This is an appeal by the People from an order granting a motion for a new trial following a trial in which the jury found defendant guilty of misconduct in office. The defendant is the marshal of the Kern County Bakersfield Judicial District, an office which he has occupied since the institution of that judicial district in 1952.

On November 17, 1955, an accusation was presented by the Kern County Grand Jury accusing the defendant of 21 specifications of wilful misconduct in office as marshal of the municipal court in said district. Eight of the 21 specifications were dismissed on motion before trial. After the jury returned a verdict of guilty on specifications 3 to 7 inclusive the remainder of the 21 were dismissed by the court.

The five specifications upon which the jury found the defendant guilty alleged that on the several dates of March 29, March 30, April 1, April 5 and April 7, respectively, the defendant issued checks upon a bank deposit of public funds under his official control as marshal, which checks were drawn upon insufficient funds.

The defendant moved for a new trial alleging that the verdicts were contrary to the law and the evidence, and that the trial judge erred in admitting evidence of conduct that occurred in a term of office prior to the term he was serving when charged with misconduct. The motion was granted on both grounds.

Defendant’s office was administered by him with an assistant and deputy marshals providing bailiff service for the municipal court and the service and execution of legal process. With respect to the latter function the defendant was provided receipt forms furnished by the county.

Defendant’s records and accounts, including funds on hand in the office, on deposit in banks authorized to receive county funds, and deposits made into the county treasury were audited annually and no irregularities thereby were shown in evidence. The latest audit of that character was in January, 1955. A special audit thereafter revealed the over drafts involved here. The defendant had deposited moneys in his control in a bank as a depository of public funds, subject to remittance monthly to the county treasury. It was proved that on the dates of March 29th and 30th, and April 1st, 5th and 7th, the bank funds on deposit were insufficient to meet checks drawn thereon on those dates. The fact that checks were issued and outstanding with insufficient funds in the depository went to the jury as a stipulated fact binding upon the defendant.

The question on appeal is whether this fact, supported by evidence that the defendant was informed of the failure of his office, on other occasions, to correctly and lawfully handle the public moneys in his charge, made the granting of a new trial by the trial judge an abuse of judicial discretion. The record discloses that the public moneys in defendant’s charge were handled with something less than the care which would protect against their unwarranted and unlawful uses by office personnel who might prove untrustworthy. There was, for instance, evidence that money received was sometimes kept in a cash box, in desks, files and envelopes, and that cheeks were found which were delayed in deposit. At times checks were drawn but not delivered.

Defendant testified in his own behalf, stating the nature of his work as marshal, in general, and the administrative methods he employed in his office, including the duties assigned to office personnel, process servers and bailiffs under the control of the marshal and assistant marshal. He was questioned about the bookkeeping system, and said:

The attorney for the People makes the point that the defendant knew or should have known of the stipulated overdrafts of specifications 2 to 7 inclusive. The following testimony of defendant bears upon the point:

All the checks were honored hy the hank, without informing defendant of the overdraft.

If, as appears to us, we have extracted from almost a thousand pages of transcript, enough to indicate a reasonable doubt of guilt projected upon the trained mind of the trial judge, it is unnecessary to lengthen the statement of the evidence.

It is true the phrase “misconduct in office” is broad enough to include any wilful malfeasance, misfeasance or nonfeasance in office. As pointed out in People v. Elliott, 115 Cal.App.2d 410 [ 252 P.2d 661 ], misconduct for which a public officer may be removed from office on accusation by a grand jury may be either wilful or corrupt. “Wilfully,” in this connection, “implies simply a purpose of willingness to commit the act, or make the omission referred to. It does not require an intent to violate law, or to injure another, or to acquire any advantage.” However, “knowingly” requires “knowledge that the facts exist which constitute the transgression.” (See People v. Elliott, supra, p. 419 .)

“ It is elementary that, in determining the sufficiency of the evidence on a motion for a new trial, the trial judge is not bound by the rule as to conflicts in the evidence. He may disregard such evidence as he believes to be untrue and may draw inferences therefrom at variance from those drawn by the jury. The rule that the court will not disturb findings based on conflicting evidence applies only to the appellate court. It has no application to a trial judge in passing on a motion for a new trial. (People v. Harband, 99 Cal.App. 32 [ 277 P. 1102 ]).” (People v. Megladdery, 40 Cal.App.2d 748, 768 [ 106 P.2d 84 ].)

An extensive quotation from People v. Canfield, 173 Cal. 309, 311 [ 159 P. 1046 ], set out in the Megladdery opinion (pp. 768-769) spells out the sharp line of distinction between the duties of the trial and reviewing courts in cases of this character.

The defendant is entitled to a decision on the evidence by the trial court even though the jury has brought in a verdict against him.

“While the solemn verdict of a jury should not lightly be vacated the responsibility nevertheless rests with the court again to review the cause and only after such review to decide the application for a new trial. (Olinger v. Pacific Greyhound Lines, 7 Cal.App.2d 484 [ 46 P.2d 774 ].)” (People v. Megladdery, supra, 40 Cal.App.2d, at p. 770 .)

In the instant case the stipulated overdrafts are not conclusive of wilful misconduct in office on the part of the marshal. The specifications charged the defendant “did wilfully and unlawfully know or should have known” of the several overdrafts. Upon the record there is ample reason to support the conclusion by the trial court that defendant did not know of the irregularities, and beyond that his failure of awareness might impress the court as more a mistake of judgment than a purposeful disregard of the care and diligence which would have avoided the overdrafts. If this be true and the trial court so believed it was his duty under the authorities above cited to grant the motion for a new trial. “That is a matter solely within his power. This court is not permitted to overrule that discretion.” (People v. Megladdery, supra, 40 Cal.App.2d, at p. 785 .)

The order appealed from is affirmed.

Griffin, Acting P. J., and Mussell, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied October 24, 1956.

Assigned by Chairman of Judicial Council.