(dissenting) :
I dissent from reversing the judgment. As to the ground relied upon by the main opinion, misconduct of a juror, I am in accord with the explanation and conclusion drawn by Justice Ellett: that we should not hold it to be reversible error. It is not shown, nor is there, in my judgment, any reasonable basis for believing, that the impropriety committed by the admittedly nosy juror had any effect adverse to the defendant on the outcome of the trial; nor that there is a reasonable likelihood that in its absence there would have been a different result. The trial judge has a far better opportunity to judge the possible effect of irregularities of this character than do we; and that is the reason for the usual rule which allows him considerable latitude of discretion in that regard.
However, as to reversing the case on the basis of the distinction between larceny and embezzlement, I am unable to agree with Justice Ellett. I appreciate that fine distinctions between the two crimes may be made because of niceties of difference in fact situations. But if we look upon the evidence and the inferences which reason*230ably can be drawn therefrom in the light favorable to the view taken by the trial court and the jury, as we should do, I think the verdict of guilty of embezzlement should be sustained. As a precaution against the difficulty which has arisen here, larceny and embezzlement could have been charged jointly as was done in State v. Shonka, 3 Utah 2d 124, 279 P.2d 711. But the difficulty with the accusation of larceny in the instant case, and undoubtedly the reason that offense was not so charged, is that the rule universally recognized is that larceny necessarily involves a trespass and a taking of property of another against his will and without his consent. It is so stated at 52A C.J.S. Larceny § 21 at 441, and also at 50 Am.Jur. 175; see also the Shonka case referred to above; State v. Allen, 56 Utah 37, 189 P. 84; Loney v. United States, 10 Cir., 151 F.2d 1. That rule seems to preclude making out larceny against this defendant where she had free access to open the register and handle the money. Under proper instructions as to the elements necessary to make out the crime, the jury found her guilty of embezzlement.
Applicable to both of the points I have stated above is the requirement of our statute, Sec. 77-42-1, that “After hearing an appeal the court must give judgment without regard to errors or defects which do not affect the substantial rights of the parties. If error has been committed, it shall not be presumed to have resulted in prejudice. The court must be satisfied that it has that effect before it is warranted in reversing the judgment.” See State v. Neal, 1 Utah 2d 122, 262 P.2d 756, 759; State v. Sinclair, 15 Utah 2d 162, 398 P.2d 465.
I would therefore affirm the judgment.