I concur in the judgment of reversal for admission of improper testimony, but I dissent from the view that the crime was necessarily larceny, and not embezzlement.
It is contended by appellant that under the evidence he could not have been legally convicted of embezzlement, because the evidence, if it shows any crime, shows the crime of larceny, and not embezzlement.
The distinction between larceny and the statutory crime of embezzlement is sometimes hard to draw. Our code definition of the latter offense is very broad, being, “ the fraudulent appropriation of property by a person to whom it has been intrusted.” (Pen. Code, sec. 503.) The weight of the definition rests upon the word “ intrusted.” 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. Now, appellant argues this case upon the theory that the prosecuting witness laid his money on a table upon the representation of appellant that he merely wanted to point out and explain a certain lottery or game, and that when the money was put there, appellant suddenly took it without the consent of said witness. But the testimony does not clearly show such a state of facts. It is true that the witness *270says, generally, that defendant told him that he would get his money back; but he testifies that he first put in a half-dollar, “ and afterwards I put in a dollar, and after that was lost I put in five (5) dollars and lost that.” He then “wanted to get out,” but was induced to “go on and play,” and he “ put up ” $20, and $20 more, and so on, until he had put up altogether $86.50; and then, as he says, “ after that was lost he asked for his money, but did not get it, except $10, which was returned to him.” What became of the coins, as one by one they were bet and lost? I think that the jury had the right to find that appellant, with the consent of the prosecuting witness, had full actual possession of the money; and whether it was “ intrusted ” to him was, I think, under all the circumstances, a question to be determined by the jury, under proper instructions of the court. And I see no error in the instructions on that point.
The bill of exceptions in this case is so meager that we can hardly suppose it to contain all the evidence upon the points contested. In People v. Fisher, 51 Cal. 319, it was held that in a bill of exceptions in a criminal case it is not necessary “to specify the respects in which the evidence is alleged to be. insufficient to sustain the verdict.” Under this rule, district attorneys are no doubt often misinformed as to what points the bill of exceptions should, by amendments, be made full; and an amendment to the code, requiring specifications of the grounds of the alleged insufficiency of the evidence, would be in furtherance of justice.