Smith, J.,
(after stating the facts). The confession of error presents the real question in this case, and that is whether or not there is a sufficiency of evidence, aside from the confession, to support the verdict. If the confession is properly supported by the evidence, appellant must necessarily be guilty of the crime, of embezzlement, for, by his own statement, it appears that he had converted large sums of money belonging to Paving District No. 26, and to other improvement districts, and that he had lost this money by his investments in the Watson Company. And it would be immaterial whether he became personally interested in this company, or had loaned the money to others who were interested in that company, or had loaned the money to the company itself, as in any of these cases this use of the money would be a conversion of it to his own use.
Appellant made no attempt to show that he had paid over these sums of money until after he had been indicted, and payment at that time would be no defense if he had previously converted the money to his own use. The record indicates that appellant’s friends made good the shortage; but, as has been stated, there is no proof that this action was taken prior to the finding of the indictment, and such payment is no defense against a prosecution for embezzlement. Fleener v. State, 58 Ark. 98.
The second instruction given by the court which told the jury that the State was not required to prove the intent with which the money was taken, was not improper under the facts of this case, because, if appellant made the use which his confession shows he made of the money of the paving district, he-must necessarily have converted that money to his own use, and when he did this, the offense of embezzzlement. was complete, and he can not be heard to say that he did not intend to do that which he must have done voluntarily and knowingly. In other words, by his own confession, he converted nearly $3,00(1 of the money of Paving District No. 26 to his own use, and more than ten thousand dollars of the money of other improvement districts, and, having done this, it would be no defense for him to show that he had expected to return this money. We have in mind the case of Conley v. State, 69 Ark. 454, in which case it was said: “The language in the court’s charge, ‘convert to his own use,’ is the language used in the statute; but we are of the opinion that the lawmakers did not intend that anything short of a conversion of property by a bailee with the intent to make same his own, and thus permanently deprive the owner of the use and benefit thereof, should constitute the crime of embezzlement. They make the conversion of it ‘for his own use’ larceny, placing it in the same grade as larceny. So far as the conversion is concerned, the essential elements of criminality are the same in embezzlement as in larceny, i. e., there must be the felonious intent at the time of the conversion of the property by the bailee to make the same his own. Fleener v. State, 58 Ark. 98.
“If the bailee only intends to use the property, and to return it (the specified property) finally to the owner, he is not guilty of embezzlement, although such use may be without the knowledge and consent, and contrary to the expressed wishes and directions, of the bailor. Such is the purport of the -authorities.”
But it will be observed that 'the court was there dealing with specific property, and it was said not to be embezzlement for one to use property for a longer period than he was authorized to do, provided he did not intend to thus permanently deprive the owner of his property. But there is no question here about the use or return of specific property. Tire appellant liad tbe lawful custody of tbe money, but be bad no legal right to tbe use of any of it, and when be used it, be must necessarily have converted it to bis own use, and be can not excuse that act by showing bis good intentions to return it.
Instruction No. 1, asked by appellant, not only told tbe jury that mere failure to pay over the money would not constitute embezzlement, but it went further and said that it must appear that tbe defendant retained tbe money of tbe district by attempting to in some manner conceal tbe fact that be was in possession of it, or by falsely and fraudulently keeping bis accounts so as to prevent tbe commissioners from knowing be bad it in bis possession. Tbe effect of this instruction is to tell tbe jury that tbe crime of embezzlement can be’ committed only surreptitiously, and that that crime was not committed if appellant’s books were kept so that bis shortage appeared from an inspection of them. It appears to have been a fact that appellant’s books were kept properly, and that tbe amount of bis shortage was readily ascertained from an inspection of them, but this, o"f course, can be no defense. One guilty of embezzlement can not claim immunity because be did not attempt to conceal tbe evidence of bis crime.
What we have already said about tbe intent disposes of tbe third instruction requested by appellant. Tbe second instruction presents tbe real question in tbe case, and because of its refusal tbe Attorney General confesses error. But this instruction considered by itself is no.t correct, for tbe latter part of it is in conflict with tbe first part of it. Tbe latter part of this instruction correctly tells tbe jury that tbe defendant’s statements alone will not be sufficient to justify tbe finding that appellant committed tbe crime charged against him; but that, such statements could be considered by tbe jury along with other circumstances, if there are such circumstances, tending to show that tbe crime was, in fact, committed. But tbe first part of this instruction told tbe jury that statements made by tbe appellant can not be considered in determining whether tbe appellant committed tbe crime charged against him, and this, of course, is not- a correct statement of the law, and when read as a whole, as all instructions should he, it is not entirely clear what weight the jury should give in considering appellant’s statements.
