People v. Hotz

THOMPSON, J.

The defendant was convicted by the verdict of the jury with the offense of embezzlement and appeals from the judgment pronounced upon the verdict and an order denying his motion for a new trial.

The facts essential to an understanding of this appeal are as follows: C. B. James

&

Son were the owners and operators of a garage in San Fernando and as a part of that business sold new and used automobiles. Shortly before January 1, 1927, they orally entered into an agreement with the defendant whereby he was to sell new automobiles for them and to receive as his compensation, as stated by defendant, “50% of the net profits of the sale of new cars, and 50% of the sale of used cars that we were taking in trade, and if it was sold for any less I was to assume 50% of the loss of the sale.” Amplified by other witnesses, the contract under which the defendant went to work provided

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that he was to receive as his compensation one-half of the amount realized upon the sale of a new car over and above its cost, with the further understanding that if a used car were accepted as part payment and it was resold for a sum less than the sum allowed when taken in exchange, plus the cost of conditioning it for resale, if any, one-half of such deficiency was to be charged against the defendant. “The net profits” referred to by the defendant was defined by the witness Raleigh James as being the difference between the cost price and the selling price, and the loss referred to by the defendant as being the loss upon any automobile taken in on a sale of a new car by the defendant.

There is no denial of the fact that the defendant used the proceeds resulting from the sale of a new car by him in the sum of $500, but he asserts that the relationship which existed between himself and C. B. James & Son was that of a partnership. He does not contend that he was a partner in the general garage business, but only in the business of selling new automobiles. He further asserts that inasmuch as the money used by him was partnership funds that he could not be guilty of the offense of embezzlement. Since it is well established that a partner cannot be guilty of embezzlement of partnership funds