(dissenting). I am constrained to take a different view of this case from that of my associates. The guilt of appellant is plain. I see no necessity for reversing the judgment when a reversal may result in the failure of justice.
Section 834 of our. Code provides that, “if any agent, attorney, clerk, or servant of a private person or copartnersMp, or any officer, attorney, agent, clerk, or servant of any association or incorporated company, shall wrongfully convert to his own use, or fraudulently take, make away with, or secrete, with intent to convert to his own use, anything of value which shall come into his possession or under his care by virtue of his employment or office, whether the thing so converted be the property of his master or employer or that of any other person, copart-nership, association, or corporation, he shall be deemed guilty of embezzlement.”
Appellant was a bookkeeper, authorized to make collections, and received cash and checks. He had authority to indorse the checks for the purpose of deposit. Clearly, had he appropriated the cash collections, he would have been guilty of embezzlement. He indorsed the checks here involved, but, instead of depositing the proceeds, appropriated them to his own use. For aught that appears, his intent to appropriate the proceeds of these checks may have been formed after Ms indorsement of the checks, but whether the intent was formed before or after the indorsement, he nevertheless converted the proceeds to'his own use, and in my view that appropriation constituted embezzlement within the meaning of the Code.
In State v. Kroeger, 47 Mo. 552, cited in the majority opinion, the defendant surreptitiously obtained possession of a blank, signed check and wrote in an unauthorized amount and the words “cash or bearer.”
In Regina v. Bateman, 1 Coxe C. C. 186, cited in the Kroeger Case, it was held that, where a party received a blank, signed check, with directions to fill in a certain amount, and to appropriate the proceeds to a certain purpose, and fraudulently fills in a different amount and devotes the proceeds of the check to other purposes, he commits forgery. Mr. Justice Erie said; “If a cheek is given to a person with a certain authority, the agent is confined strictly within the limits of that authority, and if he choose to alter it, the crime of forgery is committed.”
In Regina v. Wilson, 2 Car. & K. 527, 61 E. C. L. 527 (also cited in the Kroeger Case), the defendant had been given authority to fill in a blank, signed cheek with the amount due a creditor of the firm. Instead of doing so, the defendant filled in the check with a larger amount and devoted the proceeds to his own purpose. A conviction of forgery was sustained because of the unauthorized change in filling in the check.
In each of these cases there is an unauthorized change in the cheek, while in the *404present case the indorsement was authorized, but the proceeds were misappropriated.
■ In Cooper v. United States, 58 App. D. C. 325, 30 F.(2d) 567, 57 W. L. R. 167 (present term), we sustained a conviction of embezzlement. The defendant- in that ease, while acting as a clerk of the corporation, was intrusted with a blank check signed by the corporation, to be used by the defendant for the purpose of covering a possible shortage which might occur in the corporation’s account with another bank in which the corporation was a depositor. The defendant furtively and without authority filled in the blanks of the cheek so as to make it payable in the sum of $500 to another person acting as an intermediary, who paid the defendant that sum in installments and deposited the cheek to his own credit in the bank. Mr. Chief Justice Martin, writing the opinion for the court, said: “The fact remains that the defendant drew $500 of the corporation’s money from the bank by means of the wrongful use of the check with which he had been entrusted, and converted the money thus procured to his own use.” In my view, the decision in the present case is inconsistent with the decision in the Cooper Case.