87 P. 404 | Cal. Ct. App. | 1906
The information charged as follows: "The said defendant, on or about the twenty-fifth day of April, A.D. 1905, at the county and state aforesaid, did willfully, unlawfully and fraudulently, and while said defendant was the secretary, agent and servant of the San Jose Chamber of Commerce, an association, appropriate to his own use the sum of $901.67 in lawful money of the United States, the property of said San Jose Chamber of Commerce, which *226 money was on said date in the control and care and had come into the control and care of said defendant solely by virtue of his said employment as such secretary, agent and servant."
To this information the defendant interposed a demurrer upon the grounds that it does not substantially conform to the requirements of sections
The demurrer was overruled, and defendant entered his plea of not guilty. After trial he was convicted and sentenced to a term of two years in the state prison. This appeal is from the judgment and order denying defendant's motion for a new trial.
The important and controlling question in the case is as to whether or not the demurrer should have been sustained. It is conceded that the district attorney in the information intended to charge the crime of embezzlement under section
"Every . . . clerk, servant or agent of any association . . . who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust . . . is guilty of embezzlement."
The gist of the offense under the statute is the appropriation to a use or purpose not in the due and lawfulexecution of the trust. The information must charge the offense in ordinary language, so that a person of common understanding may know by reading it what is intended, and the facts stated in the information must necessarily charge a crime. If the facts stated may be true, under certain circumstances, and yet not constitute a crime, the information will be held insufficient. The information in this case, when devested of the adverbs "unlawfully, feloniously and fraudulently" simply states the fact that defendant appropriated to his own use $901.67, the property of the San Francisco Chamber of Commerce, which had come into his control and care by virtue of his employment as such secretary, agent and servant. The conditions of the trust are not stated, nor is there any attempt to state them. The object and purpose *227 for which the money came into defendant's possession is not stated. No attempt is made to state that defendant appropriated the money for a purpose not in the due and lawful execution of the trust. It may, for aught that appears in the information, have come into his control for his own use. There are many ways in which an agent might lawfully come into control of the money of his principal for his own use. We must presume that defendant is not guilty of any crime, and that he came into the control of the money for his own uses and purposes, and not for uses and purposes which may have existed in the imagination of the pleader. If the money was given to him for his salary it was for his own uses and purposes. If it came into his control to reimburse him for moneys laid out and expended for his principal, it was for his own use. While it is ordinarily sufficient to charge a crime substantially in the language of the statute defining it, yet the information cannot be aided by inference or presumption. We cannot presume that the use of money which had come into the control of defendant was "not inthe due and lawful execution of his trust."
In all the cases which we have examined under the section the informations which have been held valid allege that the money was appropriated to a use not in the due and lawful execution of the trust, or words of similar import. In People v. Gale,
In People v. Ward,
In People v. Shearer,
The rule is that it must clearly appear from the facts alleged that a crime has been committed. (People v. Terrill,
The judgment and order are reversed, and the court below directed to make an order sustaining the demurrer to the information.
Hall, J., and Harrison, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 4, 1906.