Robertson

From the judgment following a conviction of embezzlement and from the order denying his motion for a new trial defendant brings this appeal.

In appropriate phraseology, defendant, as deputy assessor of Tuolumne county, is accused by the information of having received the sum of $130.40 belonging to said county and of having embezzled the same.

The evidence shows clearly and without conflict that the money was paid to defendant by the superintendent of the Nonpareil Mining Company on certain taxes owing by said corporation. The payment was by means of a check and the money was obtained by defendant on August 6, 1906, by cashing the check for that amount at the Tuolumne County Bank. The county assessor testified that the defendant admitted that he received the money as payment on the said mining company’s tax. The payment was credited by the county assessor to the company’s account for taxes and he supplied the deficiency caused by defendant’s fraudulent appropriation. In fact, there is no doubt that the money was sent by the mining company in part payment of its tax; that it was so received by defendant and fraudulently appropriated by him to his own use.

Appellant contends,…