The defendant was charged with, and convicted of, the crime of embezzlement, and appeals from the *Page 594 judgment and from an order denying his motion for a new trial. He insists that the verdict and judgment are against the law and against the evidence, in that the evidence, whatever else it may show, does not establish the crime charged.
In this contention, the appellant must be sustained. "Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted." (Pen. Code, sec. 503.) "Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement." (Pen. Code, sec. 508.) The above-quoted sections set forth the statutory crime with which the defendant was charged. It is of the essence of this crime that the misappropriation be of property "intrusted" to the defendant. "Where the property is taken forcibly or furtively, or when the possession is gained by a trick or artifice, and the owner had no intent to yield possession and `intrust' the property to another — in such cases there is no embezzlement." (People v. Johnson, 91 Cal. 265.) The evidence in this case is peculiar. Defendant was charged with the embezzlement of seventy-eight dollars, the property of one L. Bercovich, which property, the information charges, came into the possession of the defendant as the clerk, agent, and servant of Bercovich. Upon the trial Bercovich testified that the defendant came to him and said that he could sell fifteen hundred sacks to one P.A. McDonald, of San Francisco, at five and one fourth cents a sack, and explained that he (Bercovich) was to collect for the sacks, and the defendant would come back the next day, or the day after, and receive three fourths of a cent commission for securing the sale. As a result (so testifies Bercovich) the sacks were by him sold and shipped to McDonald in San Francisco. Defendant did not purchase the sacks. "We would not sell the sacks to him because we did not know him. We shipped these sacks to P.A. McDonald. Mr. Dougherty [the defendant] went with them I believe Mr. Dougherty paid the freight on these goods. We sold the sacks to Mr. McDonald. We did not give Mr. Dougherty any authority whatever to collect this money. He was never in *Page 595 our employ. He never worked for us and never did anything for us. He was not authorized to collect any money. He was not the clerk, nor the agent, nor the servant of Bercovich." Such is the testimony of the complaining witness. McDonald, to whom the sacks were sold, testified that he bought fifteen hundred sacks from the defendant, and knew nobody else in the transaction. He did not see the defendant when the sacks were delivered, but he left instructions to pay the defendant upon the delivery of the sacks. They were delivered, and his cashier paid for them. Defendant did not in any way represent himself as the agent or servant or employee of any one in the transaction. Defendant's testimony is, that he bought the sacks outright from Bercovich, for transmission and delivery to McDonald in San Francisco, himself paid the freight, and took the shipping-receipt, and in turn sold the sacks to McDonald. As a result, he owed Bercovich for the sacks. He had intended to pay him with the money which he received from McDonald, but got drunk, and when he recovered his senses found that this money was all gone.
By no one of these separate accounts, nor yet by a consideration of all three of them, is the crime of embezzlement established. Bercovich testifies that the defendant was not his agent, and that he had not intrusted the goods to him, but had shipped them by the railroad company to McDonald in San Francisco. McDonald in turn knew nobody in the transaction but the defendant, and dealt with him as a principal and as the seller of the sacks. The defendant disclaims any agency, and contends that he purchased the sacks outright. As embezzlement under our statute is the fraudulent appropriation of property intrusted to an agent, it follows that the possession of the embezzler must in the first instance be a rightful possession; but if the defendant's possession in this instance was rightful, that fact is established by his own testimony alone, and must be considered with his further evidence that he came into possession of them as purchaser and owner, in which case he is guilty of no crime at all, and the relationship of debtor and creditor is all that exists between himself and Bercovich. As under no other theory of the case did his possession become rightful, it follows that the crime of embezzlement, as known to our law, was not established. *Page 596
The judgment and order appealed from are therefore reversed.
McFarland, J., and Lorigan, J., concurred.