Raentsch

Defendant was convicted of the crime of emlezzlement. He appeals from the judgment and from an order of the trial court denying his motion for a new trial.

The indictment charged that appellant was entrusted by the complaining witness with the sum of $3,575 and that he embezzled the entire amount. The evidence showed that he was entrusted with the sum total named but that he converted to his own use but part of it, the sum of $2,500. Appellant contends that in these circumstances there was a material variance between pleading and proof. The point is answered by People v. Gray, 66 Cal. 271 [ 5 Pac. 240 ], in which case the .supreme court said that “proof of the embezzlement of only a part of the amount charged was sufficient to support the information.” See, also, People v. Riordan, 79 Cal. App. 488 [ 250 Pac. 190 ], and People v. Ledbetter, 85 Cal. App. 514 [ 259 Pac. 982 ].

It is contended that the trial court erred in refusing to give two certain requested instructions. One of them was to the effect that “the defendant is presumed to be innocent, and this presumption of innocence abides with the defendant until after you have considered your verdict,” and that the “presumption…