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defendant was convicted of the crime of embezzlement, and has appealed from the order denying his motion for a new trial, and from the final judgment entered against him.

The indictment was filed May 29, 1895, and after stating the jurisdictional facts it charged that on or about the twenty-eighth day of May, 1895, the defendant, *390 “ being then and there intrusted with and having in his control the sum of $4,362 in lawful money of the United States, .... as guardian, trustee, and agent of one Louis Lichtneger, an insane person, for the use and benefit of said Louis Lichtneger, then and there the property of and belonging to said Louis Lichtneger, did then and there, to wit, at said city and county of San Francisco, on or about said twenty-eighth day of May, 1895, willfully, unlawfully, feloniously, and fraudulently embezzle, convert, and appropriate the same to his own use, contrary,” etc.

When called upon to plead, defendant moved the court to set aside the indictment upon the grounds: 1. That the said indictment was not found, indorsed, nor presented as prescribed in the Penal Code; 2. That the names of the witnesses examined before the grand jury, or -whose depositions…