34. Intent-As to presumption of felonious.

35. Same Time of forming.

36. Money-Received by clerk.

37. Same-Received by mistake.

38. Partner may be guilty of embezzlement when.

39. Proceeds of property.

40. Property "intrusted". Essence of crime.

41. Question for jury.

42. Special administrator-Securities controlled by court.

43. Sufficient appropriation.

44. Want of authority to receive-Effect
of.

45. Wilful misapplication of money
property.

III. INDICTMENT AND INFORMATION.

46. Charging in language of statute.

or

84. As to larceny.

85. As to nature of offense, and intent.
86. As to receiving property while assum-
ing to act as agent.

87, 88. Construction of.

89. Failure to give-Not error, if not requested.

90. Proper instruction.

91. Refusing instructions already given.

VI. VARIANCE-VERDICT-MOTION IN ARREST OF JUDGMENT.

92. Variance-Between evidence and proof in information.

93, 94. Verdict.

95. Motion in arrest of judgment.

I. IN GENERAL.

1. As to construction of section-In connection with section 7, ante.-Property as mentioned herein and the following sections must be read in connection with the definition of property found in subdivision 12 of section 7 of this code.-People v. Hart, 28 Cal. App. 335, 152 Pac. 947.

2.

Same-Property of two or more taken -One offense. Where a defendant embezzles the money of two persons at the same time, it constitutes but one offense, and the offense can not be split into two charges and the defendant be convicted of both.-People v. Preciado, 31 Cal. App. 519, 160 Pac. 1090.

3. As to definition of embezzlement. The crime of embezzlement is purely statutory, and in California consists in the fraudulent and felonious appropriating to one's Own use money or property of another entrusted to his care, and which has been received in a relation of a fiduciary character.-Ex parte Hedley, 31 Cal. 108, 111; People v. Gordon, 133 Cal. 328, 85 Am. St. Rep. 174, 65 Pac. 746.

See, also, discussion and authorities, 9 R. C. L. p. 1264, § 2.

As to what is embezzlement, see note, 98 Am. Dec. 126.

As to what embezzlement means and to whom the crime is to be imputed, see note, 87 Am. St. Rep. 19.

of

4. Conversion of property.-Offense embezzlement consists in fraudulent conversion of property by prisoner to his own use, or secreting it with fraudulent intent upon his part so to convert it.-People v. Murphy, 51 Cal. 376, 378.

5. Defenses-In embezzlement of different sums of money at same time.—In a prosecution of a tax collector for the alleged embezzlement of certain moneys paid to him as such officer by certain parties, wherein he interposed the plea of once in jeopardy based upon his acquittal of the alleged embezzlement of other moneys paid by other parties, it is error to refuse to permit him, in support of his plea, to show that both sums of money were taken at

the same time.-People v. Preciado, 31 Cal. App. 519, 160 Pac. 1090.

As to defenses to a charge of embezzlement, discussion see and authorities, 9 R. C. L. p. 1297, §§ 44, 45.

As to necessity that defense or justification of charge of embezzlement shall be of the precise charge laid in the indictment or information, see note, Ann. Cas. 1918C, 1135.

6. Demand-As to necessity of.-In prosecution for embezzlement, where accused had been agent of company, with authority to sell goods and collect bills, and had sold goods as such agent to third person, it is not necessary, to sustain conviction for embezzlement of moneys received for such goods, that such third person

should have made demand on defendant for return of the money.-People v. Van Ewan, 111 Cal. 144, 148, 43 Pac. 520.

As to necessity of demand, see 9 R. C. L., p. 1276, § 18.

7. The guilt or innocence of the defendant in a prosecution for embezzlement does not necessarily depend upon the question whether or not any demand has been made upon him for the money involved. The real question is: Does the evidence show a fraudulent appropriation by defendant of the money involved?-People v. Hatch, 163 Cal. 368, 125 Pac. 907, 908, 909.

8. Demand is not necessary, under any section of Penal Code of this state, except in cases where party charged has held funds as trustee, or in some official capacity, and evidence has failed to show any party to whom defendant could legally turn over funds. Where ticket agent of railway company converts money of company, and shortly thereafter leaves company's employ, no demand is necessary.-Ex parte Vice, 5 Cal. App. 153, 89 Pac. 983, 984.

