As I View the evidence in this case, as a whole, I do not think it was 'sufficient to justify a conviction. The defendant, as the agent •of a corporation, induced Cavanaugh, the complainant, to purchase stock in the corporation and to pay therefor the sum of $1,000, the corporation to appoint the defendant its agent. The complainant purchased that stock, paid the $1,000 to the corporation, and the conviction of the defendant is based upon that transaction. It is proven, without contradiction, that the defendant failed to profit in *562any way by the transaction; that a portion of the money paid to the defendant was paid directly to the corporation) and that the balance was paid by a check, which was sent to the corporation and collected bv it. A contract creating the defendant an agent of the company was executed, and the complainant- received the stock that he had purchased. 1 do not think that this is sufficient to sustain a finding that the defendant “ with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, of of any other person * * * by color or aid of fraudulent or false representation or pretense,” took from the possession of the complainant any money or personal property. (Penal Code, § 528.)
Judgment and orders affirmed.