the juror was disqualified as a matter of law.

On the count charging embezzlement of the bonds, the evidence showed, in substance, that the Building & Loan Association purchased $10,000 worth, face value, of the Second Liberty Loan bonds of the United States, which passed into the custody of the appellant as secretary-treasurer of the association. Without any authority to do so, and without the knowledge of the directors and other officers of the association, appellant sold these bonds in January, 1920, in Kansas City. The money was not used in the benefit of the association. In fact, appellant concealed his disposition of these bonds from the association until sometime in May or June, 1921. At two or three of the meetings of the board of directors of the association held in the meantime, in which they were checking up the assets of the association, appellant substituted other bonds, which he had taken without authority from the envelops or private boxes of depositors of the bank of which he was president, and counted those at the board meeting as the bonds of the association. When it was discovered by the directors or officers of the association that the bonds had been taken, appellant in several conversations admitted to various officers of the association and to the bank commissioner that he had taken the bonds and sold them about a year and a half before. At the trial evidence of these admissions was offered in evidence. It would seem that at the same conversations at which these admissions were made there had been talk by the appellant of making restitution, by giving a mortgage upon his home, or in some other way. At the trial the court permitted the evidence of these conversations concerning the disposition of the bonds, but excluded that portion of the conversations relating to his making restitution. This is complained of; appellant contending

that, where a part of the conversation has been admitted in evidence, it is competent for the other side, upon cross-examination or re-examination, to bring out the entire conversation, and in support of that he cites Wigmore on Evidence, § 2115, where it was said: "The general phrasing of the principle, then, is that when any part of an oral statement has been put in evidence by one party, the opponent may afterwards (on cross-examination or re-examination) put in the remainder of what was said on the same subject at the same time."

But the same author says (§ 2113): "In the definition of the limits of this right, there may be noted three general corollaries of the principle on which the right rests, namely: (a) No utterance irrelevant to the issue is receivable.

This limitation is obvious enough, because the sole purpose in listening to the remainder is to obtain a correct understanding of the effect of the part first put in; and no remaining part, even if contained in the same breath or the same writing, can further such aid, if it is wholly irrelevant to the issue."

Hence, the question really turns on whether or not statements made by appellant in these various conversations relative to making restitution for the value of the bonds taken is a matter relevant to the issue on trial. It is well settled that a subsequent offer to return the property, or the value thereof, is not a defense to a charge of embezzlement (20 C. J. 455; State v. Chaplain, 101 Kan. 413, 166 Pac. 238) for when one has been deprived of his property by embezzlement he is entitled to recover the same or its value in a civil action (Blair Mill. Co. v. Fruitiger, 113 Kan. 432, 32 A.L.R. 416, 215 Pac. 286). In this case the court permitted a cross-examination upon all that was said in these several conversations upon the subject of the taking of the bonds. The court did exclude what was said by appellant in these conversations con

cerning his making restitution, upon the ground that it was not a defense,

Witnessescross-examina

matters.

tion-irrelevant and that it was not a matter relevant to the issue then being tried, and in this the court did not err.

Appellant contends that before he could be convicted of the crime of embezzlement the state must prove beyond a reasonable doubt that at the time he wrongfully converted the bonds he had the intent to deprive the owner, not temporarily, but permanently, of its property. This question was preserved in the record in several ways, by an offer of testimony to the effect that when appellant converted the bonds he intended to replace them, or their value, and that he had no intention of depriving the Building & Loan Association permanently of its property, by instructions requested, and by objections to instructions given. The court refused to permit the evidence offered, and declined to give the requested instructions, but instructed the jury, in substance, that appellant would be guilty if, without the authority or consent of the Home Building & Loan Association, he disposed of the bonds in question with the intent to convert them to his own use, and with the intent to cheat and defraud the Building & Loan Association, and further further instructed them: "The law presumes a criminal intent when one wilfully and knowingly converts money rightfully in his possession belonging to another to his private use, without the knowledge and consent of such other person; and even though at the time he does it he intends to restore it, or does actually restore it or its equivalent, it is nevertheless embezzlement within the spirit, as well as the letter, of the law."

Appellant complains of the rulings of the court upon this point. A few authorities support the position of appellant, but the great weight of authority felonious in- and the better reasoning support the position of the trial court. In Mor34 A.L.R.-13.

Embezzlement

tent.

row v. Com. 157 Ky. 486, 163 S. W. 452, it is said: "While to constitute embezzlement it is necessary that there be a criminal intent, yet, where the money of the principal is knowingly used by the agent in violation of his duty, it is none the less embezzlement because, at the time, he intended to restore it."

In Fowler v. Wallace, 131 Ind. 347, 31 N. E. 53, it was said: “If there is a wilful and known wrongful taking, use, or appropriation of the employer's money by an agent, the criminality of the act is not removed by the intention to make restitution" of the money. See also Russell v. State, 112 Ark. 282, 166 S. W. 540; State v. Baxter, 89 Ohio St. 269, 52 L.R.A. (N.S.) 1019, 104 N. E. 331, Ann. Cas. 1916C, 60; State v. Lentz, 184 Mo. 223, 83 S. W. 970; Spalding v. People, 172 Ill. 40, 49 N. E. 993; State v. Schumacher, 162 Iowa, 231, 143 N. W. 1110.

