People v. Steffner

Defendant was convicted of the crime of embezzlement. A motion for a new trial was duly made and denied. No appeal was taken from this order, the appeal being from the judgment only.

Respondent contends that, as no appeal was taken from the order denying motion for new trial, this court is without power to review the sufficiency of the evidence to support the verdict. The same point was made, and decided adversely to this contention, in the case of People v. Steffner, Cr im. No. 723, ante, p. 1 [ 227 Pac. 690 ], in which an opinion has this day been filed. We refer to that case for our views on the subject.

The sufficiency of the information was challenged by defendant, both by demurrer and motion in arrest of judgment. So far as is material to be considered here, the amended information provides: “E. W. Steffner is accused by the District Attorney of the said County by this amended

“The said E. W. Steffner on or about the 5th day of August, one thousand nine hundred and twenty-two at the said County of Lassen and before the filing of this amended information being then and there intrusted by E. J. Craddock with the following described personal property of him the said E. J. Craddock, namely lawful money of the United States to the amount and value of more than fifty ($50.00) dollars, to-wit, the amount of $684.74 or thereabouts, and the said E. W. Steffner then and there received the said property and money in trust as aforesaid, and while so intrusted and in possession of said property, he, the said E. W. Steffner, to-wit, on or about the 5th day of August, 1922, at Susanville, in said County of Lassen, State aforesaid, did willfully, unlawfully and feloniously and fraudulently embezzle, convert and appropriate to his own use the said money, not in the due and lawful execution of said trust as aforesaid, contrary,” etc.

[1] It is claimed that the information does not state facts sufficient to constitute a public offense, and also that it does not substantially conform to the provisions of sections 950 and 952 of. the Penal Code, in that the facts constituting the offense are not pleaded, it being asserted that neither the trust relation relied on, nor the character of the trust, is set forth.

The information alleges that E. J. Craddock “intrusted” the defendant with the said money, and! that the said money was the money and personal property of the complaining witness; it also shows the fiduciary relation existing at the time of the appropriation by defendant of the said property of Craddock, for, following the above allegation, it is averred “that the said defendant on said date received the said property and money in trust as aforesaid, and while intrusted and in possession of said property, the said defendant, on or about the 5th day of August, 1922, fraudulently,” etc. Under these allegations it is clear that defendant received and held the money of Craddock as his trustee and for his benefit.

J It is uniformly held that it is necessary to state the fiduciary relation existing between the defendant and the owner of the property, as that the defendant was the agent,

In People v. Neyce, 86 Cal. 393 [ 24 Pac. 1091 ], it is said: “The objections raised by the demurrer and motion in arrest of judgment to the sufficiency of the information are not well taken. The main point here made is, that appellant is not called in the information ‘bailee,’ ‘trustee’ or ‘ agent, ’ or formally put into any of the classes named in' the sections of the code which define embezzlement. But facts constituting the crime were fully stated, and that being so, it was not necessary to designate the appellant by any particular name (People v. Johnson, 71 Cal. 389 [ 12 Pac. 261 ]), and the information in all other respects was unassailable.”

It is not necessary to set forth, the particulars of the trust relation. In People v. Gordon, 133 Cal. 328 [ 85 Am. St. Rep. 174 , 65 Pac. 746 ], the charge being embezzlement, it is said: “The essential elements of embezzlement are the fiduciary relations arising where one intrusts property to another, and the fraudulent appropriation of the property by the latter. (Pen. Code, see. 503.) The origin or particulars of the relation need not be stated. (2 Bishop’s Criminal Law, sec. 323a.) ” (Also to the same effect, People v. O’Brien, 8 Cal. App. 468 [ 97 Pac. 679 ].)

In Keys v. State, 112 Ga. 392 [ 81 Am. St. Rep. 63 , 37 S. E. 762 ], the defendant was charged with larceny after trust, or embezzlement. In stating the nature of the charge the court says: “The indictment charges, in substance, that the defendant, on January 6th, 1898, was intrusted with one five dollar bill, lawful money of the value of five dollars by W. J. Bigger, for the use and benefit of the latter, and did on the day and year aforesaid, in the county aforesaid, fraudulently convert the said five dollars to his own use, to. the injury and without the consent of Bigger, and without paying Bigger the price thereof.”

