I dissent. The evidence of the shortage was material and competent evidence for the prosecution, irrespective of the question whether or not it was admissible to show other embezzlements. It will not be disputed that evidence which has a legal tendency to prove the crime charged is not rendered inadmissible by reason of the fact that it may also have a legal tendency to prove some other offense. (People v. Sanders,114 Cal. 230; People v. Ebanks, 117 Cal. 652.) The defendant was charged with the embezzlement of the sum of $80.35. It was shown by the testimony of Elizabeth Stevens that he had received the money in question and had appropriated it to his own use. It was necessary to show that this appropriation was with a fraudulent intent to deprive the owner thereof. It was also necessary to show that he had no right to appropriate it. Nothing is presumed in favor of the prosecution. Every reasonable doubt of the defendant's innocence must be excluded by the evidence, or his guilt is not established.
It appeared that there was a general account between the defendant and the Tract Society. If upon this account money was at the time due to the defendant he would have had the right to apply it in payment, pro tanto, upon the amount due, and thereupon to appropriate it to his own use. And if he failed to make the entry the law would make the application for him and set off one debt against the other. If, on the other hand, the balance of the account was against him, he *Page 96 would have no such right. The evidence was admissible to show, and it did show, the general fact, and nothing more, that the balance was against him in the sum of four thousand dollars, and that, consequently, he had no right to appropriate the money to his own use. It may be that the prosecution could have rested this point upon the legal principle that an agent cannot lawfully appropriate to his own use the money of his principal. But where, as in this case, it appears that there is a running account between them, on which the defendant may have advanced more than was due from him, and thereby have acquired the right to reimburse himself from moneys subsequently received, it is clearly proper for the prosecution to rebut the inference of such a possibility by showing that the state of the account was such that there was no money due from the principal.
It was also proper to show the state of the account at the time of the appropriation and the amount of the balance against the defendant, in order to prove his motive and fraudulent intent in appropriating the money. If one receives money belonging to another to whom he is already indebted in the sum of four thousand dollars, and thereupon appropriates such money to his own use, the inference that he intended to deprive the owner thereof is certainly much stronger than it would be if he did not owe the other person anything or only a small sum. If there was an account between them on which the balance was very small, he might with some plausibility urge the claim that he was uncertain about the matter and believed that there was a balance in his favor, and in that belief innocently use the money for his own benefit. But such a claim would receive but little credit if the account showed a large sum against him. The evidence therefore had a legal tendency to prove the intent, and to rebut any inference of an innocent intent, and was admissible for that purpose. "As a general rule, great latitude is allowed in the range of evidence when the question of fraud is involved." "It is hardly ever possible to prove fraud, except by a comprehensive and comparative view of the actions of the party to whom the fraud is imputed, and his relative position a reasonable time before, at, and a reasonable time after the time at which the act of fraud is alleged to have been committed." (Reeves v. State,95 Ala. 31; Snodgrass v. *Page 97 Branch Bank, 25 Ala. 175.1) I do not understand that the majority of the court disagree with the above views.
I agree with the conclusion that there can be but one motion for a new trial between verdict and judgment. The application must be made before judgment. (Pen. Code, sec. 1182.) It may be made at any time after verdict and before judgment. When the defendant is finally arraigned for judgment, if he has already made his motion for new trial and the same has been denied, he then has not the right to again present the questions decided upon the motion as reasons why judgment should not be pronounced. They no longer constitute "legal cause" within the meaning of that phrase as used in the Penal Code (sec. 1200), and no longer constitute cause for new trial under subdivision 2 of section1201 of the Penal Code.
I am of the opinion that the judgment should be affirmed.
Henshaw, J., and Van Dyke, J., concurred.
Rehearing denied.
1 60 Am. Dec. 505.