Page:North Dakota Reports (vol. 48).pdf/871

 Ugland with Johnson, and the taking. must have been by Mr. Ugland with the intent and purpose in Ugland’s mind to steal it. If Mr. Ugland took it from the Shure’s possession in good faith and with the intent to protect Johnson’s interest, he would not be guilty of larceny, etc.”

No complaint is made with reference to these instructions.

The finding of the jury is binding on this court when based upon substantial, competent evidence that, in any reasonable view thereof which the jury has the right to take, justifies the verdict. State v. Cray, 31 N. D. 67, 153 N. W. 425; State v. Wheeler, 38 N. D. 456, 165 N. W. 574; State v. Burcham (N. D.) 176 N. W. 657; State v. Paper- nak (S. D.) 181 N. W. 955; Fink v. State, 173 Wis. 264, 180 N. W. 812.

2. The defendant insists, secondly, that if the evidence shows the commission of a crime by him in connection with this flax, is that of embezzlement, not larceny, and for that reason the judgment should be reversed and he be discharged. Section 9913, C. L. 1913, defines “larceny” as “the taking of personal property accomplished by fraud or stealth, with intent to deprive the owner thereof.” Section 9929, C. L., defines “embezzlement” as “the fraudulent appropriation of property by a person to whom it has been intrustedentrusted [sic].”

The distinction between these two crimes is at once apparent, and relates chiefly to the manner of acquiring the possession of the property stolen or appropriated. In larceny there must appear the trespass and the appropriation of the property; while in embezzlement there is a fraudulent conversion after its possession has been intrustedentrusted [sic] to the accused, or after it has lawfully come into the possession of the accused by virtue of his employment with the owner thereof. It is the essence of the crime of embezzlement that the misappropriation be of property intrustedentrusted [sic] to the defendant.

The word “intrustedentrusted [sic]” means something more than naked possession or custody of or access to the property appropriated. Webster’s New Int. Dic. defines it: To confer a trust upon; to deliver to another something in trust, or to commit something to another with a certain confidence regarding his care, use or disposal of it. See. also, State v. Collins, 4 N. D. 433, 61 N. W. 467; People v. Ehle, 273 II]. 424, 112 N. E. 970; Colip v. State, 153 Ind. 584, 55 N. E. 740, 74 Am. St. Rep. 322; People v. Dougherty, 143 Cal. 593, 77 Pac. 466.

Something more than mere physical access or opportunity to ap-