People v. Johnson

I concur in the judgment of reversal upon the ground that the superior court erred in admitting the testimony of the witness Briggs. The evidence of the prosecuting witness that the defendant was the person who defrauded him was extremely weak and unsatisfactory. He admitted that on the examination of the prisoner in the police court, a short time after the occurrence, he had been unable to identify him, but claimed that he was then (at tfie trial) certain that he *271 was the same person. Evidently the prosecution thought it necessary to strengthen their case on this point, for they called the witness Briggs, — an officer, — who was permitted to testify, against the objection of the defendant, to a description of the culprit, which he stated had been furnished by the prosecuting witness before the defendant was arrested. . This was of course hearsay, and incompetent, and as it related to a vital issue in the case, upon which other sufficient testimony was lacking, it was necessarily prejudicial.

But I dissent altogether from what appears to me the extremely technical views of the ">urt as to the insufficiency of the evidence to sustain th, verdict.

I admit that the evidence…

The defendant was charged with embezzlement, and convicted. He appeals from the judgment, and order denying his motion for a new trial.

1. The court erred in admitting the testimony of the witness Briggs, as to the description of the defendant given him by the prosecuting witness before the arrest of defendant. This-was hearsay, and, considered with reference to the other evidence in the case relating to *266 the identity of defendant as the person who took the money alleged to have been embezzled, was a material error.

2. The verdict is against the evidence, as, upon the facts shown, defendant was guilty of larceny, and nothing else.

The following is the testimony of the prosecuting witness as to the manner in which the defendant obtained his money: “ We went in to get a drink, and while we were at the bar a man came up to us and asked us if we would like to buy a Louisiana lottery ticket. I said, No; that I did not care about it, as I never gambled. He said he was the agent of the Louisiana Lottery Company, sent out on purpose to this coast to explain the way the drawings were had to the people, and if we would go into the back room he would explain it. I did not want to go…

I concur in the judgment of reversal for admission of improper testimony, but I dissent from the view that the crime was necessarily larceny, and not embezzlement.

It is contended by appellant that under the evidence he could not have been legally convicted of embezzlement, because the evidence, if it shows any crime, shows the crime of larceny, and not embezzlement.

The distinction between larceny and the statutory crime of embezzlement is sometimes hard to draw. Our code definition of the latter offense is very broad, being, “ the fraudulent appropriation of property by a person to whom it has been intrusted.” (Pen. Code, sec. 503.) The weight of the definition rests upon the word “ intrusted.” 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 possession and “ intrust ” the property to another, — in such cases there is no embezzlement. Now, appellant argues this case upon the theory that the prosecuting witness laid his money on a table upon the representation of appellant that he merely wanted to point out and explain a certain lottery or game, and that when the money was put there,…