People v. Hill

BELCHER, C. The defendant was convicted of the crime of embezzlement, and the judgment was that he be punished by imprisonment in the state prison at Folsom for the term of three years. From this judgment and an order denying his motion for a new trial, he appeals. The information charges that on the tenth day of August, 1892, the defendant received from one Robert C. Brinkley, as his agent, the sum of $390, in lawful money of the United States, which he was to pay oyer to one W. E. De Groot for and on account of Brinkley, but that, in violation of the terms and objects of his agency, he did then and there, on the day named, “unlawfully, willfully, fraudulently, corruptly and feloniously retain, withhold, secrete, embezzle, and convert and appropriate to his own use,” out of the $390 so received, the amount and sum of $300, whereby said Brinkley was deprived and defrauded of the said sum by the defendant. The appellant contends that the verdict was not justified by the evidence, and hence that the judgment should be reversed.

It was proved that Brinkley and defendant had been acquainted for twenty-five years. In February, 1892, defendant came to this state, and immediately went to the house of Brinkley, in Los Angeles, and remained there until September following, when he left for San Francisco, where he obtained employment. In May, 1892, Brinkley went east, and was there engaged and traveling about with a theatrical company. During his absence, defendant attended to his financial affairs, paid his bills, etc. Brinkley testified: “During the time I was in the east, Mr. Hill stayed at my house, and transacted my business for me here. Pie paid my family expenses. I sent the money to my wife, and she turned it over to him. ’ ’ And Mrs. Brinkley testified: “During my husband’s absence, he sent me about $100 per month. Sometimes he sent the money [351]to me and sometimes to Mr. Hill to pay -the family expenses. .... When Mr. Hill was at our house as our guest he was very kind. He took care of the children when they were sick, and looked after the household expenses. He paid the doctor’s bills, the grocer, and he paid the electrician who put in the electric plant in our house. I never handled a cent unless he gave it to me. As soon as I got the money I indorsed it and gave it to him.” Brinkley was indebted to De Groot on a promissory note which became due August 10th, and was secured by a mortgage on his household furniture. The amount due on the note for principal and interest at its maturity was $390. On July 20th he wrote defendant from Chicago: “By the way, my note to De Groot will be due on the 10th of August, and I have the money to meet it, and will send it to you as soon as I get back to Memphis. But if he will extend the note for three months longer by your paying the interest for three months $90, you had better pay Thiele, Clements and others, and I will be in a position to meet the note at the time. I don’t know whether he will or not, but you had better try him.” Again, on August 1st, he wrote defendant from Memphis: “You had better draw on me for the money to pay De Groot, if he won’t wait and extend the note. If he will, you can pay the others. Has June got the money to go home on? I will bet she has not, so I will have to pay for her ticket, I suppose. Let me know, but don’t push me too hard, 'as you know Will gets the bulk of the profits from the opera company and theater.” On the 10th of August, Brinkley caused a telegram to be sent by a bank in Memphis to a bank in Los Angeles, directing the payment to defendant of $390, and the money was promptly paid. Shortly after receiving the money, defendant paid to De Groot $90 and he (De Groot) agreed to wait for the balance.