Argument for Appellant [No. 2291] STATE OF NEVADA, RESPONDENT, v. GEORGE B. MCFARLIN, APPELLANT. [172 Pac. 371] 1. INDICTMENT AND INFORMATION-ELEMENTS. Embezzlement is a statutory crime, and all that is necessary in charging the offense is to follow the statute. 2. EMBEZZLEMENT-ELEMENTS-STATUTORY PROVISIONS. An information alleging that defendant was manager of a county-owned telephone system, and as such manager came into possession of certain money for transmission to the county treasurer, and feloniously converted it to his own use, sufficiently charged embezzlement under Rev. Laws, 6653, as to misappropriation of corporation money by agent, manager, or clerk thereof. 3. EMBEZZLEMENT-EVIDENCE-BOOKS OF ACCOUNT. In prosecution of manager of county-owned telephone system for embezzlement, it was improper to introduce books of account of the system, where defendant was not familiar with the books and his attention had not been called to the particular accounts introduced. 4. EMBEZZLEMENT-EVIDENCE-GAMBLING. In prosecution of county official for embezzlement, it was improper to admit evidence that he played slot machines for trade checks to a limited extent. 5. CRIMINAL LAW-EVIDENCE OF OTHER OFFENSES-INSTRUCTIONS. In prosecution for embezzlement of certain money, the court should instruct as to the purpose for which other shortages might be considered by the jury. 6. CRIMINAL LAW-EVIDENCE OF OTHER OFFENSES. Evidence of other crimes can generally be considered only when it tends to establish motive, intent, absence of mistake or accident, a common plan or scheme, or identity. APPEAL from Eighth Judicial District Court, Churchill County; T. C. Hart, Judge. George B. McFarlin was convicted of embezzlement, and from the judgment, and denial of his motion for new trial, he appeals. Reversed, and new trial granted. E. E. Winters and Frame, Browne & Burrows, for Appellant: The facts stated in the information do not constitute a public offense. The information attempts to bring the case within the provisions of section 6653, Revised Laws, Argument for Appellant but lacks the necessary allegations for that purpose. The gist of the offense, in so far as agents, managers, and employees are concerned, is the unlawful conversion to their own use of money entrusted to them by their employer. It is absolutely essential, under the provisions of our statute, that the trust relation exist between employer and employee; that is, first, that the employee be authorized to receive the money of his employer; second, that the employee actually receive the money as manager, agent, or clerk; and, third, that the money was entrusted to such employee by his master, or that the master had empowered him to collect such money, and that the same was received by the employee by virtue of the authority of the master. It is not sufficient that the manager, clerk, or servant be merely in the employ of the master, and while so employed receive the money. (Ricord v. C. P. R. R. Co., 15 Nev. 167; Ex Parte Ricord, 11 Nev. 287; People v. Bailey, 23 Cal. 577; People v. Shearer, 143 Cal. 66.) Inferences, suppositions, or conclusions cannot be indulged in to aid an information or to take the place of direct and positive allegations required to be made either in the language of the statute or in equivalent language. (State v. Logan, 1 Nev. 110.) An indictment or information for embezzlement should allege the trust relation. (People v. Shearer, 143 Cal. 66.) There is a clear distinction between the statement of a trial judge as to what the testimony of a certain witness was and his statement of his conclusion as to the ultimate fact established by the evidence. The trial court assumed the truth of all the facts stated by him in his reasons for admitting evidence. This is not permissible, and constitutes prejudicial error. (People v. Bonds, 1 Nev. 33; State v. Hawkins, 7 Nev. 377; State v. Tickel, 13 Nev. 511; State v. Warren, 18 Nev. 459; Allen v. United States, 115 Fed. 10; Hawkins v. United States, 3 Okl. Crim. 61; People v. White, 251 Ill. 75; State v. Scott, 37 Nev. 431.) The lower court erred in admitting in evidence the books of the telephone company. The mere fact that defendant was manager of the company did not make the Argument for Respondent books admissible in evidence against him, without proof first being made that the books were kept by him, or that they were in his handwriting, or that his attention was called to the portion of the books offered in evidence. "But entries in his books by others are not admissible, unless there is preliminary proof that his attention was called to them." (Underhill, Crim. Ev. sec. 291; People v. Burnham, 104 N. Y. Supp. 725; Haynes v. Brown, 36 N. H. 545; Wheeler v. Walker, 45 N. H. 355; Rudd v. Robinson, 26 N. E. 1046; People v. Blackman, 59 Pac. 573.) It was error to admit evidence of alleged gambling by the defendant. Such evidence was irrelevant. (People v. Vidal, 53 Pac. 558; People v. Rowland, 12 Cal. App. 6.) Geo. B. Thatcher, Attorney-General, and G. J. Kenny, District Attorney, for Respondent: The information is sufficient, covers the requirements of the statute, and is sustained by recognized text-writers