majority">Rosenberry, J.

Two principal questions are argued: (1st) that there was no fraudulent appropriation of the money of the electric company by the defendant; (2d) that the defendant retained the funds under a claim of right and is therefore not guilty of embezzlement.

It is argued that by the retention of the check and the commencement of the suit against the defendant acknowledging payment of $609.69, of which amount $409.69 was represented by the check given June 20th, the relation of debtor and creditor as to that amount at least was established. It is true that ordinarily .a payment by check does not extinguish the original liability until the check itself is paid; but where as in this case the party receiving the check retains the same, and after having it in his pos*196session for a considerable time brings suit upon the original liability, acknowledges payment of an amount which includes the amount of the check, we cannot escape the conclusion .that the party thereby intended to rely thereafter upon his rights under the check and that the original liability was pro tanto extinguished. It does not appear what reasons moved the electric company to retain the check. That it was done deliberately and intentionally there can be no doubt. There remained due, according to the claim of the electric company, $121.94. It is urged that the defendant retained this amount under a claim of right and that therefore there can be no fraudulent conversion such as is necessary to sustain an information for embezzlement. Whether or not the defendant retained the sum of $121.94 believing in good faith that he was entitled to do so under his arrangement with the electric company, raises a question of fact. The deféndant set up several claims. At one time he made the claim that the electric company was indebted to him on other accounts and that he had a right to retain $200 out of the first $400 on that account. When he remitted the sum of $409.69 he attached a slip to the effect that if the check was accepted it was a full settlement. It was quite probable that this was done in the hope that the electric company, rather than stand on its rights, would accept the check and waive the payment of $121.94. He never offered to make any adjustment of the account; when the check of $409.69 was not presented he withdrew that amount and the fund alleged to be in dispute from the bank and departed from the state.

A review of the defendant’s testimony leaves the impression that he was not a fair and frank witness; that on the contrary he was evasive, untruthful, and his testimony is contradictory and unsatisfactory. Under these circumstances the court, having found him guilty of embezzling the whole amount of $531.48, must have been convinced *197that he did not retain the $121.94 under a claim of right made in good faith. While it is true that the defendant is not technically guilty of having embezzled more than $121.94 on account of the action of the electric company, the prescribed penalty would be the same under the law in either event, and a finding that he was guilty of embezzling $121.94 would support the judgment. The difference in moral guilt involved is so slight, the defendant having, by the means adopted, secured the whole amount, that it is not deemed sufficient to affect the opinion of the trial court as to the punishment which should be inflicted.

We are very earnestly urged to consider the nature of the transaction by which the defendant deposited in his bank moneys belonging to the electric company and to hold that it' does not amount to an embezzlement and that the agent was thereby impliedly authorized to substitute his own obligation for the money collected. The mere deposit by an agent in the ordinary course of «business of funds belonging to a principal in his own bank account and so intermingling it with his own funds undoubtedly amounts to a technical conversion (see People v. Schroeder, 43 Cal. App. 623, 185 Pac. 507), but it may lack the element of fraud necessary to constitute .a fraudulent conversion. However, when as here the fiduciary subsequently converts the whole fund to his own use and flees from the state with the evident purpose of depriving the beneficiary of his rights therein, the element of fraudulent intent may be inferred from his acts. At least there is sufficient to sustain a finding of fraudulent conversion within the meaning of the statute. Comm. v. Hutchins, 232 Mass. 285, 122 N. E. 275.

By. the Court. — The judgment of the municipal court is affirmed.

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