People v. Connelly

PER CURIAM. The defendant was convicted of the crime of embezzlement, and appeals from the judgment and from an order denying his motion for a new trial. The information charges that defendant embezzled $89.78, the property of M. Goodwin, which he had received from Vincent Leguns as the agent and collector of said Goodwin.

1. On the trial evidence was introduced on the part of the people, without objection, to prove that defendant had embezzled other sums of money which he had collected for Goodwin, amounting to more than $5,000. As to this the court was not asked by either party to instruct the jury, but, of its own motion, instructed as follows: “Now, with reference to the matters outside—the five or six thousand dollars that has been spoken of—I charge you that the defendant here is not accused or on trial for embezzling any other sum than this money that was collected from Leguns; and, if you find that the defendant embezzled that money, why then you will find him [859]guilty; and by your verdict you must state the amount. ’ ’ The verdict was that defendant was guilty of embezzling $78.43. It is admitted that evidence of the embezzlement of other sums was properly admitted for the purpose of showing criminal intent, as was held in the case of People v. Gray, 66 Cal. 271, 5 Pac. 240. Nor is there any objection on the ground that the court voluntarily instructed on that point. But it is contended that the court erred in that it did not add to the instruction given that the evidence of other like embezzlements could be considered only for the purpose of proving the fraudulent or criminal intent with which the money received from Leguns was converted. If the instruction is defective in this respect, it is so to the advantage of the defendant, for the reason that the jury may have understood that they were instructed not to consider the evidence as to other embezzlements for any purpose, and could not otherwise have understood the instruction to the prejudice of the defendant. It seems to have been intended for the benefit of defendant, and, so far as it went, surely was so. If the defendant desired any addition to the instruction, he should have asked it.

2. The venue was sufficiently proved. The evidence contained in the bill of exceptions tends to prove that the money was received and converted by the defendant in the city and county of San Francisco, and should be deemed sufficient: People v. Marks, 72 Cal. 46,13 Pac. 149; People v. Leong Sing, 77 Cal. 117, 19 Pac. 254; People v. Carroll, 80 Cal. 154, 22 Pac. 129; People v. Tonielli, 81 Cal. 279, 22 Pac. 678.