People v. Allen

COOPER, C. Defendant was convicted of embezzlement, and has appealed from the judgment and from an order denying his motion for a new trial.

[5331]. It is claimed that there is a variance between the information and the proof as to the instrument described in the information. We are simply told by appellant’s counsel that “the variance is a fatal one.” No reason is given as to the theory upon which counsel claim that the variance is fatal, and upon examination we fail to discover any theory upon which we could so hold. The information charges the defendant with having on the tenth day of January, 1898, in the county of San Luis Obispo, willfully and feloniously embezzled to his own use the sum of $110, lawful money of the United States, then and there the property of one M. F. Pimenthal. Defendant was convicted “of the crime of embezzlement, in embezzling money exceeding in value the sum of fifty dollars.” The information sets forth with more particularity than necessary the facts and circumstances connected with the alleged embezzlement, and, among other things, states that Pimenthal delivered and indorsed the order or check described in the information to defendant, with directions to defendant to collect the same, and deposit the proceeds with the Andrews Banking Company, in San Luis Obispo, to the credit of Pimenthal; that defendant presented said check or order for payment, and it was paid to defendant, and he received thereon $110, which he feloniously appropriated, contrary to the trust reposed in him. The fact that defendant collected the money on the order precludes him from claiming that the order was indefinite, or different from the description of it contained in the information. The gist of the offense was receiving the money of Pimenthal and appropriating it to defendant’s use. The means by which defendant received it, as detailed in the information, were wholly immaterial. If the information had left out all descriptions of the order or check, it would have charged a public offense. As the check was a wholly immaterial quantity in the elements necessary to constitute the offense charged, it becomes unnecessary to discuss the question as to the alleged variance.

2. It is next said that the witnesses Venable and Meredith “were permitted to give incompetent evidence as to the payment of the check by the Commercial Bank to the defendant, and the nondeposit of the amount in the Andrews Bank.” We are not told in defendant’s brief why the evidence was incompetent, counsel having aided us only by the statement, [534]