The defendant was charged with the crime of embezzlement by an information filed in the superior court on November 24, 1897, and on January 11, 1898, he was convicted of said crime. On February 6, 1898, he was brought into court for judgment, and before judgment duly made a motion for a new trial upon all the statutory grounds, and after hearing the argument the motion for a new trial was by the court on the said day denied. Thereafter on said day the court pronounced judgment, and sentenced him to imprisonment in the state prison at Folsom for four years. No appeal was ever taken by defendant from the order denying the new trial, and no appeal was taken, or attempted to be taken, from the judgment for more than a year after it was pronounced. The judge before whom the case was tried and who denied the motion for a new trial afterwards went out of office, and the subsequent proceedings hereinafter mentioned were before his successor. On June 9, 1899, after the time for appeal from the judgment had expired, defendant made several motions in the superior court, and, among others, to be discharged from imprisonment on the ground that the information was insufficient because it did not state facts constituting a public offense, etc.; also to vacate the judgment
because defendant had not been properly arraigned for judgment, and "to correct the judgment and minute entry, to wit: to make the said judgment and minute entry show the defendant was not arraigned for judgment, instead of showing, as it did, that he was so arraigned." On June 9, 1899, the superior court denied all said motions; and from the orders denying them defendant appealed to this court. Upon that appeal this court held that the orders, or at least some of them, were appealable as orders made after final judgment. It further held that the orders denying the motions to correct the minutes and vacate the judgment were erroneous, and reversed the same, and remanded the cause, with directions to the superior court to arraign the defendant for judgment. (People v. Walker, 132 Cal. 137.) After the remittitur
had gone down "the defendant was on the third day of April, 1901, arraigned for judgment according to law." Thereupon defendant made a motion for a new trial upon nearly all the statutory grounds. The court refused to entertain said motion on the ground that the court was without power to entertain the second motion for a new trial, as a motion for new trial had already been made and denied as hereinbefore stated; and afterwards, on August 26, 1901, pronounced judgment sentencing defendant to imprisonment in the state prison at San Quentin for a term of one year. From this judgment the present appeal is taken by defendant. And, treating the refusal of the court to entertain his motion for a new trial as an order denying it, he also appeals in form from what he designates as "the order of said superior court denying and refusing said defendant's motion for a new trial."
The court was right in refusing to entertain the second motion for a new trial. The former motion had been properly made, and at the right time, — to wit, "before judgment," as provided in section 1182 of the Penal Code. The motion had been duly heard and denied, and no appeal had been taken from the order denying it; and the right to move for a new trial had thus been exercised and exhausted. Of course, this is entirely different from the case where a motion for a new trial has been by the trial court granted, or on appeal an order denying the motion has been reversed and a new trial ordered, and a new trial has taken place; in that instance, after the
granting of a new trial, the case stands as though no trial had ever been had, and upon the conclusion of the second trial a motion for a new trial would be as regularly in order as at the conclusion of the first trial. But with reference to, and in connection with, and for the purpose of reviewing any particular trial of a case, there can be only one motion for a new trial. For the purpose of a convenient form of judgment herein we will treat the order of the court refusing to entertain said motion as an order denying the same; and the order appealed from is affirmed.
But in People v. Keyser, 53 Cal. 183, approved in Walker v.Superior Court, 135 Cal. 369, it was held that on an appeal from the judgment a defendant, without having made a motion for a new trial, may rely on any of the grounds of exceptions mentioned in section 1170 of the Penal Code, although in such case he must have a bill of exceptions as provided in section 1171. Said section 1170 provides for exceptions to decisions of the court, among other things, "in admitting or rejecting testimony, or in deciding any question of law not a matter of discretion." And the bill of exceptions in this case shows a ruling in admitting testimony which we think was clearly erroneous and prejudicial. Appellant was charged with the specific offense of embezzling a particular sum of money, — to wit, $80.35, — which was the amount of a certain check. This money was charged to have been the property of a certain corporation called the American Tract Society, of which appellant was averred to have been the agent and servant. At the trial the prosecution introduced as a witness one John Crawford, an expert accountant, and over the objection of appellant he was allowed to testify that he had examined the books of said corporation, and that these books showed that there was a general balance due from appellant to the corporation of about four thousand dollars, or, as counsel calls it, a shortage. The admission of this testimony was erroneous. It has been held that in prosecutions for certain offenses — as, for instance, embezzlement and forgery — evidence may be introduced of other specific offenses of the same kind as the one charged, committed by the defendant at or about the time of the alleged commission of the offense for which he is being tried, — as evidence to show guilty knowledge or intent. This rule, however, is an exception to the
general principle that on a trial for one offense evidence that the defendant committed another offense is not admissible; and the application of the exception should be closely kept within proper bounds. In the case at bar the said testimony objected to was not of any other embezzlement; it was simply of a general indebtedness, and it appears affirmatively that the $80.35 charged to have been embezzled was not included in the general balance which the books showed. The testimony was therefore clearly not within the exception above stated. And it certainly does not appear that the testimony was not prejudicial to appellant; on the other hand, it can hardly be imagined that it did not have such prejudicial effect upon the minds of the jury. For this reason the judgment must be reversed.
Appellant contends that the information is fatally defective; but assuming that this point can be raised on this appeal, the contention is not maintainable. The information sufficiently shows that the American Tract Society was an existing corporation; and the averment that the money charged to have been embezzled "had come into" the possession, control, etc., of appellant was sufficient on that subject. (People v. Ward,134 Cal. 303.) There are some other objections to the information which, in our opinion, are not well grounded and do not call for special notice.
The judgment appealed from is reversed and the cause remanded for a new trial.
Beatty, C.J., concurred in the judgment.