When it was proven that the defendant had failed to return upon demand the money which he had received for investment from the complaining witness, under the facts in the case at bar, there was established a prima facie case of the crime charged. As was said by Laughlin, J., in People v. Birnbaum (114 App. Div. 480, 487), in sustaining a conviction under section 528 of the Penal Code, from which was derived the present section 1290 of the Penal Law: “ It is clear that if he held this money as her attorney and refused to pay it over on demand he would have been guilty of larceny even though it remained in the bank where originally deposited. On the facts here presented a demand therefor by the client upon the attorney and refusal upon his part to pay would have completed the crime.”
The People were not called upon to prove a negative, namely, that the excuse given by the defendant to the complainant for his failure to return the money was false. The defendant in response to demands of the complainant for the money made an attempt to excuse the failure to return it by asserting that he had not received the money from the Metallurgical Syndicate in which he was supposed to have invested it. The People were, of course, ignorant as to what the defendant did with the money which was given him to invest. Whether this syndicate existed and whether or not the defendant had invested in its securities, were matters peculiarly within the knowledge of the defendant and the duty was on him to go forward with his proof, if any, to rebut the prima facie case made by the People. The defendant, however, did not even take the *39stand and testify under oath that the aforesaid reasons existed for his refusal to return the money. The complainant testified to the said excuses having been furnished by the defendant. Although a finding of guilt may not be predicated upon such failure to take the stand under the particular facts and circumstances present in the case at bar, both the court and jury were justified in taking such facts and circumstances most strongly against the defendant.
As was said in People v. Smith (114 App. Div. 513): “ Although the jury were not warranted, and the court is not warranted, in 'drawing any inference of guilt from his failure to take the stand, both jury and court are warranted in taking the facts and circumstances which, if he were innocent, he might have controverted or explained, most strongly against him.”
Upon such a record the verdict of the jury was not against the weight of the evidence, but rather in accordance therewith.
The defendant also urges, in brief, that there was a variance between the indictment and the proof, because the indictment charged that the defendant had in his possession, custody and control the sum of $1,000, personal property of the complainant, which defendant appropriated to his own use. The proof showed that the complainant had received some of this money from other people for the purpose of investment. The complainant, therefore, had possession of the money with full authority to invest the same, if indeed she did not have complete title. So far as the defendant is concerned, therefore, the alleged variance is of no consequence and should be disregarded in reaching a just result.
The conviction was fully warranted upon this record and should be affirmed.
Judgment reversed and the indictment dismissed.