Bartnett

The defendant was charged, under section 506 of the Penal Code, with embezzling certain bonds, alleged to have been in his possession, care, custody and control as special administrator of the estate of Ellen M. Colton, deceased.

A verdict of guilty was rendered. Defendant moved for a new trial, which was denied, and judgment rendered upon the verdict, whereupon defendant appealed to this court from the judgment and order.

1. It is claimed that when the embezzlement, for which defendant was convicted, took place, the bonds were not in the possession, custody or control of defendant as special administrator of said estate, but had been, previously to such embezzlement, placed in the custody and care of the California Safe Deposit and Trust Company, to be by it held under the orders and directions of the court. That for this reason the charge made in the indictment is not sustained by the evidence.

After careful consideration we are of the opinion that this contention of appellant must be sustained.

Section 4 of the act entitled “An Act authorizing certain corporations to act as executors, etc.” (Stats. 1891, p. 490, amended Stats. 1897, p. 424), provides that under certain…