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Show PAGE SIX THE DAILY RECORD that it is outside of the court. But what we have heard from the juror and from the witness, that his contact was one that I don't think will materially cause prejudice either to the state or to the defendant to the extent that it is grounds for a mistrial. It appears his purpose was to view the scene of the office and its structure as was drawn on the board. What he might have seen and viewed there and learned from this observation, I don't feel is such a departure from what the evidence is or that there's anything that would materially bias or prejudice him in favor of one party or the other, and for that reason I deny the motion. believe that he abused his discretion in denying the motion for a mistrial. As soon as he learned of the improper visit of the juror to the office where the defendant worked, he permitted the entire panel to take a view of the office and thus all of the jurors saw what the first one had seen. I therefore would not reverse the judgment because of the impropriety of the juror, who doubtless only wanted to obtain a better understanding of the lay of the office than he had gotten from the diagram drawn by the city treasurer when she testified as a witness. I do not My reason for reversing the judgment is because the proof showB that the crime committed was larceny and not embezzlement. Larceny is a crime against possession while embezzlement is one against custody. The problem here involves a determination of whether the defendant had possession of the cash which she took from the till nr the mere custody thereof. The till was under the care, control and direction of Logan City through Mrs. Bodrero, the treasurer. It was the place where the city caused the cash to be stored for a week at a time before it was taken frmi the till by Mrs. Bodrero and deposited in the bank. As soon as money was placed in that till it was in the possession of the city and the defendant only had the custody thereof. Any abstraction of funds therefrom by the defendant would therefore be larceny and not embezzlement. When she received the check, equal in amount to the money appropriated to her own use, she received it for and on behalf of her employer, Logan City. Had she misappropriated that check before placing it in the receptacle proin the till, she would have embezzled it, for vided for it by the city, it: she received the custody of it for and on behalf of her employer. She did not keep the check, however; she placed it in the till and then took an equal amount of cash from the till. to-w- The law is stated in 26 Am.Jur.2d, Embezzlement, Section 5, as follows: Fine distinctions between custody and possession have been drawn in cases involving the placing of money received by an employee from a third person into a till. It has been held that an employee's possession of money received from a third person sinks to the level of mere custody when the employee places the money in a till, and a subsequent appropriation of the money by him constitutes larceny. In the case of Nolan v. State, (Md.) 131 A. 2d 851, a loan company maintained a cash drawer in which money wa.i deposited as received. It was held that when money was taken out of that cash drawer by the defendant, who had the right of access thereto, he could not be convicted of embezzlement. In Warmoth v. The Commonwealth, 81 Ky. 133, the trial court instructed that if the defendant received money as clerk or agent, then the money was in the possession of the employer, and if the defendant took it, etc. , he was guilty of larceny. The appellate court reversed the conviction of larceny saying: Generally, where the agent has received goods or money to carry, deliver, control, or manage for the principal, unless the agent parts with the manual possession, and delivers the property to the principal or another for him, or places it is some depository, such as a drawer or safe provided for the purpose, and to which the principal or superior agents have access, or over which they have control, he cannot be convicted of larceny for a felonious appropriation of the goods or money, the offense being embezzlement. (Johnson v. Commonwealth, 5 Bush, page 431.) In the case before us if the appellant, after he received and receipted for the money, deposited it in the safe provided by Shain, and then feloniously extracted the money from the safe, and carried it off, his offense was grand larceny, for the possession.of Shain was also the possession of the company. In Reg. v. Wright, etc., 27 L. J.M.C. 65, 169 Eng. Rep. 1070, 1074, the defendant was employed by a bank to open and conduct a branch in another town. It was the duty of the defendant to place money received by him in an office safe provided by the employer. The defendant was 3,000 pounds short. Lord Campbell in affirming a conviction of larceny said: When the money was placed in that safe, which was furnished by the employer, and of which the employer had a duplicate key, the exclusive possession of the prisoner was determined. The money being so deposited in the safe and afterwards taken out of the safe by the prisoner animo furandi, he was guilty of larceny. The safe in this case very much resembles a till in a shop. The shopman has access to the till, and has a right to take money out of it for lawful purposes, but if he takes it out animo furandi he is a thief. THURSDAY, JANUARY 14, 1971 choose the crime; only the evidence will determine that. Had larceny and embezzlement been charged in the instant case, it would have been the duty of the judge to instruct the