People v. Gallagher

SEARLS, C. Defendant was convicted of the crime of embezzlement, and appeals from the judgment and from an order denying a motion for a new trial.

The indictment charges that at the county of Alameda one Richard C. Beggs, a clerk, agent and servant of the “Oakland Consolidated Street Railway Company” (a corporation), embezzled $8,500, the personal property of said company, and that the defendant, B. F. Gallagher, did aid and abet said Beggs in such embezzlement.

The first point made by appellant is that Beggs did not commit the crime of embezzlement, as charged in the information. “Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted”: Pen. Code, sec. 503. Section 508 of the Penal Code is in the following language: “Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement.” The crime of embezzlement is a statutory offense, and was unknown to the common law. It is said that in the common-law definition of larceny there were two gaps through which, in the expansion of business, many criminals escaped. The first of these gaps was caused by tire rule that to sustain a charge of larceny it was necessary that the stolen goods should have been at some time in the prosecutor’s possession. The second was in the assumption that when possession of goods was acquired by a bailee no subsequent fraudulent conversion constituted larceny while the bailment lasted, save in a few excepted cases. It was to meet these defects in the common law that statutes have been passed in most, if not all, of the states of our Union, in some of which an offense is created known as embezzlement larceny, and in others, as in our own statute, designating the offense as embezzlement. The case at bar relates to the remedy for the [115]first defect mentioned in the common law, viz., a case in which the personal property alleged to have been fraudulently converted had not been in the prosecutor’s possession.

These preliminary remarks with a view to the better understanding of the initial points in the case, and we proceed to a review of the contention of appellant, the underlying theory of which is that the money alleged to have been embezzled did not come into the control or care of Beggs by virtue of his employment as a clerk, agent, or servant. The uncontradicted evidence was to the effect that the Oakland Consolidated Street Railway Company (a corporation) was doing business, at Oakland, in the county of Alameda, was indebted to two companies in several sums of money aggregating say $2,500; that Richard C. Beggs was secretary of the corporation, and as such secretary his duties were, among other things, to beep the books of the company, to receive all the coin due the company, and deposit it (except small sums, kept to pay off discharged workmen) in the First National Bank of the city of Oakland; to draw and sign checks as secretary, which checks were also to be signed by the president or vice-president; that the corporation had in the bank aforesaid some $8,000 to $10,000 and credit for an overdraft of $10,000; that on or about June 3, 1892, J. E. McElrath, vice-president of the corporation, for the purpose of paying off the indebtedness of the corporation to the two companies aforesaid, and not lmowing the precise amount thereof, signed and delivered to Beggs two checks, payable to his (Beggs’) order, on said bank, leaving the amount to be paid thereon and on each of them in blank. The evidence is contradictory as to whether Beggs was to indorse the checks and deliver them to the creditors or to draw the money thereon from the bank and pay them. . As there was evidence to that effect, we must, in favor of the verdict, assume the latter theory to have met the approbation of the jury. On the sixth day of July, 1892, Beggs filled up the checks, one for $4,000 and the other for $4,519.20, signed them as secretary, drew the full amount thereof, aggregating $8,519.20, from the First National Bank, converted $1,300 thereof into currency, left $2,500 with his wife, and fled with the residue to the northern part of the state, where he was arrested two or three days later, and thereupon confessed his guilt. The connection of defendant with the transaction is