(concurring and dissenting) :
I agree that the judgment of conviction should be reversed but not for the reasons stated in the prevailing opinion.
While I think the conduct of the snooping juror was improper, I do not think it had any effect on the verdict rendered. There was no personal contact made by the *226errant júror and no conversation had with anyone which would tend to make for a biased or otherwise improper verdict.
The testimony of the Logan City treasurer regarding the incident was as follows:
I was in my office and I had a little gal on the switchboard came in my office. I was giving her some work to do, and I had some money on my desk, and he walked to the doorway and he said, “How. about letting me have about half of that?” or something to that effect. And I just said, “Okay, I’ll split half with you.” I says, “Only there are some strings attached.” And he just kind of smiled, you know, hut he didn’t leave. And he may have — he walked back through the office and walked — and as I understand it later talked to both Mr. Jones and one of the other girls that was working there. He was looking over the plan of the office, according to the way I had drawn this. When he come hack to my office, this is what he said. And I didn’t know who he was. He looked familiar. And he asked me if I was Ila’s —if I had told her what to do, or if I was her boss or something like this, and I said no, I was only answerable to the mayor and no one — I didn’t say no one worked under me, but I just says I was answerable to the mayor, and Ha, I said there was possibly confusion on this. I said she was either answerable to Mr. Beck or Mr. Jones. This I do not know. And then it dawned on me possibly who he was and I kind of sat back and I didn’t say anything else and he just kind of wandered around. Then he walked back out to the front and one of the little gals came down and she said, “What did he want to know?” And I said — I wasn’t sure for sure then who it was, and I said, “Who was he? Was he a jury member?” She said he walked in and he said “I’m a jury member and I’d like to know where Ila sat.” So we just told him, and he walked down to the office. And then this is where he proceeded to go through the office. And on leaving he came up and he walked out and he said to her, “Yes, I’ve seen it all, and I feel sorry for Donna Bodrero,” and he walked out of the door.
* * * * * *
He did say, in regards to this, he walked through the offices and he said, “You cannot see Ila from many of these offices.” And I said, “No, not directly.” They’re just at an angle enough that you can’t observe anyone in any particular office. And that was it.
Ordinarily the granting of a mistrial lies within the sound discretion of the trial judge. Here the trial judge stated:
The motion for a mistrial will be denied. I agree that it is an unauthorized *227contact and is misconduct on the part of the juror, shouldn’t he done, and it is not conducive to receiving the evidence that he should consider in arriving at a decision, that it is outside of the court. But what we have heard from the juror and from the witness, that his contact was one that I don’t think will materially cause prejudice either to the state or to the defendant to the extent that it is grounds for a mistrial. It appears his purpose was to view the scene of the office and its structure as was drawn on the hoard. What he might have seen and viewed there and learned from this observation, I don’t feel is such a departure from what the evidence is or that there’s anything that would materially bias or prejudice him in favor of one party or the other, and for that reason I deny the motion.
I do not believe that he abused his discretion in denying the motion for a mistrial. As soon as he learned of the improper visit of the juror to the office where the defendant worked, he permitted the entire panel to take a view of the office and thus all of the jurors saw what the first one had seen. I therefore would not reverse the judgment because of the impropriety of the juror, who doubtless only wanted to obtain a better understanding of the lay of the office than he had gotten from the diagram drawn by the city treasurer when she testified as a witness.
My reason for reversing the judgment is because the proof shows that the crime committed was larceny and not embezzlement.
Larceny is a crime against possession while embezzlement is one against custody. The problem here involves a determination of whether the defendant had possession of the cash which she took from the till or the mere custody thereof.
The till was under the care, control and direction of Logan City through Mrs. Bod-rero, the treasurer. It was the place where the city caused the cash to be stored for a week at a time before it was taken from the till by Mrs. Bodrero and deposited in the bank.
As soon as money was placed in that till it was in the possession of the city and the defendant only had the custody thereof. Any abstraction of funds therefrom by the defendant would therefore be larceny and not embezzlement. When she received the check, equal in amount to the money appropriated to her own use, she received it for and on behalf of her employer, Logan City. Had she misappropriated that check before placing it in the receptacle provided for it by the city, to-wit: in the till, she would have embezzled it, for she received the custody of it for and on behalf of her employer. She did not keep the check, however; she placed it in the till and then took an equal amount of cash from the till.
*228The law is stated in 26 Am.Jur.2d, Embezzlement, Section 5, as follows:
Fine distinctions between custody and possession have been drawn in cases involving the placing of money received by an employee from a third person into a till. It has been held that an employee’s possession of money received from a third person sinks to the level of mere custody when the employee places the money in a till, and a subsequent appropriation of the money by him constitutes larceny.
In the case of Nolan v. State, 213 Md. 298, 131 A.2d 851, a loan company maintained a cash drawer in which money was deposited as received. It was held that when money was taken out of that cash drawer by the defendant, who had the right of access thereto, he could not be convicted of embezzlement.
In Warmoth v. The Commonwealth, 81 Ky. 133, the trial court instructed that if the defendant received money as clerk or agent, then the money was in the possession of the employer, and if the defendant took it, etc., he was guilty of larceny. The appellate court reversed the conviction of larceny saying:
Generally, where the agent has received goods or money to carry, deliver, control, or manage for the principal, unless the agent parts with the manual possession, and delivers the property to the principal or another for him, or places it is some depository, such as a drawer or safe provided for the purpose, and to which the principal or superior agents have access, or over which they have control, he cannot be convicted of larceny for a felonious appropriation of the goods or money, the offense being embezzlement. (Johnson v. Commonwealth, 5 Bush [430], page 431.)
In the case before us if the appellant, after he received and receipted for the money, deposited it in the safe provided by Shain, and then feloniously extracted the money from the safe, and carried it off, his offense was grand larceny, for the possession of Shain was also the possession of the company.
In Reg. v. Wright, etc., 27 L.J.M.C. 65, 169 Eng.Rep. 1070, 1074, the defendant was employed by a bank to open and conduct a branch in another town. It was the duty of the defendant to place money received by him in an office safe provided by the employer. The defendant was 3,000 pounds short. Lord Campbell in affirming a conviction of larceny said:
When the money was placed in that safe, which was furnished by the employer, and of which the employer had a duplicate key, the exclusive possession of the prisoner was determined. The money being so deposited in the safe and aft-erwards taken out of the safe by the prisoner animo furandi, he was guilty of *229larceny. The safe in this case very much resembles a till in a shop. The shopman has access to the till, and has a right to take money out of it for lawful purposes, but if he takes it out animo furandi he is a thief.
Judge Crowder added:
The fact that the prisoner had the entire control over the premises makes no difference. If he took the money from the safe for the purposes of the bank, he did so as party of his duty; but if he took it for his own purposes he was guilty of larceny.
While it is true that larceny and embezzlement may be charged in the same information1 as set out in Justice Crockett’s opinion, still that does not permit one to be convicted of the wrong crime. The jury is not permitted to choose the crime; only the evidence will determine that. Had larceny and embezzlement been charged in the instant case, it would have been the duty of the judge to instruct the jury that if the money had been feloniously taken from funds theretofore deposited in the till of the employer, they could not find the defendant guilty of embezzlement.
The State is in control of the evidence and in this case when the State had rested, the defendant properly moved for a dismissal of the charge of embezzlement, and in my opinion it should have been granted. Failing to grant the motion was error and I would therefore reverse this conviction with directions to the trial court to dismiss the information.
. 77-21-31, U.C.A.1953.