jury that if the money had been feloniously taken from funds theretofore deposited in the till of the employer, they could not find the defendant guilty of embezzlement. TheStatfe is in control of the evidence and in this case when the State rested, the defendant properly moved for a dismissal of the charge of embezzlement, and in my opinion it should have been granted. Failing to grant the motion was error and I would therefore reverse this conviction with directions to the trial court to dismiss the information. had CROCKETT, Justice: (Dissenting) I dissent from reversing the judgment. As to the ground relied upon the main by opinion, misconduct of a juror, I am in accord with the explanation and conclusion drawn by Justice Ellett: that we should not hold it to be reversible error. It is not shown, nor is there, in my judgment, any reasonable basis for believing, that the impropriety committed by the admittedly nosy juror had any effect adverse to the defendant on the outcome of the trial; nor that there is a reasonable likelihood that in its absence there would have been a different result. The trial judge has a far better opportunity to judge the possible effect of irregularities of this character than do we; and that is the reason for the usual rule which allows him considerable latitude of discretion in that regard. However, as to reversing the case on the basis of the distinction between larceny and embezzlement, I am unable to agree with Justice Ellett. I appreciate that fine distinctions between the two crimes may be made because of niceties of difference in fact situations. But if we look upon the evidence and the inferences which reasonably can be drawn therefrom in the ight. favorable to the view taken by the trial court and the jury, as we should do, I think the verdict of guilty of embezzlement should be sustained. As a precaution against the difficulty which has arisen here, larceny and embezzlement could have been charged jointly as was done in State v. Shonka, 3 Utah 2d 124, 279 P. 2d 711, But the difficulty with the accusation of larceny in the instant case, and undoubtedly the reason that offense was not so charged, is that the rule universally recognized is that larceny necessarily involves a trespass and a taking of property of another against his will and without his consent. It is so stated at 52A, C. J.S. at 441, and also at 50 Am. Jur. 175; see also the Shonka case referred to above; State v. Allen, 56 Utah 37, 189 P. 84; Loney v. U. S. , 151 F. 2d 1. That rule seems to preclude making out larceny against this defendant where she had free access to open the register and handle the money. Under proper instructions as to the elements necessary to make out the crime, the jury found her guilty of em- bezzlement. Applicable to both of the points I have stated above is the requirement of our statute, Sec. that "After hearing an appeal the court must to without errors or defects which do not affect the give judgment regard substantial rights of the parties. If error has been committed, it shall not be presumed to have resulted in prejudice. The court must be satisfied that it has that effect before it is warranted in reversing the judgment. " See State v. Neal. 1 Utah 2d 122, 262 P. 2d 756, 759; State v. Sinclair, 15 Utah 2d 162, 3.98 77-42- -1, P. 2d 465. I would therefore affirm the judgment No. 11966 State of Utah, FILED Plaintiff and Respondent, January v. L. M. Cummings, Clerk Jean Paul Heiner, Defendant and Appellant. HENRIOD, Justice: Appeal from a narcotics sale conviction. Affirmed. The points on appeal are: 1) That the evidence did not support the verdict; 2) That failure to change the venue was error; and 3) That it was error for the court not to instruct the jury with respect to entrapment. We believe the first two points are clearly without merit. We consider that the third also must fail, but feel that something must Counsel for defendant from the very beginning earnestly and repeatedly urged that Heiner was lured into the sale that admittedly he made. Few cases reflect such dedicated advocacy to a point beyond the call of duty. Bits of evidence here and there in the record support such a crusade, but Mr. Heiner's own rather incredulous and vacillating recount of the whole episode obviously did not impress the veniremen. Suffice it to say that the record does show a predisposition or willingness to sell, and there appears to be no substantial or overwhelming reason to discount the verdict, or conclude there was bias or contumely on the jury's part, or that ulterior motives prompted the peace officers responsible for arresting the accused. be said about that assignment. We say, in passing, that the record does reveal a case where some more understanding directed defendant's way, just might help him in his voyage through life, free from the idiotic idiomatic "trip" in pursuing it that produced nothing but trouble for him. The thanks of this court goes out to the able efforts of defendant's counsel, Mr, Abies. WE CONCUR: E. R. Callister, Jr., Chief Justice Judge Crowder added: The fact that the prisoner had the entire control over the premises makes no difference. If he took the money from the safe for the purposes of the bank, he did so as part of his duty; but if he took it for his own purposes he was guilty of larceny. While it is true that larceny and embezzlement may be charged in the same information 1 as set out in Justice Crockett's opinion, still that does not permit one to be convicted of the wrong crime. The jury is not permitted to 11, 1971 R. L. Tuckett, Justice A. H. Ellett, Justice J. Allan Crockett, Justice |