The indictment was upheld. The statute under which that indictment was drawn provided: “If any person who has been intrusted by another with any money or any other articles or things of value, for the purpose of applying the same for the use and benefit of the owner or person deliver

This section is substantially the same as sections 503 and 506 of our Penal Code. Section 503 reads: “Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.”

Section 506 is as follows: “Every trustee, . . . agent . . . or person otherwise intrusted with or having in his control property for the use of any other person, who fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, . . . is guilty of embezzlement.”

In the indictment in the Keys case, supra,, it is stated that the money was entrusted for the use and benefit of Bigger. The court points out that it is certain a trust of some kind was set out, and that it would have been more definite had it stated the way the accused was to have disposed of the money for the use and benefit of Bigger. But in this regard the court says: “In this respect it might have been made more definite, but can it be fairly said that because of the omission to go further into detail the accused was not sufficiently informed of the nature of the charge he was called upon to meet? We think not. If, as a matter of fact, Bigger did intrust the accused with five dollars in money with which he was to do something in behalf of the depositor, and if instead of complying with the obligation thus imposed he fraudulently converted the money to his own use, did he not know well enough what the indictment meant?”

In the instant case, while there is no direct averment to the effect that the money was entrusted for the use and benefit of Craddock, no other deduction is possible from the language used, and, therefore, to have added these words would have furnished no additional information. Embezzlement is larceny after trust. The information in this case alleges the trust,, and, in appropriate language, the larceny thereafter. The information, while not as full and complete as might be desired, substantially complies with the provisions of the code under which it was drawn, and is, therefore, sufficient. The trial court was correct in over

Appellant contends that, assuming the evidence on the part of the prosecution to be true, it is insufficient to establish an implied finding that defendant became the agent or trustee of the prosecuting witness, E. J. Craddock, in the receipt of the money from him, for the purpose of forwarding it to the Anglo-California Trust Company; that the testimony of the prosecuting witness was so inconsistent with the undisputed facts -as to be wholly unsupported; that, on the other hand, it does appear that in receiving the money he was acting exclusively for the bank and himself, . and not as the agent of Craddock; that if appellant was authorized to collect the money for the bank or for himself, or jointly for himself and the bank, immediately upon payment by Craddock he became divested of the title, and any -subsequent wrongful conversion by appellant, if such there was, was not of money belonging to Craddock.

Appellant concedes that it is a well-recognized rule that courts of appeal are bound by the verdict of the jury, when supported by proper and sufficient evidence. The rule is stated by the court in People v. Emerson, 130 Cal. 562 [ 62 Pac. 1069 ], as follows: “For if the evidence which bears against the defendant considered by itself, and without regard to conflicting evidence, is sufficient to support the verdict, the question ceases to be one of law—of which alone this court has jurisdiction—and becomes one of fact upon which the decision of the jury and the trial court is final and conclusive.”

[2] If the defendant was “intrusted” with the money of the prosecuting witness, and while acting in such trust capacity, fraudulently appropriated the same, he is guilty of embezzlement. (Pen. Code, sec. 503.) The question of whether or not he was so “intrusted” is a question of fact for the jury to determine. As was said in People v. McMahan, 133 Cal. 278 [ 65 Pac. 571 ], on this particular subject: “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 it was so intrusted. Of course, it is possible in this, as it is in most cases, to take different views

[3] Is the verdict of the jury justified by the facts of the case? A somewhat extensive review of the evidence will be necessary to determine this question, and, as the testimony of the witness Craddock is of prime importance in this regard, we feel justified in quoting therefrom at length.

Defendant was a retail automobile dealer in Susanville, Lassen County, California. On May 20, 1922, defendant, under the name of Steffner Overland Co., entered into an agreement with E. J. Craddock wherein he agreed to sell, and Craddock agreed to buy, a certain automobile therein described, for the sum of $1,396.70. The contract provided for the payment of $575 at the date of signing, and the balance in monthly installments. This contract was assigned, by an instrument attached thereto, to the Anglo-California Trust Company, executed by Steffner Overland Co., by E. W. Steffner, Mgr., and dated May 31, 1922. The contract and assignment thereof were mailed by defendant to the Anglo-Califomia Trust Co. for discount. It was received by that company on or about June 1st, and a remittance made to the defendant of the sum of $765.50 in payment therefor. Under the terms of the contract the first installment became due on June 27th, and the second, as well as the subsequent installments, were to be paid on the same date in each succeeding month. The first installment was sent direct by Craddock to said company, on or about the date on which it was due. The second installment was, likewise, sent by him on or about July 27th. On August 5th Craddock paid the full balance owing on the contract, amounting to the sum of $684.74 to the defendant, who applied it to his own use and purpose. The prosecution is for the alleged embezzlement of this sum.

