Fox

By the first count of an information filed against defendant he was charged with the embezzlement of $5,106,25; and by a second count therein he was charged with larceny of a like sum.

The trial resulted in his conviction of embezzlement, as charged in the first count, and his acquittal of the charge contained .in the second count.

Judgment sentencing him to prison followed, from which and an order denying his motion for a new trial he has appealed.

Appellant complains of an instruction given to the jury as follows: “If you find from the evidence beyond a reasonable doubt that the defendant did, on or about the date charged in the information, fraudulently appropriate the moneys of Mrs. Anna G. Walters after said moneys had been intrusted to him and that said moneys were appropriated to a use or purpose other than that for which such property was intrusted to him, you should find the defendant guilty of embezzlement as charged in the information.” While conceding this instruction correct as an abstract proposition of law, he insists that it was not applicable to the case, for the reason that defendant admitted the receipt of the money, which, according to his own testimony,…