Mr. Justice Eakin
delivered the opinion of the court.
1. The statute (B. & C. Comp.) upon whiclathis prosecution is based provides: ____
“Sec. 1807. If any person shall receive any money whatever for this State * * or shall have in his possession any money whatever belonging to such State * * and shall in any way convert to his own use any portion thereof * * such person shall be deemed guilty of larceny. * * ”
The first question for consideration relates to the character of the deposits made by the State Treasurer with the Trust Company, whether they were general or special, [458]*458and this depends on the terms of the statute of 1907, under which the deposits were made (Laws 1907, p. 248), which took effect May 26, 1907. The portions of the act applicable here are as follows:
“Section 1. It shall be the duty of the State Treasurer, on the first Monday in June of each year, to designate such banks and trust companies within this State, as he may, under the provisions of this act, deem eligible to be made State depositories, for the purpose of receiving on deposit funds of this State, and paying out the same on order or checks of the State Treasurer.”
“Sec. 3. The State Treasurer shall deposit, and at all times keep on deposit in national banks doing business in the State of Oregon, or other banks and trust companies doing business within this State, as shall have been approved under the provisions of this act as herein provided, the amount of money in his hands belonging to the several funds in the State Treasury, and any such bank or trust company may file with the State Treasurer its application for the privilege of keeping on deposit such funds or some part thereof. All such deposits shall be subject to payment when demanded by the State Treasurer on his check, and any bank receiving- and holding any such deposit as aforesaid shall be required to pay and shall pay to the State for the privilege of holding the same, interest at the rate prescribed by the State Treasurer as hereinafter provided, which rate of interest shall not be less than two per cent per annum. * *
“Sec. 5. For the security of funds so deposited under the provisions of this act, the State Treasurer shall require all such depositories to deposit securities of the kind and character hereinafter described, or to give bonds for the payment of such deposits and the interest thereon. Said bonds, when given, shall run to the State of Oregon, and, together with the securities offered, are to be approved as to the legal form by the Attorney General. * * The bond provided for under this act shall be a surety company bond. * * [Here follows the form of bond to be given by a surety company.]”
“Sec. 9. The word ‘bonds/ wherever used in this act, shall be held to include bonds furnished by surety companies authorized and qualified to do business in this [459]*459State. The word ‘security’ or ‘securities’ shall be construed to include United States bonds,” etc.
“Sec. 16. The word ‘funds’ used in this act shall apply to all funds in the State Treasury except the common schools, agricultural college, and university funds. Nothing in this act shall be construed to deprive the State Land Board of the power to invest or dispose of the funds derived from the sale of public lands as is now or may be provided by law.”
Thus it will be seen that the educational funds are excepted from the provisions of sections 1 to 5, inclusive. But sections 6, 7, and 8 include the educational fund, and provide as follows:
“Sec. 6. The State Treasurer may designate a bank or trust company in the City of Salem or a bank or trust company in the City of Portland as an active depository for the collection of any drafts, checks, certificates of deposit and coupons that may be received by him on account of any claim due the State.
“Sec. 7. The bank or trust company, designated as such active depository, shall be required to give security to the State to be approved by the State Treasurer for the prompt collection of all drafts, checks, certificates of deposit, coupons that may be delivered to such active depository by the State Treasurer' for collection; also, for the safe-keeping and prompt payment on the State Treasurer’s order of all such collections, also for the payment of all drafts that may be issued to said State Treasurer by such active depository.
“Sec. 8. The State Treasurer, on receipt of any draft, check, or certificate of deposit, on account of State dues, may place the same in such active depository for collection, and it shall be the duty of such active depository to collect the same without delay, without charge for its services for such collection, or for exchange, and to notify the State Treasurer when collected. The compensation to be paid by such active depository shall be fixed by the State Treasurer upon the best terms obtainable for the State.”
Section 10 contains the following clause:
“The State Treasurer shall not be liable personally or upon his official bond for any moneys that may be lost [460]*460by reason of the failure or insolvency of any bank which becomes a depository under this act.”
