Embezzlement differs from larceny in this: the fraudulent conversion is committed without a trespass, the offender having obtained the possession of the property lawfully with the consent of the owner, while in larceny there is always a trespass, the property having been taken from the owner without his consent.80

76 Hughes Cr. Law, Sec. 681; Schultz vs. People, 210 Ill., 196, 202, evidence incompetent.

77 People vs. Gallagher, 100 Cal., 466; Kibs vs. People, 81 Ill., 600; State vs. Wolf, 34 La., 1153; State vs. Mason, 108

Ind., 48; State vs. Foster, 1

Pen. (Del.), 289. 78 Hughes Cr. Law, Sec. 492. 79 State vs. Wolf, 34 La., 1153;

State vs. Kuamick, 45 Ohio St., 541; McCain vs. U. S., 2 Wyo., 274.

Embezzlement and larceny are distinct offenses, although there are statutes declaring that any person committing embezzlement shall be deemed guilty of larceny.81

It therefore follows that evidence of larceny will not sustain a charge of embezzlement nor will evidence of embezzlement prove a charge of larceny.82

And so in order to sustain a charge of embezzlement, the property in question must have come into the possession of the offender lawfully by virtue of the fiduciary relation existing between him and the owner.