TAYLOR, Justice.
Defendant (appellant) Compton was charged with, convicted of, and adjudged guilty of, the crime of embezzlement. Defendant presented seven assignments of error, all of which raise the ultimate issue of whether the evidence supported the jury verdict of guilt of the particular crime charged in the information.
Embezzlement is defined as “the fraudulent appropriation of property by a person to whom it has been intrusted.” I.C. § 18-2401. The state apparently, though not specifically, elected to charge defendant under the particular statute, I.C. § 18-2405 :
“Every clerk, agent or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement.” 1
The property appropriated was money belonging to the Trimble Oil Company.
[740]*740It was agreed orally between defendant and a representative of the oil company, Mr. Trimble, that defendant was to be in charge of the oil company’s gasoline station located at 1310 Capitol Boulevard in Boise. The arrangement lasted from October 15th to October 30th, 1966, when Mr. Trimble ousted defendant and locked the station.
The oral arrangement between Compton and the Trimble Oil Company as to the receipt of and payment for gasoline was as follows. The company would deliver gasoline to underground tanks at the station. The ownership of this gasoline never passed to Compton but rather remained in the Trimble Oil Company until it passed to individual customers as the gasoline was pumped into their cars. Risk of loss of the gasoline was upon the oil company, and Compton was not obliged by contract to pay the oil company for gasoline delivered to the underground tanks but not sold. Thus the gasoline itself was entrusted to Compton’s care, and Compton’s duty was to collect payment for it from individual customers. There is no contention by the state that Compton did not collect the payments for gas sold to customers.
As to the cash or credit card invoices received from customers, Mr. Trimble testified that Compton was to take an aggregate total meter reading at the beginning and end of each day. The difference between these readings would equal the total amount of gasoline sold during that day stated in money or gallons. From this total, Compton was to deduct the aggregate wholesale cost of the gasoline, which would then be payable to the Trimble Oil Company. He also was to deduct one cent per gallon as rent payable to Trimble Oil Company for the station. The remainder, which varied according to the retail price of the gasoline sold, was Compton’s commission.
As to the wholesale cost plus rent, Compton was supposed to make a daily deposit of cash in a local bank to an account of the Trimble Oil Company, remitting the deposit receipts plus credit card invoices to Trimble Oil Company by mail.
Apparently the master-servant relationship did not exist between the oil company and the defendant. The true relationship was twofold, that is (1) Compton was the lessee and the oil company the lessor of the gas station; rental was fixed at the rate of 1‡ per gallon of gas sold; (2) Compton, as an independent contractor was consigned gasoline belonging to the oil company. This he was to sell on behalf of the oil company and turn over daily the credit card invoices, and a specified portion of the proceeds by depositing same to the company’s account in a local bank (including 1^ per gallon of gas sold as rent) and retain the remainder of the sales proceeds as his commission.
The lessor-lessee relationship does not concern or affect the embezzlement. The property embezzled was the cash sales proceeds (over and above the rental and commission) which defendant agreed to deposit daily to the oil company’s bank account, but which he did not so deposit.
The American Law Institute’s Restatement (Second) of Agency defines the terms Agency, Principal, Agent, and Independent Contractor thusly:
“Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.
“The one for whom action is to be taken is the principal.
“The one who is to act is the agent.
* * * # ❖ *
“An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking. He may or may not be an agent.” (Emphasis supplied.) Restatement (Second) of Agency, §§ 1, 2(3) (1958).
[741]*741The Restatement also compares Agent and Independent Contractor:
“One who contracts to act on behalf of another and subject to the other’s control except with respect to his physical conduct is an agent and also an independent contractor.” Restatement (Second) of Agency, § 14 N.
Comment “a” to § 14 N, is especially relevant to the issues at hand:
“Independent contractor as agent. As stated in Section 2, ‘independent contractor’ is a term which is antithetical to the word ‘servant’, although not to the word ‘agent’. In fact, most of the persons known as agents, that is, brokers, factors, attorneys, collection agencies, and selling agencies are independent contractors as the term is used in the Restatement of this Subject, since they are contractors but, although employed to perform services, are not subject to the control or right to control of the principal with respect to their physical conduct in the performance of the services. However, they fall within the category of agents. They are fiduciaries; they owe to the principal the basic obligations of agency: loyalty and obedience. Some of them also fall within the category of trustees, as in the case of a selling agent who has been given title to the subject matter. Colloquial use of the term excludes independent contractor from the category of agent as a similar use excludes trustee, but in both cases there is an agency if in the transaction which they undertake they act for the benefit of another and subject to his control. Thus, salesmen as a group are divided into servants and non-servants, the latter falling into the class of independent contractors for the purpose of distinguishing them from others for whose physical conduct in the scope of employment the employer is responsible.” (Emphasis supplied.)
