dissenting, with whom McCLINTOCK, Justice, joins.
I dissent for the reason that, in my opinion the trial court committed reversible error in refusing — despite appellant’s timely request — to instruct the jury on the definition of state funds. Appellant was charged with and convicted of violation of § 6-136, W.S.1957 [now § 6-7-305, W.S.1977]. That statute makes it a criminal offense to embezzle public funds and is fundamentally different from other of our embezzlement or unlawful conversion statutes, e. g., § 6-7-303 and § 6-7-307, W.S.1977.
The statute under which Appellant Nim-mo was charged “defines” or refers to state funds with the following language: “any money, funds, securities, bonds, choses in action, or other property belonging to or under the control of the state.” Mr. Nim-mo based his defense to charges of violations of the above statute on the ground, inter alia, that the funds he was accused of taking were not state funds. At his trial, both Nimmo and the State offered instructions defining state funds, but the trial court refused all offered instructions on the subject and left the jury with the recitation of the statute which included only the statutory language quoted above.
At one juncture, the jury interrupted its deliberation of the case to query the court as follows:
“Is there a statute that specifies what monies are the property of, or controlled by the State of Wyoming?”
The court responded:
“The Court feels it cannot properly answer your questions that you have submitted. Please reread the instructions as submitted to you.”
This inquiry — at the very least — indicates that the jury was having some trouble identifying “state funds” within the context of this case.
A decision as to whether or not the funds involved were state funds is necessary in order to prove a material element of the statute making it unlawful to embezzle public funds.1 If the funds involved were *352not state funds, appellant was not guilty. It is beyond dispute that Wyoming law entitles a defendant to proper jury instructions on all of the elements of the crime for which he is standing trial. Blakely v. State, Wyo., 474 P.2d 127,129-130 (1970); State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119, 127-132 (1947); and Murdock v. State, Wyo., 351 P.2d 674, 682-683 (1960). See, also, Goodman v. State, Wyo., 573 P.2d 400, 408-409 (1977).
The majority and the State criticize appellant’s offered instruction defining state funds and cite authority for the proposition that it is not error to refuse an erroneous instruction. However, we said in Blakely, supra, at 474 P.2d 129:
“We do not pretend to say Blakely’s requested instruction A was necessarily free from criticism. Neither do we say instruction B was entirely correct. However, the two requests . . . were at least sufficient to apprise the court of the theory of defendant’s defense and to make it incumbent upon the court to give one or both of the instructions or to otherwise properly instruct . . . .” (Emphasis supplied)
Thus, the issue for resolution is not whether Nimmo somehow forfeited his right to adequate jury instructions by offering an instruction that' was not wholly acceptable to the trial judge, but whether presentation to the jury of the statutory language, “money, funds, securities, bonds, choses in action, or other property belonging to or under control of the state,” was a satisfactory definition of state funds so as to enable the defendant to have his “defense in the case affirmatively presented to the jury.” Hickenbottom, supra, at 178 P.2d 131.
The issue of whether particular funds belong to or are controlled by the state can be a mixed issue of fact and law. It is the province of the court, not the jury, to determine issues of law. Rule 51, W.R.C.P. (second sentence of second paragraph). (Note: Rule 51, W.R.C.P., applies in criminal cases because of Rule 31, W.R.Cr.P.).
The language quoted above from the statute,- which appellant was charged with violating, is not a complete or adequate statement of the Wyoming law of what constitutes state money. For example, the Wyoming Consolidation Act, § 9-7-501, et seq., W.S.1977, was passed in order to “set forth legislative policy governing that phase of the state’s fiscal procedures relating to financial funds.” § 9-7-502, W.S. 1977. The act provides a statutory definition of “Fund.” § 9-7-503(a)(vii), W.S. 1977. At trial, appellant called James B. Griffith as a witness. Griffith had served as the Wyoming State Treasurer and was the Wyoming State Auditor at the time. He testified that at the time of Nimmo’s alleged embezzlement, the Recreation Fund was not considered a state fund under the Funds Consolidation Act.2 Whether or not the Recreation Fund was a state fund within the meaning of the Funds Consolidation Act, and whether or not a fund must be a state fund within the meaning of the Funds Consolidation Act, in order to be a state fund within the ambit of the statute prohibiting embezzlement of public funds, involved questions of law. (We may be dealing with mixed questions of law and fact, but the trial court may not ignore the legal questions when presented with issues involving both legal and factual disputes.)
