People v. Van Ewan

The defendant was charged with embezzling one hundred dollars, the property of one J. Poppa, and was convicted. He appeals from the judgment and from an order denying his motion for a new trial.

Although the case must be reversed for reasons hereinafter given, a few of the points made by appellant which are not tenable must be noticed, because they may arise upon another trial.

1. It is contended that the money alleged to have been embezzled was not the property of Poppa, but was the property of the Savage Commercial Company. The appellant had for several years been the agent of said company, with authority to sell goods and collect bills. He had sold goods frequently to Poppa, and had collected the amounts due said company for said goods. On December 13, 1893, he collected from Poppa the one hundred dollars alleged to have been embezzled. Now, witnesses for the. prosecution testified that appellant had been discharged from the employ of said com *148 pany several days prior to said December 13th. If this is- true, then there was no fatal variance between the-indictment and the proof; and, in that event, the fact that Poppa was not notified of appellant’s discharge, and…