Allen

Defendant was convicted of embezzlement, and has appealed from the judgment and from an order denying his motion for a new trial.

*533 1. It is claimed that there is a variance between the information and the proof as to the instrument described in the information. We are simply told by appellant’s counsel that “the variance is a fatal one.” No reason is given as to the theory upon which counsel claim that the variance is fatal, and upon examination we fail to discover any theory upon which we could so hold. The information charges the defendant with having on the tenth day of January, 1898, in the county of San Luis Obispo, willfully and feloniously embezzled to his own use the sum of $110, lawful money of the United States, then and there the property of one M. F. Pimenthal. Defendant was convicted “of the crime of embezzlement, in embezzling money exceeding in value the sum of fifty dollars.” The information sets forth with more particularity than necessary the facts and circumstances connected with the alleged embezzlement, and, among other things, states that Pimenthal delivered and indorsed the order or check described in the information to defendant, with directions to…