Carrillo

The indictment is founded upon § 424 of the Penal Code. It sets forth that the defendant, being Tax Collector of the City of Los Angeles, and, as such Tax Collector, charged with the receipt, safe keeping, transfer, and disbursement of public moneys belonging to that city, received some $17,000 into his official possession, and thereupon did “ fraudulently, and without authority of law, willfully and feloniously appropriate the same to his own use, contrary to the form, force, and effect of the statute,” etc. The plea of the defendant was “ not guilty,” and upon the trial the Court below instructed the jury as follows : °

. This instruction is clearly erroneous, in that the jury are told that the failure of the prisoner to pay over the money, if unexplained, raises a presumption of a felonious appropriation which will authorize a verdict of guilty. The alleged felonious appropriation was the ultimate fact, to the solution of which the deliberations of the jury were to be addressed. It was the ultimate and important fact to be found by their verdict, before judgment of conviction could properly go against the prisoner. To tell them therefore, that, if they should find some other…