The circumstances surrounding this payment were substantially as follows: The first conversation between the parties on the subject occurred near the postoffice in Susanville concerning which the witness Craddock testified: “Q. Did you have any conversation with him (the defendant) at that time?

Pursuant to this conversation Craddock went to the defendant’s office and there paid him the sum of $684.74, $550 of which was represented by a cheek drawn in Craddock’s favor by one G. Orsi, and on which Craddock indorsed his name, the balance of $134.74 being paid in cash. Concerning the payment thus made Craddock testified: “Q. At that time did you make any payment to Steffner? A. Yes, sir. Q. How much? A. I paid Mr. Steffner $684.74. Q. Did he say anything at that time about that payment? A. He said he would send it in and he would have my contract within a few days. Q. How did you make that payment, in what way? A. I gave him a cheek for $550.00 and the balance in cash. $134.74 in cash. Q. Did you get a receipt at that time? A. He gave me a receipt for it, yes.” The receipt given reads:

“No. 90 Aug. 5, 1922.

“Received of E. J. Craddock, six hundred eighty four and 74/100 dollars. Payment on contract covering purchase of Olds Roadster $684.74.

“E. W. Steffner.”

The witness testified with reference to the receipt as follows: “Q. At the time you were in his office you saw him write the receipt, People’s Exhibit two, and deliver it to you at that time? A. Yes, sir. Q. What did he say at that time? A. He would send it to the bank and I would get my contract in a few days. That is the best I can remember that he said. Q. What bank did he say? A. The Anglo-Califomia Trust Company.”

Referring to a conversation between the witness and defendant on August 24th, at the latter’s residence, the witness testified: “Q. At that time what conversation was had between you and Steffner, if any? A. I got a slip showing me my payment had come due 'and I didn’t figure I would have any more and on the twenty-fourth of August I got this notice, so I took it up and showed it to Steffner. Q. Did Mr. Steffner receive it from you at that time? A. Mr. Steffner took the slip. Q. Did he give it back to you? A. No sir. Q. What was that?” At this point there was objection made; after some discussion the objection was

Concerning a conversation between defendant and Craddock, held on September 13th, the latter testified: “Q. What, if anything, did you say to Steffner at that time ? A. I asked him why my contract didn’t come. Q. What did he say? A. He said that he didn’t know. He didn’t know why it didn’t come. He said I will wire to-morrow morning and! find out. Q. Did Mr. Steffner say anything else at that time, if you remember; do you recall anything about his actions or manner? A. He kept stalling me off and acting as if he didn’t know me.”

In his cross-examination the witness testified: “Q. In answer to the question by the District Attorney I think his question was, what bank, and you said the Anglo-Califomia Bank, referring to a time when you paid this money to Mr. Steffner. You don’t know whether he mentioned the Anglo-California Bank at all at that time, do you? A. I know he mentioned he would send it to the bank and I would get the contract. I know that. Q. You wouldn’t attempt to say those were his exact words, would you? A. That is what I understood him to say. Q. That is the way you remember it now? A. Yes. If I hadn’t I sure wouldn’t have given him the money. . . . Q. Did you ask Mr. Steffner in that conversation between you and him in the postoffice, and when you say it was about half an hour before you went

