Beatty, C. J., concurring. I concur in the judgment of reversal upon the ground that the superior court erred in admitting the testimony of the witness Briggs. The evidence of the prosecuting witness that the defendant was the person who defrauded him was extremely weak and unsatisfactory. He admitted that on the examination of the prisoner in the police court, a short time after the occurrence, he had been unable to identify him, but claimed that he was then (at tfie trial) certain that he [271]was the same person. Evidently the prosecution thought it necessary to strengthen their case on this point, for they called the witness Briggs, — an officer, — who was permitted to testify, against the objection of the defendant, to a description of the culprit, which he stated had been furnished by the prosecuting witness before the defendant was arrested. . This was of course hearsay, and incompetent, and as it related to a vital issue in the case, upon which other sufficient testimony was lacking, it was necessarily prejudicial.
But I dissent altogether from what appears to me the extremely technical views of the ">urt as to the insufficiency of the evidence to sustain th, verdict.
I admit that the evidence proves a clear case of larceny, but I cannot concur in the conclusion that because it proves larceny it does not prove embezzlement.
Assuming the defendant to have been properly identified as the real culprit, the evidence shows that he fraudulently induced Wilkins to put his money on a table for the purpose of illustrating the mode of playing a game which he called the Louisiana lottery, promising to give it back at the conclusion of the lecture. In pursuance of this plan he first illustrated the loss of a half-dollar, next a dollar, then of five dollars, and finally of four twenty-dollar pieces in rapid succession. After this brilliant exposition of the beauties of the game, when Wilkins demanded his money back, according to the understanding upon which he had permitted the use of it, he was coolly informed by the defendant that the Louisiana lottery did not do business in that way, and that if the money was returned they would surely put their business in other hands. Defendant did, however, magnanimously restore the sum of ten dollars when Wilkins threatened to call for the police. In short, the evidence leaves no room to doubt that the defendant intended from the beginning to make a felonious appropriation of the money, and the case cannot be distinguished in principle from that of People v. Rae, 66 Cal. 423, 56 Am. Rep. 102, in which it was held that the facts constituted [272]the crime of larceny. On the authority of that decision, it must be held, as appellant contends, that the evidence in this case made out a clear case of larceny. But does it follow that it will not sustain a conviction of embezzlement?
“Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.” (Pen. Code, sec. 503.)
According to this definition, a fraudulent intention to appropriate the property at or before the time of its receipt is not necessary to constitute the offense, but it is in no wise inconsistent with it. It merely superadds an ingredient not essential to constitute the crime. But is it any the less embezzlement because it is that and something more? Or rather, will not evidence which proves every element of the crime of embezzlement sustain a conviction of that crime merely because it proves the additional element contained in the crime of larceny?
Under an indictment for murder the defendant may be convicted of manslaughter, because the offense of manslaughter is embraced in murder; i. e., murder is manslaughter, with the added ingredient of malice aforethought. Upon the same principle it cannot be doubted that under an indictment for larceny, specifically alleging the facts proved in this ease, the defendant could properly be convicted of embezzlement, if upon the evidence it was reasonably doubtful whether the fraudulent intent existed at the time he received the money. (Pen. Code, sec. 1159.)
The converse of these propositions must be equally true.
Upon an indictment for manslaughter, a verdict of guilty is sustained by the evidence, notwithstanding it may appear that the killing was malicious; and if so, an information for embezzlement is sustained by the evidence, notwithstanding it may appear that the crime committed was all of embezzlement and something more.
Of course, if larceny were an offense of lesser grade, or subject to a lighter penalty than embezzlement, the [273]conclusion would be different; but they are in fact of the same grade, and subject to precisely the same punishment, (Pen. Code, sec. 514.)
The particular kind of larceny proved in this case consists of three elements: 1. Money intrusted; 2, Fraudulent conversion; 3. Intent to defraud at the time the money is received. Embezzlement consists of two elements: 1. Money intrusted; 2. Fraudulent conversion. That is to say, the two crimes are identical as to the first two ingredients. But it is held by the court that embezzlement is not proved, although both its elements are proved, because another element is proved which brings the offense within the definition of larceny; in other words, that because the defendant might have been charged and convicted of a higher crime, he cannot be convicted of a lesser crime embraced in that which might have been charged.
But the court holds that here there was never any “ bailment ” of the property. Possibly this is so, if the matter is regarded with reference to the civil rights and remedies of the parties. But the statute defining embezzlement does not speak of a bailment. It only requires that property should be “ intrusted ” to another, and, in my opinion., it does not lie in the mouth of a thief who has in fact been trusted, in ignorance of his character and intentions, to say that because he obtained possession of the property by a fraudulent trick, therefore he was not intrusted with it.
I am aware that many cases may be found, like those cited in the opinion of the court, in which the facts proved in this case have been held to constitute larceny; but, as I have endeavored to show, they also include embezzlement. The Massachusetts case is the only one that has ever b'een brought to my attention in which it has been decided that proof of the higher offense, or proof of the three ingredients of larceny, will not support a conviction of a crime composed of two of those ingredients.
That decision may be accounted for by the fact that [274]the defendant had been once acquitted on an indictment for larceny founded on the same facts afterwards proved on the trial for embezzlement; and it seems to have been assumed that the change made in designating the offense in the second indictment would prevent him from having the benefit of a plea of former acquittal. If this was so under the Massachusetts practice, it affords a ground of support to the decision which has no existence here.
Under our law and practice, such fine-spun distinctions serve but one purpose. They do not tend in the slightest degree to shield the innocent, but only to furnish an additional loop-hole of escape for the guilty.