The purpose of this statute is to secure to the State interest on State funds, and to provide depositories for State moneys. Of this act sections 1 to 5, inclusive, relate to the creation of depositories and payment of interest on money deposited, and applies to all State funds other than educational funds, but has no application to them. Sections 6, 7, and 8 provide for active depositories, and apply equally to the general and educational funds. It is evidently not the purpose of these sections that the active depositories shall loan or be required to pay interest on funds deposited thereunder, as section 5 provides for the security that shall be taken from general depositories, and if the active depositories could loan funds deposited therein, under the provisions of sections 6, 7, and 8, the effect would be to nullify the requirements of section 5 as to the character of the security to be given for the general deposits. The writer is unable to understand the purpose of the last clause of section 8, unless it is to give to the State the. benefit of any deal that the Treasurer might be able to make for compensation. But whatever the intention, it cannot change the meaning of these sections.
Thus it appears that deposits, if they may be called such, in the active depositories, as provided in section 6, are made for an entirely different purpose than those provided for in section 3, and are only for a special purpose, namely, for the collection of the checks and drafts transmitted by the Treasurer, the safe-keeping and prompt payment of the money upon the Treasurer’s order. For the security of funds of the general depositories the State Treasurer may require securities, such as United States, State, or municipal bonds, described in section 9, or a bond executed by a surety company, for which a form is prescribed and conditions specified. But [461]*461as to the security that may be required of an active depository, no specification is made or bond provided for, or other requirement, except that it must be such United States, State, or municipal bonds, specified in section 9 as shall be approved by the treasurer, and conditioned for the prompt collection of checks and drafts, for the safe-keeping of the money collected, and prompt payment thereof, on the treasurer’s order. These are very different conditions from those provided by section 5 for general depositories. It is not in the power of the legislature to make provision for a loan or use of educational funds. Section 5, Article VIII, of the Constitution of Oregon, provides, that “the Governor, Secretary of State, and State Treasurer, shall constitute a Board of Commissioners for the sale of school and university lands, and for investment of funds arising therefrom.” In the light of this constitutional provision, we can have no doubt as to the intention of the legislature in excluding educational funds from the operation of sections 1 to 5 of the act of 1907. The active depositories hold the money only as collections, and therefore the deposits were special, the title to which did not pass to the bank. Multnomah County v. Oregon National Bank (C. C.) 61 Fed. 912; State ex rel. v. Thum, 6 Idaho 323 (55 Pac. 858) ; Sexton v. School Dist. No. 34 of Spokane County, 9 Wash. 6 (36 Pac. 1052) ; Merchants’ Nat. Bank v. School Dist. No. 8, 94 Fed. 705 (36 C. C. A. 432).
Counsel for defendant cite Baker v. Williams’ Banking Co., 42 Or. 213 (70 Pac. 711), as decisive of the rights of the treasurer to make a general deposit of the educational fund, but the question involved here did not arise in that case, and could not, as we are now controlled by the statute of 1907. ' The character of deposits must be determined by this statute. Section 11 makes it a felony for the treasurer to remove or deposit the State money except for lawful payments “or for the purpose of depositing [462]*462the same under the provisions of this act” in banks which shall have qualified as depositories, and this manner of deposit is exclusive. Both the Treasurer and the Trust Company in June, 1*907, recognized and acted under this statute by creating the active depository and segregating the educational funds. Nebraska has a statute similar to Sections 1 to 5, inclusive, of this statute, but it does not except the educational' funds, and in State v. Bartley, 39 Neb. 353 (58 N. W. 172: 23 L. R. A. 67), under a constitutional provision similar to ours, it is held that a deposit by the State Treasurer in such a depository is a-loan, and that the statute is therefore void, in so far as it attempts to include educational funds. And in considering whether a deposit of the educational fund, under that law, might not be considered a deposit for safekeeping, the court, referring to the contention of counsel for plaintiff to that effect, say: “This construction would be a reasonable and proper one, if the deposit contemplated by