106 Cal. 104 | Cal. | 1895
The defendant was convicted of the crime of embezzlement, and appeals from the judgment and from an order denying his motion for a new trial.
We cannot find in the record sufficient evidence to sustain a conviction of the crime charged. Counsel for the people invoke the rule applicable to conflicting evidence; but the conflicting evidence -was as to facts which if taken as proven do not make out a case of embezzlement. The modern statutory crime of embezzlement, which did not exist at common law, is not a substitute for imprisonment for debt, and cannot be used to punish a party for a failure to comply with an ordinary pecuniary obligation. It can be committed only when the confidential relation of employer and employee exists, and where the latter has feloniously converted money or other property of the former which come into the hands of the employee by virtue of said confidential relation. It is true that in the case at bar the appellant is an attorney at law and the prosecuting witness (a woman) was as to some matters his client, and therefore there was as to those matters the relation between them above mentioned; but there was a variety of dealings between them running through several years, and a long unsettled and disputed account. There was conflicting evidence as to how the account stood, each party claiming a balance due; but it is clear that there was no
The judgment and order denying appellant’s motion for a new trial are reversed.
Garoutte, J., Van Fleet, J., Harrison, J., and Beatty, C. J., concurred.