It is contended that the verdict was not justified by the evidence: 1. Because there was no sufficient showing that Gray was the county assessor, or that defendant was his deputy; 2. Because there was no sufficient showing that the moneys received by defendant were public funds; and 3. Because there was no sufficient showing that the moneys received were converted by defendant to his

own use.

Under the first of these objections it is urged that the statute required an assessor to file an oath of office and a bond for the faithful discharge of his duties, and that the record entirely fails to show that Mr. Gray ever filed such oath or bond, or was an assessor of the county of Los Angeles, or had authority to appoint a deputy. And it is said: "In order to show the relation existing between the defendant and the county, it became necessary to prove that he was acting by and through the authority of a legal appointment made as required by law, by an officer authorized to make appointment. And in cases of embezzlement this relation of trust must be clearly shown to exist or no conviction can be had." It is further urged that, while it appears from the record that some papers were introduced in evidence showing the appointment of defendant to the office of deputy assessor, still it was not shown that he filed an oath of office or bond as required of a deputy.

The judgment cannot, in our opinion, be reversed on this ground. It was clearly shown that Mr. Gray was acting as assessor of the county of Los Angeles during the year 1893, and the defendant was acting as his deputy. The law presumes "that a person acting in a public office was regularly appointed to it," and "that official duty has been regularly performed." (Code Civ. Proc., sec. 1963, subds. 14, 15.) If, therefore, the defendant, while acting as deputy assessor, received as such officer moneys belonging to the county, and fraudulently appropriated them to his own use, he was guilty of embezzlement under the provision of section 504 of the Penal Code.

In answer to the second objection above noted it is enough to say that it was clearly proved that defendant was a "field deputy outside, taking statements and collecting personal property taxes," and that he received from the firm of Blum & Lubin a statement of their taxable personal property, the assessed value of which was fixed at one thousand dollars, and collected from them the tax due thereon, which amounted to twelve dollars, and is the money alleged to have been embezzled. He did not return the statement so received to the assessor's office, and, so far as appears, no entry of the assessment was made on the assessor's books. But that does not show, or tend to show, that the money collected did not constitute a part of the public funds of the county. On the contrary, the facts proved clearly show that it was the duty of the defendant to return both the statement and the money to the assessor, and that if he failed to do so, and fraudulently appropriated the money to his own use, he was guilty of a crime.

As to the third objection, that there was no sufficient evidence of the conversion of the money by defendant; it need only be said that it was proved, without contradiction, that neither the statement nor the money was returned to the assessor's office, and, if so, the jury was justified in finding that the money was converted by him to his own use as charged.

Evidence was admitted showing that defendant collected personal property taxes from other parties, and failed to pay over or account for the money so collected. This evidence was admissible for the purpose of showing guilty knowledge and intent in the appropriation of the moneys alleged to have been embezzled here. (People v. Gray, 66 Cal. 271; People v. Neyce, 86 Cal. 393.)

Numerous objections were taken to the admission of evidence, but we see no material error in any of the rulings complained of. And, as it would subserve no useful purpose to state the objections and rulings at length, we pass them by without further notice.

The court gave to the jury, among others, an instruction reading as follows:

"If you believe from the evidence beyond a reasonable doubt that, at the time and place alleged in the indictment, the defendant was a deputy county assessor, as alleged in the indictment, and that as such deputy county assessor he collected from Julius Blum and Willa Lubin, copartners, doing business under the firm name of Blum & Lubin, the sum of twelve dollars for personal property tax, as therein alleged, and that he did not pay over said money to the assessor of said county, nor account for the same, but that he fraudulently appropriated the same or any part to his own use, then you should find the defendant guilty as charged."

It is claimed that this instruction was erroneous for three reasons: 1. Because it tells the jury that if they find certain probative facts, that then they may find the greater fact of guilt from these probative facts, and therefore passes upon the weight which should be given to the evidence, and invades the province of the jury (citing People v. Carrillo, 54 Cal. 63); 2. Because the instruction omits to state the intent with which the conversion of the money should be made; that is, that the conversion must be made with the intent to steal the money; and 3. Because the instruction omits to state that these facts must be found by the jury beyond a reasonable doubt.