The wife of the prosecuting witness also testified that defendant had stated he would send the money to the bank. It is admitted defendant retained the amount so paid him by Craddock, at least five hundred and fifty dollars of which was deposited to his own account on the seventh day of August, 1922, at which time an overdraft existed against him and in favor of a bank in Susanville where his account was kept. Notwithstanding this fact, the -testimony shows that on August 24th, and after Craddock had received notice that the third installment due on his contract had not been paid, he sought defendant and inquired, as to the reason, and was informed by him, in substance, that he did not know, but that he had just returned from San Francisco, and it was marked paid on the books, adding that he had seen the books so marked. Appellant calls attention to the fact -that there was no proof that this latter statement was untrue, and that the uneontradietory documentary evidence showed that the bank had charged the Craddock account against defendant’s withholding account. The so-called “withholding” account was not a credit in defendant’s favor, and was not used for the purpose of liquidating the Craddock account. Referring to -the withholding account the assistant manager of the contract department of the said trust company testified: “It is simply a name for the account representing transactions where an automobile contract is submitted to us with a greater balance than the value of the car. We don’t discount the entire contract, but in order to take care of the matter we will remit a certain amount on the contract, placing the balance in the withholding account subject to the further discount, provided the purchaser makes the payments promptly and is going to terminate the contract.”

He further explained that under certain forms of contracts there was also a withholding for security of one per cent of the balance which was placed in this account. On September 30, 1922, the withholding account represented approximately the sum of seven hundred dollars, which might eventually become a credit in defendant’s favor,

[4] Appellant earnestly insists that although the Anglo-Califomia Trust Company’s policy and desire was to have purchasers remit direct to it, nevertheless there was proof to the effect that it did permit appellant to make collections on its behalf; that appellant was its agent for that purpose, and, if there was a conversion, it was not of the money of Craddock. People v. Van Ewan, 111 Cal. 144 [ 43 Pac. 520 ], is cited as sustaining this view. It is also contended “If the rediscounting of the contract is to be considered, as it appears to have been regarded at the trial, to be an absolute sale and transfer of the contract and the car therein described to the bank, then there was actually transferred only a partial interest, although the greater interest therein to the bank, because, as shown by the evidence generally, the bank was entitled only to the amount of the proceeds and returns of the contract sufficient to reimburse itself with its interest and discount. Any overplus belonged to

These various contentions are untenable for several reasons. Assuming there was a conflict in the evidence as to the capacity in which defendant received the money, the jury has determined the question by its verdict adversely to these contentions. (People v. Treadwell, 69 Cal. 226 , 230 [ 10 Pac. 502 , 507].) If the agreement and understanding between Craddock and defeñdant was to the effect that the money was entrusted to defendant as the agent and trustee of Craddock, defendant is now estopped from denying he was such, ok from, claiming to have acted in any other capacity. (People v. Treadwell, supra; People v. Robertson, 6 Cal. App. 514 [ 92 Pac. 498 ].)

In the former ease it is said:

“The evidence is overwhelming that Quinn, when he paid his moneys upon the note, acted with the defendant as the attorney and agent of Haneke for the purpose of receiving and forwarding them to Haneke. He so understood it from Haneke and the defendant himself. He knew nothing of the endorsement of the note to Mrs. Wise, for the defendant had not informed him. The defendant was therefore, when he received the money from Quinn, in fact the agent, or acting as the agent, of Haneke, and he is estopped in law from denying that he was the agent. ’ ’

[5] Appellant strongly urges that the evidence clearly established the fact that he was the agent of the trust company in the collection of the money from Craddock. It is claimed this agency arose through a course of conduct and dealing between the parties. It is trae that he had assigned many contracts similar to the one under consideration to the trust company and the dealings between the parties in relation thereto had extended over a considerable period. The policy of the. company required purchasers under these contracts to make payments direct to it. As

[6] The court admitted in evidence, over the objection of defendant, a copy of a letter from the Anglo-California Trust Company addressed to him, dated October 23, 1922. The body of the letter is as follows:

“Notwithstanding the fact that you have heretofore denied that you received full payment on the E. J. Craddock account, we are today in receipt of a copy of what purports to be your receipt No. 90, in the sum of $684.74, under date of August 10th. The above mentioned copy

has been forwarded to us by Mr. George B. Gardner, Assistant District Attorney of Butte County, and we have no reason to doubt that it is an authentic copy. Agreeably to your request of recent date, we forwarded our collection Last Friday to the Bank of Lassen County, to cover the balance due us on the Craddock account, and we trust that this draft will be promptly honored upon presentation.”

