Opinion
Department One
Appeal from a judgment of conviction, and from an order denying a motion for a new trial, in the Superior Court of San Francisco, Department No. 12. Ferral, J.
COUNSEL
Darwin & Murphy, for Appellant.
D. L. Smoot, for Respondent.
JUDGES: Ross, J. McKee and McKinstry, JJ., concurred.
OPINION
ROSS, Judge
By the information in this case the defendant was charged with the crime of embezzling certain " shares of stock" of certain mining corporations. The principal point made for the defendant, and the only one we deem it necessary to notice is, that " shares of stock" are not the subject of embezzlement.
Embezzlement is defined by the statute to be " the fraudulent appropriation of property by a person to whom it has been intrusted." If, therefore, shares of stock constitute property, they are the subject of embezzlement. And that they do constitute property was determined by us in the case of Payne v. Elliot , 54 Cal. 342, where we said: " It is 'the shares of stock' which constitute the property which belongs to the shareholder. Otherwise, the property would be in the certificate; but the certificate is only evidence of the property; and it is not the only evidence, for a transfer on the books of the corporation without the issuance of a certificate, vests title in the shareholder; the certificate is, therefore, but additional evidence of title, and if trover is maintainable for the certificate, there is no valid reason why it is not also maintainable for the thing itself which the certificate represents."
Judgment and orders affirmed.