concurring:
This is an issue upon a plea of not guilty, interposed by appellant, an attorney at law, to an indictment charging him, as secretary and treasurer of a domestic corporation, with the crime of embezzlement, as declared by what I shall designate as the first clause of section 388 of the Crimes and Punishments Act (Rev. Laws, 6653), entitled “Embezzlement by Bailee or Other Person— Bailee Defined.” As the case is the first to reach this court for the violation of the provisions of that section in its condensed form, I shall treat the case as a precedent. The section reads as follows:
“Any bailee of any money, goods or property, who shall convert the same to his own use, with the intent to steal the same or to defraud the owner or owners thereof and any agent, manager or clerk of any person, corporation, association or partnership, or any peo'son, with tuhom any money, property or effects shall have been deposited or entrusted, %oho shall use or appropriate such money, property or effects or any part thereof in any *232manner or for any other purpose than that for which the same was deposited or entrusted, shall be guilty of embezzlement, and shall be punished in the manner prescribed by law for the stealing or larceny of property of the kind and name of the money, goods, property or effects so taken, converted, stolen, used or appropriated. The term ‘bailee,’ as used in this section, shall be construed to include and mean all persons with whom any money, goods, or property has been deposited, and all persons to whom any goods or property has been loaned or hired, and all persons to whom any goods or property shall be delivered, for any purpose whatsoever, and all persons who shall, either as agent, collector, or servant, be empowered, authorized, or entrusted to carry, collect, or receive any money, goods or property of another; and any use of said money, goods, or property by any bailee thereof, other than that for which the same was borrowed, hired, deposited, carried, received, or collected, shall be prima-facie evidence of conversion and of intent to steal the same and defraud the owner or owners thereof.”
The history of that portion of the section relative to “bailee” antedates the organization of the state (Stats. 1861, p. 70), and has undergone two amendments — one to include conversion by bailee with intent to steal or to defraud, to define the term “bailee,” and to declare conversion by a bailee to be prima-facie evidence of intent to steal and defraud (Stats. 1875, p. 99) ;• the other, with respect to punishment (Stats. 1879, p. 123). In 1887, to further define and punish the crime of embezzlement, a supplemental act was adopted to include persons other than bailees (Stats. 1887, p. 81). The commissioners appointed in 1912 to revise our criminal law saw fit to loosely, and without discrimination, throw the act of 1887 into the section concerning embezzlement by bailee, by the transposition of terms and the use of conjunctive words. The italicized portion of the'section as quoted embraces the offense declared by the act of 1887.
*233The first question to arise is whether the section in its present condensed form declares but one offense, or two separate and distinct offenses. It is my opinion that, while the offenses relate to the same acts, they differ as to the relations in which the persons stand who commit them. A defendant indicted as bailee cannot be convicted of the offense of embezzlement by an agent or any persons standing in that relation, though the offenses are of the same grade and the punishment the same, because of the apparent different relations of the persons and the different elements of the offenses. I am of the opinion that the lawmakers in 1887 considered that the crime of conversion by bailee,- notwithstanding the large Signification of the term “bailee” as defined, was not sufficiently comprehensive to include that class of persons, criminally inclined, standing in the relation of agent — or “any person” intrusted with money, goods, property, or effects for a particular purpose — hence the necessity for the act of 1887. I assume that the compilers of the law in 1912 found their authority for combining the two offenses in the principle that where offenses are of the same family of crimes or the same species they may be united, and by joining embezzlement by bailee with that of embezzlement by any agent or any person it was intended to make it possible to accuse one of the violation of the several phases of the offense in a single indictment or information; but I do not apprehend that it was intended by the compilers to confound the offenses. It is permissible, under the section in its present form, to include in one indictment or information the several elements of the offenses or characters as distinguished by the statute, provided the different means or ways of committing the act are charged in several separate and distinct counts. I do not think that by the combining of the offenses it was intended to dispense with the rule that, when a statute specifies distinct offenses, different elements, and several classes of persons, the indictment for its violation must be so framed *234as to bring the person clearly within the class specified and the phase of the offense alleged to have been committed (1 Wharton’s Crim. Proc., 10th ed., sec. 584, p. 740; 8 Standard Ency. p. 220), or that the pleader could, in framing the indictment,- overlook the elementary rule that, when an indictment is founded on a statute, all the facts and circumstances which constitute the offense must be laid in the indictment, and it must state all the ingredients which enter into the offense, whether set down in the statute in terms or interpreted into it (2 Bishop’s New Crim. Proc., 2d ed., sec. 612, p. 478).
It will be observed that officers of private corporations are nowhere in terms specified in the section. It was considered by the court in State v. Weber, 31 Nev. 385, 103 Pac. 411, that such officers fall within the term “any person,” as used in the act of 1887. It is surprising that such a large class should not have been at least named. For the sake of clearness, the compilers should have at least segregated officers of corporations, public or private, in a class by themselves, as has been done in all the other states, and thereby relieve the law of any confusion as to this class of persons.