9. turn

Demand is not necessary for the reof the property embezzled before commencing a prosecution under this section, where the defendant left the state soon after acquiring possession of the property, and attempted to place himself beyond reach of inquiry from its owners.-People v. Fisher, 16 Cal. App. 275, 116 Pac. 688.

10. Distinction between larceny and embezzlement-Construction of section 487, ante. Any one of enumerated animals in section 487, subdivision 3, ante, is made by law subject of larceny or embezzlement, without reference to its value. Law makes no distinction between grand and petty larceny, as in theft of other species of property.-People v. Salorse, 62 Cal. 139, 142. See, also, ante, § 484, note pars. 6-8. 11. Same-Embezzlement, what constitutes. Where act of taking property coexists with felonious intent to deprive its owner thereof, offense of embezzlement is complete. Crime is not larceny.-People v. Salorse, 62 Cal. 139, 141.

As to what constitutes embezzlement, see par. 3 and references, this note.

12.

Same-Same-Evidence, sufficiency of. -In embezzlement, possession, in first instance, is lawful, and evidence to make it case of embezzlement would be wholly insufficient to sustain charge of grand larceny. People v. De Coursey, 61 Cal. 134, 135.

13. Same Same - Information charging two separate and distinct crimes.-An information which charges defendant, in one count, with larceny, and in another count with embezzlement of same property, is demurrable, as charging two separate and distinct crimes.-People v. De Coursey, 61 Cal. 134, 135.

See, also, post, § 954, note.

14. Same-Same-Intent to appropriate. -If man induces another to put money into his trunk for purpose of getting it into his possession and control, and with intent to feloniously appropriate it, such act of appropriation, when accomplished, constitutes larceny.-People v. Montarial, 120 Cal. 691, 695, 53 Pac. 355.

As to fraudulent intent, see pars. 23, 24, this note.

17. Same Same Leading distinction between larceny and embezzlement is, that in the former case guilty party has, and in the latter case he has not, possession of property at time of commission of offense. -People v. Belden, 37 Cal. 51, 53.

18. Same-Same-Nature of taking.-In grand larceny, taking must be with felonious intent; but in embezzlement, original taking is lawful, and crime consists in fraudulent appropriation of property by person to whom it has been intrusted.People v. De Coursey, 61 Cal. 134, 135.

19. Same-Same-Possession of property. -On the facts, there must often be very narrow margin between cases of larceny, obtaining money by false pretenses, and embezzlement. because character of crime depends upon secret intention of parties, which is often difficult to ascertain; but, so far as law is concerned, principles upon which question of guilt or innocence is to be determined are plain and too well settled to justify review of authorities. Where one honestly receives possession of goods upon trust, and, after receiving them, fraudulently converts them to his Own use, it is case of embezzlement. If

the possession has been obtained by fraud, trick, or device, and owner intends to part with his title when he gives up possession, offense, if any, is obtaining money by false pretenses. But where possession has been obtained through trick or device, with intent, at time party receives it, to convert same to his own use, and owner of property parts merely with possession and not with title, offense is larceny.-People Tomlinson, 102 Cal. 19, 23, 36 Pac. 506.

V.

20. Same-Same-Proof required in larceny. It is sometimes difficult to determine, upon trial for larceny, whether offense was larceny or embezzlement, when there has been bailment of property to defendant, When and thereafter conversion by him. charge is larceny, prosecution is required to show that defendant, when he received property originally, intended to steal it.People v. Johnson, 91 Cal. 265, 266, 27 Pac. 663.

21. Same-Same-Taking money from trunk. If man places money in another's trunk, keys thereof being held by owner of trunk, but always subject to call of owner of money, an appropriation of money by owner of trunk constitutes grand larceny, and not embezzlement.-People V. Montarial, 120 Cal. 691, 694, 53 Pac. 355.

22. District attorney-Election of date by. Election of the date should be made by district attorney in prosecution of special administrator for embezzlement of various different securities at various times.People v. Bartnett, 15 Cal. App. 89, 113 Pac. 879.

23.

Fraudulent intent-Essential element in this offense.-People V. T.eadwell, 69 Cal. 226, 237, 7 Am. Cr. Rep. 152, 10 Pac. 502.