the statute'was a special one, merely for safekeeping, and that the same identical money should be returned. But this is not the kind of deposit the legislature meant.” Our statute has gone further, and provided how the educational fund shall be deposited by excepting it from the general deposit authorized by Sections 1 to 5, and providing for the collection of checks and drafts, and the safe-keeping of money so collected, subject to "the order of the Treasurer. This statute constitutes a part of the terms and conditions of the appointment of the depositories, and must be read into any arrangement made thereunder for deposits. State v. Bartley, 39 Neb. 353 (58 N. W. 172: 23 L. R. A. 67, 72) ; Merchants’ Nat. Bank v. School Dist. No. 8, 94 Fed. 705 (36 C. C. A. 432) is very much in point upon this question, where it is said: “The bank had knowledge of the nature of the funds, and was chargeable with knowledge of the statute. * * The bank undertook to receive the [463]*463money as a trust fund for an express purpose, and for no other. It is immaterial that in the finding the deposit is designated a ‘special deposit.’ The true nature of the transaction is disclosed by the facts. The money was to be treated as the funds of the school district, and not as the funds of the bank, and, in the light of that understanding, it is clear that the bank had no right to commingle the money with other funds.” Also State v. Thum, 6 Idaho, 323 (55 Pac. 858) is in point. It is there provided by statute that a deposit in a bank of State money, otherwise than on special deposit, shall be punished by imprisonment. It is held that this is authority to the Treasurer to make special deposits, and that upon such a deposit the bank had no authority to mingle or use the money so deposited.
2. Defendant further urges that the proof shows only a deposit and conversion of checks and drafts, and not money as charged in the' indictment, and that this is a variance. The bill of exception shows that the Treasurer sent by mail to the Trust Company for collection checks and drafts. When these were paid by the banks on which they were drawn, the Trust Company thereby received the money for the credit of the Treasurer, and it is immaterial how they were paid. There is no suggestion in the record that the Trust Company did not receive the money. On the contrary, upon the receipt of the check “No. 319, Geo. A. Steel, Treasurer, upon you, $272,449.02,” and check “No. 34, Geo. A. Steel, State Treasurer, on Ladd & Tilton, $2,600,” the Trust Company opened an account on its books, entitled “Geo. A. Steel, Treasurer, Educational,” and credited that account with a deposit of those amounts—$272,449.02. This is an acknowledgment that it received from itself and from Ladd & Tilton that amount of money for that account upon those checks. And the same is true of every other credit made, and constitutes at least prima facie proof of the receipt of the [464]*464money. In State v. Neilon, 43 Or. 168 (73 Pac. 321), defendant was prosecuted under this statute for the conversion of State money. The proof was that he received checks and drafts. Mr. Justice Bean, in the opinion says:
“It is true that the bill of exceptions recites that there is no evidence as to what was done by the defendant with the checks and drafts; but, in the absence of a showing to the contrary, the jury were justified in finding that they were by the defendant converted into money on the presumption that the usual course of business was pursued. Section 788, subd. 26, B. & C. Comp.”
Morse, Banks and Banking, Section 451, says:
“A credit given for the amount of a check by the bank upon which it is drawn is equivalent to, and will be treated as, a payment of a check. It is the same as if the money had been paid over the counter on the check, and then immediately paid back again to the account.”
This language is quoted with approval in Bartley v. State, 53 Neb. 310, 338 (73 N. W. 744, 752) in a case where a similar question arose; and in Merchants’ Nat. Bank v. School Dist. No. 8, 94 Fed. 705 (36 C. C. A. 432), the fund was held to be a trust fund and a special deposit, the title to which remained in the school district, though the deposit was made by checks, ánd the money not paid over the counter or segregated at the time, but placed to the credit of the district on the books of the bank.
3. When the Trust Company placed to the credit of “Steel, Treasurer, Educational,” the amount of a check, it thereby acknowledged that it had received the amount of the check in money, and is at least prima facie sufficient to establish the receipt of the money by the Trust Company. Having decided that the money in the hands of the Trust Company was a special deposit, and the money remained the property of the State of Oregon, and was paid out to other persons than the State Treasurer, it follows that this was a conversion of the money.
