dissenting.
The indictment in this case charges:
“HAZEL ALTIG is accused by the Grand Jury of the County of Multnomah and State of Oregon, by this indictment of the crime of Converting Intrusted Property committed as follows:
“The said HAZEL ALTIG on or about the 1st day of January, A.D. 1964, in the County of Mult-nomah and State of Oregon, by, through, together with and in the name of American Escrow, Inc., a corporation, being the agent of Floyd Parkison and Roy Parkison and in her capacity as such agent being intrusted with the money, funds, credits and assets of the said Floyd Parkison and Roy Parki-son in the amount of $6,540.23, for sale, custody, management and care, the said HAZEL ALTIG did unlawfully and feloniously, with intent to defraud, convert the said money, funds, credits and assets to her own use and benefit, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.
“Dated at the City of Portland, in the County aforesaid, this 30th day of June, A.D. 1964.”
The conclusions in the majority opinion supporting guilt are unrelated to the allegations of the indictment. Actually, Parldsons got everything they paid for and in their testimony made no claim that property of any kind was embezzled from them. On the other hand, Caldwells, the sellers, did not testify that they were entitled to any of the proceeds. Mr. Caldwell testified that he inquired of defendant as to when one of his creditors was to be paid.
*144The state, admittedly, has not presented evidence which supports the allegations of the indictment. During the trial, in the briefs filed here and at two oral arguments the state has advanced at least four different theories as to when and how defendant embezzled. None of the theories have any reference to the allegations of the indictment.
This conviction is sustained upon facts assumed to be or known to be in existence, aliunde the record, not by facts proven. The judgment should be reversed.