In Re Holder

THOMAS, J.

This is an application for a writ of

7tabeas corpus.

The petition alleges, among other things, “that W. H. Holder is imprisoned, detained, confined and restrained of his liberty” by the sheriff of Los Angeles County “by virtue of an indictment charging him with embezzlement

under section 506 of the Penal Code of' the State of California, as amended in 1919,

a copy of which indictment is herewith attached and made a part hereof.” (Italics ours.)

The indictment is in two counts, identical in form, but relating to separate offenses of the same class. For our present purposes we quote the preamble to the indictment and the first count only, which are as follows: “W. H. Holder is accused by the Grand Jury of the County of Los Angeles, State of California, by this indictment of the crime of embezzlement, a felony, committed at and in the county of Los Angeles, State of California, and before the finding of this indictment, as follows, to wit: That the said W. H. Holder, on or about the 17th day of November, 1919, at and in the County of Los Angeles, State of California, was then and there a contractor by virtue of a contract entered into by and between Harry Scholl and Alva M. Scholl, and the said W. H. Holder for the erection and construction of a dwelling house, and was then and there by virtue of said contract relation and contractor, entrusted with and there came into the possession, care, custody and control of him, the said W. H. Holder, money of the value of Two Thousand dollars ($2,000.00) lawful money of the United States, of the value of Two Thousand dollars ($2,000.00) in gold coin of the United States, and of the personal property of the said Harry Edward Scholl and Alva M. Scholl. And he, the said W. H. Holder, after the said money had come into his possession, care, custody and control, as aforesaid, did then and there, to wit: on or about the 17th day of November, 1919, at and in the county of Los Angeles, State of California, unlawfully, fraudulently and feloniously convert, embezzle and appropriate Fifteen Hundred dollars, ($1500.00) of the said Two Thousand dollars ($2,000.00)

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to his own use, and to uses and purposes not contemplated by his said contract, contrary to his trust and contract and contractor’s relation as such contractor, servant and agent of the said Harry Edward Scholl and Alva M. Scholl.” The writ was issued and made returnable before this court, and on the return day the sheriff of said county filed his return, which, in words and figures, is as follows: “I, Johit C. Cline, Sheriff of the County of Los Angeles, State of California, in obedience to the order contained in the within Writ, do hereby return to the Honorable District Court of Appeal, in and for the Second District of the State of California, that before the coming to me of the within writ, the said W. H. Holder was arrested and held on a grand jury indictment, nevertheless, I have the body of the said defendant before you at the time and place mentioned.” On the issues thus presented, the respective parties presented their arguments, and the cause was submitted. It was admitted at the time of argument that the “indictment” referred to in the sheriff’s^ return was the same “indictment” referred to in and made a part of petitioner’s application for the writ.