People v. Goodrich
Before: Chipman
Synopsis
Criminal Law—Embezzlement of Launch-—-Bailment—Privilege of Purchase—Sufficiency of Information—Evidence.—An information for the embezzlement of a gasoline launch, which alleges that it was the property of a third person who, on or about a certain date, intrusted it to the defendant as bailee for the purpose of bringing it from one place to another, and then purchasing the same, and to deliver it to the owner, if not purchased, and that he did not bring it to the place agreed, nor purchase it, nor deliver it to the owner as agreed, but did, on or about such date, “willfully, unlawfully, and feloniously embezzle and fraudulently convert to his own use, the said launch,” etc., does not show a conditional or any sale of the launch, and sufficiently charges an embezzlement thereof. What were the details of the agreement conferring a privilege of purchase must be looked for in the evidence, and cannot be imported into the information.
Id.—Venue of Offense—Jurisdiction.—Where the launch was intrusted to the defendant in the county of the venue, and was carried out of the county in violation of the trust, and the jury were sufficiently warranted by the circumstances in finding that the intent to embezzle the launch was formed in said county, and not after it had been taken from the county, the venue is sufficiently established, and the superior court of that county has jurisdiction of the offense.
Id.—Demand not Required.—It was not necessary for the owner of the launch to have first made a demand for the return of the launch in order to constitute the offense of embezzlement.
Id.—Absence of Owner from State—Deposition at Preliminary Examination—Immaterial Variance.—Where the case was continued on account of the absence of the owner from the state, and such absence was prolonged so that no subpoena could be served upon him, and there was a sufficient showing of diligence, his deposition taken at the preliminary examination, properly certified by the shorthand reporter, and without any harmful variance from the reporter’s notes, was properly admitted in evidence.
CHIPMAN, C.
Defendant was convicted of the crime of embezzling a certain gasoline launch, the property of one McDade, in the county of San Joaquin. Defendant appeals from the judgment of conviction and from the order denying his motion for a new trial. The information charged that defendant, “on or about the sixteenth day of November, 1901, prior to the filing of this information, . . . was then and there intrusted as bailee by one Hugh McDade with one gasoline launch, for the purpose of bringing the same from Staten Island in said San Joaquin County, California, to the city of Stockton in said San Joaquin County, and there purchasing the same, or in case he, the said W. F. B. Goodrich, did not purchase the said gasoline launch, on or before the sixteenth day of November, 1901, he, the said Goodrich, agreed then and there to deliver the said gasoline launch to
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its owner, the said Hugh McDade, on or about the sixteenth day of November, 1901.” Ownership and value of the property in McDade is then alleged, and that G-oodrieh did not bring the launch to Stockton or purchase it then or at all, or deliver it to the owner as agreed, or at all; “but thereafter, on or about the sixteenth day of November, 1901, the said W. F. B. Goodrich did willfully, unlawfully, and feloniously embezzle and fraudulently convert to his own use the said launch, without the consent or authorization of said Hugh McDade, and not in the due and lawful execution of his said trust, contrary,” etc.
1. Defendant urges error in the order of the court overruling his demurrer to the information, because,—1. The launch was delivered on condition that the title should pass on the payment of the purchase price at some future day, and hence he was not a bailee; and 2. The time within which defendant had to purchase the launch—namely, November 16, 1901—had not expired at the time of the alleged conversion—namely, November 16, 1901. Defendant’s argument is, that “The contract of bailment set forth in the information shows that the delivery of the launch to appellant was on the footing of a sale, and payment would have been a complete performance.” It was said in
People
v.
Gordon,
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