At the time defendant received the check he had available to him the choice to use the proceeds of the check for the lawful purpose which gave him the only right to possess the fund at all — to make a valid loan to Mrs. Young or some other person. He chose to divert the money to his own use. This was embezzlement. State v. Johnston, 1933, 143 Or. 395, 404, 22 P.2d 879, People v. Meadows, supra, 92 N.E. 128. Although a challenged instruction given by the trial court in State v. Johnston, supra 143 Or at 403 did not receive direct approval of the court it certainly received tacit approval. The elements of embezzlement contained in that instruction are almost identical to the circumstances of this case.

First, our interpretation of ORS 165.010 makes it consistent with ORS 165.005, which defines the closely related crime of embezzlement by an officer, agent, servant or fiduciary. Our cases establish that criminal intent is necessary to make out the crime defined in this latter statute. State v. Johnston, 143 Or. 395, 399, 402, 22 P.2d 879 (1933); State v. Coleman, 119 Or. 430, 435, 249 P. 1049 (1926); State v. Browning, 47 Or. 470, 472-73, 82 P. 955 (1905); State v. Marco, 32 Or. 175, 177, 50 P. 799 (1897). On principle there is no reason for making intent a necessary element of the crime under ORS 165.005 and dispensing with the requirement under ORS 165.010.

The acts or declarations of a conspirator, made in furtherance of a common design, are admissible against his co-conspirators: State v. Caseday, 58 Or. 429 ( 115 P. 287); State v. Ryan, 47 Or. 338 ( 82 P. 703), 1 L.R.A. (N.S.) 862). Hence the evidence relative to a conversation between the girl and Melchor at the scene of the crime but not in the hearing of the appellants was admissible. It does not follow, however, that after the consummation of the unlawful act, the acts or declarations made by one conspirator are admissible against his co-conspirator. Such acts or declarations are then received in evidence only as against the party making them. It is true that no conspiracy was charged in the indictment, but it is not necessary for the State to make such charge: State v. Johnston, 143 Or. 395 ( 22 P.2d 879). It is believed that whatever error, if any, committed by the court in reference to its failure to distinguish between admissions and confessions was invited by the appellants in their requested instructions on the subject of confessions. It will not do for counsel to invite error and then complain about it. Furthermore, the instruction which the court gave relative to confessions was applicable as against Sauer, as there was received in evidence a writing by him purporting on its face to be a confession of having committed the crime of sodomy.

In several of our cases we have defined larceny in terms of a trespassory taking. Plummer v. Kingsley, 190 Or. 378, 387, 226 P.2d 297 (1951); State v. Johnston, 143 Or. 395, 399, 22 P.2d 879 (1933); State v. Broom et al., 135 Or. 641, 645, 297 P. 340 (1931); State v. Coleman, 119 Or. 430, 435-436, 249 P. 1049 (1926); State v. Browning, 47 Or. 470, 472, 82 P. 955 (1905). In State v. Miller, 192 Or. 188, 193, 233 P.2d 786 (1951), opinion by Mr. Justice LUSK, the court was called upon to construe what is now ORS 165.205, our basic false pretenses statute.

The witness did not attribute any statement to the defendant but stated he was present in the room with the others, sitting on the couch. The State presented evidence of a conspiracy between the defendant, his brother Eugene, Campbell and Alfred to commit a wrongful act. It is true that the indictment did not charge a conspiracy but this was not necessary. State v. Weitzel, 157 Or. 334, 344, 69 P.2d 958; State v. Johnston, 143 Or. 395, 22 P.2d 879; 2 Wharton, Criminal Evidence (12th ed) 187, § 418. "When it is established that persons are associated together to obtain a common objective, then the act of one towards that end is the act of all.

"When the commission of the act charged in the indictment is practically admitted by the prisoner, who seeks to avoid criminal responsibility therefore by relying upon the lack of intent or want of guilty knowledge, evidence of the commission of similar independent offenses before or after that upon which he is being tried, and having no apparent connection therewith is admissible to prove such intent or knowledge, which has become the material issue for trial." In the present case there was an apparent connection between the two checks; the same forged signature of maker; the same payee; being uttered by the defendant in both cases within a period of a week and both checks being identical with the blank checks removed from Mr. Hendricks' car. Many Oregon cases sustain the above rule regarding evidence of other crimes to prove intent and knowledge, including: State v. Johnston, 143 Or. 395, 22 P.2d 879; State v. Robinson, 120 Or. 508, 252 P. 951; State v. Germain, 54 Or. 395, 103 P. 521. See also Jones v. United States, 179 F 584, 103 CCA 142; Tedesco v. United States, 118 F.2d 737.

"State v. Johnston, 143 Or. 395, 22 P.2d 879, which was based upon a charge of embezzlement, says: "It should be unnecessary to repeal that it is only error properly excepted to that will be reviewed upon appeal.

"The offense of larceny by embezzlement can only be shown by a felonious intent in the conversion of the property alleged to have been appropriated: State v. Marco, 32 Or. 175 ( 50 P. 799)." See also State v. Johnston, 143 Or. 395, 402, 22 P.2d 879; 18 Am Jur, Embezzlement, 583, § 24; 29 CJS, Embezzlement, 748, § 46 b. In 29 CJS, Embezzlement, 748, § 46 b, the rule is stated thus:

No such objection was made at the trial. In fact no reason was given for the objection: State v. Johnston, 143 Or. 395, 22 P.2d 879. Therefore, there is nothing before this court to consider at this time, but if the objection had been properly made the evidence was clearly admissible.

Defendant acknowledges the long-standing rule followed by Oregon that the state is not required to charge conspiracy to commit murder, but may instead charge murder. State v. Gardner, 225 Or. 376, 383-85, 358 P.2d 557 (1961); State v. Weitzel, 157 Or. 334, 69 P.2d 958 (1937); State v. Johnston, 143 Or. 395, 22 P.2d 879 (1933). He argues that, when the facts show a conspiracy, the defendant should be charged under the specific conspiracy statute, a Class A Felony, rather than murder, with its mandatory life sentence.