delivered, the opinion of the court.
B. T. Lawson appeals from a conviction for embezzlement, and urges reversal on the ground that the evidence introduced by the state does not sustain the charge of embezzlement.
In November, 1919, the Como Colored Methodist Church desired to erect a new church building, and had on hand available for that purpose two thousand eight hundred *761and fifty dollars. The officers of the church organization entered into an agreement with the appellant, Lawson, to build the church for sis thousand eight hundred’ dollars, which included all labor and material. Following this, the appellant obtained from the church officers two thousand one hundred dollars in cash, with which, as he represented, to purchase the lumber and material, and place it upon the ground within a few days to be used in the construction of the building.
When the money was turned over to appellant, he left Como for Memphis for the ostensible purpose of purchasing the materials for the church. Instead of doing so, however, he absconded, and left for parts unknown, appropriated the money to his own use, and was arrested and returned from California several months afterwards. He did not testify in his own behalf., but relied upon the failure of the state in its proof of embezzlement, and requested a peremptory instruction, discharging him after the state had concluded its testimony.
We have very carefully considered the evidence introduced by the state as shown by the record in this case, and we are compelled to conclude that the proof fails to sustain the charge of embezzlement.
In short, the proof shows that the church officers contracted with appellant to build the church complete, including all materials and labor, for the contract price of six thousand eight hundred dollars. There was no written contract, nor was there any indemnifying bond required of appellant by the church organization. It appears that the two thousand one hundred dollars turned over to appellant, through his representation that he intended to go to Memphis and purchase material for the building, was paid to him on the contract price of six thousand eight hundred dollars, and was to be credited on the contract, and the money was not turned over to him in trust for the specific purpose of purchasing the materials for the building. Therefore the fiduciary relation, or relation of trust, essential to embezzlement, never existed *762between the parties. The money was paid to appellant as the contractor, for which he became liable civilly, but not criminally, when he appropriated it to his own use.
We say the appellant was not liable criminally, so far as the charge of embezzlement is concerned, under the proof in this case. As to whether he is guilty of another crime than embezzlement we do not decide. That the appellant, morally speaking, is a swindler of the most reprehensible sort this record leaves no doubt; but it is our plain duty to adhere to the rules of law with reference to the essential elements constituting the crime charged. The rule protects the honest, but unfortunate, contractor from 'criminal prosecution for appropriating funds paid him up-on the contract.
If the money was paid to1 appellant on the contract, instead of intrusting it to him as agent for the specific purpose of buying the material, then, of course, he was the owner of the money, and could not embezzle his own property ; and the proof in this record shows no appropriation of funds intrusted as agent, but shows an appropriation of funds paid to the appellant upon the contract price for the building of the church.
The judgment of the lower court is reversed, and the appellant discharged.
Reversed, and appellant discharged.