[465]*4654. It is contended, however, by defendant, that the proof does not substantiate the charge in the information that defendants were in the possession of the money of the State, but only that it was in possession of the Trust Company, and that the officers were not personally liable. But the language of the information is “that the defendants on the 9th day of September, 1907, then and there pretending to act for and on behalf of the Title Guarantee & Trust Company, did then and there have in their possession and under their control, as officers and directors of said Title Guarantee & Trust Company, as aforesaid, $288,426.87.”' The Trust Company is a corporation, an intangible thing, existing only in contemplation of law, a collection of individuals, authorized to act as if they were one. The individuals are its component parts, and the existence of a corporation independently of its stockholders is a fiction. Its rights and duties are the rights and duties of the persons composing it. 1 Morawetz, Corporation, § 1; 3 Thompson, Corporation, § 4009; 7 Thompson, Corporation, § 8140. Thompson says it has the capacity of acting by the collective vote or will of its component members. It can do no act not authorized by its stockholders or directors, and then only within oits charter powers. Its head and hands are the head and hands of its directors and officers, and while it acts lawfully within its corporate powers, the natural and individual capacity and responsibility of its directors and its officers as to all matters respecting the object of the incorporation is totally extinct, and what is done is only by and for the corporation; the directors and officers are not individually liable for its acts. There may be acts for which the corporation will be held criminally liable, but not in any case in which intent is involved, or where the punishment is more than a fine, because other punishment cannot be enforced. However, if the officers and directors of a corporation join in a criminal act, as [466]*466a corporate act, they are jointly liable with the corporation, if it is an act for which the corporation may be prosecuted; and, if it is a felony, the directors and officers are individually' liable. It is their criminal act, and not that of the corporation. 2 Morawetz, §§ 732, 733; People v. Clark, (O. & T.) 14 N. Y. Supp. 642; People v. White Lead Works, 82 Mich. 471 (46 N. W. 735: 9 L. R. A. 722). In the latter case the officers were jointly indicted with the corporation for violation of a municipal ordinance and the Supreme Court say:
“All the defendants were properly convicted. As officers of a company, they were jointly responsible for the business. It is not necessary to the conviction that they should be actually engaged in work upon the premises. The work is carried on by employees. The officers and directors are the persons responsible, and therefore the proper ones to be prosecuted.”
To the same effect is State v. Great Works Milling & Man. Co., 20 Me. 41 (37 Am. Dec. 38).
Defendant contends that section 1807, B. & C. Comp., is only intended to punish persons who are authorized by law. to receive money for the State, or into whose hands it comes lawfully, and who convert it, and that Ross was not individually authorized to receive the money. Under the act of 1907 the Trust Company was made an active depository, and therefore authorized to receive it. This it could only do by the hands of its officers; and, if it was a violation of the statute for the Trust Company to convert the money, it was equally so for any one who did the act for it, or authorized it. The money came into the hands of these defendants, as officers of the Trust Company, lawfully, by virtue of this statute, and they cannot be permitted to say that what they did in violation of the statute was not their act, and that therefore they are not responsible. If the acts were done in the name of the corporation by the defendants, then they were accessories, and aided and abetted, and [467]*467are principals under Sections 1324, 2153, B. & C. Comp.; 3 Thompson, Corporations, § 4114; 4 Thompson, Corporations, §4996; 21 Am. & Eng. Enc. Law (2 ed.) 896; State v. Moran, 15 Or. 262 (14 Pac. 419) ; State v. Steeves, 29 Or. 85 (43 Pac. 947). Thompson, Corporations (volume 3, § 4014) says:
“It is the duty of the directors and other officers of a corporation to preserve its property as a trust fund of which they are the guardians, and to administer it for the purposes of the trust.”
And at section 4113 he says:
“In a moral sense they are the custodians of the funds committed to their care by the stockholders and the depositors.”
