
79 S.E.2d 230 (1953)
239 N.C. 41
STATE
v.
GRIFFIN.
No. 507.
Supreme Court of North Carolina.
December 16, 1953.
*232 Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.
Basil M. Boyd and J. Frank Flowers, Charlotte, for defendant, appellant.
DEVIN, Chief Justice.
The defendant in each of four instances was convicted of both larceny by trick and embezzlement with respect to the same transaction. He was found guilty of taking, stealing and carrying away the personal goods of L. N. Stallworth, and on the same testimony found guilty of fraudulently and feloniously converting to his own use the same property with which, according to the bill for embezzlement, he had been previously entrusted as agent, consignee, clerk, employee and servant of L. N. Stallworth.
The defendant moved that the solicitor be required to elect for which of these offenses the defendant should be put on trial.
While there is similarity in some respects between larceny and embezzlement, they are distinct offenses. Larceny is a common law offense not defined by statute; while embezzlement is a criminal offense created by statute to cover fraudulent acts which did not contain all the elements of larceny. 21 Henry VII C. 7; G.S. § 14-90.
Generally speaking, to constitute larceny there must be a wrongful taking and carrying away of the personal property of another without his consent, and this must be done with felonious intent; that is, with intent to deprive the owner of his property and to appropriate it to the taker's use fraudulently. It involves a trespass either actual or constructive. The taker must have had the intent to steal at the time he unlawfully takes the property from the owner's possession by an act of trespass. Actual trespass, however, is not a necessary element when possession of the property is fraudulently obtained by some *233 trick or artifice. The embezzlement statute makes criminal the fraudulent conversion of personal property by one occuping some position of trust or some fiduciary relationship as specified in the statute. The person accused must have been entrusted with and received into his possession lawfully the personal property of another, and thereafter with felonious intent must have fraudulently converted the property to his own use. Trespass is not a necessary element. In embezzlement the possession of the property is acquired lawfully by virtue of the fiduciary relationship and thereafter the felonious intent and fraudulent conversion enter in to make the act of appropriation a crime. State v. McDonald, 133 N.C. 680, 45 S.E. 582; State v. Ruffin, 164 N.C. 416, 79 S.E. 417, 47 L.R.A.,N.S., 852; State v. Holder, 188 N.C. 561, 125 S.E. 113; State v. Cameron, 223 N.C. 449, 27 S.E.2d 81; State v. Finnegean, 127 Iowa 286, 103 N.W. 155; Blackett v. People, 98 Colo. 7, 52 P.2d 389; 18 A.J. 572; 32 A.J. 892, 914; 22 C.J.S., Criminal Law, § 290, page 436; 2 Burdick Law of Crime 339.
In the case at bar, according to the State's evidence, the defendant obtained the property of the witness Stallworth by a trick or fraudulent device. While in a sense it was with his consent, it was only by this trick or fraudulent device that the taking was accomplished, constituting in legal effect a constructive trespass. And the felonious intent necessary to constitute the crime of larceny must have been present and motivating the act at the time of the taking. To constitute embezzlement the defendant must have been the agent, employee or servant of Stallworth and as such entrusted by Stallworth with possession of Stallworth's property for Stallworth, and the defendant must have thereafter fraudulently and with felonious intent converted the property to his own use. Conceding, without deciding, that the evidence is susceptible of either view, it is apparent that both views could not exist at the same time. The defendant could not be guilty of both by the same act. Hence we think the defendant's motion that the solicitor be required to elect whether the defendant put to trial for larceny or embezzlement should have been allowed.
However, it appears that the able judge who presided at the trial of this case was careful to impose on the defendant sentences carrying penalty or punishment only in the cases in which the jury had convicted him of larceny by trick. All the sentences for embezzlement were made to run concurrently with the sentences for larceny. So that the defendant will suffer nothing by reason of the several convictions for embezzlement; nor does it appear that the imposition of the term of 3 to 5 years in prison for all the eight cases was in any respect augmented by the verdicts in those cases. After all it was the same evidence whether tending to show larceny or embezzlement. Hence it would appear that the defendant has no cause for complaint that the the court did not require an election.
We have examined the other exceptions noted by defendant during the trial and brought forward in his assignments of error, and find no sufficient ground upon which to disturb the result reached below.
No Error.
BARNHILL, Justice (dissenting).
The defendant has apparently committed very reprehensible crimes for which, no doubt, he will be punished, either under the former trial and sentence affirmed by this Court or upon a conviction on a new trial. For that reason it is with sincere regret that I enter my dissent to the majority opinion. However, I entertain a deep conviction that no man should suffer the loss of his liberty except upon his conviction in a trial free from substantial error.
To quote from the majority opinion: "While there is similarity in some respects between larceny and embezzlement, they are distinct offenses * * * to constitute larceny there must be a wrongful taking and carrying away of the personal property of another without his consent, *234 and this must be done with felonious intent * * *. It involves a trespass either actual or constructive. The taker must have had the intent to steal at the time he unlawfully takes the property from the owner's possession by an act of trespass. * * * The embezzlement statute makes criminal the fraudulent conversion of personal property by one occupying some position of trust or some fiduciary relationship as specified in the statute. The person accused must have been entrusted with and received into his possession lawfully the personal property of another, and thereafter with felonious intent must have fraudulently converted the property to his own use. * * * In embezzlement the possession of the property is acquired lawfully by virtue of the fiduciary relationship and thereafter the felonious intent and fraudulent conversion enter in to make the act of appropriation a crime. * * * To constitute embezzlement the defendant must have been the agent, employee or servant of Stallworth and as such entrusted by Stallworth with the possession of Stallworth's property for Stallworth, and the defendant must have thereafter fraudulently and with felonious intent converted the property to his own use."
Thus it appears that the jury by its verdicts on four of the bills of indictment has found that defendant acquired possession of the money involved in each of the four instances by an actual asportation, that he did actually take and carry away the personal property of another without his consent, with the felonious intent to deprive the owner of his property and to appropriate it to his use, fraudulently. On the other four companion bills of indictment the jury has found that the defendant was the agent of the four prosecuting witnesses, and that he lawfully received the money from each and everyone of them as agent, and that he thereafter, while acting in the capacity of an agent, feloniously appropriated the money to his own use.
If the defendant received the sums of money involved from the four prosecuting witnesses lawfully as their agent, he cannot be guilty of larceny. The jury has found that he did so receive it. If he feloniously took, stole, and carried away the property of the four prosecuting witnesses with felonious intent, as the jury said he did, he did not receive it lawfully as agent of the several prosecuting witnesses. Therefore, upon that finding, he cannot be guilty upon the finding of embezzlement.
It follows that we affirm the conviction of a defendant in a case where the jury has found facts which are irreconcilable with his guilt on the charge of larceny. He received the money lawfully. This being true, there could be no larceny.
The sentences were divided into four groups. In the first he was sentenced for larceny and embezzlement. In the second, an additional sentence was imposed on both bills, to start at the expiration of the first. The other two sentences were for both charges with like provision. So then, each day the defendant remains in the penitentiary he will be serving a sentence for larceny and a sentence for embezzlement.
In short, the jury found that defendant, in four instances, did steal by trick the property of another. It likewise found that in each of said instances he embezzled the identical property while it was committed to his care as an agent of the prosecuting witness. Thus the jury has found that in each instance the defendant came lawfully into possession of the property involved. At the same time it found that the acquisition of possession was unlawful. This produces an irreconcilable conflict in the verdicts, which, in my opinion, necessitates a new trial. I so vote.
DENNY and ERVIN, JJ., concur in dissent.
