People v. Bojorquez

CHIPMAN, P. J.

Defendant was convicted of the crime of embezzlement. He appeals from the judgment of conviction and from the order denying his motion for a new trial. There is no dispute as to the principal facts in the case. The sole question presented as tó the evidence is: Did it establish the crime of larceny or that of embezzlement?

Briefly, the evidence was that on the afternoon of December 14, 1916, defendant went to the livery-stable of the prosecut

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ing witness, one Silverose, in the city of Merced, and stated to him that his name was Miles and that he wanted to hire a horse and buggy to go to Atwater, a short distance from Merced. Silverose rented the rig to defendant upon defendant’s promise to return the property that evening, for the charge of $1.50. Not having returned the property as promised, Silverose began inquiry the next day, and on December 26, 1916, located it at the livery-stable of one Watson, at Livingston, in the county of Merced, to whom defendant had sold it Defendant testified that he conceived the intention of stealing the property before he went to Silverose’s stable. It is stated in his brief: “He practically admitted the taking and carrying away of the outfit and the sale and disposition of the same to Watson, but contended exclusively that he had formed this original intent to secure the possession of the . personal property, prior and at the time of the removal of the same from the barn at Merced.” The jury were not bound to believe the testimony of defendant as to his intent at the. time he rented the property. There was sufficient evidence from which the jury were justified in finding that defendant’s intention was to embezzle the property and was formed after it came into his possession under the agreement that it was rented, thereby making him simply a bailee. The implied finding of the jury upon this point is conclusive.

(People

v.

Crane,

34 Cal. App. 599, [168 Pac. 377].)

Prejudicial error is claimed of the following instruction: “You are instructed as a matter of law that when the defendant testifies as a witness in the case he becomes the same as any witness, and his credibility is to be tested by and subjected to the same test which legally applies to any other witness; and in determining the degree of credibility that shall be accorded to the testimony of any witness, you have a right to take into consideration the fact that he is interested in the result of the prosecution, as well as his demeanor and conduct upon the witness-stand, and during the trial, and you may also take into consideration the fact, if such is the fact, that he has been contradicted by other witnesses, and if you find after considering all the evidence in this case that any witness has willfully and corruptly testified falsely to any material fact, you have a right to entirely disregard his testimony, excepting so far as his testimony is corroborated by other credible evidence.”