
    [Crim. No. 284.
    First Appellate District
    September 22, 1910.]
    THE PEOPLE, Respondent, v. C. E. KINARD, Appellant.
    Criminal Law—Embezzlement—Wrongful Cashing of Check—Misappropriation—Statute of Limitations.—Where the defendant was intrusted with a check payable to him by the prosecuting witness with instruction not to draw it until she should send for it on her visit in Australia, and the defendant wrongfully cashed the check on the following day, and misappropriated defendant’s money to his own use, an information filed charging embezzlement of the money three years and five months after the date of misappropriation of the money, and two years and six months after the discovery of the misappropriation by the prosecuting witness, is barred by the statute of limitations.
    Id.—Demand not Essential to Put Criminal Statute in Motion.—It is held in this case that a demand upon the defendant for the money misappropriated was not essential to put the criminal statute in motion upon the charge of embezzlement, which commenced to run from the date of its misappropriation, and expired at the end of three years thereafter with no attempt at prosecution, though known by the prosecuting witness to have existed long before the expiration of the statute.
    APPEAL from a judgment of the Superior Court of Alameda County. F. B. Ogden, Judge.
    The facts are stated in the opinion of the court.
    James H. Boyer, for Appellant.
    U. S. Webb, Attorney General, and Crittenden Thornton, for Respondent.
   COOPER, P. J.

The defendant was charged in the information with the crime of embezzlement in having received and appropriated to his own use, on the tenth day of December, 1907, the sum of $225, the property of one Mrs. Louisa Lamprell. The evidence shows that on the twenty-fourth day of October, 1906, Mrs. Lamprell drew a check on the Oakland Bank of Savings in favor of the defendant, and expressly instructed the defendant not to draw the money until such time as she should send for it from Australia, where she intended to go on a visit. The defendant, contrary to his instructions, cashed the check on the following day and appropriated the money to his own use on said day by paying the same to one Whitehead on account of his own indebtedness by reason of the purchase of land from said Whitehead. Mrs. Lamprell returned to California in September, 1907; and upon discovering by inquiry at the bank that defendant had collected the money on the day after the check was drawn, made various efforts to collect the money from defendant, who put her off from time to time with various misrepresentations, excuses and subterfuges. On December 10, 1907, after various efforts to collect the money, she made a demand in writing upon the defendant for the return of the money, which demand was not complied with, and the money has never been returned to her.

The information was filed March 28, 1910, three years and five months after the defendant had appropriated the money, and two years and six months after Mrs. Lamprell knew of such misappropriation.

The claim is made that the offense is barred by the statute of limitations, and we are constrained to so hold. (Pen. Code, sec. 800; Ex parte Vice, 5 Cal. App. 153, [89 Pac. 983]; Territory v. Munroe, 10 Ariz. 53, [85 Pac. 651]; People v. Goodrich, 142 Cal. 216, [75 Pac. 796]; People v. Fly, 107 Cal. 497, [40 Pac. 805].) In this case a demand was not necessary to start the running of the statute. It is not a case where the defendant held the funds in some official capacity, such as guardian, trustee of an express trust, treasurer of a society or corporation, or under such circumstances that he could not know to whom he could legally turn over the funds. The statute commenced to run on the day the money was wrongfully appropriated and the full three years expired with no attempt at prosecution.

The judgment is reversed.

Hall, J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 10, 1910.  