Appellant cites Re Mutchler, 55 Kan. 164, 40 Pac. 283, where the court approvingly quotes the rule: "A felonious intent' means to deprive the owner, not temporarily, but permanently, of his property."

In that case the defendant hired the use of a livery team. Naturally he had a right to use the team temporarily, and thus deprive the owner of its use temporarily, and the court very properly held that, before he could be convicted of embezzling the team, it must be shown that he intended to deprive the owner of his property, not temporarily, but permanently. A similar situation arose in Conley v. State, 69 Ark. 454, 64 S. W. 218, 14 Am. Crim. Rep. 447. In those cases the defendant had the lawful right to the temporary use of the property, and such temporary use could not constitute a crime. Here the defendant had no right to the use of the bonds in question. He was merely custodian of them. When he sold them and used the proceeds as he pleased, without the knowledge or authority of the other officers and directors of the Building & Loan Association, he had em

bezzled the bonds. His intent to sell them and appropriate the proceeds without authority is the intent which is an element of the offense, and the fact that he may or may not have had other intentions, hopes, or aspirations is not material.

The other count upon which appellant was found guilty grows out of the following transaction: May 10, 1921, George Cragg took to the Citizens' State Bank, of which appellant was president, $4,170 in currency, which he deposited for his son, F. C. Cragg. Appellant personally received the deposit for the bank, and delivered the duplicate deposit slip, bearing his initials and showing a deposit on that date of $4,170, to F. C. Cragg. The money was placed in the cash drawer with other money of the bank, but appellant did not give credit to F. C. Cragg for the deposit on the books. of the bank. As a result, F. C. Cragg's account became overdrawn. Just how this money was entered on the books of the bank is not clearly shown. Appellant contends that he had some arrangement, made several days after the date of the deposit, with George Cragg, by which this money could be used by appellant to take up certain "cash items" which had been presented to the bank for payment. George Cragg denies this, and there is no contention that F. C. Cragg had authorized any misuse of his deposit. Appellant was charged with embezzling,

abstracting, and wilfully misapplying the amount of this deposit, in violation of $ 557 of the General Statutes of 1915. Appellant argues that the evidence was insufficient to sustain the verdict on this count. It is not necessary to make a more detailed statement of the evidence. We have examined it, and find it ample to support the verdict.

Appellant offered to show that, because of heavy loans made to some of its directors, the bank of which he was president was hard pressed for funds; that the proceeds from the sale of the bonds and the F. C. Cragg deposit were used for the benefit of the bank, and not for his

personal use. These -motive as matters do not con- defense. stitute a defense.

The motive which prompted the embezzlement is not material. 20 C. J. 436. The money was applied to the use of appellant, -application of when he used it in money to own the way he wanted

use.

to use it. Whether he chose to use it on his personal obligations, or give it to the bank of which he was president, or spend it in riotous living, he directed its disposition, and thereby applied it to his own use.

Finding no error in the record, the judgment of the court below is affirmed.

All the Justices concur, except Johnston, Ch. J., and Hopkins, J., who did not sit.

Petition for rehearing denied.

edge of English is one usually addressed particularly and peculiarly to the judgment of the trial court, and, unless flagrant abuse of discretion clearly appears, the rulings of that court on such a subject are seldom disturbed.

United States.-Re Impaneling of Petit Jury (1913) 6 Porto Rico Fed. Rep. 685.

California. People v. Davis (1894) 4 Cal. Unrep. 524, 36 Pac. 96; People v. Loper (1910) 159 Cal. 6, 112 Pac. 720, Ann. Cas. 1912B, 1193.

Indiana.-Lafayette Pl. Road Co. v. New Albany & S. R. Co. (1859) 13 Ind. 90, 74 Am. Dec. 246.

Iowa. State v. Crouch (1906) 130 Iowa, 478, 107 N. W. 173.

Kansas.-STATE V. PRATT (reported herewith) ante, 189.

Louisiana.-State v. Push (1871) 23 La. Ann. 14; State v. Gay (1873) 25 La. Ann. 472; State v. Guidry (1876) 28 La. Ann. 630; State v. Tazwell (1878) 30 La. Ann. 884; State v. Offutt (1886) 38 La. Ann. 364; State v. Anderson (1899) 52 La. Ann. 101, 26 So. 781.

Texas.-Lyles v. State (1874) 41 Tex. 172, 19 Am. Rep. 38; McCampbell v. State (1880) 9 Tex. App. 124, 35 Am. Rep. 726; Etheridge v. State (1880) 8 Tex. App. 133; Sullenger v. State (1916) 79 Tex. Crim. Rep. 98, 182 S. W. 1140.

Wisconsin.-Shaw v. Fisk (1867) 21 Wis. 369, 94 Am. Dec. 547; Sutton v. Fox (1882) 55 Wis. 531, 42 Am. Rep. 744, 13 N. W. 477.

