Lindsay

This is an appeal by the defendant from a judgment entered upon a verdict of a jury finding him guilty of embezzlement.

It is contended that the evidence is insufficient to support the verdict in several particulars and also that there is a variance between the information and the proof. At the outset let us state that there are numerous conflicts in the evidence and we shall not concern ourselves with these conflicts, but proceed upon the assumption that the jury resolved all conflicts against the defendant.

The information charged that on or about November 24, 1922, and before July 11, 1923, in the county of Alameda, state of California, the defendant was the clerk, agent, servant, and bailee of Clara Hellesto and Emil Hellesto, her husband, and by virtue of such employment came into possession of the sum of $1,250, the personal property of the said Clara and Emil Hellesto, and that defendant unlawfully and fraudulently converted, embezzled, and appropriated said personal property to his own use.

The proof was that the defendant was a real estate agent in Oakland, California, and about June, 1920, sold a house on Miles Avenue in Oakland for Mrs. Hellesto. The purchaser, Mrs.…