Two fairly recent cases have held that one who collects money from a “debtor” of another (the “creditor”) on behalf of that other person is an “agent” of the other person within the meaning of the embezzlement statute, despite the fact that in the technical sense the alleged embezzler is an independent contractor over whom the other person (i. e., the “creditor”) has only minimal or no control. State v. Holdren, 143 Mont. 103, 387 P.2d 446 (1963); State v. Lawrence, 168 N.E.2d 21, 84 Ohio Law Abst. 16, 13 Ohio Op.2d 195 (Ohio Com.Pl.
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TAYLOR, Justice.
Defendant (appellant) Compton was charged with, convicted of, and adjudged guilty of, the crime of embezzlement. Defendant presented seven assignments of error, all of which raise the ultimate issue of whether the evidence supported the jury verdict of guilt of the particular crime charged in the information.
Embezzlement is defined as “the fraudulent appropriation of property by a person to whom it has been intrusted.” I.C. § 18-2401. The state apparently, though not specifically, elected to charge defendant under the particular statute, I.C. § 18-2405 :
“Every clerk, agent or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement.” 1
The property appropriated was money belonging to the Trimble Oil Company.
[740]*740It was agreed orally between defendant and a representative of the oil company, Mr. Trimble, that defendant was to be in charge of the oil company’s gasoline station located at 1310 Capitol Boulevard in Boise. The arrangement lasted from October 15th to October 30th, 1966, when Mr. Trimble ousted defendant and locked the station.
The oral arrangement between Compton and the Trimble Oil Company as to the receipt of and payment for gasoline was as follows. The company would deliver gasoline to underground tanks at the station. The ownership of this gasoline never passed to Compton but rather remained in the Trimble Oil Company until it passed to individual customers as the gasoline was pumped into their cars. Risk of loss of the gasoline was upon the oil company, and Compton was not obliged by contract to pay the oil company for gasoline delivered to the underground tanks but not sold. Thus the gasoline itself was entrusted to Compton’s care, and Compton’s duty was to collect payment for it from individual customers. There is no contention by the state that Compton did not collect the payments for gas sold to customers.
As to the cash or credit card invoices received from customers, Mr. Trimble testified that Compton was to take an aggregate total meter reading at the beginning and end of each day. The difference between these readings would equal the total amount of gasoline sold during that day stated in money or gallons. From this total, Compton was to deduct the aggregate wholesale cost of the gasoline, which would then be payable to the Trimble Oil Company. He also was to deduct one cent per gallon as rent payable to Trimble Oil Company for the station. The remainder, which varied according to the retail price of the gasoline sold, was Compton’s commission.
As to the wholesale cost plus rent, Compton was supposed to make a daily deposit of cash in a local bank to an account of the Trimble Oil Company, remitting the deposit receipts plus credit card invoices to Trimble Oil Company by mail.
Apparently the master-servant relationship did not exist between the oil company and the defendant. The true relationship was twofold, that is (1) Compton was the lessee and the oil company the lessor of the gas station; rental was fixed at the rate of 1‡ per gallon of gas sold; (2) Compton, as an independent contractor was consigned gasoline belonging to the oil company. This he was to sell on behalf of the oil company and turn over daily the credit card invoices, and a specified portion of the proceeds by depositing same to the company’s account in a local bank (including 1^ per gallon of gas sold as rent) and retain the remainder of the sales proceeds as his commission.
The lessor-lessee relationship does not concern or affect the embezzlement. The property embezzled was the cash sales proceeds (over and above the rental and commission) which defendant agreed to deposit daily to the oil company’s bank account, but which he did not so deposit.
The American Law Institute’s Restatement (Second) of Agency defines the terms Agency, Principal, Agent, and Independent Contractor thusly:
“Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.
“The one for whom action is to be taken is the principal.
“The one who is to act is the agent.
* * * # ❖ *
“An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking. He may or may not be an agent.” (Emphasis supplied.) Restatement (Second) of Agency, §§ 1, 2(3) (1958).
[741]*741The Restatement also compares Agent and Independent Contractor:
“One who contracts to act on behalf of another and subject to the other’s control except with respect to his physical conduct is an agent and also an independent contractor.” Restatement (Second) of Agency, § 14 N.
Comment “a” to § 14 N, is especially relevant to the issues at hand:
“Independent contractor as agent. As stated in Section 2, ‘independent contractor’ is a term which is antithetical to the word ‘servant’, although not to the word ‘agent’. In fact, most of the persons known as agents, that is, brokers, factors, attorneys, collection agencies, and selling agencies are independent contractors as the term is used in the Restatement of this Subject, since they are contractors but, although employed to perform services, are not subject to the control or right to control of the principal with respect to their physical conduct in the performance of the services. However, they fall within the category of agents. They are fiduciaries; they owe to the principal the basic obligations of agency: loyalty and obedience. Some of them also fall within the category of trustees, as in the case of a selling agent who has been given title to the subject matter. Colloquial use of the term excludes independent contractor from the category of agent as a similar use excludes trustee, but in both cases there is an agency if in the transaction which they undertake they act for the benefit of another and subject to his control. Thus, salesmen as a group are divided into servants and non-servants, the latter falling into the class of independent contractors for the purpose of distinguishing them from others for whose physical conduct in the scope of employment the employer is responsible.” (Emphasis supplied.)
