People v. Kirk

McCOMB, J. From a judgment of guilty on fourteen counts of violating section 504 of the Penal Code after trial by jury, defendant appeals. There is also an appeal from an order denying her motion for a new trial.

Viewing the evidence in the light most favorable to the people (respondent), the essential facts are:

[137]Prom August, 1935, to January 1, 1940, defendant was employed as a clerk, stenographer, and secretary in the park department, of the city of Santa Barbara. Defendant’s duties were to be in charge of the office of the department, keep the time of the employees of the department, make out bimonthly pay rolls, answer telephone calls, take care of the correspondence of the office and park board, and keep the minutes of the park board. By custom of the department she also received funds from the recreational facilities of the park department, which she counted and subsequently deposited with the city treasurer! Commencing in 1938 and throughout the period embraced in the indictment, from the funds thus deposited with her she appropriated to her own personal use approximately $1475.74.

It is conceded that there was no statute or ordinance which made it the duty of defendant to receive the funds which she subsequently misappropriated.

Defendant relies for reversal of the judgment on this proposition:

A person may not be guilty of violating section 504 of the Penal Code by misappropriating funds which have come into his possession, in the absence of a statute or ordinance imposing upon such person a duty to receive and account for the funds which he has misappropriated.

This proposition is untenable. Section 504 of the Penal Code of the State of California, so far as material here, reads in part as follows:

“Every officer of this state, or of any county, city, city and county, or other municipal corporation or subdivision thereof, and every deputy, clerk, or servant of any such officer, and every officer, director, trustee, clerk, servant, or agent of any association, society, or corporation (public or private), who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession ... is guilty of embezzlement. ’ ’

Defendant is guilty of violating the foregoing section when (1) he is a servant or clerk of any municipal corporation or subdivision thereof, and (2) he fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust any property which he has in his possession. There is no requirement in the statute that the