Defendant was charged in one count of an information with the commission of three distinct crimes: embezzlement, felonious abstraction, and criminal misapplication of funds of the American State Bank. He was found guilty. Guilty of what? I do not know, and no one can tell from this record. An inquiry on this subject from the bench, at the time of argument, went unanswered.
A series of acts may involve the commission of one or more crimes, and each crime may be charged singly, but conviction or convictions must be specific. Embezzlement implies a lawful possession, followed by felonious conversion. Felonious abstraction implies a criminal taking. Felonious misapplication implies a criminal diversion of funds. Such conversion, abstraction, and diversion are not synonymous terms; they relate to distinct offenses, and proof of one negatives others.
My brother finds embezzlement established. Did all of the jurors so find, or may some have joined in the general verdict on a finding of guilty of abstraction or misapplication?
I think the conviction should be reversed, and a new trial granted.
McDONALD, C.J., and POTTER and BUTZEL, JJ., concurred with WIEST, J. *Page 211