Two fairly recent cases have held that one who collects money from a “debtor” of another (the “creditor”) on behalf of that other person is an “agent” of the other person within the meaning of the embezzlement statute, despite the fact that in the technical sense the alleged embezzler is an independent contractor over whom the other person (i. e., the “creditor”) has only minimal or no control. State v. Holdren, 143 Mont. 103, 387 P.2d 446 (1963); State v. Lawrence, 168 N.E.2d 21, 84 Ohio Law Abst. 16, 13 Ohio Op.2d 195 (Ohio Com.Pl. 1960); see also State v. Cochrane, 51 Idaho 521, 6 P.2d 489 (1931).
“The fact that an agent who collects money for his principal is entitled to commissions out of the funds collected does not give him such ownership in the money as to absolve him of a charge of embezzlement, if he converts the entire fund to his own use. The right to receive commission does not constitute joint ownership, since all over his commission he holds in trust for his principal.” Sherman v. State, 234 Miss. 775, 108 So.2d 205 (1959); accord, Dickens v. State, 398 P.2d 1008 (Alaska 1965); State v. Johnson, 266 Minn. 187, 123 N.W.2d 183 (1963).
It has been said that a debtor-creditor relationship, not being fiduciary in nature, does not support criminal liability under the embezzlement statutes. See State v. White, 46 Idaho 124, 266 P. 415 (1928). This does not mean that the existence of the debtor-creditor relationship is a defense to a charge of embezzlement. It means rather that a mere debtor-creditor relationship coupled with failure to repay does not in itself establish the commission of the crime. In the case before us the fiduciary relationship existed by reason of the agency. Since the sale of the gasoline transferred title from the oil company directly to consumer and not from oil company to defendant to consumer, defendant was not indebted to the oil company for the price of the gasoline, but was the holder of part of the proceeds of the sale as agent for the oil company. The debt was created thereafter by the conversion by defendant of the money of the oil company. By the act of embezzlement, the embezzler becomes the debtor of his victim. The fact that by [742]*742reason of the embezzlement a civil right of action accrued to the oil company against defendant for recovery of the money converted was immaterial to the issue of embezzlement. Likewise, the testimony of Mr. Trimble that the company would have accepted other money, and that defendant :need not have sent the specific money to them or to the company, in satisfaction of the company’s claim, was immaterial to the issue of embezzlement. The victim of a crime does not have a right to control the state’s criminal action, nor to compromise or settle it in or out of court.
Compton was entrusted with the oil company’s gasoline for the purpose of sale. It was his duty to collect from the purchasers the money due therefor, and to turn over to the oil company the portion of the proceeds belonging to it. Under the statute and under the authorities cited, Compton was guilty of embezzling proceeds entrusted to his care which belonged to the oil company. See People v. Frazier, 88 Cal.App.2d 99, 198 P.2d 325 (Dist.Ct.App.1948). A confidential, fiduciary relationship existed between defendant and the oil company in relation to the collection and depositing to the company’s account of the company’s portion of the sales proceeds. Defendant was the company’s trusted agent for that purpose.
“A fiduciary relationship does not depend upon some technical relation created by or defined in law, but it exists in cases where there has been a special confidence imposed in another who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of one reposing the confidence. * * *
“ * * *; it exists whether the relationship is technically fiduciary or merely informal, whenever one trusts in and relies on the other.” Stearns v. Williams, 72 Idaho 276, 288, 240 P.2d 833, 840 (1952).
Appellant cites Kelley v. People, 157 Colo. 417, 402 P.2d 934 (1965), in support of his contention that the evidence did not support the jury verdict. The facts therein are similar to those in this case. Nevertheless, the following statement in the Kelley case should be noted:
“The Attorney General, while briefing with particularity the law applicable here, points out that he does not disagree with the defendant’s position and that it is his conclusion that the People failed to prove that the defendant unlawfully converted money belonging to the Hill Oil Company.”
The Colorado court apparently did not consider the authorities cited herein. While it is true that well reasoned argument can and sometimes should overcome mere case law, nevertheless the inference is irresistible that the Colorado court was persuaded not so much by right reason as by the fact that both sides on appeal agreed that defendant was not guilty of the crime charged.
Judgment affirmed.
SMITH, C. J., and McFADDEN, J., concur. Decision reached before retirement of SMITH, C. J., and TAYLOR, J.
McQUADE, J., dissenting.
SPEAR, J., concurring in the dissent.