Shaver

The indictment in this case charges embezzlement by employee of a carrier under the 1946 amendment of 18 U.S.C.A. § 409 , 1 which reads as far as pertinent here as follows:

The appellant pleaded not guilty, waived jury, and was tried by the court. The judge found defendant guilty and placed him on probation. It is the contention of the appellant that no crime was charged under the allegations of the indictment or committed under the admitted facts.' The appellant was an employee of the Railway Express Agency, driving a truck in and about San Francisco, distributing freight from railroad yards to consignée. On each of two occasions, appellant delivered a shipment originating in another state to the consignee and collected charges arising out of and accruing from such transportation, and thereafter embezzled such funds. It was not charged nor proved that the vehicle was moving in interstate or foreign commerce at the time of the conversion of the funds. It was not alleged nor proved that appellant was riding in, on or upon any motor truck of the carrier at the time he had in custody and converted the 'funds to his own use. It was not alleged nor proved *619 that the vehicle of the…