These two sections are only discussing their civil responsibility, but it indicates their relation to the funds, and we conclude that the directors and officers of the bank, who used or authorized the use of the money by the Trust Company, are guilty under this statute.
5. Counsel for defendant also urge that the evidence does not tend to establish a conversion of the money by defendant to his own use, namely, that it is not sufficient to show that the funds were converted for the benefit of the Trust Company, but must have been to the personal advantage of defendant. We do not so understand the law of conversion. The statute uses the expression “shall in any way convert to his own use any portion thereof.” That is what we understand the term “conversion” to mean, when applied to a wrongful appropriation for which trover will lie, namely, assuming upon one’s self the property and right to dispose of another’s goods without authority. The cases of Mills v. State, 53 Neb. 263, 271 (73 N. W. 761) and State v. Foust, 114 N. C. 842 (19 S. E. 275) cited by defendant as making a distinction between conversion to one’s own use and to the use of another, both intimate that the term quoted [468]*468may not include a misappropriation. But the Nebraska statute includes both forms of expression “convert to his own use or to the use of another.” Therefore it might be held that the legislature meant to limit the meaning of the former. But both of these cases are decided upon the term “embezzled,” and not upon the expression “convert to his own use.” The opinions in some civil cases, in defining what constitutes conversion say that it is not necessary that the conversion be to the use of the convertor. But the term “conversion,” as used in law courts, means “conversion to one’s own use.” Johnson’s Universal Cyc. says conversion in law has two meanings. “(2) In the law courts * * conversion lies at the foundation of the common-law action of trover, which word is derived from the French word ‘trover’—to find. There is a legal fiction that the defendant found the plaintiff’s property and converted it to his own use. The material part of the case is the conversion.” 1 Chitty, Pleading, 145, says: “The action of trover or conversion was, in its origin, an action of trespass on the case for the recovery of damages against a person who had found goods and refused to deliver them on demand to the owner, but converted them to his own use.” Lord Mansfield says: “In form it [trover] is a fiction; in substance it is a remedy to recover the value of personal chattels wrongfully converted by another to his own use.” 1 Chitty, Pld. 146. In 3 Enc. Laws of Eng., 360, the same language is used in defining the origin and meaning of the term “conversion,” namely, as conversion to one’s own use and the averment of “finding,” being only a fiction, has been dropped, and the action is now known as “conversion.”
We find no decision or text-book, nor is any cited by defendant, that attempts to define the meaning of the term “convert to his own use” when used in a criminal statute. Such conversion does not, in itself, constitute [469]*469a crime. The definitions in the dictionaries and textbooks relate to acts that constitute a conversion for which trover will lie. A conversion, in the ordinary sense of the word, may be accomplished by one lawfully in possession of goods of another, when the conversion is by authority and for the benefit of the owner, and this creates no liability. But when used in its legal sense, the conversion must be for one’s own use. In Baldwin v. Cole, 6 Mod. *212, Lord Holt says:
“What is á conversion but an assuming upon one’s self the property and right of disposing of another’s goods, and he that takes upon himself to detain another man’s goods from him, without cause, takes upon himself the right of disposing of them.”
“An appropriation of, and dealing with, the property of another as if it were one’s own, without right.” Webster. Under the heading, “Appropriation to Convertor’s Use” (2 Words & Phrases, 1564) it is said: “Any direct act of dominion, wrongfully exercised over .one’s property in denial of his right or inconsistent with it, is a conversion”—citing many authorities. See 9 Bacon’s Abr. 631. To the same effect is the definition given by Mr. Justice Lord in the opinion in Budd v. Multnomah St. Ry. Co., 12 Or. 271 (7 Pac. 99: 53 Am. Rep. 355). Fowler v. Hollins, 41 L. J. (1872) 277, is a leading English case on this subject, and the court, in the opinion, uses the word “convert” as the equivalent of “convert to his own use.” See, also, a leading article in 13 Cent. Law J. 185, copied from Solicitor’s Journal, London. West Jersey R. R. Co. v. Trenton Car Works Co., 32 N. J. Law, 517. The term “convert to his own use” is not descriptive of crime, but is used in criminal statutes as a legal term with a definite meaning, well understood, and is equivalent to the legal term “conversion,” and this is the “conversion to his own use” of our criminal statute, which declares that such a conversion of state money, [470]*470by one who has received it for the state, shall constitute larceny.
