dissenting:
The trial judge readily saw what was wrong with this case: “[T]he case was tried as an embezzlement case, but the information was a theft information . . . .” This is really about all that has to be said; Walch might have been an embezzler, but she was charged with and convicted of larceny.
Walch was accused under the “theft” statute, NRS 205.0832, which has two subparagraphs. Subparagraph 1 is the larceny paragraph and relates to a person who “[cjontrols any property of another person with the intent to deprive that person of the property.” Subparagraph 2 is the embezzlement paragraph and relates to a person who “[cjonverts . . . property of another person entrusted to him . . . .” (My emphasis.)
The charging document relates only to the larceny paragraph, subparagraph 1, and charges that the defendant “controlled” a certain person’s property “with the intent to deprive her of that property,” traditional larceny parlance, except for the word “controlled,”' which the legislature chose to use in place of the *35traditional language of larceny, “steals, takes and carries away,” when the crime of theft was added to the NRS in 1989.
If a crime has been committed here, the crime is necessarily that of embezzlement as defined in subparagraph 2 of NRS 205.0832. Embezzlement is committed by one who converts the property of another after having been entrusted with another’s property. At most, Walch is guilty of converting property that was entrusted to her — the crime of embezzlement. Walch was not charged with embezzlement. She was not charged with converting property entrusted to her, even though, as remarked by the trial judge, “the case was tried as an embezzlement case.”
If it had chosen to do so, the legislature could have, instead of setting out the two different crimes in two different paragraphs, merged larceny and embezzlement into one overarching offense. As an example of this kind of legislation, the English Theft Act of 1968 provides that any person “who dishonestly appropriates the property of another” is guilty of “theft.” Under this kind of statute, the crimes of larceny and embezzlement are merged and become one. Such is not the case here; and Nevada’s theft statute retains, in two separate paragraphs, the distinction between taking from possession (larceny) and taking while in possession (embezzlement).
Walch was charged with larceny (NRS 205.0832(1)); yet, the only crime that is supported by the evidence is that of embezzlement (NRS 205.0832(2)). If Walch did anything morally or legally wrong, it was in converting money entrusted to her and lawfully in her possession, as stated in the embezzlement statute, “without authorization.” The two crimes, defined in two separate paragraphs, are quite different in their scope; and, certainly, Walch should not be expected to defend against a larceny charge when the only possible crime involved here was, as recognized by the trial judge, that of embezzlement. Walch’s larceny conviction should be set aside.
“Control” is a broader, if vaguer, term than the crisp and directive terms “taking” and “carrying away.” Under the present statute, “‘[c]ontrol’ means to act so as to prevent a person from using his own property . . . .” NRS 205.0823 (Emphasis added). Like taking and carrying away another’s property, preventing a person from using his or her “own property” is in *35essence a trespass and an invasion of another’s property rights. Subparagraph 1 of NRS 205.0832 is still, essentially, a larceny statute. There was certainly no trespass here, as both the defendant and the alleged victim, Nell Laird, were joint owners of the money, and Walch did not prevent Laird in any way from using her “own property.” Both Walch and Laird had legal “control” of the money in question. This is, of course, the reason that, necessarily, “the case was tried as an embezzlement case.”