People v. Gordon

CHIPMAN, C.

Defendant was convicted of embezzlement. He moved in arrest of judgment, which motion being denied, he moved for a new trial. This motion was also denied, and hence this appeal. There was no demurrer to the information. It is not contended that the evidence fails to support the verdict.

1. The motion in arrest of judgment is based upon the ground that the information does not charge a public offense. The information, it is conceded, is in the language of the statute (Pen. Code, sec. 507); but it is claimed that the information is fatally defective, in that it fails to set forth the facts relied on to constitute the embezzlement charged. (Citing

People

v.

McKenna,

81 Cal. 158.) This was the case of an information charging fraud, under section 532 of the Penal Code. The complaint failed to aver any of the circumstances constituting the' alleged fraud, although following closely the language of the statute. It was held bad, and not sufficient to sustain the conviction. There are obvious reasons why an indictment for obtaining money or other property under false pretenses should aver with particularity the facts relied upon to show fraud, and hence it is, that it is insufficient to simply follow the language of the stacute in such cases. But the rule of pleading is different, as the reason is different, in the case of embezzlement. The essential elements of embezzlement are the fiduciary relation arising where one intrusts property to another, and the fraudulent appropriation of the property by the latter. (Pen. Code, see. 503.) The origin or particulars of the relation need not be stated. (2 Bishop’s Criminal Law, sec. 323a.) Section 507 of the Penal Code reads as follows: “ Every person intrusted with any property as bailee, . . . who fraudulently converts the same or the proceeds thereof to his

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own use, . . . with a fraudulent intent to convert to his own use, is guilty of embezzlement,” etc.

It was alleged in the information that on a certain day the defendant “was, by one Pauline Hankozy, intrusted, as bailee, with certain personal property [describing it (a certain diamond ring) and giving its value], which said ring was then and there the personal property of said Pauline Hankozy, and thereafter [stating time and place] the said W. F. Gordon did willfully, unlawfully, and feloniously embezzle and fraudulently convert to his own use, . . . without the consent of the said Pauline Hankozy, contrary,” etc. A similar information, in the case of embezzlement by an alleged agent, was held sufficient in