We have six criminal statutes that make conversion of personal property of another “to one’s own use” a crime; and, if it be necessary for the State to prove that the conversion is for the personal advantage of the defendant, there would be a failure of justice in many cases. Every assuming by one person to dispose of the goods of another, without right, as if they were his own is a conversion to. one’s own use. This is not extending the statute by inference or construction, but giving to the words the technical meaning they bear in the law. Laverty v. Snethen, 68 N. Y. 522 (23 Am. Rep. 184), makes the distinction between conversion to the use of the owner and to one’s own use, and says:
“Trover may be maintained when the agent has wrongfully converted the property of his principal to his own use, and the fact of conversion may be made out by showing either a demand and refusal, or that the agent has, without necessity, sold or otherwise disposed of the property contrary to his instructions. * * If the agent parts with the property in a way or for a purpose not authorized, he is liable for a conversion.”
We understand from these authorities, and many others we have examined, that, in relation .to trover, the term “conversion” necessarily means conversion to one’s own use, and is fully accomplished by any exercise of a dominion over a chattel without the authority of the owner, whereby the true owner is deprived of the enjoyment of his chattel. And it is wholly immaterial whether the person so converting did it for his own personal advantage or not. See, also, State v. Omaha Nat. Bank, 59 Neb. 483 (81 N. W. 319).
6. One other question remains. Does the evidence tend to show that Ross, as a director or president, participated in, or was a party to, the conversion? “Officers, directors, and agents of a corporation, participating in a viola[471]*471tion of law in the conduct of the company’s business may be held criminally liable therefor.” 21 Am. & Eng. Enc. Law (2 ed.) 896. We think there can be no question of the correctness of this statement. It is equally true that an officer of a corporation is not criminally liable for the unlawful act of the corporation unless he participated in the wrongful act. In Rex v. Hays, 14 Ont. L. R. 201, it is said that, “in the absence of a statute to the contrary, an officer of a corporation cannot be punished criminally for the corporation’s unlawful act or default, unless he participates therein as an aider, abettor, or accessory, even though the corporation’s defense consists of the violation of a statute which imposes imprisonment as a penalty.” There is a note to this case in 8 Am. & Eng. Ann. Cas. 383, in which the author says: “The question of the criminal liability of the officers of a corporation for its acts of nonfeasance seems seldom to have arisen. The weight of modern authority * * is apparently as laid down in the reported case, viz., that an officer of a corporation is not liable for an offense committed by the corporation, except where he has in some way participated in the illegal act as an aider, abettor, or accessory”— citing several cases to that effect. 3 Thompson, Corporations, § 4114, citing People v. Clark (O. & T.) 14 N. Y. Supp. 642, is to the same effect. There is no evidence in this transcript tending to show that Ross actually paid out for the Trust Company any of its money, or expressly authorized any one to do so. There is no doubt that if the money had been embezzled from the Trust Company, or applied in any way not intended by the company, or not for its benefit, by any subordinate, then Ross could not be held criminally liable, unless he participated in such diversion thereof, but that is not this case. The record tends to show that the money was in the general deposit funds of the Trust Company, and was paid out in the usual way in payment of legitimate claims against [472]*472the Trust Company; that is, in the manner contemplated and intended by the company, and those in direction»of its affairs. The agents actually paying out the money had a right to understand that this was to be done; there being no segregation of the money or limitation on the use of it. The Trust Company could only become an active depository of this fund by authority of its officers and board of directors. When the money was received by the company as an active depository, and its directors and officers permitted the money to become a part of. the general deposit of the company, without restriction thereon, with knowledge that in so doing the money would be applied to the Trust Company’s general uses, this was general authority to subordinates to pay it out in the usual course of the business, and these officers and directors are liable therefor. The evidence tends to show that the disposition of the money by the Trust Company was with their knowledge, consent, and acquiescence, and they thereby participated in its diversion. To this effect is 4 Thompson, Corporations, § 4996.
