McMahill

The information charged as follows: “The said defendant, on or about the twenty-fifth day of April, A. D. 1905, at the county and state aforesaid, did willfully, unlawfully and fraudulently, and while said defendant was the secretary, agent and servant of the San Jose Chamber of Commerce, an association, appropriate to his own use the sum of $901.67 in lawful money of the United States, the property of said San Jose Chamber of Commerce, which money was on said date in the control and care and had come into the control and care of said defendant solely by virtue of his said employment as such secretary, agent and servant.”

To this information the defendant interposed a demurrer upon the grounds that it does not substantially conform to the requirements of sections 950, 951 and 952 of the Penal Code, and that the facts therein stated do not constitute a public offense.

The demurrer was overruled, and defendant entered his plea of not guilty. After trial he was convicted and sentenced to a term of two years in the state prison. This appeal is from the judgment and order denying defendant’s motion for a new trial.

The important and controlling question in the case is as to whether…