Concurring Opinion
Buchanan,J.—I agree Johnson’s conviction should be reversed but would prefer to do so on the ground that Johnson came into possession of the property in question, $2200.00, with the right to deal with it as his own. Even if an agreement to use the loan proceeds for the purchase of a 1970 Chevrolet automobile be implied, as the State contends, the money was loaned to him for personal use as opposed to an obligation or requirement to make disposition of the property for the exclusive use or benefit of the lender.
The agreement contemplated by IC 1971, 35-17-5-4, Ind. Ann. Stat. § 10-3031 (Burns 1973 Supp.) (3031) is one for the use or benefit of the person owning the property. In this vital respect this case differs from Miller v. State in which a Burger Chef night shift manager was convicted under this same statute, 3031, for appropriating the night receipts to finance a frolic of his own unrelated to an implied agreement of his *622employment, i.e., to deposit the receipts to the account of his employer.
To constitute the crime of embezzlement there must be a wrongful appropriation of the property in question—an element lacking in this case. 11 I.L.E. Embezzlement § 1, P. 516; 39 Ind. L. J. 842 (1964).
Having obtained possession of the property (money) for personal use with the knowledge and consent of the original owner of that property, Johnson has not dealt “with the property obtained as his own” in the sense contemplated by the statute.
Furthermore, Johnson cannot be guilty of theft by failure to make a required disposition if “he believes that he is entitled to the property or that he is authorized to dispose of it as he does”, IC 1971, 35-17-5-7, Ind. Ann. Stat. § 10-3034 (Burns 1973 Supp.) By the very nature of the transaction he was authorized to deal with the property “as his own.”
This would seem to be so whether the particular personal use originally contemplated is realized or not.
White, J., concurs.
Note.—Reported at 304 N.E.2d 555.