People v. Cobler
Before: Belcher
Synopsis
Criminal Law—Embezzlement — Sufficiency of Indictment.— Under sections 967 and 1131 of the Penal Code, it is not necessary to specify in an indictment or information for the embezzlement of money or to prove at the trial the coin, number, denomination, or kind of money embezzled; and it is sufficient to describe the money appropriated as lawful money of the United States.
Id.—Manner and Purpose of Receipt of Money.—An indictment stating that the money embezzled consisted of public funds of the county, and was received .by the defendant as deputy county assessor for the use and benefit of the county, sufficiently states the manner in which the defendant received the money, and the use and purpose for which he held it.
Id.—Proof of Official Position—Presumptions.—Evidence showing who was acting as assessor of the county during the year in which the embezzlement took place, and that the defendant was acting as his deputy, is sufficient proof of the official position of the defendant; and it is not necessary to prove either that the assessor or deputy assessor had properly qualified, but the law presumes that a person acting as a public officer has been regularly appointed to it, and that official duty has been regularly performed.
Id.—Embezzlement by Acting Deputy.—If the defendant, while acting as deputy assessor, received as such officer moneys belonging to the county, and fraudulently appropriated them to his own use, he is guilty of embezzlement under section 504 of the Penal Code.
Id.—Failure of Field Deputy to Return- Assessment—Collection of Personal Tax—Public Funds.—The fact that a field deputy who assessed and collected taxes on personal property, which is the money alleged to have been embezzled, did not return a statement of the assessment or of the amount received at the assessor’s office, and that no entry was made in the assessor’s books, does not tend to show that the money collected does not constitute a part of the public funds of the county.
Id.—Proof of Conversion of Money Collected.—Evidence that neither the statement of the assessment nor the money collected was returned to the assessor’s office is sufficient to justify the jury in finding that the money was converted by the defendant to his own use.
Id.—Proof of Guilty Knowledge—Other Embezzlements.—Evidence is admissible to show that the defendant collected personal property taxes from other parties, and failed to pay over or account for the money collected, for the purpose of showing guilty knowledge and intent in the appropriation of the moneys alleged to have been embezzled.
Id.—Instruction—Weight of Evidence—Guilty Intent—Reasonable Doubt.—An instruction to the jury that ‘if they believed from the evidence beyond a reasonable doubt that, at the time and place alleged in the indictment, the defendant was a deputy county assessor as alleged in the indictment, and that, as such deputy county assessor, he collected from the persons named in the indictment the sum for personal property tax therein alleged, and that he did not pay over said money to the assessor of the county, but that he fraudulently appropriated the same or any part thereof to his own use, they should find the defendant guilty as charged, does not pass upon the weight of the evidence or invade the province of the jury, and sufficiently states the guilty intent in the language of the statute, and does not omit to state that the facts must be found by the jury beyond a reasonable doubt.
Belcher, C. The defendant was convicted of the crime of embezzlement, under section 504 of the Penal Code, and sentenced to imprisonment in the state prison for the term of five years. He appeals from the judgment and an order denying his motion for a new trial.
The indictment charges that in the month of March, 1893, the defendant was a duly qualified and acting deputy county assessor in and for the county of Los Angeles, under F. E. Gray, who was then and there the duly elected, qualified, and acting assessor of said county, and as such deputy county assessor defendant then and there had in his possession and under his control, by virtue of his trust and as such deputy, “the sum of twelve dollars, lawful money of the United States, public funds of the said county of Los Angeles,” which said money he had received as such deputy for the use and benefit of said county, and did fraudulently appropriate to his own use, etc.
The defendant demurred to the indictment upon the grounds, among others, that it failed to state the kind of money, or specifically describe the money alleged to have been embezzled, and also failed to state in what manner or for what purpose defendant received the said money, or how or in what manner the same was for the use and benefit of the said county. The court overruled the demurrer, and this ruling is assigned as error.
There was no error in the ruling complained of. Under our statute it is not necessary to specify in an indictment or information for the embezzlement of money, or prove at the trial, the coin, number, denomination, or kind of money embezzled. (Pen. Code, secs. 967, 1131; People v. Treadwell, 69 Cal. 237.) Here the indictment sufficiently described the money (see People v. Mahlman, 82 Cal. 585, where the sum of money appropriated was described only as “ lawful money of the United States”), and also sufficiently stated the manner in which defendant received the same, and the use and purpose for which he held it.
[542]It is contended that the verdict was not justified by the evidence: 1. Because there was no sufficient showing that Gray was the county assessor, or that defendant was his deputy; 2. Because there was no sufficient showing that the moneys received by defendant were public funds; and 3. Because there was no sufficient showing that the moneys received were converted by defendant to his own use.
Under the first of these objections it is urged that the statute required an assessor to file an oath of office and a bond for the faithful discharge of his duties, and that the record entirely fails to show that Mr. Gray ever filed such oath or bond, or was an assessor of the county of Los Angeles, or had authority to appoint a deputy. And it is said: “In order to show the relation existing between the defendant and the county, it became necessary to prove that he was acting by and through the authority of a legal appointment made as required by law, by an officer authorized to make appointment. And in cases of embezzlement this relation of trust must be clearly shown to exist or no conviction can be had.” It is further urged that, while it appears from the record that some papers were introduced in evidence showing the appointment of defendant to the office of deputy assessor, still it was not shown that he filed any oath of office or bond as required of a deputy.
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