Blair

Defendant was tried and convicted on an information charging him with the crime of embezzlement, committed at the county of Napa about June 19, 1911. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

It is contended: First, that the evidence fails to show that defendant was guilty of embezzlement; and, second, that the ■court erred in refusing to give the only instruction requested .by defendant and in giving it as modified by the court.

1. Upon the first point defendant contends that the complaining witness, Mrs. Booker, “intrusted the sum of $3,500

• to defendant with which to buy a farm or ranch. No time was specified within which the purchase was to be made; no ¡place was specified as to where the ranch or farm was to be ■purchased. The amount defendant .was to pay for the ranch was not mentioned, and no demand was ever made upon defendant that he return the money or carry out the trust.” The evidence was that no demand had been made upon defendant for a return of the money; that defendant received the money about June 19, 1911, deposited it in a bank in Napa and, about that date, drew it out and departed from Napa with it and…