The defendant, in a petition for a rehearing of this case, makes substantially the points which were urged *Page 598 for a reversal in his briefs, viz.: 1. That there was no proof showing the time at which he formed the alleged intent to embezzle the radio equipment introduced in evidence; 2. That this court overlooked, or at least did not notice in its opinion, the fact that, previously to asking defendant whether he, on some prior occasion, purchased or rented from a certain music company a phonograph equipment under the name of Lewis and at that time stated that he was a member of the Olympic Club of San Francisco, asked defendant, in effect, if it was not true that he (defendant) was, in connection with the said transaction, arrested in San Francisco under the name of Lewis.
Before considering again the points above stated we may acknowledge the error made in the former opinion in stating that the witness Kimball, president of the Kimball-Upson Company, identified the radio set introduced in evidence as an exhibit as the set which defendant had taken from the store of the corporation while he was manager of the radio department thereof. Kimball did not so testify, as we learn from the re-examination of the record. We should have said that the said radio set was unqualifiedly identified as the property of said corporation by P.A. Mitchell, assistant general manager of the corporation. The error is not material, however, since it was not denied by the defendant that the radio set in question belonged to the corporation and that he had it in his possession and sold it.
1. Counsel, in their petition here, state that we misapprehended the point made in their briefs to the effect that there was no proof as to the particular time at which defendant formed the alleged intent to convert the property in question to his own use. We did not misunderstand the point. The point, as specifically explained in the petition, is: That, it having been shown that the radio equipments referred to in the information were bought by the Kimball-Upson Company in the month of January, 1924, that defendant left the employ of said company in February, 1924, and that the discovery that said property had been sold by defendant in April, 1924, the question whether defendant formed the intent to embezzle the property while he was still an employee of the company is left entirely in the dark, so to speak. In other words, the contention is that, there being no evidence to show that he had the radio set in his possession *Page 599 while he was still an employee of the company, it might be true, so far as the record shows to the contrary, that he got possession of the property in some mysterious way in the month of March or April and after he had severed his connection with the company as an employee; that, as the proposition is stated by counsel, "he could have entered the store of Kimball-Upson and stolen the set during the month of March previous to the sale by him. He would then have been guilty not of embezzlement but of larceny." There is no force to that argument as addressed to this court. It was for the jury to determine from all the circumstances, which are recited in the original opinion, when and how the defendant got possession of the set and the time he conceived the intent to embezzle it. Nor was there any ground for such an argument before the jury, for the accused admitted that he took the set in question to his home from the Kimball-Upson store in the month of January, 1924, while he was still manager of the corporation's radio department. He stated, however, that he returned the set to the store the latter part of January, 1924, for the purpose of having it included in the inventory of stock which was conducted in the month of January of each year; that he thereafter again took it to his home, where it remained until he sold it in the month of April, 1924; that he never told anyone connected with the corporation that he had sold it until July, 1924, when, the set having been found missing, an officer or employee of the corporation discovered that he had had possession of the property and sold it. There was no evidence introduced at the trial warranting an inference that the defendant stole the equipments in the month of March, nor did the defendant say he got possession in that month. He did state, however, as shown in the original opinion, that he retained possession of the set by permission of Deatrick, his successor as manager of the radio department of the Kimball-Upson store. In this connection, it is to be stated that, if, as he claims, after his connection with the corporation as a regular employee had terminated, he was authorized by Deatrick as the manager of the corporation's radio department to retain the set with authority to sell it for the corporation, his position in the transaction would be the same as though he embezzled the property while he was still in the corporation's *Page 600 employ as the manager of its radio department, since the act of Deatrick, acting for the corporation, in thus giving him such possession for the purpose of selling it for the corporation conferred upon and constituted him an agent of the corporation for that particular purpose. Viewing, then, the transaction from either angle, the jury were legally at liberty to find, as impliedly they did find, that defendant at some time while acting as agent of the corporation as to said property formed the intent fraudulently to appropriate it to his own use, said set having come into his possession and control by virtue of his employment as such agent. (Pen. Code, sec. 509.) And, as pointed out in the opinion heretofore filed herein, if the property came into his control or care by virtue of his employment as clerk, etc., of the corporation, he remained agent, or trustee, of the latter as to said property so long as it continued in such care or control. In brief, all that is said in the original opinion upon the question of intent we still adhere to.
2. We did not overlook the question first asked defendant by the district attorney as to whether he had ever been arrested in connection with the transaction above mentioned under the name of Lewis. But the court sustained an objection to the question first asked, and the effect of that ruling should have been and probably was to impress the jury with the understanding that the question and the answer it was designed to elicit involved matters which it was not proper for them to consider in passing upon the issue of guilt or innocence. As stated in the former opinion, however, neither question should have been asked nor allowed. Neither was, obviously, a proper question for impeachment nor for any other purpose. [14] The legislature has specifically described the manner in which a witness may be impeached. (Code Civ. Proc., secs. 2049, 2051, 2052.) The methods thus pointed out for such impeachment are exclusive. The mere fact that a witness may, at some time, have been arrested for some crime, is not included in said sections as a ground upon which a witness may be impeached. But, as declared in the original opinion, the evidence of defendant's guilt appears to be so conclusive as to justify the conclusion that no miscarriage of justice has resulted from the misconduct of the district attorney in asking the questions on that line or the error of the court in sanctioning the *Page 601 last of the questions so asked. Indeed, an examination of the defendant's own testimony will readily show that his defense as thus disclosed appears to be singularly weak — so much so, in fact, that its tendency seems to confirm rather than to negative the theory of guilt as maintained by the People.
We are satisfied with the views and the conclusions expressed and announced in the former opinion as to all the points therein considered.
The petition is denied.
Plummer, J., and Finch, P.J., concurred.