Wyman

This is an appeal by the defendant from a judgment convicting him of the crime of embezzlement, and also from an order denying his motion for a new trial.

The defendant was acting as the attorney for the prosecuting witness, Mrs. Annie Philp, in a contest before the United States land office involving her right to enter and purchase from the United States 160 acres of timber land. The case was finally adjudged in her favor, and the defendant as her attorney was notified of the fact by the register or receiver of the United *554 States land office at Stockton on August 17, 1893, and was also further notified that the prosecuting witness would be allowed sixty days from that date, that is, until October 16,1893, within which to make payment at that office for the land referred to in the notice. On the same day the defendant informed the prosecuting witness by letter of the result of the contest, and also requested her to send him $420 with which to make the required payment. In this letter he said: “ Send at once, and it will go up with this month’s returns, and your patent will come that much quicker.” On August 28,1893, the prosecuting witness sent to defendant from her home in…