During the period of time covered by the proceedings under review herein it was provided in section 131 of the Civil Code that from an interlocutory judgment in a divorce action "an appeal may be taken within six months after its entry, in the same manner and with like effect as if the judgment were final." In Spencer v. Troutt, 133 Cal. 605, 65 Pac. 1083, it was held that the time allowed for an appeal commences to run from the time of the actual entry of the judgment.

The court said:

"It hardly requires argument or authority to establish the proposition that a court cannot by antedating an order, or the entry of it, cut off the right of a party to move for a new trial, to move to set the judgment aside, or to appeal. These rights, given by the Code of Civil Procedure, cannot be lost to a party by such action, whether the effect was designed or not. The test as to whether the period in which the party must act in order to get relief from an order or judgment against him must be whether he could have obtained the desired relief (on a proper showing) before the nunc pro tunc order was made."

In Baum v. Roper, 1 Cal. App. 435, 82 Pac. 390, it was said that, while it is true that an appeal will not lie from a judgment until it has been entered, the judgment in ather respects gets its force and vitality from its rendition, and not from its entry; that the rendition of the judgment is the judicial act of the court, and its entry is the ministerial act of the clerk. So it was held in Los Angeles County Bank v. Raynor, 61 Cal. 145, that it was not necessary that the judgment should have been entered when the execution was issued.

"The enforcement of a judgment does not depend upon its entry or docketing. These are merely ministerial acts, the first of which is required to be done for putting in motion the right of appeal from the judgment itself, and of limiting the time within which the right may be exercised (Code Civ. Proc. 8 681), or in which the judgment may be enforced (Code Civ. Proc. 685), and the other for the purpose of creating a lien by the judgment upon the real property of the debtor (Code Civ. Proc. § 671)."

The effect of these decisions is that, while the power of a court over its records, in order to make them speak the truth, is fully recognized, and for that purpose errors or omissions in the entry of judgments may in some instances be corrected by entering them as of the date when rendered, the full effect of the nunc pro tunc order is limited so as to prevent results not contemplated by the law. There seems to be no reason why such limitation should not apply to the established time when the right to a final judgment of divorce will accrue, in the same manner that it applies to the time when an appeal may be taken, or to any other of the instances above noted. We do not doubt that these were the considerations which led the Supreme Court to hold, in Grannis v. Superior Court, 146 Cal. 245, 79 Pac. 891, 106 Am. St. Rep. 23, that:

The provisions of sections 131 and 132 of the Civil Code, "interpreted in the light of the previous legislation and decisions and the purpose to be accomplished by the law, are clearly to be understood as a limitation on the power of the court in the matter, and as intended to forbid the entry of a final judgment until after the prescribed period. The law can only be made effectual for the accomplishment of its object by holding that any final judgment purporting to grant the divorce is absolutely void if thus prematurely entered."

While in that case the court was not con

sidering the power to make a nunc pro tunc entry of a decree, or the limitations on the effect of such entry, we are satisfied that the interpretation there placed upon the Code provisions necessarily leads to the conclusion that a final decree of divorce cauld not be entered until one year after the actual entry of the interlocutory decree. The language of section 131 contemplates that a final decree shall not be entered until after expiration of the time in which an appeal may be taken from the interlocutory decree, nor during the pendency of such appeal if taken. As we have seen, the entry of the interlocutory decree nunc pro tunc as of an earlier date does not affect the time prescribed within which an appeal may be taken. The result is that in this case, as in the Grannis case:

"The judgment in question being wholly void as a final judgment granting an immediate divorce, it was within the power of the superior court at any time, on motion of either party, or of its own motion, to declare it null in so far as it purported to be of such effect."

That we have correctly understood the intended effect of the Supreme Court's decision in the Grannis Case, further appears from the fact that on the same date, in Claudius v. Melvin, 146 Cal. 257, 79 Pac. 897, the same court said:

"We think the defendant is correct in the position that the year which must elapse before final judgment can be given begins to run from the time of the actual entry of the interlocutory judgment, and not from any theoretical nunc pro tunc date of entry."

The order is affirmed.

We concur: JAMES, J.; SHAW, J..

