Kirwin

Defendant was informed against for the crime of embezzlement and was convicted. He appeals from-the judgment and from an order of the trial court denying his motion for a new trial.

The subject of the offense, as alleged in the information, was “one hundred shares” of the capital stock of a certain corporation, which it was charged that appellant held as bailee. During the preliminary examination of appellant, and while the complaining witness was on the stand in the committing magistrate’s court, appellant offered to her and she took from him a certificate for an equal number of the shares of the stock of the same corporation. Appellant contends that this restitution was a complete defense to the charge upon which he was later committed, under the provisions of section 512 of the Penal Code, which reads: “The fact that the accused intended to restore the property embezzled is no ground of defense or mitigation of punishment; if it has not been restored' before an information has been laid before a magistrate, or an indictment found by a grand jury, charging the commission of the offense.” It will be observed, however, that this section does not provide that restitution is a…