People v. Jackson

GRAY, C.

This is an appeal by defendant from a judgment convicting her of the crime of embezzlement and from an order denying her motion for a new trial.

There is also an attempted appeal from an order denying defendant’s motion in arrest of judgment; but as there is no authority of law for the same, it may be disregarded.

(People

v.

Sansome,

98 Cal. 235.)

1. The first point made by appellant is, that the information should have been set aside on her motion made in the trial court, because defendant had not been legally examined and committed by a magistrate.

There is no bill of exceptions or other record before us upon which to predicate this point, and, in the absence of any showing in the matter, we must presume, in support of the judgment, that the defendant was legally committed. A bill of exceptions was proposed in the court below involving this question, but the court refused to settle it. An appeal was

[464]

taken from the order of refusal, and said appeal was recently dismissed by this court. (See

People

v.

Jackson,

70 Pac. 918, No. 942.)

2. The instructions asked by defendant, and based on the theory that there was some evidence upon which .the conclusion might be reached that defendant’s crime was larceny, and not embezzlement, were properly refused, because the evidence, without conflict, showed the crime to be embezzlement and nothing else. It was shown that defendant hired the horse and buggy which she subsequently embezzled from a livery-stable in San Diego, which she had similarly patronized before; that she said she wanted to drive to Sunnyside, about twelve miles from San Diego, and would be back the evening of that same day. She did not drive to Sunnyside, however, but drove to several places in San Diego, and a few hours after leaving the stable with the horse and buggy was joined by a young colored man, shipped her trunk by rail to Los Angeles, and, with the young man, set out for the last-named place in the buggy, where she and the young man arrived the evening of the following day, having thus traveled a distance of one hundred and thirty-three miles. The defendant was a witness in her own behalf, and testified that she intended to. go to Sunnyside when she hired the horse and buggy, and intended to return the same day, but that the girl who was going with her disappointed her, and that she then went to Los Angeles in company with the young colored man. On this evidence there was no room for instructions as to larceny, because the evidence showed affirmatively that the conveyance was obtained without any criminal purpose or intention of converting it to her own use, and that the latter intention must have been formed some time after she was intrusted with the property. (See