Hotz

The defendant was convicted by the verdict of the jury with the offense of embezzlement and appeals from the judgment pronounced upon the verdict and an order denying his motion for a new trial.

The facts essential to an understanding of this appeal are as follows: C. B. James & Son were the owners and operators of a garage in San Fernando and as a part of that business sold new and used automobiles. Shortly before January 1, 1927, they orally entered into an agreement with the defendant whereby he was to sell new automobiles for them and to receive as his compensation, as stated by defendant, “50% of the net profits of the sale of new cars, and 50% of the sale of used cars that we were taking in trade, and if it was sold for any less I was to assume 50% of the loss of the sale.” Amplified by other witnesses, the contract under which the defendant went to work provided that he was to receive as his compensation one-half of the amount realized upon the sale of a new car over and above its cost, with the further understanding that if a used car were accepted as part payment and it was resold for a sum less than the sum allowed when taken in exchange, plus the cost of conditioning…