Hamilton

The defendant, M. D. Hamilton, was county clerk of the county of San Diego for two years next prior to January 5, 1891, when his term of office expired, and he was succeeded in said office by one W. M. Grassaway.

He was informed against by the district attorney under section 424 of the Penal Code for the crime of omitting, and refusing to pay over to his successor, the said Grassaway, county clerk, upon demand, the sum of four thousand four hundred and twenty-two dollars and thirty-six cents, public money alleged to have been received by him in his official capacity as county clerk, etc.

Defendant entered a plea of. not guilty to the information, and upon a trial was convicted and sentenced to two years’ confinement in the state prison at San Quentin.

At the proper time he moved for a new trial, which was denied, and this appeal is prosecuted’ from the judgment and from the order denying a new trial.

Section 424 of the Penal Code, upon which the prosecution is based, so far as applicable to the case in hand, is as follows:

The contention of counsel for appellant is that the verdict is contrary to law and evidence. Their position may be epitomized thus: 1. The money in…