Burke

Appellant was convicted on the third count of an indictment charging him with embezzling the sum of $2,000 on the 4th day of February, 1927, while he was a teller of the Bank of Italy National Trust & Savings Association. His appeal from the judgment is predicated upon an alleged variance between the allegations and the proof as to the name of the banking corporation whose funds were embezzled.

It appears from the evidence that about the time of the embezzlement the Bank of Italy, a banking corporation organized under the laws of the state of California, was undergoing transition from its status as a state hank to that of a national bank. The organization certificate filed by the bank with the Comptroller of the Currency, Treasury Department, Washington, D. C., was dated the 26th day of February, 1927. The petition recited the facts entitling the bank to become a national bank under the provisions of section 5154 of the Revised Statutes of the United States (12 USCA § 35), and request *740 ed that the title of the association be known as “Bank of Italy National Trust & Savings Association.” The bank had some 277 branches, including a branch bank at 1700 Fillmore street, San…