City of San Francisco v. Randall

Department No. 2, Myrick, J.: This is an action commenced by the City and County of San Francisco against Randall and McCann, to recover $29,000 on five bail bonds given for the release of one John Tyler from custody on five alleged criminal charges. In four instances the charge was embezzlement; in the other, conspiracy. The complaint counts upon each bond, viz: 1st, Embezzlement, $15,000; [4092]nd, Embezzlement, $5,000 ; 3rd, Conspiracy, $5,000; 4th, Embezzlement, $2,000; 5th, Embezzlement, $2,000.

The said Tyler was arrested November 17th, 1877, upon warrants issued from the Police Judge’s Court of the City-, and County of San Francisco, and on the 23rd day of the same month the Police Judge made orders that he be admitted to bail. December 11th, 1877, the bonds were executed, and Tyler was released from custody. Subsequently the hearing upon the charges came on before said Police Court, and Tyler not appearing, the bonds were declared forfeited, and this action was commenced. Judgment was rendered against defendants Randall and McCann for the amounts of the bonds and interest; their motion for new trial was denied, and they appealed.

Thirty-eight points were made by defendants on their motion for a new trial; it is not necessary to consider them in order as made, as many of them can be considered together. We will consider the substance of them.

1st. That the complaints as to embezzlement do not state facts sufficient to constitute a crime, in that the property charged to have been embezzled is not sufficiently described, and that it does not appear whether it is felony or misdemeanor attempted to be charged; that Tyler might have done all of the acts alleged, and not been guilty of embezzlement.

Section 1,426, Penal Code, requires that the complaint shall set forth “ the offense charged, with such particulars of time, place, person, and property as to enable the defendant to understand distinctly the character of the offense complained of and to answer the complaint.”

The complaints allege that Tyler was president and manager of a corporation; as such manager had under his control securities of the value of $60,000, which were held by the corporation as a pledgee, the names of the owners of the securities being unknown to the deponent; and that Tyler did willfully, unlawfully, and feloniously embezzle and convert the securities to his own use, contrary to the execution of his trust. We think here is a substantial compliance with § 1,426. So, in regard to the complaint alleging conspiracy.