This disposes of the principal questions involved. There are some minor questions raised, namely:
7. Exception was taken to the admission of evidence relating to Ross’ knowledge of the bill pending before the legislature of 1907, which authorized the appointment of depositories. This evidence only tended to establish Ross’ knowledge of the statute and its terms, and was not prejudicial.
8. Exception was taken to the admission in evidence of the demand made upon the Trust Company. This we think was competent and consistent with the charge in the information that defendants had the money in their control as officers and directors of the Trust Company, and a demand upon the Trust Company for which the defendants were acting was sufficient.
9. However, a demand, in case of conversion, is only [473]*473necessary in case the conversion is not otherwise made to appear. Here the conversion was disclosed by proof that the money was paid out on liabilities of the Trust Company.
10. The proof offered by defendant to show absence of criminal intent was immaterial, as it only tended to show that, after the money was converted, the Trust Company gave the Treasurer collateral security. Such security is contemplated in the act of 1907, and when given did not condone the wrongful act.
11. The proof of loss through failure of the Oregon Trust & Savings Bank was incompetent, as the money— being a special deposit—should not have been involved in the dealings between the Trust Company and its creditors.
12. Neither is criminal intent involved under this statute, as we have shown in defining a conversion. Such a conversion, when committed in violation of the terms of this statute (Section 1807), constitutes the offense, and no other intent need be shown.
13. Exception was also taken to remarks made by the district attorney and the judge, in presence of the jury, in permitting leading questions by the State to its own witness. • When the district attorney was cautioned by the court not to cross-examine his own witness, he appealed to the court as follows: “I must invoke the rule in this case that, the witness is an unwilling one”— to which the court replied, “I see that the witness is unwilling.” Certainly the district attorney had a right to make such an appeal to the court if the conduct of the witness justified it, and any form of ruling by the court allowing the attorney’s question would have meant the same to the jury, as the language used, and was not error.
14. Exception is also taken to the portion of the judgment that commits defendant to the county jail until [474]*474the fine is paid, for the reason that the same is cruel and unusual under the prohibition of the constitution. Defendant was sentenced to five years in the penitentiary, to pay a fine of $576,858.74, and to be imprisoned in the county jail one day for every $2.00 of the fine, not exceeding 288,426 days. This is an unusually large fine, and the imprisonment is for life, for the nonpayment of the fine, and is a cruel and unusual punishment within the prohibition of the constitution. State v. Miller, 75 N. C. 73; State v. Driver, 78 N. C. 423; Frese v. State, 23 Fla. 267 (2 South. 1) ; In re Yell, 107 Mich. 228 (65 N. W. 97) ; Southern Express Co. v. Walker, 92 Va. 59 (22 S. E. 809: 41 L. R. A. 436) ; State v. Whitaker, 48 La. An. 527 (19 South. 457: 35 L. R. A. 561).
[Decided February 15, 1910.]
[106 Pac. 1022.]
15. There can be no question that a sentence may be excessive, even though within the maximum of the statute, but if excessive, it is within the power of the appellate court to enforce this provision of the Bill of Rights, and avoid the judgment so far as it is excessive. Mims v. State, 26 Minn. 494 (5 N. W. 369) ; Southern Express Co. v. Walker, 92 Va. 59 (22 S. E. 809: 41 L. R. A. 436) ; Frese v. State, 23 Fla. 267 (2 South. 1) ; State v. Butman, 15 La. An. 166. And the judgment and sentence of the lower court will be modified by reversing that part directing that “he be imprisoned in the county jail of Multnomah County, Oregon, until said fine is paid, not exceeding 288,426 days.” In all other respects the judgment is affirmed. Modified: Affirmed..