
    STATE, Plaintiff-Appellee, v. FOCKS, Defendant-Appellant.
    Common Pleas Court, Hamilton County.
    No. A-116032.
    Decided February 28, 1950.
    
      Samuel L. Chalfie, Cincinnati, for appellant.
    Henry M. Bruestle, City Solicitor, Robert J. Paul, City Prosecutor, Ralph E. Cors, Asst. City Prosecutor, Thorndyke & Becker, Cincinnati, for appellee.
   OPINION

By WEBER, J.

The defendant was convicted and sentenced in the Municipal Court of conversion, having been charged therewith under §12475 GC. The cause is before the Common Pleas Court on appeal.

Upon consideration of the briefs and the evidence contained in the bill of exceptions, this court finds that the money alleged to have been converted was not merely in the possession of the defendant as trustee, bailee or in any other fiduciary (capacity. The title to said money was transferred to the defendant in compliance with the terms of a building contract. •The defendant failed to fully perform the building contract, and the value of the construction work done on the building did not equal the amount of money delivered. A civil judgment for damages for breach of contract was obtained. The fact that said judgment has not been paid cannot be the basis for a criminal prosecution for conversion. The court further finds that the motion for dismissal made at the close of the state’s evidence, and the motion made for dismissal at the close of the defendant’s evidence should have been granted.

For the foregoing reasons the conviction and sentence of the Municipal Court should be and is hereby reversed and it is ordered that the defendant be discharged.  