The defendant was indicted in the circuit court of Greene county, at its November term, 1883, for embezzlement. He was tried and convicted, and his punishment assessed at three years’ imprisonment in the penitentiary. The case is before us on his appeal.
It appears from the record that defendant, in August, 1883, was engaged in selling “pools” on horse races about to be run at the Driving Park grounds at Springfield; that defendant stood up in a stand, and cried out for bids for first choice, and awarded to the party making the highest bid the first choice; the party then named the horse which he believed would win the race, and deposited with defendant the amount of money bid by him. A large number of pools were sold, and the parties buying and depositing their money looked to the pool-seller to pay their wager if they won. If they lost, they were to receive nothing. To each one buying a pool he gave a card as follows:
*361No.
Association Pools.
Mr.
Horse.....
Amount paid, $.
Amount in pool, $.¡..
Ohaules ’ Shadd, Auctioneer.
It was understood and agreed that defendant was to receive ten per cent commission on the money deposited. It was shown by the evidence that one Holman, under the above arrangement, deposited with defendant $33, and it is for the embezzlement of this sum that defendant is prosecuted in this proceeding.
' Holman lost $5 and won $10, and a race upon which $18 was bet, was not run on account of rain. Holman testified that he placed his money in defendant’s hands, saw him intermingle it with other money, use it in making change and made no objection, and did not expect the return of the identical money he deposited; that he presented his tickets and demanded of defendant the amounts called for, which he declined to pay until the judges made a final decision on the races. It also appears that defendant ran away that night without paying Holman, taking with him all the money in the pool, and that when arrested near Rolla, in a different county, he had $265 concealed on his person, and $5.10 in a pocket, and when the sheriff making the arrest found the $265, defendant said “ that is the money you are looking for; that $5.70 is my own money.”
On this state of evidence the court gave several instructions, to the effect that if the jury believed Holman deposited $33 with defendant, under the circumstances above set forth, and that defendant converted the same to his own use, against the will and consent of Holman, and took and carried the same away with the intent to deprive Holman of it, and convert it to his own use, that he was’ guilty of a felony, and that they should so find.
*362The cour.t refused to instruct tbe jury, as asked by defendant, tbat if, when tbe money was deposited, it was tbe understanding tbat defendant was to receive ten per cent of it for commission, and if, after deducting sucb commission from tbe amount deposited, tbe remainder would be less tban $30, they could not convict defendant of a felony. Tbe court also refused to tell the jury tbat if they believed tbat defendant paid out by direction of TIolman the $5 lost by him, that it should be deducted from tbe amount deposited in estimating tbe amount defendant was charged with embezzling. Tbe court also refused to in-. struct tbe jury, tbat if they believed defendant was appointed and acted as tbe agent of parties described in tbe indictment in tbe furtherance, or carrying out a transaction which was immoral and against public policy, they should acquit defendant.
It is claimed by counsel tbat tbe refusal of tbe above instructions, as well as its action in giving instructions on tbe part of tbe State, was erroneous. It is argued in support of tbe objection to tbe instructions given for tbe State, that under tbe evidence defendant simply became tbe debtor of Holman, and not bis agent. We think this point is not well taken. There is nothing in tbe evidence tending to show tbat it was tbe intention of the parties to create tbe relation of debtor and creditor; tbe tickets given by defendant were in the nature of receipts to the various parties depositing money with him, and tend to show an agency on tbe part of defendant with reference to tbe money thus placed in bis bands. But it is plausibly argued tbat if. defendant was an agent, tbat inasmuch as be was bolding tbe money for an immoral purpose, tbat be could not, for tbat reason, be convicted of embezzlement. "While some of tbe authorities to which we have been cited, seem to give color to this idea, we think tbe true and better rule is laid down in tbe case of Commonwealth v. Cooper, 180 Mass. 285, which was a prosecution for embezzlement, in which defendant was charged with embezzling a check of the value of $200, *363the property of one "Wood. The defendant contended that his contract with Wood was a gambling contract, and was illegal under the statute, and that even if he had appropriated the margin he could not he convicted of embezzlement. The court held that there was no evidence that Wood contemplated or authorized the defendant to enter into any gambling or illegal contract, and “ if he had, the check or money sent by him would remain the subject of larceny or embezzlement; and if the defendant fraudulently appropriated it to his own use, it would be no defense to an indictment by the government for embezzlement to show that the property had been entrusted to him for an illegal purpose.” State v. Tumey, 81 Ind. 559, is to the same effect.
It is also claimed that the court erred in refusing de-_ fendant’s instructions, in effect, telling the jury that in estimating the amount embezzled they should deduct ten per cent of the amount deposited, and that if they believed the $5 lost by Holman was paid out by defendant, by direction or with the consent of Holman, it should also be deducted. We think this point well taken. The evidence clearly showed that defendant was entitled to ten per cent of said amount deposited, and tends to show that he was authorized to pay out $5 lost by Holman.
For the error indicated, the judgment will be reversed and cause remanded.
All concur.