An instruction, of which this is practically á copy, ° was given hy the court in the case of Meisenheimer v. State, 73 Ark. 407. But the instruction was not expressly-approved in that case; on the contrary, it was there given instead of one which had been asked by the defendant on the same subject. The discussion in that case shows that the instruction which the defendant asked was not the law, and all of the one given was as favorable as he could ask, and he was therefore not prejudiced because it was not technically correct. One who has not asked a proper instruction on the subject can not complain of the refusal of the court to give an improper one. Western Union Tel. Co. v. Ford, 77 Ark. 531.
It is, of course, true that, “A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such offense was committed,” because section 2385 of Kirby’s Digest so provides; but such confessions are not to be disregarded in determining whether the defendant committed the crime charged against him. The proper construction of the above quoted section of the Digest was discussed in the case of Meisenheimer v. State, supra, where it was said:
“The authorities sustain the proposition that a confession may be considered as evidence tending, but insufficient of itself, to prove the corpus delicti, as well'as the connection of the defendant with the crime.
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Smith, J.,
(after stating the facts). The confession of error presents the real question in this case, and that is whether or not there is a sufficiency of evidence, aside from the confession, to support the verdict. If the confession is properly supported by the evidence, appellant must necessarily be guilty of the crime, of embezzlement, for, by his own statement, it appears that he had converted large sums of money belonging to Paving District No. 26, and to other improvement districts, and that he had lost this money by his investments in the Watson Company. And it would be immaterial whether he became personally interested in this company, or had loaned the money to others who were interested in that company, or had loaned the money to the company itself, as in any of these cases this use of the money would be a conversion of it to his own use.
Appellant made no attempt to show that he had paid over these sums of money until after he had been indicted, and payment at that time would be no defense if he had previously converted the money to his own use. The record indicates that appellant’s friends made good the shortage; but, as has been stated, there is no proof that this action was taken prior to the finding of the indictment, and such payment is no defense against a prosecution for embezzlement. Fleener v. State, 58 Ark. 98.
The second instruction given by the court which told the jury that the State was not required to prove the intent with which the money was taken, was not improper under the facts of this case, because, if appellant made the use which his confession shows he made of the money of the paving district, he-must necessarily have converted that money to his own use, and when he did this, the offense of embezzzlement. was complete, and he can not be heard to say that he did not intend to do that which he must have done voluntarily and knowingly. In other words, by his own confession, he converted nearly $3,00(1 of the money of Paving District No. 26 to his own use, and more than ten thousand dollars of the money of other improvement districts, and, having done this, it would be no defense for him to show that he had expected to return this money. We have in mind the case of Conley v. State, 69 Ark. 454, in which case it was said: “The language in the court’s charge, ‘convert to his own use,’ is the language used in the statute; but we are of the opinion that the lawmakers did not intend that anything short of a conversion of property by a bailee with the intent to make same his own, and thus permanently deprive the owner of the use and benefit thereof, should constitute the crime of embezzlement. They make the conversion of it ‘for his own use’ larceny, placing it in the same grade as larceny. So far as the conversion is concerned, the essential elements of criminality are the same in embezzlement as in larceny, i. e., there must be the felonious intent at the time of the conversion of the property by the bailee to make the same his own. Fleener v. State, 58 Ark. 98.
“If the bailee only intends to use the property, and to return it (the specified property) finally to the owner, he is not guilty of embezzlement, although such use may be without the knowledge and consent, and contrary to the expressed wishes and directions, of the bailor. Such is the purport of the -authorities.”
But it will be observed that 'the court was there dealing with specific property, and it was said not to be embezzlement for one to use property for a longer period than he was authorized to do, provided he did not intend to thus permanently deprive the owner of his property. But there is no question here about the use or return of specific property. Tire appellant liad tbe lawful custody of tbe money, but be bad no legal right to tbe use of any of it, and when be used it, be must necessarily have converted it to bis own use, and be can not excuse that act by showing bis good intentions to return it.
Instruction No. 1, asked by appellant, not only told tbe jury that mere failure to pay over the money would not constitute embezzlement, but it went further and said that it must appear that tbe defendant retained tbe money of tbe district by attempting to in some manner conceal tbe fact that be was in possession of it, or by falsely and fraudulently keeping bis accounts so as to prevent tbe commissioners from knowing be bad it in bis possession. Tbe effect of this instruction is to tell tbe jury that tbe crime of embezzlement can be’ committed only surreptitiously, and that that crime was not committed if appellant’s books were kept so that bis shortage appeared from an inspection of them. It appears to have been a fact that appellant’s books were kept properly, and that tbe amount of bis shortage was readily ascertained from an inspection of them, but this, o"f course, can be no defense. One guilty of embezzlement can not claim immunity because be did not attempt to conceal tbe evidence of bis crime.
