People v. Leipsic

CHIPMAN, C. Defendant was convicted of the crime of embezzlement, and was sentenced to five years’ imprisonment at San Quentin. He appeals from the judgment and from the order denying his motion for a new trial. There is no brief on file for the people. The prosecuting witness and the defendant were the only witnesses sworn at the trial. Defendant insists that the evidence wholly fails to sustain the verdict of guilty of the offense charged in the information, and our conclusion is that he is right in this contention. The [537]crime charged was that on July 24, 1896, at San Francisco, defendant “was then and there the bailee of Mary Feeney, and as such bailee was then and there intrusted by said Mary Feeney with the following property and money of her, the said Mary Feeney, to wit, one hundred and ninety dollars, lawful money of the United States”; and that he received said property as bailee, and while so intrusted did on said day willfully, etc., “embezzle, convert, and appropriate the same to his own use,” etc.

The court correctly instructed the jury that if they found from the evidence that the defendant received this money from Mary Feeney for the purpose of investing it for her in mining stocks, and that he did invest said money for her or for her benefit in mining stocks, and thereafter he fraudulently converted said mining stocks to his own use, then he cannot be convicted of this charge. In the instruction marked “7” the court in effect, and correctly, charged the jury that, before they could convict the defendant, they must be satisfied beyond a reasonable doubt (1) that during the period covered by the transaction in question the defendant was the bailee of the complaining witness, Feeney; (2) that she was the bailor of defendant; (3) that defendant as such bailee, and in the course of his relations with the complaining witness as bailee, received the $190 in money from her as bailor, and feloniously converted the said money to his own use, with intent to steal it, without her knowledge or consent; and (4) that prior to lodging the complaint in this case against defendant she, as bailor, demanded from him the return of the money, which he feloniously and fraudulently failed to do.

Defendant was engaged in selling milk, and Mrs. Feeney was one of his customers. She had known him for ten years, and he had previously to the present transaction attended to business for her. He bought some real estate for her. She had other stock transactions, and one with defendant, before this one. She was familiar with the stock board transactions, and understood buying stock on margin and how assessments are kept up. As to the transaction in question, she testified that defendant in July, 1896, told her he had a point on a stock called “Challenge,” and would double her money inside of thirty days. She had no money, but had some collaterals, on the security of which she borrowed $190, and gave the money to him. “He said he would buy this stock that he got