“Concerning the cases of theft and swindling to which appellant refers, both the statute and principle controlling its interpretation seem to us to suggest a distinction. In theft generally the possession is interfered with without the consent of the rightful possessor. In embezzlement . . . [h]is possession is rightful. It is his misuse of the property that is criminal.”
How later courts described this case
- “Concerning the cases of theft and swindling to which appellant refers, both the statute and principle controlling its interpretation seem to us to suggest a distinction. In theft generally the possession is interfered with without the consent of the rightful possessor. In embezzlement . . . [h]is possession is rightful. It is his misuse of the property that is criminal.”
Written by the judges who cited it.
The opinion
on rehearing.
June 21, 1922.
MORROW, Presiding Judge.
— We are not able to bring our minds • in accord with the contention of the State that the portion of the charge of the court, which is set out in the opinion of this court in reversing the judgment, was a correct one. On the contrary, we regard it as subject to the objection leveled against it upon the trial and discussed in the opinion of this court in granting appellant’s motion for rehearing. In our judgment, there was therein- made a correct disposition of the appeal..
The' motion for rehearing is therefore overruled.
Overruled.