People v. Hart

RICHARDS, J.

This is an appeal from a judgment of conviction of the defendant of an attempt to commit feleny embezzlement, and from an order denying a new trial.

The information charged the defendant with the embezzlement of two Wells Fargo checks to the value of seventy dollars, which were issued to the prosecuting witness Thomas Pulley, and were payable to his order when countersigned by him. Without having countersigned these checks, Pulley had intrusted them to the keeping of the defendant, whose offense appears to have consisted in attempting to dispose of them by having some other person than Pulley countersign them in Pulley’s name.

The appellant’s first contention is that the information is insufficient for the reason that it shows upon its face that these checks were not payable by the issuer until the signature of the payee was countersigned upon them, and were therefore, as the appellant argues, valueless, and hence not the subject of embezzlement. In making this contention the appellant relies upon the wording of section 510 of the Penal Code, which reads as follows: “Any evidence of debt, negotiable by delivery only, and actually executed, is the subject of embezzlement, whether it has been delivered or issued as a valid instrument or not.” But in our opinion this section of the Penal Code was not intended to be exclusive in its definí

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tion of what evidences of debt might be the subject of embezzlement. The several sections of the Penal Code from section 503 to section 514 deal with the subject of the fraudulent appropriation of property by a trustee, agent, or bailee ; and these are to be read in connection with the definition of property found in subdivision 12 of section 7 of the Penal Code. It cannot be seriously disputed that these checks were property in the hands of their payee and were of the face value of seventy dollars to him or any other person who could successfully counterfeit his signature. This being so, we think the information sufficient under the provisions of the sections of the Penal Code above referred to, and upon the authority of

People

v.

Phelps,