34 P. 854 | Cal. | 1893
The defendant was convicted of the crime of embezzlement, and the judgment was that he be punished by imprisonment in the state prison at Folsom for the term of three years. From this judgment and an order denying his motion for a new trial, he appeals. The information charges that on the tenth day of August, 1892, the defendant received from one Robert C. Brinkley, as his agent, the sum of $390, in lawful money of the United States, which he was to pay oyer to one W. E. De Groot for and on account of Brinkley, but that, in violation of the terms and objects of his agency, he did then and there, on the day named, “unlawfully, willfully, fraudulently, corruptly and feloniously retain, withhold, secrete, embezzle, and convert and appropriate to his own use,” out of the $390 so received, the amount and sum of $300, whereby said Brinkley was deprived and defrauded of the said sum by the defendant. The appellant contends that the verdict was not justified by the evidence, and hence that the judgment should be reversed.
It was proved that Brinkley and defendant had been acquainted for twenty-five years. In February, 1892, defendant came to this state, and immediately went to the house of Brinkley, in Los Angeles, and remained there until September following, when he left for San Francisco, where he obtained employment. In May, 1892, Brinkley went east, and was there engaged and traveling about with a theatrical company. During his absence, defendant attended to his financial affairs, paid his bills, etc. Brinkley testified: “During the time I was in the east, Mr. Hill stayed at my house, and transacted my business for me here. Pie paid my family expenses. I sent the money to my wife, and she turned it over to him. ’ ’ And Mrs. Brinkley testified: “During my husband’s absence, he sent me about $100 per month. Sometimes he sent the money
In October, Brinkley came to San Francisco and remained there about two weeks. While there, defendant was with him all the time, but nothing was said about the money. He then went to Los Angeles and there saw De Groot, and was told by him that only $90 had been paid on his note. After two days, he returned to San Francisco, and again met defendant and told him what De Groot said about the payment. Defendant said he had paid the whole debt, and he would go to Los Angeles and prove it. The two then went to Los Angeles
The above is a brief statement of the material evidence in this case, and certainly it appears to be by no means strong or conclusive. Looking at all the evidence, it seems to us that the jurors might well have entertained a reasonable doubt as to whether the defendant was guilty or not. There was, however, some evidence, and the verdict cannot, in our opinion, be disturbed on appeal upon the ground that the evidence was insufficient to justify it.
Appellant further contends that several errors of law were committed by the court which also call for a reversal. One of these alleged errors only need be noticed. Brinkley testified, as before stated, that he handed defendant $25 and then $64, and told him to go and pay his debt to Niles Pease with it; that they shortly after went to his house, and defendant "then told him that he had not paid the money to De Groot, but had used it for other things. Mr. Dupuy, the deputy district attorney, then asked the witness, “When he told you that, W’hat did you say to him, if anything?” The question was objected to by defendant on the ground that it was immaterial, irrelevant and incompetent, and the objection was overruled and an exception reserved. The witness answered: “I asked him to give back the eighty-nine dollars that I had given him to pay Pease, and he would not do it. He says: ‘No, you have lost confidence in me, and I won’t give you this money, and you go back to San Francisco, and leave me here in the lurch to hustle for myself. ’ ” During this argument of the case, Mr. Dupuy said to the jury: “There was an embezzlement of the $89 he had given him to pay other debts.” Counsel for defendant interrupted the attorney for the people, and
We concur: Vanelief, C.; Searls, C.
For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed and the cause is remanded for a new trial.
I concur. The evidence relating to the defendant’s retention of the $89 does not bring the ease within