I concur in the order reversing the judgment and remanding this case for a new trial. I do so because, in my opinion, the evidence fails to show that the crime of embezzlement was committed by either of the defendants in the transaction relied upon by the state. The information proceeds upon the theory that the $1,208.67 paid by Mrs. Bestelmeyer on the contract was received by the defendants pursuant to a contract of bailment entered into between Mrs. Smith and defendants on or about April 30, 1926. Mrs. Smith testified that at about the time (April 30, 1926) that *Page 574 she entered into the contract for the sale of the farm she told Mr. Heal and Mr. Clayton that, as the principal was paid on the contract, she "wanted it paid on the mortgage that was on the place, the $2,500 mortgage, until it was paid up and they said they would do that for me." The evidence shows without conflict that during the period of slightly more than two years which intervened between the date of that agreement and the date of the alleged offense Mrs. Smith had a running account with the real estate company. From time to time money was paid on the contract and credited to her account. Upon various occasions the real estate company paid Mrs. Smith money and charged it to her account. The real estate company paid the interest on the Cluff mortgage. The interest so paid was in part paid from interest received on Mrs. Smith's account with the real estate company and in part with money advanced by Mrs. Smith. The real estate company paid her interest at the rate of 8 per cent per annum upon all money standing to her credit upon its books. Mrs. Smith in effect testified that she was entitled to receive and did receive such interest. The following is quoted from her testimony on cross-examination:
"Q. Now you drew interest, didn't you, Mrs. Smith, from the Provo Consolidated Real Estate Company on the balance which you had there? A. I never drew a dollar interest out of the Consolidated Real Estate Company except after I sold my farm.
"Q. But after that you did? A. I drew interest on my money.
"Q. And they were supposed to pay you interest weren't they? A. Yes, sir, the interest was supposed to come to me.
"Q. But they were paying you interest after that transaction? A. They were paying me interest after.
"Q. After the Bestelmeyer sale? A. Yes, sir, I drawed interest along — some.
"Q. Now, can you answer the question whether it (the interest on the Cluff mortgage) was paid by the Provo Consolidated Real Estate Company and charged to your account? A. They was supposed to pay it to Mr. Cluff. * * *
"Q. You continued to receive interest or credits of interest in your account for money which the Provo Consolidated Real Estate Company held of yours after the Bestelmeyer sale was made, did you *Page 575 not? A. I was supposed to receive the interest and the principal was supposed to be turned to them.
Q. I will ask you whether or not you did not testify in the city court of Provo City, at the preliminary hearing of J.P. Clayton, as follows, that is whether the following questions were not asked and the answers given: `Provo Consolidated Real Estate Company were paying you interest on that, weren't they? A. On the money that Mr. Bestelmeyer paid in.
"Q. Yes? A. They were — I was supposed to get the interest then.'
"Q. And you so testified in the city court? A. I suppose so."
In the cross-examination of Mrs. Smith with respect to her account with the Provo Consolidated Real Estate Company, which account was placed in evidence by the state, the following question was asked and she gave the following answer: "Q. So far as you know, this statement of account is correct with respect to your financial transactions with the Provo Consolidated Real Estate Company? A. Well, as far as I know, I guess it is."
There are more than one hundred items of debits and credits in the account. The first entry shows a debit by check of $75 on December 22, 1923. The last entry is a credit of $64.71 April 30, 1930, interest to date.
The defendant testified on his own behalf. He stated that the interest was paid by the real estate company on the Cluff mortgage in this manner; that interest was computed at the rate of 8 per cent per annum on the money standing to the credit of Mrs. Smith on the books of the real estate company and the interest so ascertained was paid on the interest on the Cluff mortgage. If such interest so computed from Mrs. Smith's account was not sufficient to pay the interest due on the Cluff mortgage, the remainder was either paid in cash by Mrs. Smith or charged to her account. The testimony of Mr. Clayton in such respect is not controverted. It would seem clear that the interest which the real estate company paid on the money owing to Mrs. Smith on her account with the company was so paid for the use of the money standing to her credit. It is difficult to conceive of the real estate company agreeing to pay and paying interest on the money owing to Mrs. Smith unless it was entitled to use the money upon which interest *Page 576 was being paid. Having received and accepted interest on the money which was paid on the contract by Mrs. Bestelmeyer to the real estate company, Mrs. Smith may not now be heard to say that the real estate company was a mere bailee of the money so paid and as such not entitled to use the same. Mrs. Smith must have known that the real estate company was not paying interest at the rate of 8 per cent per annum on money that it was not permitted to use. No claim is made, and under the evidence there is no foundation for the claim, that Mrs. Smith or any one else gave any instructions to the defendants, or either of them, or to the Provo Consolidated Real Estate Company that the check for $1,208.67, or the proceeds thereof, should be handled differently from the manner in which the other payments on the contract were handled. The check for $1,208.67, the proceeds of which it is alleged the defendants embezzled, was handled in exactly the same manner as were the other payments which were made on the contract. In each instance Mrs. Smith was given credit on the books of the real estate company for the amount paid. The evidence does show that, after the payment of $1,208.67 in question was credited to the account of Mrs. Smith, there was sufficient money standing to her credit to pay off the Cluff mortgage. There is, however, no evidence in this record which shows that Mrs. Smith, or any one else for her, directed the defendants to cease using the money paid on the contract when such payment added to the amount standing to her credit on the books of the real estate company should equal or exceed the amount owing upon the Cluff mortgage. In the absence of some such instruction, the defendants were justified in assuming that they were entitled to treat the proceeds of the check in question in the same manner as they treated the other payments made on the contract. If the defendants were entitled to apply, or honestly believed they were entitled to apply, the money in question to the use of the real estate company at the time it was so applied, it cannot be said they were guilty of embezzlement in so *Page 577 applying it. It may be that, standing alone, the instructions which Mrs. Smith claims she gave to the defendants in April, 1926, precluded them from using the money here involved. But the evidence touching the course of dealing had between Mrs. Smith and the real estate company for more than two years immediately preceding the date of the alleged offense indisputably shows that Mrs. Smith and the defendants understood that the real estate company was entitled to use, for its own purposes until otherwise directed, the money paid upon the contract. Under such circumstances, it cannot be said that defendants were guilty of embezzlement in applying the proceeds of the check in question to the use of the real estate company.
The trial court was in error in refusing to instruct the jury to find the defendant not guilty. I also concur in the views expressed in the prevailing opinion that the verdict of guilty finds no support in the evidence when viewed in the light of the law announced by the court in its instructions to the jury. I think the demurrers (both general and special) to the information were properly overruled.