People v. Smith

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SHENK, J.

The defendant was charged in four counts with embezzlement of public funds during the time he was treasurer of the city of Imperial. On the first trial the jury disagreed. Counts 1 and 3 were dismissed on motion of the district attorney. On the second trial the defendant was acquitted on the fourth count and was found guilty on the second count which charged the embezzlement, on the ninth day of November, 1926, of the sum of $218.46 of the funds of the city of Imperial. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

The grounds of the appeal are that the evidence is insufficient to support the verdict and that the court erred to the prejudice of the defendant in certain instructions given. It appears that one C. H. Hawkins was city recorder and justice of the peace of the city of Imperial. On November 1, 1926, he handed a check for the amount of fines collected during the preceding month, in the sum of $342, to his clerk for delivery to the defendant as city treasurer. This check was delivered to the defendant on November 9, 1926. On the same day the defendant signed and delivered to said clerk a receipt showing the deposit of that sum in the city treasury. The defendant had pursued the method of depositing in bank to the credit of designated accounts the funds of the city reposed to his custody. He maintained a checking account under the designation “W. D. Smith, Trustee.” The money represented by the check received from the city recorder could not, in whole, be credited to one fund. Thirty dollars was subject to be credited to the general fund and the balance to the street improvement fund. On November 9, 1926, he deposited the full amount of the check in the Farmers’ and Merchants’ Bank of Imperial to the credit of the street improvement bond account. On the same day he withdrew by check from said account the sum of $218.46 and deposited the same in the Pacific Southwest Trust and Savings Bank to the credit of the W. D. Smith Trustee account. Six days later, to wit, on November 15, 1926, the defendant deposited to the credit of a city treasurer account in the Farmers’ and Merchants’ Bank said sum of $342, being the amount received from the city recorder on November 9th. The accounts of the city

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