76 P. 813 | Cal. | 1904
This is an appeal by the people from a judgment for the defendant on a demurrer to an indictment charging defendant with the crime of embezzlement.
The indictment was based on section
The defendant demurred upon the ground that the indictment did not substantially conform to the requirements of sections
Embezzlement is purely a statutory offense. Under the provisions of our statute, it is essential to the commission thereof that there should be a fraudulent appropriation of property to some use or purpose not in the due and lawful execution of his trust by one into whose possession it has come by reason of some relation of trust or confidence mentioned in the statute, and existing between him and another, and it is therefore necessary that an indictment or information for embezzlement should allege the trust relation, in order that it may be determined therefrom whether there has been any such violation of a trust or confidence reposed in the defendant. *68
Our statutes prescribe these various relations, section
While this section of the code is very general in its designation of the various relations of trust or confidence, we are of the opinion that the indictment in the case at bar fails to sufficiently allege a relation coming within any of the terms therein used. It is alleged in the indictment simply that the defendant was the "duly appointed, qualified, and acting county physician of the county of Sonoma, state of California." This language has no definite legal signification.
There is no such public office known to law as that of "county physician," (People v. Wheeler,
It is suggested that the allegation is sufficient to show that the defendant was appointed by the board of supervisors of Sonoma County under the authority conferred by subdivision 5 of section 25 of the County Government Act of 1897 (Stats. 1897, p. 458), which, after providing for the care of the indigent sick and dependent poor, provides that "The board of supervisors shall appoint some suitable person to take care of and maintain such hospitals and poorhouses, and shall also appoint some suitable graduate or graduates in medicine to attend to such indigent sick or dependent poor, and to the patients in such hospitals and poorhouses," and that he was therefore shown to be a servant of the board of supervisors of said county.
Neither the person appointed to care for the hospital and *69 poorhouse nor a graduate in medicine appointed to attend to the indigent sick is, by the law, designated as a "county physician," and the term could certainly have no proper application to the superintendent of the hospital and poorhouse.
We might surmise that the words "county physician" were intended to refer to a graduate in medicine appointed to attend indigent sick for the county, for those words might appropriately be used to designate such a person, but they do not necessarily mean this, and they have nowhere been so used in the law, and as was said by the learned judge of the court below, in sustaining the demurrer, "An essential element in the characterization of the crime attempted to be charged must not be left to surmise or inference."
It is said that it was held in People v. Wheeler,
The term "county physician" not expressing with definiteness and certainty any particular office, trust, or employment, there is no sufficient allegation of any appointment or employment of defendant by the board of supervisors to do anything.
The California cases relied on by appellant as maintaining the rule that it is sufficient to charge embezzlement in the language of the statute are all cases where the allegation as to the fiduciary relation was such as to bring the case squarely within the terms of the statute.
It is further clear that if it be assumed, as claimed by appellant, that the term "county physician" as used in the indictment means a graduate in medicine appointed by the board of supervisors "to attend to such indigent sick or dependent poor, and to the patients in such hospitals and poorhouses," the defendant could not have, by virtue of his trust as such appointee, received any money belonging to the county. The duties and powers of such an appointee are fully set forth in the portion of the County Government Act *70
last quoted. The law nowhere clothes such an appointee with authority to receive or have in his possession any money belonging to the county, and if any such money does come into his hands, he does not receive it by virtue of his trust as such appointee, but simply as a private citizen, (see County of SanLuis Obispo v. Farnum,
It is suggested that under the provisions of the act to provide for the maintenance and support of indigents, etc., approved March 23, 1901, (Stats. 1901, p. 636), the superintendent of the county hospital or almshouse may, by virtue of his employment, in certain cases, collect and receive money due to the county. Assuming that this is so, we are satisfied that the indictment cannot possibly be construed as alleging that the defendant was such superintendent, or was a person appointed by the supervisors under the County Government Act to take care of or maintain a hospital or poorhouse.
The demurrer to the indictment was properly sustained.
The judgment is affirmed.
Shaw, J., and Van Dyke, J., concurred.