Respondent does not attempt to justify the relevancy of 'the first portion of the letter, but does contend that the objection made that it was “incompetent, irrelevant and immaterial” was addressed to the letter as a whole, and as the latter part was material, the court did not, therefore, err in its admission. Appellant does not dispute the proposition of law thus advanced, but denies the materiality of the entire letter. Appellant asserts that as it contained the only reference to any denial of the payment made by Craddock to defendant, proof of that fact would be fatal to the defense that defendant had collected it in the regular course of business and expected to have the same deducted from his fund® in the hands of the trust company. Under the theory suggested by appellant a number of letters from said trust company to him were introduced in an endeavor to show, as we gather therefrom, an implied authority on his part to collect on its behalf from purchasers under contracts assigned to said company, and also to show that it had been the practice of said company to deduct from sums or credits in its hands belonging to defendant the various amounts thus collected by him, and this course of procedure had been relied upon and followed by defendant in the instant case. The latter portion of the letter was a reply to a telegram from defendant wherein he requested that the Craddock contract be sent to the Bank of Lassen with a sight draft attached. The telegram and the reply thereto negative' the theory that either he or the trust company recognized that the Craddock account had been paid, or that the amount thereof had been deducted or withheld from any funds belonging to defendant, or that defendant was then relying on such a custom or practice. The letter was one of a number between the parties throwing light upon those introduced by the defense, and was, therefore, admissible'. The evidence does not disclose a defense along the lines suggested. The defense introduced a letter dated

“It will no doubt interest you to know that we have received a communication from Mr. E. J. Craddock, indicating that on September 5th he paid to you the total balance due on the account, whereas you but sent to us on September 15th the August 29th installment. If Mr. Craddock’s statement is correct, and we have no reason for doubting it, you most certainly must realize that full payment of the account must be made immediately by you. For your information I am enclosing herewith a copy of the letter received from Mr. Craddock together with my reply.” (The money was received by defendant on August 5th, and the error in the letter is explained in the testimony of one of the witnesses.)

It was the duty of the defendant, if it be assumed for the moment he was- the agent of the trust company in making the collection from Craddock, to notify his principal and to turn the money so collected over to it within a reasonable time. Fraudulently secreting property with the fraudulent intent to appropriate it is embezzlement. (Pen. Code, see. 506.) The money so collected was never turned over either to Craddock or to the said trust company, but was appropriated to defendant’s own use and purpose. The facts fail to substantiate the suggested defense.

[7] On redirect examination the witness Lockhart testified, in answer to questions by the prosecution:

“Q. You testified on cross-examination, I think both yesterday and today, that Mr. Steffner had enough money on 'deposit, or enough credits with the Anglo-California Trust Company to take up the entire Craddock contract. Is that correct? On September 30th? A. Yes, sir. Q. You also testified that you didn’t take up the Craddock contract by charging Mr. Steffner’s account with the amount? A. Yes sir. Q. Why was that not done? By Mr. Holl: Object to that as incompetent, irrelevant and immaterial. It is a self-serving declaration calling for the conclusion of the witness and not redirect. By the Court: To what time does this relate? By Mr. Hardy: September 30th. The same date that was mentioned in the question of counsel for de

fendant. By the Court: I will overrule the objection. A. There was only one installment due on September 30th. We had no right to deduct the entire amount of the contract.”

Thereupon a motion was made to strike out the latter part of the answer as calling for the conclusion of the witness and contradictory of the terms of the contract.

The part objected to does seem to be in the nature of a conclusion,, but the reasonable construction is, to our minds, that it was an attempt by the witness to state or assign the reason why the trust company had not taken up- the Craddock account in the manner suggested, rather than an attempt to state the terms -of the contract. -Substantially the same matter was brought out by the defense on cross-examination of the same witness.

[8] Complaint is made of the ruling of the court permitting the witness Craddock to testify, over the objection of the defense, to the payment o-f a draft drawn by the Anglo-Califomia Trust Company against him for the sum of $629 (Rep. trans., p. 28). This matter was fully covered, however, without objection of any kind, by the testimony of the witness Lockhart. (Trans., p. 61.) It is unnecessary, therefore, to determine its admissibility, as no prejudice could have resulted from its reception.

[9] The court gave of its own motion the following instruction: “The court instructs you that if any person assumes to act as the agent of another, -and in such assumed capacity he is intrusted with, and received into his care and custody, the property of another, for the use of such other person, -and thereafter fraudulently and. feloniously appropriates and converts such property to his own- use, or to any use or purpose not in the due -and lawful execution of his trust, he is guilty of embezzlement.”

