People v. Bracklis

FINCH, P. J.

The defendant was convicted of the embezzlement of 150 sacks of potatoes alleged to belong to E. C. Armstrong, the prosecuting witness in the action, and this appeal is from the judgment of conviction and from the order denying the defendant’s motion for a new trial. Appellant admits that the evidence is technically sufficient to support the verdict of guilty, but it is argued that such evidence is so weak and unsatisfactory that the alleged errors hereinafter considered were especially prejudicial to his rights.

The people’s case depends largely upon the testimony of Armstrong, who was a salesman in the employ of Gale Brothers, wholesale produce merchants of San Francisco.

Armstrong testified that he purchased 150 sacks of potatoes from the appellant and paid $500 in cash therefor; that he left the potatoes in the appellant’s possession with directions to hold them until called for; and that the appellant appropriated them to his own use.

Appellant testified that he ordered 200 sacks of potatoes from Gale Brothers, through Armstrong; that when the potatoes arrived he discovered that the shipment contained 300 sacks; that he informed Armstrong that he could not use all of the potatoes, and that Armstrong thereupon instructed appellant to place 150 sacks of the potatoes in the latter’s place of business and said to him, “sell the potatoes just as soon as you can and send the money to the company, or I call here for it”; and that appellant sold the potatoes pursuant to such instructions.

The price of the 300 sacks of potatoes was $1,009, and appellant paid Gale Brothers a total of $500 on account of potatoes purchased. Armstrong and appellant contradict each other in their respective accounts of what occurred.

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Counsel for appellant correctly state, if appellant’s testimony be true, that “Armstrong was the agent of Gale Bros. & Co., who had sold defendant some of the potatoes and as such had the authority to authorize defendant to sell the other portion of said ear of potatoes which Arm

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strong had induced him to place in his store.” Based on the facts so stated, the defendant requested and the court refused the following instruction: “Upon an indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable.” The defendant did not claim the right to appropriate the property to his own use. If his testimony be true and the inference of his counsel therefrom correct, then appellant was a bailee for Gale Brothers, with authority to sell and under obligation to account for the proceeds. Embezzlement of the proceeds of such sale might constitute a different crime from that charged but not an appropriation under a claim of title preferred in good faith. While the proposed instruction states a correct proposition of law, it is not applicable to the evidence. Even if there had been evidence upon which to base the proposed instruction, the jury could not have convicted the defendant, if his testimony was given credence, under other instructions given. Of its own motion the court instructed the jury that in order to convict the defendant it must first appear from the evidence, to a moral certainty and beyond a reasonable doubt, “That the said personal property then and there