¶1On Rehearing
¶2The propositions and arguments urged on rehearing find little fault with the statement of the law as contained in the Court’s original opinion, but take the Court to task for misapplying the facts to the stated law.
¶3The argument is made that the verdict of the jury finding petitioner guilty of embezzlement is inconsistent with the construed finding of facts as made by the Court of Appeals and as adopted by this Court.
¶4Counsel insist that the phrase used in our original opinion that “a scheme concocted by petitioner” would of necessity make the crime, if any, larceny in that the intent would have had to have been formed prior to the “scheme.” Jackson v. State, 249 Ala. 348, 31 So.2d 519. That case, after stating the general distinction between larceny and embezzlement, lays down the rule that where a defendant is charged in an indictment with both the crimes of larceny and embezzlement (separate counts) and there is evidence to support both counts of the indictment, a submission to the jury and the return of a general verdict of “guilty” followed by judgment thereon is not error and any further prosecution based on the evidence adduced at such trial is barred.
¶5Petitioner’s argument in this regard is most forcibly answered in Rogers v. State, Ala.App., 65 So.2d 525, certiorari denied, 65 So.2d 531,
“ ‘ … Having received, the money as a duly authorized agent, the act of receiving is a lawful one, and his uncommunicated intentions, formed before or at the time, to convert it would not entitle defendant in this case to an acquittal of the charge of embezzlement, if he lawfully received the money as an agent, and then unlawfully converted it. If the defendant, while in the lawful possession of the money as agent, the care and custody of it *51being intrusted to him, fraudulently converts such money to his own use, he would be guilty of embezzlement' within the meaning of the statute, notwithstanding the fact that he may have had a secret or uncommunicated intention of converting the money before he received it.’ ” [65 So.2d 528.]
¶6If it be said that this Rogers case is somewhat of a departure from the earlier concept, it is a sound departure and in line with modern thought on the question. See 146 A.L.R. 594-596.
¶7Then, too, the argument urged overlooks the obvious prerogative of the jury. The series of events here involved began October 15, 1949, and continued until September 1, 1950. Petitioner in his bond business made some 3500 bonds annually and we must assume that in each instance he was acting in a legal and bona fide manner. As to the Garth transaction, however, the facts could have justified a jury finding that the petitioner sometime — or any time — between October 15, 1949, and September 1, 1950, concocted the scheme to embezzle the monies of Garth.
¶8Counsel concedes that the testimony of the so-called pattern witnesses would be admissible to prove a pre-existing felonious intent as to the count in the indictment charging larceny, but would not be admissible as to the count charging embezzlement. This case was correctly presented to the jury on both counts and since no exception was made to the court’s oral charge and no specific instruction was sought to so limit the testimony in this regard, petitioner cannot here raise the question. Then, too, the Rogers case, supra, holds that the pattern evidence as to petitioner’s action in other similar transactions, under an embezzlement charge, would be admissible to show a course of conduct.
¶9There is no merit in the argument that since petitioner undisputedly paid into the Jefferson County Fine and Forfeiture Fund $57.50 there could be no conversion of such a sum to his own úse. Here again the argument overlooks the power of juries. From the facts appearing in the Court of Appeals’ opinion, the jury was authorized to believe and evidently did believe that this payment was a material part of petitioner’s scheme. At the time of the $57.50 payment by petitioner, Dick Garth had not paid the sum necessary to pay the fine in full. Garth had paid, however, $10 to defendant on January 24, 1950, just three days before the forfeiture was taken. Garth and his wife continued to visit defendant’s place of business after that date and continued making payment on his fine until September 1, 1950. It is undisputed that petitioner had conversations with Garth subsequent to the final forfeiture, but petitioner did nothing to inform the authorities of Garth’s whereabouts. No doubt petitioner could have surrendered Garth to-the'authorities at any time he desired, but by paying the forfeiture he was forever discharged of all obligations under the appearance bond, but still held, since he knew of Dick Garth’s whereabouts, the power to surrender him to the police authorities unless he paid such sums as petitioner might deem proper under his contract with Garth.
¶10True, Garth by virtue of the forfeiture and subsequent legal proceedings could have been made liable for the forfeiture monies paid by petitioner, but the monies Garth paid to petitioner were for the payment of his fine — not a forfeiture — and the jury was authorized to believe that in paying the forfeiture petitioner was acting primarily and solely in his own interest to discharge all his obligations under the appearance bond and that by this course of conduct he thereby converted the monies paid by Garth to his own use.
¶11Application for rehearing overruled.