People v. Meseros

HALL, J.

Defendant was convicted of the crime of embezzlement and moved for a new trial, which being denied and judgment rendered, he took an appeal to this court from the judgment and order denying his motion for a new trial.

[278]

It is charged in the information that defendant, as the servant and agent of Michael Eftimakis, at the county of Alameda, on the seventh day of July, 1910, came into the possession of ,$88.60 in lawful money of the United States of the personal property of said Eftimakis, and then and there at said county of Alameda did fraudulently embezzle and appropriate the same to his own use.

The defendant introduced no evidence at the trial.

The testimony of the prosecution tended to prove without conflict that defendant was given by the prosecutor two pay checks, issued by the Southern Pacific Railroad Company, for the purpose of having them cashed. The checks were each for the sum of $44.30. Defendant, by direction of the prosecutor, indorsed each of the checks by signing the name of the payee thereon. He then took them to San Francisco, where he disposed of each of them. He transferred each of them to a different storekeeper in payment for articles that he purchased for his own use, and secured a balance in cash upon each transaction. Each check was disposed of by defendant in San Francisco, and whatever money he received upon the checks was received in San Francisco. He was subsequently arrested on this charge in San Francisco; and there is not one word of evidence in the record that he ever returned to Alameda county until taken there in custody of the arresting officer; and certainly there is no evidence in the record that tends to show that he ever took any of the money into Alameda county or embezzled any of the money in said county.

Under this state of the evidence appellant contends that the evidence is insufficient to support the charge made in the information, for the reason that the evidence shows that the money was both received and embezzled in San Francisco and not in Alameda county. • This contention must be sustained.

The venue must be proved as charged.

(People