People v. McMahan

—The defendant appeals from a judgment convicting her of embezzlement and from an order denying her a new trial.

The only point urged by appellant is, that the evidence does not show that the crime of embezzlement was committed, for the reasons, — 1. That it fails to show that the property was “ intrusted ” to the defendant; 2. It fails to show that defendant took the money and converted it to her own use.

The facts of the case pertinent to these questions, so far as necessary to state, are as follows: The defendant and the complaining witness were together, in the afternoon, in a room in a house of ill-fame in the city of San Francisco, and the complainant then gave to said defendant seven dollars, as he says, “ for services rendered in that room.” They met again in the evening of that day, and with other parties they spent most of the night, moving about from saloon to saloon, indulging in intoxicating liquors. At about four o’clock in the morning, the complaining witness, with a man who had worked for him in his business as a barber, returned with the defendant to her said room. The prosecuting witness was not drunk, as he says, but was very sick, when they reached the room, and his barber friend was sent out after some bromo-seltzer, which the prosecuting witness drank, and soon thereafter the two men turned into the defendant’s bed and went to sleep. Before turning in, however, the prosecuting witness had produced a purse containing $265, and asked the defendant to count it and take care of it for him. The defendant counted it, saying to the other man, “ Come here, Joe; I want you to see how much

“ Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.” (Pen. Code, sec. 503.) Being properly instructed as to the law of the matter, as we presume the jury were, it was for them to say, from all the evidence before them, whether the money was “intrusted” to the defendant or not. By their verdict of conviction they found that it was so intrusted. Of course, it is possible in this, as it is in most cases, to take different views of the evidence, but we think the view taken by the jury was a reasonable one. Certain it is, that the owner gave up all control of this money to the defendant until he should arise in the morning, and it also appears that she accepted the trust to safely keep the same, counting the money and assuring him that it would be there in the morning; and apparently she undertook to carry out the trust by locking the door and carry

The case of People v. Montarial, 120 Cal. 691 , differs materially in its facts from the case before us, and is not an authority for a reversal of this case. People v. Johnson, 91 Cal. 265 , as to the facts involved, more nearly resembles this case than any we have been able to find; and yet, there is a marked distinction between the facts of the two cases. The evidence in this case goes much further than the Johnson case to show an “ intrusting ” of the property, and thereby to establish the principal distinguishing element of embezzlement. We quote the language of a concurring opinion in the Johnson case as peculiarly applicable here: “I think that the jury had the right to find that appellant, with the consent of the prosecuting witness, had full actual possession of the money; and whether it was ‘ intrusted ’ to him was, I think, under all the circumstances, a question to be determined by the jury, under proper instructions of the court. And I see no error in the instructions on that point.”

The judgment and order appealed from should be affirmed.

Haynes, C., and Chipman, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

Van Dyke, J., Garoutte, J., McFarland, J.