and by decisions of appellate courts. "When, therefore, the information charged the defendant with embezzling money of the company, received by him as its agent, and by virtue of his said employment, it did, in legal effect, charge him with embezzling money of the company intrusted to him as bailee by the company, which was precisely the crime described in the original complaint, and for which he was committed." (Bishop's New Crim. Proc., vol. 3, sec. 315; People v. Walker, 77 Pac. 705.) It is a well-settled principle of law that books, and entries therein, made by third parties, are binding on the accused, if made under his direction. (15 Cyc. 531; People v. Rowlands, 106 Pac. 428.) It was not error to admit the evidence as to appellant's propensity for gambling. Intent in embezzlement is always difficult to prove, and courts have properly and justly granted a broad and liberal scope in the matter. "Since from its nature intent is incapable of direct proof, great latitude is necessarily allowed in proving this element of the offense. Broadly speaking, any evidence is admissible which has a tendency, even the Opinion of the Court-Coleman, J. slightest, to establish fraudulent intent on the one hand, or on the other hand to show the bona fides of the accused." (15 Cyc. 592.) By the Court, COLEMAN, J.: Appellant was convicted in the district court upon the charge of embezzlement, and appeals from the judgment, and from the order denying a motion for a new trial. It was urged in the trial court that the information does not charge an offense, and the same objection is presented for our consideration. It is said that the information is bad, because (1) there is no allegation that the defendant was authorized to receive the money; (2) there is no allegation that the defendant was intrusted with the money by virtue of his employment; and (3) there is no allegation that defendant was, by virtue of his employment, charged with the duty of receiving the money. To sustain these contentions our attention is called to Ex Parte Ricord, 11 Nev. 287; Ricord v. C. P. R. R. Co., 15 Nev. 167; People v. Bailey, 23 Cal. 577; People v. Shearer, 143 Cal. 66, 76 Pac. 813. 1,2. Without undertaking to specifically point out wherein the cases mentioned are not in point, we think it sufficient to say that they were instituted under statutes unlike our present statute. Embezzlement is a statutory crime, and all that is necessary in charging the offense is to follow the statute. The statute under which the case was instituted is section 6653, Revised Laws, and that portion which is of importance in considering the objections urged reads as follows: "Any agent, manager or clerk of any * * * with whom any money ** poration shall have been deposited or intrusted, who shall use or appropriate such money or any part thereof in any manner or for any other purpose than that for which the same was deposited or intrusted, shall be guilty of embezzlement. * * * * * cor * Omitting the formal parts of the information in question, it charges that the defendant "while then and there an employee of the county of Opinion of the Court-Coleman, J. Churchill, a political subdivision of the State of Nevada, to wit, the duly appointed and acting manager of the Churchill County Telephone and Telegraph System, which said system being then and there exclusively owned and operated by the said county of Churchill, State of Nevada, and then and there, by virtue of said employment, as manager aforesaid, there came into the possession and under the control of said defendant, for transmission to the county treasurer of the said county of Churchill, State of Nevada, the sum of $556.02, lawful money of the United States, of the personal property of the said county of Churchill, State of Nevada, said sum, $556.02, lawful money, being public money received by said defendant for said county of Churchill, State of Nevada, during the month of March, A. D. 1916, while said public money and personal property were so in his possession and under his control by virtue of said employment as aforesaid, then and there, to wit, on the 31st day of March, A. D. 1916, or thereabout, said defendant did wilfully, feloniously, and unlawfully use, embezzle, and convert said sum of public money and personal property, received by him as aforesaid, for his own private purposes and for a purpose other than one duly authorized by law." It will be seen that the information charges that the defendant was manager of the telephone system; that as such manager there came into his possession and under his control certain money, the property of Churchill County; that it came into his hands for a specific purpose, viz, for transmission to the county treasurer; that while the money was in his possession for that purpose he feloniously and unlawfully converted it to his own use. These allegations seem to fully comply with the requirements of the statute. We think that the information is good. 3. It is also urged that the trial court erred in overruling an objection to certain pages in the books of account of the telephone system, offered in evidence by the state. This objection should have been sustained, |