The evidence showed beyond dispute that the defendant was the agent of the Spangenberg-McLean Company; that in the course of his employment as such agent he received moneys belonging to his principal which it- was his duty to pay over; that he converted or misappropriated it to his own use, and that he concealed the fact of such conversion or misappropriation from his employers. Here were presented all the facts constituting the crime commonly called embezzlement, now denominated larceny. (Penal Code, § 528 ; People v. Civille, 44 Hun, 497.) From these undisputed facts, in the absence of evidence to the contrary, the jury were justified in drawing the inference of guilty intent, the only other element necessary to establish the crime. The defendant’s contract of employment provided that as compensation for his services he should receive fifty per cent of the amount realized upon orders for merchandise obtained by him, over and above the cost of filling the orders, and that he should be paid and be entitled to draw thirty-five dollars per week on account of his percentage compensation. His defense at the trial was that this agreement constituted a partnership between himself and the company by whom he was employed, and, therefore, what he took was partnership money, the taking of which did not constitute larceny. As Mr. Justice Houghton observes, this defense was wholly untenable. It is, however, proposed to reverse the conviction because the defendant may have been guiltless of any criminal intent. This theory finds no sup*847port in the evidence, and has no better or firmer basis to rest upon than a suggestion by counsel. It is. said that perhaps his employers had not paid him all that he was entitled to receive under his contract, and, therefore, he may perhaps have taken and kept his employers’ money, believing that that amount was fairly due him. Of this the evidence gives no hint. As I read the testimony, the proof was that the defendant had been paid, during the term .of his employment, the full amount due him upon his drawing account, and that the amount thus paid exceeded the fifty per cent of the profits realized upon the sales effected by him. Such is the fair construction of the complainant’s testimony, and there was no evidence to the contrary. But even if there was something due him upon his contract, he had no right to appropriate his employers’ money, and his act in doing so was wrongful. The fact that he concealed the misappropriation from his employers is persuasive proof that he did not take it under any claim of right.' And, finally, if he took and kept the money under the claim and belief that he was entitled to do so, the burden rested upon him to prove the fact. The People having proved the essential facts constituting the crime of larceny, were entitled to rely upon the inference of guilty intent, and it was for the defense to prove, if it could, the absence of that intent. If full payment had not been made under the contract, that fact would not have justified the embezzlement, and it was, therefore, not necessary for the prosecution to prove that full payment had been made, although, as already said, I think that this fact was proven. The defendant, apparently, had a fair trial and selected his own line of defense. Having failed in that, I can see; no ground in the record for affording him an opportunity to devise another. In my opinion the judgment should be affirmed.
Clakke, J., concurred.
Judgment reversed and new trial ordered. Settle order on notice.