King

The defendant in this case, having been convicted in the court below of the crime of felony embezzlement, prosecutes this appeal from the judgment and from an order denying his motion for a new trial.

Minus minor matters, the facts of the case upon which the prosecution relied for a conviction are substantially these:

The defendant at the time of the commisssion of the crime charged in the information was engaged in the real estate business in the city of Oakland, and had been employed by the complaining witness, Antonio Marciel, to negotiate the purchase of a piece of real property situate in the county of Sonoma. During the pendency of such negotiations and as an incident thereof, Marciel was desirous of applying the sum of seven hundred dolllars which he had in his possession to the satisfaction of a mortgage existing upon certain real property owned by him and situate in the county of Alameda. The defendant advised against this and persuaded Marciel to deposit said sum of seven hundred dolllars in a safe deposit box rented and controlled by the defendant. When negotiations for the sale of the property were abandoned, demand was made upon the defendant, so the complaining…