Because the “state funds” that the defendant was charged with embezzling were never defined, the appellant was deprived of a trial before a jury properly instructed on all of the elements of the charge. Therefore, this court should have reversed the trial court and remanded for a new trial.
I am satisfied that what I have said so far is sufficient to demonstrate the necessi*353ty for reversal of this case. However, it is appropriate to discuss the importance to the appellant of being denied instructions in this case, as well as the fallacies of the majority’s position.
THE IMPORTANCE TO THE APPELLANT OF HAVING BEEN DENIED A JURY INSTRUCTION ON THE DEFINITION OF STATE FUNDS
Appellant was charged in three counts with drawing for personal use some 91 checks against the Wyoming Law Enforcement Recreation Fund account at Converse County Bank in Douglas. The indictment alleged that the Fund consisted of monies derived from the following sources: (1) Donations from the Wyoming Peace Officers’ Association; (2) contributions from individual policemen attending the Wyoming Law Enforcement Academy; (3) proceeds from the sale of soft drinks and souvenirs sold to policemen attending the Law Enforcement Academy; and (4) other unspecified sources.
The jury found appellant guilty of the charge contained in count one, involving a single check he had withdrawn for $318.99. The jury found appellant not guilty of the crime described in count three, also involving a single check. The jury found appellant guilty of the crime charged in count two, but determined that he embezzled only $1,030.20 of the more than $4,000.00 that the State had charged that he embezzled by writing some 89 checks.
The State contends that these split verdicts were due to the jury’s conclusion that some of the checks were properly drawn and some were not. This interpretation loses its credibility when it is realized that the check in count three was made payable to appellant’s wife, but the jury acquitted him of the count-three violation. Appellant urges that the split jury verdicts came about because the jury concluded that some of the money in the fund was state money and some was not. Appellant’s closing argument was devoted virtually exclusively to the issue of whether the money involved was state money. A closing argument based upon this premise supports appellant’s position that the split jury verdicts were due to a determination that only some of the money involved was state money. Indeed, the majority accepts appellant’s position in this regard. Thus, all the evidence suggests that the issue of whether the money involved was state money was central to appellant’s defense and to the jury’s deliberation. In this context, it is well to recall the jury’s inquiry to the court on this issue.
THE FALLACY OF THE MAJORITY’S POSITION
The majority argues that the jury, applying the reasonable-doubt standard (to a question of law!!) correctly guessed the law on what is and what is not state money. Arguendo, I will assume that the majority is correct in asserting that a certain $2,000.00 contribution to the Recreation Fund was unequivocably state money. However, this does not justify denying the appellant his right to a trial before a properly instructed jury. Article 1, Section 9, Wyoming Constitution. The public-funds-embezzlement statute provides that the conversion must be contrary to law, and the trial judge instructed the jury that this meant that “the defendant must have knowingly and intentionally with criminal intent appropriated and converted said money and property.” Had the jury been properly instructed, would it have concluded that this intent element was satisfied? The Wyoming Supreme Court cannot place itself in the jury box and usurp the jury’s role.3 E. g., Neal v. Wailes, Wyo., 346 P.2d 132 (1959).
I would have reversed.
. Section 6-136, W.S.1957 [§ 6-7-305, W.S. 1977], provides:
"Whoever, being charged, or in any manner intrusted with the collection, receipt, safekeeping, transfer or disbursement of any money, funds, securities, bonds, choses in action, or other property belonging to or under the control of the state, or belonging to or under the control of any county, school district, city or town, converts to his own use, or to the use of any other person, in any manner whatever, contrary to law; or uses, by way of investment in any kind of property, or exchanges for other funds, except as allowed by law, any portion of such money, funds, securities, bonds, choses in action, or other property, is guilty of embezzlement, and shall *352be imprisoned in the penitentiary not more than twenty-one (21) years.”
. In citing this fact favorable to the appellant, I am not trying to argue that the jury was wrong. (However, I question whether a verdict by an inadequately instructed jury is entitled to any deference.) I cite this fact merely to show that the jury was left to its own devices to grapple with important questions of law.
. It is possible, for example, that the jury adopted an overly harsh and legally incorrect analysis of what constituted state funds and then applied the reasonable-doubt standard on intent — which included appellant’s knowledge of what state funds were — to come up with its split verdict. Conceivably, had the jury applied the majority’s minimal statement of what were state funds and then applied the reasonable-doubt standard on intent, they would have acquitted the appellant. The mere possibility of this scenario persuades me that the failure to properly instruct the jury cannot be deemed harmless error.