As to intent to appropriate, see par. 14, this note; 9 R. C. L., p. 1277, §§ 19, 20.

24. Same-Time of forming.-In prosecution for embezzlement of amount of draft received from guardian of minors for purpose of investment, which was deposited in the name of his wife in an account against which both he and his wife had the right to check, the jury were warranted in finding that the intent was not formed until after the draft had been received and deposited; and that the accused was therefore properly convicted of embezzlement instead of larceny.-People v. Crane, 34 Cal. App. 599, 168 Pac. 377. See People v. Mills Sing, Cal. App. -, 183 Pac. 865.

25. Jurisdiction and venue - Cashing checks. A prosecution for embezzlement by cashing checks obtained in Alameda county in the city and county of San Francisco is improper in the former county, the latter being the proper county for the venue.People v. Meseros, 16 Cal. App. 278, 116 Pac. 679. See People v. Gordon, 133 Cal. 828, 85 Am. St. Rep. 174, 65 Pac. 746.

As to jurisdiction as between state and federal courts, see 9 R. C. L., p. 1293, § 38. P. C.-37

577

As to venue in prosecution charging embezzlement, see note, L. R. A. 1918E, 744; 9 R. C. L., p. 1293, § 39.

As to venue in prosecution charging embezzlement by bailee, see, post, § 507, pars.

9-12.

26. Receiving stolen goods.-Person who buys property from one who has embezzled it, knowing same to have been stolen, is guilty of crime of receiving stolen goods. -People v. Perini, 94 Cal. 573, 575, 29 Pac. 1027.

See, also, ante, § 496 and note.

II. NATURE OF OFFENSE-FIDUCIARY

RELATION.

27. Confidential relation.—Modern statutory crime of embezzlement, which did not exist at common law, is not substitute for imprisonment for debt, and can not be used to punish party for failure to comply with ordinary pecuniary obligation. It can be committed only when confidential relation of employer and employee exists, and where latter has feloniously converted money or other property of former, which has come into hands of employee by virtue of said confidential relation.-People V. O'Brien, 106 Cal. 104, 105, 39 Pac. 325.

28. Elements of offense.-' -The essential elements of embezzlement are the fiduciary rules arising where one intrusted property to another and the fraudulent appropriation of the property by the latter. The origin or particulars of the relation need not be stated in the information, nor is it necessary to allege the circumstances of the felonious conversation.-People v. O'Bric, 8 Cal. App. 641, 645, 97 Pac. 679.

29. The essential gist of embezzlement is in the breach of trust reposed and therefore the charge always presupposes the lawful acquisition of the property. The difference between embezzlement and grand larceny is that in the former the original taking was lawful while in the latter the original taking involves a trespass, or is accompanied by a felonious intent to deprive the owner of the property so taken.-People v. Knox, 32 Cal. App. 158, 162 Pac. 407.

30. Fiduciary relation.-Essential elements of embezzlement are, fiduciary relation arising where one intrusts property to another, and fraudulent appropriation of property by latter.-People v. Gordon, 133 Cal. 328, 85 Am. St. Rep. 174, 65 Pac. 746; People v. Goodrich, 142 Cal. 216, 218, 75 Pac. 796.

31. Fund in which jointly interestedFailure to account for.-Where a form lease requires the tenant to mature, harvest and market the crop, and to place a specified portion of the proceeds to the credit of the landlord's bank account, the lease does not make the tenant a bailee of the landlord, and his failure to make the deposit required, but a conversion thereof to his own use, does not constitute embezzlement. -Northcutt v. State, 60 Tex. Cr. Rep. 259, 31 L. R. A. (N. S.) 822, 131 S. W. 1128.

As to failure to account for fund to one jointly interested, as theft, larceny, or embezzlement, see note, 31 L. R. A. (N. S.)

822.

32. Good faith essential.-This section is predicated upon an avowed claim in good faith of the entire title to the property appropriated. He must in good faith have claimed to have owned the property at the time of its alleged appropriation by him.— People v. Holmes, 13 Cal. App. 212, 217, 109 Pac. 489.

