THE PEOPLE, Respondent, v. A. A. DOANE, Appellant, 77 Cal. 560

McFarland, J. The defendant was convicted of the embezzlement of “one sewing-machine,” of the value of seventy dollars, the property of one George W. Welch, and appeals from the judgment, and from an order denying his motion for a new trial. In this case we have examined the entire record (which is in rather a confused condition) several times, and very minutely.

At first we were inclined to doubt that there was sufficient evidence to warrant the jury in finding either that defendant embezzled any particular sewing-machine, or that there was an embezzlement of any interest or property of Welch of the value of as much as fifty dollars in any particular sewing-machine, so as to make the crime punishable as a felony. Welch, who was a merchant, had a lot of sewing-machines, and the defendant had been engaged for some time before the alleged embezzlement in selling them under a verbal contract or arrangement between him and Welch, which was somewhat complicated.

It was admitted that defendant was to have one half of all the machines were sold for in cash over their original cost price. He had also authority to receive old machines in part payment of the new ones sold by him; and there was a conflict of evidence as to whether or not defendant was to own one half of each old machine thus received, there being nine of such old machines delivered to Welch by defendant, for which the latter had received no credit. And it was contended by defendant that he had such a joint interest in all the machines that there could be no legal embezzlement by Mm thereof.

That question, however, was fairly put by the court to the jury. After a thorough examination and consideration of the case, we think that there was sufficient evidence to warrant the jury in finding that there was an embezzlement by defendant of the sewing-machine No. 593,599; that it was of the value of seventy dollars; that it was sold by defendant to a Mrs. Kimball, without the sale being reported to Welch, and with fraudulent intent to secretly convert the proceeds thereof to defendant’s own use. At least we are not satisfied that the proof on these points is so weak that we should overturn the verdict.

In such cases much must be left to the discretion of the jury, who see the witnesses and deal with the living case, while we can look only at the cold paper record. And as the trial court has the power to grant a new trial for insufficiency of. evidence, the responsibility on that point must ordinarily rest with that court and the jury. We perceive no error of law which would warrant a reversal. Those parts of the instructions asked by defendant and refused, which were correct, were given elsewhere by the court.

Instruction No. 1, asked by defendant, was perhaps intended to embody the principle set forth in that clause of

section 511 of the Penal Code, which provides that “ it is sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable.” Defendant was entitled to an instruction giving that clause, or its substance, if such instruction had been asked; but the said instruction No. 1 was incorrect, and properly refused. We think there was no error in overruling the objection which defendant made to evidence of contracts about certain machines other than the one claimed to have been embezzled.

This evidence was proper to explain the character of the transaction with Mrs. Kimball. Judgment and order affirmed. Paterson, J., Searls, C. J., and Sharpstein, J., concurred.