Bracklis

The defendant was convicted of the embezzlement of 150 sacks of potatoes alleged to belong to E. C. Armstrong, the prosecuting witness in the action, and this appeal is from the judgment of conviction and from the order denying the defendant’s motion for a new trial. Appellant admits that the evidence is technically sufficient to support the verdict of guilty, but it is argued that such evidence is so weak and unsatisfactory that the alleged errors hereinafter considered were especially prejudicial to his rights.

The people’s case depends largely upon the testimony of Armstrong, who was a salesman in the employ of Gale Brothers, wholesale produce merchants of San Francisco.

Armstrong testified that he purchased 150 sacks of potatoes from the appellant and paid $500 in cash therefor; that he left the potatoes in the appellant’s possession with directions to hold them until called for; and that the appellant appropriated them to his own use.

Appellant testified that he ordered 200 sacks of potatoes from Gale Brothers, through Armstrong; that when the potatoes arrived he discovered that the shipment contained 300 sacks; that he informed Armstrong that he could not use all of the…