In People v. Carrillo, supra, the court, after setting out the instruction there complained of, said: "This instruction is clearly erroneous, in that the jury are told that the failure of the prisoner to pay over the money, if unexplained, raises a presumption of a felonious appropriation which will authorize a verdict of guilty."

The instruction here complained of is not obnoxious to any such criticism. It does not invade the province of the jury, but simply tells them that if they find from the evidence all the facts stated, and, among others, that defendant fraudulently appropriated the money to his own use, then they should find him guilty.

Section 503 of the Penal Code declares that "Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted." And section 504 declares that "Every officer . . . . and every deputy, clerk, or servant of any such officer . . . . who fraudulently appropriates to any use or purpose, not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzle

ment."

It was not error, therefore, for the court to tell the jury that, if they found from the evidence all the facts constituting the offense charged, they should return a verdict of guilty.

Embezzlement is a statutory offense, and it was not necessary for the court to go beyond the statute, and tell the jury that the appropriation or conversion must be made with intent to steal the money.

The instruction does not omit to state that the facts must be found by the jury beyond a reasonable doubt. On the contrary, it starts out with the statement that "if you believe from the evidence, beyond a reasonable doubt," etc. And in other instructions given at the request of the prosecution and defendant the jury were several times told, in effect, that before they could find the defendant guilty they must find, from a full and fair consideration of all the evidence, beyond a reasonable doubt, that he committed the offense charged.

The record discloses no prejudicial error, and the judgment and order appealed from should be affirmed.

VANCLIEF, C., and SEARLS, C., concurred.

For the reasons given in the foregoing opinion the judg ment and order appealed from are affirmed.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

CVIII. Cal.-35

[No. 19445. Department Two.-August 24, 1895.]

N. M. WEAVER, RESPONDENT, v. MCKAY AND McCANN ET AL., APPELLANTS.

OF

MORTGAGE ASSUMPTION OF DEBT BY VENDEE-PERFORMANCE AGREEMENT FRAUD.-Where there is an agreement between the vendor of mortgaged premises and the vendee that the mortgaged premises were to be conveyed subject to the indebtedness thereon, and the vendee simply accepted, in pursuance of the agreement, a deed not only made subject to the mortgage, but in which the grantees expressly assumed and agreed to pay, discharge, and satisfy the mortgage in consideration of the conveyance, the acceptance of such deed is no fraud upon them, and they have no claim for relief against liability to pay a judgment for the deficiency. ID.-ISSUE AS TO FRAUD IN PROCURING ACCEPTANCE OF DEED-PLEADING-CONTRACT-EVIDENCE-FINDING.-Upon an issue as to whether the vendees were induced to accept the deed by fraud, the prior written agreement between the vendor and vendees is not evidence, and the fact that such agreement is set out in the answer as part of the charge of fraud, upon which issue there is a finding, does not create a distinct issue as to the contract upon which there should be a separate finding, nor does the fact that the genuineness of the contract set out in hæc verba in the answer is not denied overcome other testimony upon the subject of the alleged fraud.

ID. RECORD OF DEED-CERTIFIED COPY-PROOF OF ASSUMPTION OF MORTGAGE DEBT-RECORD OF STIPULATION.-A certified copy of the record of the deed containing a contract for the assumption of the mortgage debt is evidence of the assumption therein set forth; and even had the stipulation to assume the mortgage debt been contained in a separate instrument it would have been entitled to be recorded under section 1158 of the Civil Code.

APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. M. K. HARRIS, Judge.

The facts are stated in the opinion of the court.

Milton E. Babb, for Appellants.

A fact contained in the findings of the court which contradicts the admission of the pleadings will not be regarded, and no presumption that it was founded upon competent evidence will be indulged. (Burnett v. Stearns, 33 Cal. 468.)