The defendants were convicted of the crime of receiving stolen goods, knowing the same to have been stolen, and were sentenced to serve a term of sixty days in the county jail.

It is claimed that section 496 of the Penal Code, under which the defendants were prosecuted and convicted, is unconstitutional, because it provides for punishment “ by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding six months, or by both.”

We are unable to appreciate the force of the argument that this section authorizes a double punishment, and know of no provision of the constitution which it violates. The power to define offenses and affix joenalties therefor rests entirely with the legislature. Whether a person convicted of this offense has committed a felony or a misdemeanor can be ascertained by the nature of the judgment. If the defendant is sentenced to serve a term in the state prison, the crime is a felony; otherwise, a misdemeanor. (Pen. Code, secs. 16, 17.)

The evidence is sufficient to sustain the verdict. The evidence introduced by the prosecution shows that Gelston stole the property and sold it to the defendants, who had knowledge of the facts. Gelston was an assis *575 tant foreman of the warehouse where the property was stored, but had no authority to sell any of the property. His offense was therefore larceny. (2 Russell on Crimes, 8th Am. ed., 178-180; Stephen’s Digest of Crim. Law, 247, 248; Reg. v. Norval, 1 Cox C. C. 95.) He had authority to deliver property stored in the warehouse upon proper orders presented to him, but the legal possession of the property remained in the owner of the warehouse.

If it be assumed, however, that the acts of Gelston constituted technical embezzlement, the result must be the same; the goods were stolen. “ Embezzlement is a species of larceny.....It is distinguished from larceny, properly so called, as being committed in respect of property which is not at the time in the actual possession of the owner.” (People v. Burr, 41 How. Pr. 293 .) It is frequently termed “ larceny by bailee.” (Anderson’s Law Diet., tit. Embezzlement.) Statutes defining embezzlement are intended to punish certain kinds of theft which were not criminal offenses at common law. The offense in this state is punishable “in the manner prescribed for feloniously stealing property of the value of that embezzled.” (Pen. Code, sec. 514.)

The court gave to the jury the following instruction: “ The effect of the statutory rulés of evidence is, that when the doing of an act which, if coupled with a guilty intent, would be a violation of the law is proven, the burden of proving the act to have been done without intent, to the extent of creating a reasonable doubt of the defendants’ guilt upon the whole case, is, in most cases, thrown upon the accused.” This was error. (People v. Ribolsi, 89 Cal. 498 .)

The judgment and order are reversed, and the cause is remanded for a new trial.

Garoutte, J., and Harrison, J., concurred.