Dougherty

The defendant was charged with, and convicted of, the crime of embezzlement, and appeals from the judgment and from the order denying his motion for a new trial. He insists that the verdict and judgment are against the law and against the evidence, in that the evidence whatever else it may show, does not establish the crime charged.

In this contention, the appellant must be sustained. “Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted. ’ ’ (Pen. Code, sec. 503.) “Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement.” (Pen. Code, see. 508.) The above-quoted sections set forth the statutory crime with which the defendant was charged. It is of the essence of this crime that the misappropriation be of property “intrusted” to the defendant. “Where the property is taken forcibly or furtively, or when the possession is gained by a trick or artifice, and the owner had no intent to yield…