What we have already said about tbe intent disposes of tbe third instruction requested by appellant. Tbe second instruction presents tbe real question in tbe case, and because of its refusal tbe Attorney General confesses error. But this instruction considered by itself is no.t correct, for tbe latter part of it is in conflict with tbe first part of it. Tbe latter part of this instruction correctly tells tbe jury that tbe defendant’s statements alone will not be sufficient to justify tbe finding that appellant committed tbe crime charged against him; but that, such statements could be considered by tbe jury along with other circumstances, if there are such circumstances, tending to show that tbe crime was, in fact, committed. But tbe first part of this instruction told tbe jury that statements made by tbe appellant can not be considered in determining whether tbe appellant committed tbe crime charged against him, and this, of course, is not- a correct statement of the law, and when read as a whole, as all instructions should he, it is not entirely clear what weight the jury should give in considering appellant’s statements.
An instruction, of which this is practically á copy, ° was given hy the court in the case of Meisenheimer v. State, 73 Ark. 407. But the instruction was not expressly-approved in that case; on the contrary, it was there given instead of one which had been asked by the defendant on the same subject. The discussion in that case shows that the instruction which the defendant asked was not the law, and all of the one given was as favorable as he could ask, and he was therefore not prejudiced because it was not technically correct. One who has not asked a proper instruction on the subject can not complain of the refusal of the court to give an improper one. Western Union Tel. Co. v. Ford, 77 Ark. 531.
It is, of course, true that, “A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such offense was committed,” because section 2385 of Kirby’s Digest so provides; but such confessions are not to be disregarded in determining whether the defendant committed the crime charged against him. The proper construction of the above quoted section of the Digest was discussed in the case of Meisenheimer v. State, supra, where it was said:
“The authorities sustain the proposition that a confession may be considered as evidence tending, but insufficient of itself, to prove the corpus delicti, as well'as the connection of the defendant with the crime. The New York statute is similar to the one under consideration, using the term ‘additional proof’ where this uses ‘other proof. ’ The court of appeals says, after stating the same objection that is urged here: ‘But we are of opinion that when, in addition to the confession, there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case can not be taken from the jury for a noncompliance with the requirement of the ' statute.-’ The words of the statute, ‘ additional proof that the crime charged has been committed,’ seem to imply that the confession is to be treated as evidence of the corpus delicti; that is, not only of the subjective criminal -act, but also the criminal agency of the defendant ; in other words, as competent proof of the body of the crime, though insufficient without corroboration to warrant a conviction.’ People v. Jaehne, 103 N. Y. 182. In People v. Badgley, 16 Wend. 53, the court said: 'Full proof of the body of the crime, -the corpus delicti, independently of the confession, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient.’ In People v. Deacons, 109 N. Y. 374, the court said: 'There must be some other evidence of the existence of the criminal fact to which the confession relates.’ ”
And in the Meisenheimer case it was further said that, “The proposition that the confession is evidence, but not sufficient per se, to prove the crime, seems fully established.” Appellant’s confession was extra-judicial, but it is not unsupported by' other evidence. The evidence was undisputed that appellant’s term of office expired on the 7th of April, and that he did not then pay over to his successor, nor to the treasurer of the various districts, the sums of money collected by him, and in no event could he lawfully retain possession of his collections beyond the expiration of his term of office. The city clerk audited appellant’s books and experienced no difficulty in ascertaining from them the amount of the shortage, and the sums thus found to be due corroborated the statements made by appellant to his friends when he advised them of his embezzlement. Here the undisputed proof shows, independently of any confession made by appellant, that he had collected large sums of money, of which $2,990.38, belonged to Paving District No. 26, and that this money had not been paid over when the -audit of the books was completed, about the first of June thereafter. Under the rule laid down in the case of Meisenheimer v. State, supra, this is sufficient corroboration of appellant’s confession to show the commission of the crime and his guilt.
It thus appears that the evidence, under the instructions of the court, was sufficient to sustain a conviction for embezzlement; but the punishment appears to have been assessed under Act No. 80 of the Acts of the General Assembly of 1909, which provides that any person violating any of the provisions of that act shall on conviction be fined any sum not less than $500, nor more than $5,000 and imprisonment in the State penitentiary not less than one year, nor more than ten years. This act is an enlargement of the embezzlement statute in its application to boards of improvement in cities and towns in this State. This act makes it unlawful for the collector or treasurer of the improvement district, or any other' subordinate officer appointed by the board, to loan or use, or to be interested in the loan or use of any fund raised by the improvement district. The acts and omissions made unlawful by this Act No, 80, are not as technical as the crime of embezzlement is; but we need not determine the application of that act to the facts of this record, because appellant was indicted for embezzlement, and the proof is legally sufficient to sustain his guilt of that crime.
In assessing a fine, the jury imposed a punishment in excess of that provided by law, and in such cases the court should disregard the excess. Section 2434 of Kirby’s Digest, so provides. The judgment of the court will therefore be modified by striking out that portion assessing a fine, and is otherwise affirmed.