Sprado

The defendant, upon an information filed in the superior court in and for the county of Sacramento, was charged with and tried for felony embezzlement and convicted of petit embezzlement and thereupon sentenced to serve a term of six months in the county jail of the said county. He duly made an application for a new trial, and the same was denied. He prosecutes this appeal from the judgment of conviction and the order denying his motion for a new trial.

The information was based on section 508 of the Penal Code, which provides: “Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement.”

Section 514 of said code provides that “every person guilty of embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzled. ’ ’

Section 487 of said code provides: “Grand larceny, is larceny committed in either of the following cases: 1. When the property taken is of a value exceeding two…

The defendant, in a petition for a rehearing of this case, makes substantially the points which were urged for a reversal in his briefs, viz.: 1. That there was no proof showing the time at which he formed the alleged intent to embezzle the radio equipment introduced in evidence; 2. That this court overlooked, or at least did not notice in its opinion, the fact that, previously to asking defendant whether he, on some prior occasion, purchased or rented from a certain music company a phonograph equipment under the name of Lewis and at that time stated that he was a member of the Olympic Club of San Francisco, asked defendant, in effect, if it was not true that he (defendant) was, in connection with the said transaction, arrested in San Francisco under the name of Lewis.

Before considering again the points above stated we may acknowledge the error made in the former opinion in stating that the witness Kimball, president of the Kimball-TJpson Company, identified the radio set introduced in evidence as an exhibit as the set which defendant had taken from the store of the corporation while he was manager of the radio department thereof. Kimball did not so testify, as we learn from the…