People v. Raentsch

WORKS, P. J.

Defendant was convicted of the crime of emlezzlement. He appeals from the judgment and from

[304]

an order of the trial court denying his motion for a new trial.

The indictment charged that appellant was entrusted by the complaining witness with the sum of $3,575 and that he embezzled the entire amount. The evidence showed that he was entrusted with the sum total named but that he converted to his own use but part of it, the sum of $2,500. Appellant contends that in these circumstances there was a material variance between pleading and proof. The point is answered by

People

v.

Gray,

66 Cal. 271 [5 Pac. 240], in which case the .supreme court said that “proof of the embezzlement of only a part of the amount charged was sufficient to support the information.” See, also,

People

v.

Riordan,

79 Cal. App. 488 [250 Pac. 190], and

People

v.

Ledbetter,

85 Cal. App. 514 [259 Pac. 982].

It is contended that the trial court erred in refusing to give two certain requested instructions. One of them was to the effect that “the defendant is presumed to be innocent, and this presumption of innocence abides with the defendant until after you have considered your verdict,” and that the “presumption of innocence goes with you in your retirement to consider your verdict, and you must examine the evidence in the light of that presumption of innocence.” The second requested instruction recited that “you must consider all of the testimony in the light of the presumption of innocence of the accused; that you must permit this presumption of innocence of the'accused to abide with you until after you have reached a verdict, and that you must consider all of the evidence in the light of that presumption.” Laying aside all question whether the first of these proposed instructions was objectionable because it contained the statement that the presumption abided with the jury “until after you have considered your verdict” and the second because it recited that the jury must permit the instruction “to abide with you until after you have reached a verdict,” we think the trial court was justified in refusing to give both. The jury was instructed that “a defendant in a criminal action is presumed to be innocent until the contrary is proved,” and that “in ease of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.” A situation exactly like the