¶1dissenting. As to the first issue raised by this appeal, I am in agreement with the majority that the several peculations herein must be considered as one offense. My conclusion, however, is not based upon consideration of the “purpose” of the statute, but on the unambiguous language of the statute itself. The statute authorizes, but by its literal language also limits, the penalty to “not less than one nor more than ten years if the total value of the property embezzled in the same continuous employment or term of office, whether embezzled at one time or at different times within three years prior to the inception of the prosecution, is sixty dollars or more.”
¶2I also am in agreement with the principles of law set out in paragraph three of the syllabus.
¶3I disagree, however, as to the application of those principles to the facts of this case. I would agree that the evidence as to the fire would not have justified a conviction of arson by the defendant, lacking as it does proof beyond a reasonable doubt of that particular crime. However, I cannot conclude that this evidence had “no probative value” on the issue of guilt as to the embezzlement. In this connection, it is not unimportant that the fire was not of a general nature but was attempted to be set in the vault and in the filing cabinets where the accounts receivable ledger cards were kept. Nor is it unimportant that the jury would be warranted in concluding that defendant knew that the audit, then in progress, would reveal his embezzlement, and that defendant was still on the premises when others had left on the Saturday in question,
¶4*137If, as I conclude, such evidence would permit reasonable minds to connect defendant with the attempt to burn the records, it obviously had probative value as an attempted concealment of the crime of embezzlement. If reasonable minds could not so conclude, the evidence would have no probative value tending to prove or disprove any crime by defendant. In such event, I fail to comprehend its prejudicial or inflammatory effect.
¶5Ordinarily, it is the function of the Court of Appeals, but not this court, to weigh the evidence. In performing this function, the Court of Appeals stated in its opinion:
¶6“We fail to see how the introduction of evidence that a fire occurred, and that certain records were partially destroyed, was, in any way, prejudicial to defendant, where the evidence shows that, preceding the fire, proof of defendant’s guilt overwhelms all doubt and excludes every reasonable hypothesis except that of defendant’s guilt. (See: Section 2945.83, Eevised Code.)”
¶7For the foregoing reasons, I would reduce the penalty here imposed to a single sentence for one offense of not less than one nor more than ten years, but would not remand for new trial.