the entire proceeds by Flowers was not an embezzlement.
This subject, however, was fully discussed and decided in S. v. Blackley, 138 N. C., 620, which held, upon these identical facts, that in such case the failure of the agent who converted the property to his own use and failed to pay his part of the proceeds of the sale to the owner was an act of embezzlement. Such contract as this did not constitute the defendant and Flowers partners, but the defendant was the agent of the prosecutor and by the terms of his employment, having received property of his principal in the course of his employment, and knowing it was not his own, converted it to his own use, he was guilty of embezzlement.
*693In S. v. Blackley, supra, tbe Court affirmed tbe following ebarge by tbe judge: “If tbe jury shall be satisfied from tbe evidence tbat Black-ley was to sell tbe borses and mules -for McAdow and pay tbe expenses, and then pay to McAdow tbe cost price of tbe borses and mules before any division of profits, be bad no right to mix tbe cost price of tbe borses and mules with bis own money,” and tbe Court sustained tbe conviction.
On tbe trial tbe defendant asked tbe prosecuting witness several questions in an attempt to show tbat one Eugene Boney was hostile to tbe defendant, and bad instigated this proceeding. These questions were entirely irrelevant and were properly excluded. They did not tend to impeach tbe character of tbe prosecuting witness, but were merely to show a motive, which was unnecessary, for be was a prosecutor.
Eugene Boney was in no way connected with any of tbe dealings as to tbe automobile or its disposal in any way, and was not a witness on tbe trial. It was an attempt to divert attention from tbe question at issue, which was tbe embezzlement by tbe defendant of tbe property of Waters, and tbe only effect of tbe cross-examination of tbe prosecuting witness, if allowed, would have been to make an issue as to tbe relationship between Eugene Boney (who was in no wise connected with tbe matter) and tbe prosecuting witness. It needs no citation of authorities to sustain tbe ruling of tbe judge excluding these questions as irrelevant.
Though tbe defendant went upon tbe stand himself and put on witnesses, be did not deny tbe essential elements of tbe offense charged. He contents himself with tbe attempt to prove by tbe cross-examination of witnesses tbat Boney bad animus against him, and bad caused Waters to bring this prosecution, but there is no contradiction tbat be took tbe machine back from Waters; Clayton testified tbat defendant resold it to him for $400, and defendant does not deny be has paid Waters no part of tbe proceeds of tbe resale of tbe property, although Waters bad it only a few days and bad paid tbe defendant for it $475 ($350 in cash). He rests bis case upon tbe purely irrelevant allegatipn tbat, as be claims, Waters was prompted to this prosecution by an enemy of bis.
Tbe cross-examination excluded did not tend to show bias of Waters, who was tbe prosecuting witness, but merely to impeach Boney, who was not a witness at all, and was therefore irrelevant.
As Waters received nothing in return for tbe machine for which tbe defendant admits Waters bad paid him $350 in money and given him a note for $125, tbe indictment charges in two counts tbe embezzlement of tbe machine and of $350 in cash. As tbe verdict is a general one, it is immaterial whether tbe embezzlement was of the machine or of any part of tbe value thereof.
*694It is noticeable that the defendant’s brief does not'deny these facts, but it is taken up entirely with the charge of bad feeling by Boney (who had no connection with this matter for which the defendant is indicted), and the allegation that Boney threatened to assault defendant’s counsel. The real issue — the embezzlement charge — and the failure of the defendant to account to Waters for -any part of the proceeds of the machine (which he does not deny Clayton paid him) is not controverted or even mentioned in defendant’s brief.