People v. Wyman
Before: Haven
Synopsis
Criminal Law—Embezzlement—Proof of Fraudulent Conversion Essential.—In order to warrant the conviction of a defendant charged with embezzlement it is necessary for the people to prove that he had, before the date of the complaint for his arrest for the offense, fraudulently converted to his own use the money alleged to have been embezzled.
Id.—Evidence—Failure to Apply Money After Arrest.—The failure of the defendant to apply the money as directed after his arrest must be disregarded in considering the question of his guilt or innocence of the crime charged, and is inadmissible in evidence.
Id.—Insufficient Proof of Fraudulent Conversion.—The fact that the defendant neglected up to the time of his arrest to cash orders sent to him to pay for land to be purchased from the government, and, that when arrested he did not have on his person all of the money intrusted to him for that purpose, and did not offer to account for the same, are insufficient to prove that he had fraudulently appropriated the money to his own use prior to the filing of the complaint upon which he was arrested.
Id.—Attorney and Client—Money Intrusted to Pay For Government Land—Unexpired Time For Payment.—Where money was sent by a client to his attorney to be paid over to the proper officer, within the time allowed by law and the practice of the United States land office, so as to preserve the right of the client to purchase land from the United States for which she had applied, and the time within which to make such payment had not expired when the defendant was arrested, nor until after the information against him was filed, and no demand had been made upon the attorney either to return the money to the client, or to make immediate payment into the United States land office, the attorney is not guilty of the crime of embezzlement, nor of a fraudulent conversion of the money.
De Haven, J. This is an appeal by the defendant from a judgment convicting him of the crime of embezzlement, and also from an order denying his motion for a new trial.
The defendant was acting as the attorney for the prosecuting witness, Mrs. Annie Philp, in a contest before the United States land office involving her right to enter and purchase from the United States 160 acres of timber land. The case was finally adjudged in her favor, and the defendant as her attorney was notified of the fact by the register or receiver of the United [554]States land office at Stockton on August 17, 1893, and was also further notified that the prosecuting witness would be allowed sixty days from that date, that is, until October 16,1893, within which to make payment at that office for the land referred to in the notice. On the same day the defendant informed the prosecuting witness by letter of the result of the contest, and also requested her to send him $420 with which to make the required payment. In this letter he said: “ Send at once, and it will go up with this month’s returns, and your patent will come that much quicker.” On August 28,1893, the prosecuting witness sent to defendant from her home in Mariposa county a registered letter inclosing $233 in United States gold and legal tender notes, and an order on Scholle Brothers, San Francisco, for $103.75, and an order on the United States treasury for $83.33, making in all the sum requested by defendant. This letter and its contents were received by the defendant on August 31, 1893, and on the day following he went to Oakland in the adjoining county of Alameda, and there remained until September 12, 1893, when he returned to Stockton, where he was arrested the next morning upon the charge of embezzlement, which is the subject of this prosecution. At the time of his arrest there was found on his person the order on Scholle Brothers for $103.75, a bank note and a United States legal tender note for $20 each, and four or five dollars in coin. The defendant’s office and the United States land office at Stockton are in the same building. No demand was ever made upon defendant for the return of the money, and the prosecuting witness never had any communication with him in reference to it, or the business of entering her land, after sending him the money, and he never gave any explanation whatever as to the cause of his failure to cash the order on Scholle Brothers and his neglect to make payment for the land. The information in this case, which was filed October 3, 1893, charges the defendant with having, on or about' August 31,1893, embezzled the $233 in money intrusted
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