People v. De Lay

Citations

• 80 Cal. 52
• 22 P. 90
• 1889 Cal. LEXIS 856

Syllabus

<p>Criminal Law — Embezzlement—Assignment for Benefit of Creditors. — If an assignee for the benefit of creditors fraudulently misappropriates the trust property to the payment of his own claim, when he knows that the terms of the assignment require him first to pay a judgment against the insolvent debtor, or if he fraudulently appropriates the proceeds of sales and collections to his own use, accounting only for a smaller sum, he is guilty of embezzlement. But the question of guilt or innocence does not depend upon the construction of the contract as to the order of payment of creditors. It is the fraudulent misappropriation of the property that constitutes the gist of the offense.</p> <p>Id. — Offer to Return Embezzled Monets.—The fact that a person charged with embezzlement offers to return or pay over the moneys embezzled is no defense to the accusation.</p> <p>Id.—Contract of Indemnity—Embezzlement of Trust Funds.'—The fact that an assignee for the benefit of creditors gives a written indemnity to judgment creditors of the assignor, whom he is by the terms of the assignment first to pay out of the proceeds of the trust funds, in no way affects his guilt or innocence when charged with embezzling the funds intrusted to him for certain purposes by the assignor.</p> <p>Id. —Failure of Assignor to Deliver Property. —The fact that the assignor did not turn over to the assignee for the benefit of creditors all the property assigned is no defense to a charge of embezzling property received and retained.by him.' His only remedy for such failure on the part of the assignor would be to decline to proceed with the trust until the whole of the property was turned over to him; and so long as he retained any property under the contract, he was bound to use it as required by the provisions of the assignment.</p>