In charging the jury in a Federal court in Porto Rico, it was stated that persons who could not understand English were incompetent to serve as jurors. Re Impaneling of Petit Jury (Porto Rico Fed.) supra.

Where one of the jurors called was a German, who testified that he could understand English "pretty well" and that he could read it "pretty well,"

but could not write it very well, and who testified that he might not always understand what one might say in English, the court held in People v. Davis (Cal.) supra, that the trial court did not err in overruling a challenge, it being for the trial court to determine as to the qualifications of the juror after seeing him and hearing him talk.

Where a challenge was interposed to a juror, based upon his supposed imperfect knowledge of English, the court in People v. Loper (Cal.) supra, held that this objection "was one addressed particularly and peculiarly to the judgment of the trial court, and, unless flagrant abuse of discretion clearly appears, rulings of that court on such a subject are seldom disturbed."

In Lafayette Pl. Road Co. v. New Albany & S. R. Co. (Ind.) supra, it was held that a new trial was properly granted, where it appeared that in the first trial the verdict was rendered by a jury one of the members of which was unable to understand English, except when spoken to him upon subjects relating to his particular business, and then but imperfectly.

Where the trial court sustained a challenge to a juror because of the latter's inability to read, write, or understand the English language, the appellate court held that this was a matter resting peculiarly within the sound discretion of the trial court. State v. Crouch (Iowa) supra.

In the reported case (STATE V. PRATT, ante, 189), it was held that whether a person of foreign birth, who has lived in this country many years, who speaks English with his English neighbors, understands the common English words, and reads English "some," is sufficiently familiar with the English language to be a competent juror, is ordinarily a question for the trial court. Its decision thereon will not be disturbed, unless clearly erroneous.

In Gay v. Ardry (1840) 14 La. 288, the court held that ignorance of the English language was not a good cause of challenge, and that the trial court was right in not permitting a

juror to be interrogated on oath as to whether he understood that language. However, this case seems to have been overruled by the later decisions in this jurisdiction.

For, in State v. Push (La.) *supra, it was held that the state had a right to challenge a juror who did not understand English, and that this right existed although the juror in question was a duly qualified elector. The court said: "The state has some rights in a criminal court, and among them is certainly the right to have a jury composed of men who understand the language in which are conducted those proceedings by which, against the presumption of innocence, she seeks to establish a conviction of guilt." See also State v. Madigan (1894) 57 Minn. 425, 59 N. W. 490, and Dokes v. Soards (1883) 8 Ohio Dec. Reprint, 621 (in this case the court stated that want of a competent knowledge of English was, by statute, made a ground of challenge.

And in State v. Gay (La.) supra, it was held that the trial court did not err in sustaining a challenge to a juror who could not speak or understand the English language, as the proceedings of the court were required to be conducted in the English language, and the fact that the judge, counsel, witnesses, and accused spoke other languages could not dispense with this requirement.

In State v. Guidry (1876) 28 La. Ann. 630, supra, it was held that the trial judge was right in excusing several jurors because they could neither read nor understand the English language. The court said: "No man can be said to be a competent juror to sit in judgment upon a man whose life is at stake, who can neither read nor understand the language in which the law is written which is to decide his fate, or the pleadings under which the crime is laid to his door. The juror might as well be deaf and dumb. Besides, the 1st section of the Act No. 94 of 1873 gives to the judge this discretion."

In State v. Tazwell (1878) 30 La. Ann. 884, supra, it was held that, although the law did not require jurors

to have any education, it did require that they comprehend ordinary discourse in the English language, and left it to the judge to determine whether the jurors had this qualification, and on this matter the judge's decision was to be final.

The sustaining by the trial court of a challenge for cause to a juror, on the ground that he was "ignorant of the ordinary use of the English language," was held in State v. Offutt (1886) 38 La. Ann. 364, supra, to be a proper exercise of the power expressly granted to the judge by the jury law.

In State v. Anderson (1899) 52 La. Ann. 101, 26 So. 781, supra, in a syllabus by the court it was said that the statute (Act No. 135 of 1898) vested discretion in the trial judge to decide upon the competency of jurors in particular cases, and he might accept or excuse a juror according as he might not find him competent to sit upon the trial of a case, by reason of inability to understand the English tongue when read or spoken; such discretion would not be disturbed, except in a very clear case of abuse. It seems that from examination of the juror the judge was of the opinion that the former was sufficiently conversant with English to

serve.

In People v. Spiegel (1894) 75 Hun, 161, 26 N. Y. Supp. 1041, 9 N. Y. Crim. Rep. 60, affirmed in (1894) 143 N. Y. 107, 38 N. E. 284, supra, after affirming the decision of the court below in rejecting a juror on the ground, among others, of his possible unfamiliarity with the English language, the court said: "Findings of the court of this kind should not be lightly interfered with. The question as to the capacity of a juror of foreign nationality to understand the language in which court proceedings are conducted, his general intelligence, his power of comprehending the evidence as offered by the witnesses, and many other points, must necessarily be considered by the court in determining the general competency of a juror. It is impossible to photograph upon the record the hesitation,