The opinion
CARTER, J., Dissenting.
I dissent. In my opinion, the evidence produced at the trial of this case was insufficient to support the conviction of the defendant on any of the three counts of the indictment charging her with a violation of section 504 of the Penal Code. It was the obvious intention of the legislature in the enactment of this section to limit its application to cases where public officers or their deputies, clerks or servants fraudulently appropriate to any use or purpose not in the due and lawful exercise of the trust reposed in them, any property which they have in their possession, or under their control by virtue of such trust. To my mind, it is absurd to say that money in a county treasury is under the control or in the possession of a clerk or deputy in the county auditor’s office, or is in the possession or under the control of any county official except the county treasurer and the clerks and deputies in his office. The mere fact that the law authorizes the auditor to draw a warrant on the county treasury for the payment of certain disbursements authorized by law, does not place the funds of the county treasury under the control of the auditor. It is true that the auditor has a function to perform in disbursing the funds in the county treasury, but this function is clerical in its nature and the county treasurer is not authorized to pay any money to the county auditor or anyone else except upon warrants which the law authorizes to be issued for the payment of obligations against the county.
One indictment charged the defendant with embezzling the sum of $625 coming into her possession and under her control by virtue of her trust as auditor. This money was drawn from a special highway bond fund in the possession of the county treasurer by means of a warrant drawn by the defendant in favor of the Chico branch of the Bank of America for the purported payment of 37 interest-bearing coupons of highway bonds, which had been previously paid. The county treasurer was not required to pay this warrant and should not have paid the same without the surrender to him for cancellation of the coupons which the warrant was purportedly *635 drawn to pay; in other words, if the treasurer had insisted upon the surrender of the coupons covered by the warrant at the time the warrant was presented for payment, the warrant, would never have been cashed by him, and the defendant would not have received the money covered thereby. How, then, can it be said that the defendant had the money covered by said warrant in her possession and under her control ? It is true that under the law she had the right to draw warrants for the payment of maturing interest coupons on bonds issued by the county, but the treasurer was not authorized to pay such warrant until the interest coupons were surrendered to him for cancellation. If such procedure had been followed, money could not have been fraudulently and unlawfully taken from the possession or control of the treasurer. Manifestly, it was not in the possession or under the control of the defendant until the treasurer cashed the warrant which he was not authorized to do without the surrender of the interest coupons which it was purportedly drawn to pay.
While the evidence produced at the trial might be sufficient to support a conviction under an indictment charging the defendant with a violation of section 484 of the Penal Code, it falls far short of being sufficient to support a conviction for a violation of section 504 of that code.
The situation with reference to the alleged embezzlement by the defendant of the sums of $110 and $270 alleged to have come into her possession and under her control by virtue of her trust as auditor is somewhat different than that with reference to the alleged embezzlement of the sum of $625 by her. In my opinion, the evidence was clearly insufficient to support the conviction of the defendant on either of these counts for a violation of section 504 of the Penal Code.
It is the claim of the prosecution in this case that the defendant presented claims against the county of Butte for the sums of $110 and $270, respectively, for alleged expenses incurred by her in installing in the auditor’s office a double entry bookkeeping system. These claims were filed by the defendant with the county clerk of Butte County, and approved by the board of supervisors of said county. They were then audited by the defendant as legal claims against the county and presented to the treasurer for payment. They were paid in due course. It is claimed that both of these claims were fraudulent because the alleged expenses covered *636 thereby were never incurred by the defendant. Certainly, it cannot be said that the defendant had the sums of money represented by these claims, in her possession or under her control within the meaning of section 504 of the Penal Code, as the method which she used to obtain these sums was the same method used by any other claimant against the county. Can it be said that a laborer employed by a member of the board of supervisors to perform work on the county road who presents a claim against the county for work which he never performed, and obtains money from the county treasurer on such claim, is guilty of a violation of section 504 of the Penal Code ? This conclusion would necessarily follow if the defendant in the case at bar is guilty of such violations in obtaining the above-mentioned sums on the claims presented by her, as section 504 applies with equal force to a servant of such officer as it does to the officer himself, and the members of the board of supervisors have a function to perform in approving the claims on which funds are drawn from the county treasury. In other words, the sums of $110 and $270 which it is claimed defendant obtained from the county treasurer on the claims presented by her, were no more under her control or in her possession than the sum which the laborer on the county road obtained from the county treasury on his claim which had to go through the identical procedure followed by the defendant in the presentation, approval and payment of the claims presented by her.
To my mind, it is obvious that it was the intention of the legislature in the enactment of section 504 of the Penal Code to make it applicable only to cases where public officers or their deputies, clerks or servants misappropriate property belonging to the political subdivision by which they are employed, when such property is in their possession or under their control in the sense that they have dominion over the property and they appropriate the same in violation of their trust.
In my opinion the defendant in the case at bar was in no different position with respect to obtaining the sums of $110 and $270 on the claims presented by her than anyone else presenting an alleged fraudulent claim against the county and that if such claims were presented with intent to defraud the county, she was guilty of a violation of section 72 of the Penal Code.
*637 In view of the settled rule that penal statutes must be strictly construed, it is obvious to my mind that to construe section 504 of the Penal Code as applicable to the facts of this ease, is clearly in violation of this rule.
I am therefore of the opinion that the evidence presented at the trial of this case was insufficient to prove the defendant guilty of any violation of section 504 of the Penal Code, and the judgment of conviction against her on all three counts should therefore be reversed.
Rehearing denied. Carter, J., voted for a rehearing.