Leipsic

Defendant was convicted of the crime of embezzlement, and was sentenced to five years’ imprisonment at San Quentin. He appeals from the judgment and from the order denying his motion for a new trial. There is no brief on file for the people. The prosecuting witness and the defendant were the only witnesses sworn at the trial. Defendant insists that the evidence wholly fails to sustain the verdict of guilty of the offense charged in the information, and our conclusion is that he is right in this contention. The *537 crime charged was that on July 24, 1896, at San Francisco, defendant “was then and there the bailee of Mary Feeney, and as such bailee was then and there intrusted by said Mary Feeney with the following property and money of her, the said Mary Feeney, to wit, one hundred and ninety dollars, lawful money of the United States”; and that he received said property as bailee, and while so intrusted did on said day willfully, etc., “embezzle, convert, and appropriate the same to his own use,” etc.

The court correctly instructed the jury that if they found from the evidence that the defendant received this money from Mary Feeney for the purpose of investing it for her in…