(dissenting) :
The defendant appeals from a verdict of guilty of larceny and the sentence based thereon. He claims the trial court erred in the following particulars:
1.In not requiring the State to prove that services were not rendered for the money obtained.
2. In admitting evidence of other crimes.
3. In refusing to grant a continuance of the trial if evidence of prior acts was admissible.
4. In requiring restitution of an amount greater than the amount of the offense.
He further claims that the evidence did not show that the crime charged had been committed.
The defendant, as manager of the tailor shop of a department store, presented a voucher for outside tailoring work and secured a check in payment thereof in the amount of $563.80 payable to “B. Reese Co.” The record justifies a finding that no outside work was performed by anybody and that there was no entity known as “B. Reese Co.” B. Reese was a former name of the defendant’s wife, and the check was deposited in the joint bank account of the defendant and his wife.
Several other prior vouchers with checks in payment thereof payable to “B. Reese Co.” or “B. Reese” and deposited to the account of the defendant and his wife were introduced in evidence — not to demean or disgrace the defendant but to show a mo-dus operandi;. and since the operation was identical to that which resulted in this prosecution, I do not think there was any error in admitting the evidence.1
The defendant also claims that the evidence did not prove a crime. A corpus de-licti can be proved by circumstantial evidence.2 The defendant did not testify, and so there was no contradictory evidence to that of the State which showed that there was no unusual work load at the time in question; that the defendant was not given permission to put work out for hire; that stand-by employees were not given full-time employment; that there was no B. Reese Co.; and that the money obtained went into the defendant’s bank account.
*1243The statute under which the defendant was charged3 provides:
(1) A person commits theft if he obtains or exercises control over property of another by deception and with a purpose to deprive him thereof.
I think the evidence was sufficient to show beyond a reasonable doubt that B. Reese Co. never performed work for which the check was drawn. In addition to what has been said above, the workmen who would have pressed any outside work testified that no such work was presented to them by the defendant or anybody else.
The court instructed the jury as follows:
INSTRUCTION NO. 19
If you find that ZCMI received the benefit of work actually performed as listed in Exhibit 2, then you must find the defendant not guilty.
INSTRUCTION NO. 20
Before you can convict the defendant of the crime of theft, you must find from the evidence, beyond a reasonable doubt, all of the following elements of that crime:
1. That on or about October 26, 1973, the defendant, Herman H. Ree-deker, obtained money from ZCMI, a corporation.
2. That the amount of money was more than $250.00 but less than $1,000.00.
3. That the defendant, Herman H. Reedeker, made a false or fraudulent representation or pretense to obtain said money and that said representation was made knowingly.
4. That the defendant, Herman H. Reedeker, had a concurring intent at the time said representation was made to cheat or defraud ZCMI.
5. That ZCMI parted with something of value in reliance upon the false or fraudulent representation or pretense, believing it to be true.
. 6. That such acts occurred in Salt Lake County, State of Utah.
If you believe that the evidence establishes each and all of the essential elements of the offense beyond a reasonable doubt, it is your duty to convict the defendant. On the other hand, if the evidence has failed to so establish one or more of said elements, then you should find the defendant not guilty.
One final matter needs to be disposed of. The evidence given in court shows that the defendant obtained over $4,000.00 from his employer by the same ruse used in this case. Our statute 4 provides that as a condition of probation a defendant “may be required to make restitution or reparation to the aggrieved party or parties for the actual damages or losses caused by the offense to which the defendant has pleaded guilty or for which conviction was had;
The defendant now asserts that a condition of probation which requires him to restore more than $563.80 or at most the $4,000.00 plus shown by the evidence is improper, and he urges us to remand with directions for the trial court to reduce the condition of probation to $563.80. Under no circumstances does he desire for us to remand this case for a new sentence.
The $4,000.00 plus shown by the exhibits to the court may not have been all of the thefts of the defendant. The statute permits the court to require restitution of an amount of the actual damages occasioned by the offense for which the defendant was found guilty. He was found guilty of theft, and while the specific charge involved only $563.80, the thefts from the employer were greatly in excess of that sum.5
*1244After the court received a probation report, he stated to the defendant:
. I will place you on probation on the following conditions:
1. That you make restitution in the sum of $15,170.00 and pay a fine in the sum of $5,000.00 and sign a probation agreement with the regular terms.
* * * * * *
Do you accept those terms of probation?
The defendant answered, “Yes.”
I presume the court acted properly. At any rate, the defendant’s lawyer says the defendant prefers the sentence to remain rather than permit the trial judge to reconsider the conditions of probation.
I see no error which would warrant us in reversing the trial court and in making a sentence of our own choosing.
The other assignment of error is without merit.
The judgment should be affirmed or at least remanded for a new sentence.
CROCKETT, J., concurs in the views expressed in the dissenting opinion by EL-LETT, T.. State v. Lopez, 22 Utah 2d 257, 451 P.2d 772 (1969).
. State v. Cazier, Utah 2d, 521 P.2d 554 (1974) ; State v. Schad, 24 Utah 2d 255, 470 P.2d 246 (1970) ; State v. Erwin, 101 Utah 365, 120 P.2d 285 (1941).
. Sec. 76-6-405, U.C.A.1953 as amended (1973 Pocket Supplement).
. Sec. 77-35-17, U.C.A.1953.
. The probation report shows that the insur-anee company paid §14,170, which was the amount of defalcation less §1,000 deductible.