Dates

This is an appeal from a judgment of conviction of the defendant under indictment and conviction for embezzlement, and from an order denying a new trial.

The facts, which in the main are undisputed, are as follows: The defendant was the husband of Bessie S. Dates, deceased, and the stepfather of Mildred Jane Porter, the complaining witness before the grand jury. The wife of the defendant died in February, 1912, leaving a will, of which the defendant became and was the executor up to the time of the indictment. The estate of the deceased amounted in value to $64,804.40, of which the sum of $43,654.89 was net cash in the hands of the executor. By said will the defendant was bequeathed an undivided one-half of the estate, while to her daughter, Mildred Jane Porter, the deceased left a legacy of twenty-five thousand dollars in money. There were also certain other minor legacies aggregating the sum of five thousand dollars. This will was duly offered and admitted to probate, and the defendant was appointed executor without bonds. The first annual account of the executor was filed in September, 1913, and showed the above net cash balance in his hands after all claims had been presented…