Lindgren

I concur in the judgment of reversal and remand for new trial, upon the ground that the court erred in refusing to permit the defendant to testify to the conversation he had with Cook. The matter appears to.have been so directly connected with the transaction involved, and with the act of the defendant in retaining the money intrusted to him, that the defendant should have been given the right to introduce the evidence before the jury, as bearing upon the ultimate question of whether or not his conduct was actuated by fraudulent or honest purpose.

(dissenting).

I cannot agree to the proposition that it is competent evidence for the defense, on a trial for larceny by bailee, to show that the accused was told, by one who had no interest in the money which he held in trust, to keep the money and appropriate it to his own use. The money which the plaintiff in error had in his' possession did not, as he was *849 well aware, belong to Cook. Both Cook and he were parties to a written agreement by which Cook assigned his lease to Keyes, and whereby the latter was obligated to pay all sums realized upon clean-ups pro rata to Cook’s creditors. In pursuance of that agreement the plaintiff in error had been intrusted with the proceeds of the first clean-up, and had taken it to Fairbanks, and had returned with the money for the payment of creditors pro rata in pursuance of the agreement. He was intrusted in the same manner with the proceeds of the second clean-up. He was well aware of the terms of the agreement, and of the understanding under which the mine was operated. It is true that one who appropriates money under authority of another, under the bona fide belief that he is authorized, is not guilty of larceny, although his belief…

It appears from the record that prior to November 20, 1916, one Henry Cook held a lease from the owners of certain mining ground situated on Vault creek, in the Fairbanks recording district of Alaska, during the operation of which he became indebted to various parties in various amounts; among his numerous creditors being the plaintiff in error, Lindgren, in the sum of $6,650, Samson Hardware Company in the sum of $6,848.03, and E. R. Peoples, Incorporated, in the sum of $4,383.02. In that condition of affairs, Cook assigned, in writing, his lease of the property, called Sierra association claim, together with the machinery thereon, to a man named E. M. Keyes, “to have, use, and hold the same in his mining operations under said lease and the present assignment thereof” — the lease expressly declaring: “And in consideration thereof the said E. M. Keyes agrees to carry on mining operations upon said demised premises under said lease in a miner like manner; that out of the gross proceeds of such mining operations he *842 will first pay the royalty which shall accrue thereon under said lease, to the owners of said demised premises, excepting the said Henry Cook, and will next pay his…