Coming to the case at bar, I interpret the indictment to mean that the $400 alleged to have been intrusted to the defendant was a mere naked bailment (a depositum), which the defendant held wholly and exclusively for the benefit of the bailor (the corporation). By its averments, he was in the lawful receipt of the money; it was given into his possession by virtue of his office for a particular purpose, to be expended by him in a particular manner. It is averred that while so intrusted, and the money so in his custody, he converted the particular sum of money to his own use, coupled with intent to steal and defraud, the corporation, its owner. Though the defendant is not named as “bailee,” the indictment sets forth facts which clearly show that the money, at the time it is alleged to have been converted, was held *235by him in that capacity. It is true it appears that the defendant converted the money in his capacity as secretary and treasurer of the corporation, but this is merely descriptive of the relation. The jury in this case returned this verdict:
“We, the jury, find the defendant above named, Donald A. Rothrock, guilty as charged.”
The clause “guilty as charged” refers, of course, to the indictment for the facts which are specially found in the verdict, and the finding is not to be aided by reference to other facts upon which there was no finding; neither does it supply material omissions in the indictment.
I shall not recapitulate nor comment upon the evidence. But, upon a most careful study of the record, the facts, in my judgment, bring the defendant within that phase of the statute that makes “any person” guilty of embezzlement who shall use or appropriate money, goods, property, or effects intrusted to him for any other purpose than that for which the same was deposited or intrusted. State v. Weber, supra. The offense certainly had its inception in the defendant’s culpable act in filling in a blank check under color of his office, which had been previously signed by him as treasurer and countersigned by the president of the corporation, in conformity to the law of the corporation. The funds of the company, under resolutions of its board, were deposited in its name in the Farmers and Merchants National Bank of Reno, Nevada. In order to safeguard its funds, it was resolved by the board that all checks and drafts drawn against the funds of the company should be signed by its treasurer and' countersigned by its president. It appears, as stated, that the defendant had in his possession a check thus signed, which at the time of its .delivery to him was intended to be filled in by him to meet an obligation of the company for the small sum of $12. But, without the knowledge or consent of the president, defendant filled in the check to himself as *236payee for the sum of $400, and withdrew that sum of money from the bank. This act, unexplained,- constituted a complete offense, under the second clause of the section — embezzlement by “any person” other than bailee — in that the funds of the company, though deposited in bank in its name, were in a restricted and limited sense under the care and control of the defendant, not, however, as bailee as the term is used in the statute.
The evidence for the state consists mainly in detailing before the jury the animus furandi of the defendant in the withdrawal of the money from the bank for the sole purpose of appropriating it to his own use, with intent to steal and defraud. The j ury was instructed that the offense of embezzlement consists of two things — the act of taking money, and the intent with which it is taken. If this be the law of the case, the money was taken unlawfully. The intent to steal and defraud was conceived when the accused filled in the check for $400, and the conversion took place when he withdrew the money from the bank. The legal effect of all this evidence was to prove one charge for the purpose of sustaining some other charge. The defendant may unquestionably be guilty of some offense, but he cannot be convicted of one crime by proof of another, though of the same family. Ex Parte Rickey, 31 Nev. 94, 100 Pac. 134, 135 Am. St. Rep. 651.
The drafter of the indictment might have safely and sufficiently charged the defendant with the misuse and misappropriation of the money intrusted to him as an officer of the corporation in the language of the statute, by the use of a count to meet this phase of the evidence, but in this he failed. According to the indictment, the defendant received the money first bona fide, and then fraudulently converted it, with intent to steal and defraud. This is the crime expressed. Undoubtedly the material distinctions made by the statute escaped the *237observation of the pleader, court, and jury. From the proof they may have assumed that the appropriation of the money by means of the fraudulent check, with the animus furandi, might be considered as competent evidence to establish the crime as laid in the indictment.
I do not wish to be understood as holding or saying that proof of one offense under the statute disproves the other. If it did, the offenses would be repugnant, and could not be joined in one indictment. They are not repugnant. State v. Trolson, 21 Nev. 429, 32 Pac. 930. But what I do say is that evidence of a distinct offense, such as that of embezzlement by an officer of a corporation, does not establish the offense of embezzlement by a bailee. I cannot say that, with the evidence of defendant’s fraudulent or felonious taking of the money from the bank eliminated from the case, the jury would have rendered the verdict it did.
It is suggested that the proof shows an actual embezzlement, involving one and the same transaction,. and, the evidence having gone to the jury without objection, to grant a new trial would countenance a defeat of j ustice by sacrificing substance to form. The difficulty with the state’s position throughout is that it interprets the term “any person,” as used in the section, to be a convertible term which applies to all classes of persons— bailees, agents, or any person — who appropriate to their own use the property of another, with or without intent to steal or defraud. This is true under the general definition of embezzlement, .and under some statutes such a general charge in an indictment would be sufficient; but not under a statute like ours, which does not define the offense, but simply declares who and under what circumstances the persons specified may be found guilty. I have repeatedly pointed out that under the indictment there was such a delivery of the $400 as to divest the owner of its possession and vest it in the accused. If the prosecution, to convict the defendant, intended to *238rely upon evidence of the fraudulent appropriation of the money in the first instance, the indictment should have contained a count to meet the evidence.
It is proper that I should state that I am in accord with the disposition made by Justice Coleman of the alleged irregularities complained of up to the trial. I assent to the order granting a new trial solely for the reason that, upon my construction of the statute, my interpretation of the indictment and the evidence, no intelligent judgment can be rendered upon the verdict finding the defendant “guilty as charged.”