Swanson

Upon jury verdict finding defendants guilty of grand theft (Pen. Code, §§ 484, 487) judgment ordering imprisonment was entered against each, but execution of sentence was suspended and each was admitted to probation on condition he pay a substantial fine. Both appealed from the judgment, and Swanson appeals also from an order denying his motion for new trial. The prosecution concedes that it relies upon its showing of embezzlement to sustain the judgment.

Swanson was the business manager and Vandewark the treasurer of Operating Engineers Local Number 3, a union having jurisdiction in a substantial part of western United States.

In late February or early March, 1956, Swanson discussed with a salesman for a Salt Lake City automobile dealer the purchase of some automobiles for the union at a price of about $2,600 each. Shortly thereafter, Vandewark took up the negotiations and was given a price of $2,637 for each of seven cars to be purchased by the union. Carbon copies of order slips, showing this price, were given by the salesman to Vandewark. Vandewark discussed with the salesman purchase of a car for himself, but no price was then fixed. Later, the union agent in Salt Lake City…