Westlake

—The defendant was indicted by the grand jury of Monterey county on the sixteenth day of October, 1897, for the crime of embezzlement, charged to have been committed by him as tax collector of said county, by unlawfully and feloniously appropriating to his own use on the first day of July, 1897, the sum of two hundred and one dollars, which said sum is alleged to have been paid over to defendant as tax collector, between the first day of July and the first day of August, 1897. He was found guilty and sentenced to a term of five years in the state prison.

This appeal is from the judgment and order denying defendant’s motion for a new trial. It is' claimed that the verdict is not sustained hy the evidence. The appellant in his brief has pointed out in detail the evidence of some thirteen witnesses, showing the amounts paid by each to the tax collector between the dates mentioned in the indictment, and that no other moneys were paid in 'during said time. The amount so paid in was two hundred and seventy-two dollars. The prosecution proved that on August 2, 1897, the defendant paid to the county, at his settlement for licenses, the sum of two hundred and ninety-seven dollars, which…