Appellant states that this was inapplicable and confusing, in that it may have misled the jury into the belief that h-e might have been guilty because of his collecting from Craddock while pretending to be an agent of the Anglo-Califomia Trust Company. It is also stated that there was no evidence that defendant ever assumed to act as the agent of Craddock, hence the instruction was inapplicable. We have previously set forth excerpts from the evidence sufficient to show that the jury was justified in its implied finding that defendant was entrusted with the money of Craddock. We

[10] The following proposed instruction was offered by defendant and .refused: “A defendant who has converted money to his own use, believing he had a right to do so, is not guilty of embezzlement, even though he is mistaken, and did not have the right to do so.” The court gave instead thereof the following: “You are instructed that if, upon consideration of the whole case, you are satisfied to a moral certainty and beyond all reasonable doubt that the appropriation of the money charged in the information to have been embezzled by the defendant was made by the defendant upon the belief, honestly entertained by him, that he had a lawful right to appropriate the money, the act was not criminal.”

It is claimed that the refusal to give the one and the giving of the other constituted prejudicial error, as the defendant relied upon the defense outlined in section 511 of the Penal Code. The objection to the instruction given is addressed to the portion italicized. Section 511 of the Penal Code reads: “Upon any indictment for embezzlement it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good! faith, even though such claim is untenable. But this provision does not excuse the unlawful retention of the

The court was justified in its refusal to give the proposed instruction for the reason that, to constitute a defense under said section the property must be appropriated “openly and avowedly and under a claim of title preferred in good faith.” This provision was not covered by the instruction proposed to the effect that a defendant is not guilty of embezzlement where he has converted money to his own use “believing he has a right to do so.” Defendant was not entitled, however, to any instruction embracing the principles of law covered by said section of the Penal Code, and, therefore, the refusal of the one and the giving of the other did not operate to his prejudice.

In the case of People v. Bracklis, 54 Cal. App. 40 [ 200 Pac. 1062 ], an instruction following the language of the first provision of said section 511 of the Penal Code was offered and refused. As to this the court says: “The defendant did not claim the right to appropriate the property to his own use. If his testimony be true and the inference of his counsel therefrom correct, then appellant was a bailee for Gale Brothers, with authority to sell and under obligation to account for the proceeds. Embezzlement of the proceeds of such sale might constitute a different crime from that charged, but not ‘an appropriation under a claim of title preferred in good faith.' While the proposed instruction states a correct proposition of law, it is not applicable to the evidence.”

In the case at bar the prosecution claimed the money was entrusted to defendant for the use and benefit of Craddock, while the defense maintained it was paid to defendant as the agent for the Anglo-Califomia Trust Company. In neither case did he have the right to appropriate the property to his own use; therefore, the instruction given by the Court to the effect that if ‘the jury found “to a moral certainty and beyond all reasonable doubt” that if defendant appropriated the money upon the belief honestly entertained by him that he had a lawful right to do so, the act was not criminal, was not prejudicial to the defendant. That he received the property in trust for someone is admitted; that it was never paid over is not denied. The claim now made that it was appropriated openly and avowedly and

[11] It is claimed the court erred in refusing the following instruction proposed by defendant: “The statutory crime of eihbezzlement is not a substitute for imprisonment for debt and cannot be used to punish a party for failure to comply with ordinary obligations to pay money.”

As previously stated, the money was either entrusted to defendant for Craddock, or, under defendant’s theory, was paid to him as agent for the Anglo-Oalifornia Trust Company. Under neither theory was the proposed instruction applicable. It is not explicit, nor can it be told therefrom to what portion of the evidence it was intended to apply. We find no evidence justifying the giving of the proposed instruction in its present form.

A number of other instructions proposed by defendant covering various features of the crime of embezzlement were refused, and the court’s refusal is now assigned as error. We are satisfied that the instructions given by the court substantially covered the principles of law contained in those so proposed. It was not error, therefore, to refuse to further instruct on the subject.

Reading the record! as a whole, no reasonable doubt can be entertained as to the guilt of the defendant; in fact, there seems to be no substantial evidence to the contrary.

The judgment is affirmed.

Plummer, J., and Finch, P. J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 26, 1924.

All the Justices concurred.