33. Incapable of committing personally -Person assisting and co-operating in the commission of an embezzlement may be indicted and prosecuted as a principal, under the provisions of sections 31 and 971 of the Penal Code.-See Quillin v. State, 79 Tex. Cr. Rep. 497, 5 A. L. R. 773, 187 S. W. 1991. See, ante, § 31 and note; post, § 971 and note.

As to criminal responsibility for embezzlement of a person who is incapable of committing the offense personally, see note, 5 A. L. R. 484.

34. Intent-As to presumption of feloneous where a person occupying the relation of agent to another comes into possession of funds belonging to his principal and converts them to his own use, without the knowledge or consent of the principal; his intention to return the money will not change the character of the taking and appropriating as embezzlement.-State Duerksen, 8 Okla. Cr. 601, 52 L. R. A. (N. S.) 1013, 129 Pac. 881.

V.

As to effect of intention to return, offer to return, or the actual return of money or property embezzled upon the crime of embezzlement, see note, 52 L. R. A. (N. S.)

1013.

As to necessity for fraudulent intent, see pars. 23, 24, this note.

em

that

35. Same-Time of forming.-A felonious intent is essential to the crime of bezzlement, but it is not necessary such intent exist at the time of receiving the money or other property; having rightfully come into the possession of the money or property, it is sufficient if the felonious intent is thereafter formed.-People V. Crane, 34 Cal. App. 599, 168 Pac. 377; People v. Mills Sing, Cal. App. — 183 Pac. 865.

36. Money-Received by clerk.-Money received by clerk, who is intrusted by his employer with bills to collect in ordinary course of his business as clerk, is money with which he "has been intrusted."-Ex parte Ricord, 11 Nev. 287, 292.

37. Same-Received through mistakeBy agent or servant and feloniously converted to one's Own use constitutes the crime of embezzlement.-Neal v. State, 55 Fla. 140, 19 L. R. A. (N. S.) 371, 46 So. 845. 38. Partner-May be guilty of embezzlement of funds of a third person with whom the partnership is doing business as prin

cipal and agent, where he converts to his individual use funds of such third person coming into his hands by reason of such relation.-People v. Maljan, 34 Cal. App. 384, 167 Pac. 547.

39. Proceeds of property.-Fact that defendant who was intrusted with a certificate of deposit and cashed the same, appropriating the proceeds to his own use, is charged with embezzling the money and not the certificate can not avail him, as the money, being the proceeds of the certificate, was the property intrusted to him.-People v. O'Brian, 8 Cal. App. 641, 645, 97 Pac. 679. 40. Property "intrusted" — Essence of crime. It is of essence of crime defined by this section that misappropriation be of property intrusted to defendant.-People v. Dougherty, 143 Cal. 593, 594, 77 Pac. 466.

41. Question for jury. In prosecution for embezzlement of money, it is for jury to say, from all evidence before them, whether money was "intrusted" to defendant.-People v. McMahan, 133 Cal. 278, 280, 65 Pac. 571.

Securities

42. Special administrator controlled by court.-Where securities are deposited by a special administrator with a trust company as depositary subject to be withdrawn therefrom upon order of the court as provided by the statute of 1891, he can not be charged with embezzlement as such special administrator for aiding and abetting an officer of the depositary in appropriating and disposing of the securities. People v. Bartnett, 15 Cal. App. 89, 113 Pac. 879.

43. Sufficient appropriation.-Where employee of bank did not actually take the money which he was charged with embezzling from the bank at the time alleged, but merely used it to juggle the books as to some other account in order to make it balance or appear straight, he nevertheless thereby misappropriated that particular money and in substantial effect wrongfully converted it to his own use so as to constitute the crime of embezzlement.-People v. Rowland, 12 Cal. App. 6, 16, 106 Pac. 428. As to intention of returning, etc., and its effect upon the crime of embezzlement, see par. 34, this note.

44.

Want of authority to receive-Effect of. Where two agents are employed about the business of the same master, each being required by the terms of their employment to report directly to their principal, and one of the agents intrusted to the other agent a sum of money, the proceeds of his operations as an agent, to be carried to the common principal for the first agent, and the second agent converts the money to his own use, it constitutes embezzlement, because the money came into his possession by virtue of his agency or employment, within the meaning of section 508, post.See Smith v. State, 55 Tex. Cr. Rep. 117, 17 L. R. A. (N. S.) 531, 109 S. W. 118.