I concur. However, because I believe that the opinion of the presiding justice does not touch the real question presented by the appellant, I feel obliged to elaborate *901the reasons for my concurrence. The embezzlement statute requires the fraudulent intent to appropriate the money or property of another with which the defendant is entrusted. (Pen. Code, § 506.) The appellant herein attempted to prove that he lacked such fraudulent intent by his evidence that it was a recognized custom in the business for the manager to pay to employees including himself money from the revolving fund as an advance against salary earned but not yet payable. He complains of the following instruction, that it took from the jury this question of the necessary fraudulent intent:
“The fact, if it be a fact, that the defendant in this ease had been accustomed to drawing and using the funds of the corporation for his personal needs, having such withdrawals charged to his personal account, and eventually paying the money back by credits due him or by payments made by him, does not relieve the acts from the stain of criminality; and even if all of the Directors of the Corporation knew of such custom, the wrong was not made right, as each was charged with a trust to use the funds of the corporation for its needs.”
The instructions, however, must be read as a whole and the jury was properly instructed:
“The intent essential to embezzlement is the intent to fraudulently appropriate the property to a use and purpose other than that for which it was entrusted, in other words, the intent to deprive the owner of his property, but, the other element of the offense being committed, the crime is committed, even though it was intended to deprive the owner of his property only temporarily and to eventually return it.
“Before you can find the defendant guilty of the crime of embezzlement, you must find from the evidence, beyond a reasonable doubt, that the defendant had such fraudulent intent.”
In view of this express and clear instruction the jury could not have understood from the instruction complained of that they could find the defendant guilty if he lacked the required fraudulent intent.