PEOPLE v. DYE. (Cr. 318.) (District Court of Appeal, Third District, California. Dec. 14, 1915. Rehearing Denied by Supreme Court Jan. 10, 1916.) LARCENY 15

1. EMBEZZLEMENT ~4 WHAT CONSTITUTES.

"Embezzlement" occurs when the possession of property has been acquired lawfully and bona fide, and is afterwards fraudulently appropriated, the gist of the offense being the breach of trust; while, if a bailee acquires property with intent to steal it at the time of the acquisition, he is guilty of "larceny."

[Ed. Note. For other cases, see Embezzlement, Cent. Dig. § 1; Dec. Dig. 4; Larceny, Cent. Dig. §§ 39-42; Dec. Dig. 15. For other definitions, see Words and Phrases, First and Second Series, Embezzlement; Lar ceny.]

What did you tell him you had? A. I told him that I had $150-that was including the $20 that he had taken down to get changed-and he says, That will be all right; he says, 'It is here in your clothes;' he says, 'Everything will be all right, Mr. Halstead." Q. Go ahead. A. After I took the bath, or while lying in this bath, he brought some kind of liquid-I don't know what it was that I took through a glass tube. * I took it through a glass tube while lying on my back. And after I got out of the bath I was feeling very weak. He assisted me into a back room of his office and put me to bed. He went out of the room, after covering me up, and came in with some liquid in a glass, and I am not sure whether it was a tablet or a capsule that he had, and he said: "Take this.' I asked him-I remember asking him—if that was an opiate. He said: 'No.' He says: 'It is a purgative.' He says: 'I want to bring you around just as quickly as I can.' Very soon after that I went off into a sleep or a stupor. I don't remember just when I awakened. When I did, I was suffering great pain. And he brought in something else in a glass and told me to take that. Q. When you gave him the $20 bill, did he give you any change? A. No. Q. What did he say about changing it, if any thing? A. He never referred to having changed it at all. Q. Well, did he leave the room to go out to change it-anything of that kind? A. Yes; when I gave him the $20 bill, he went out of the room immediately. He said: 'I will go and get it changed and be right back.' Q. When he came back, was anything said about the change? A. No. Q. When you took your clothes off, they were hung up there in the closet? A. Yes, sir; not in a closet; in the room in which I undressed. Q. Did you authorize him, Purdy, or anybody else, to take the money out of your clothes and take care of it, or anything of that kind? A. No, sir. Q. Did you authorize anybody, Purdy or Dye, to take charge of your money in any way? A. Not at all. Q. You just took your clothes off with the money in and left it there? A. Yes, sir. Q. Now, what else occurred that night? A. Well, I don't remember how often he came into the room, or how often he gave me something from a glass. Once or twice I know, having rapped or called, he came in and I asked him for water -some water; I was very thirsty; and I think once he brought me in some water; and I know that the second or third time he gave me some sort of medicine from a glass. Once it was a dark color, and another time it was apparently of a clear color. Q. Did he give you any liquor? A. I don't remember whether he gave me any liquor that night or not. I think it was the next day that I was suffering, and I asked him what that was, whether it was brandy or whisky, and he says: 'It is a stimulant.' I believe, as I remember, that he said that it was brandy and peppermint. Whether there was anything else in it or not, I don't know. He said: 'I want you to take what I give you.' He says, 'I want to bring you around as quickly as I can.' Q. Well, how were you the next day? A. Well, the next night I was feeling worse than I did the night before. Q. How long were you kept there? A. From Monday morning until Friday, the following Friday night, before I got out. Q. Now, when you were put to bed, what clothes did you have? A. My undershirt. Q. Were you given your clothes afterwards? A. Not until the following Wednesday or Thursday. I had asked often if he wouldn't bring my clothes in. Mr. Smith: Your honor, do I understand that you ruled that all this testimony is admissible to prove larceny? The Court: I just ruled on one question that you objected to. Mr. Smith: I object to this character of examination. It is not any proof of larceny in any way; it is irrelevant, immaterial, and incompetent so far as the issue in this case is concerned. I ask that it be stricken out, and

further along this line. The Court: The objec tion is overruled. Mr. Jones: The acts that I expect to prove will show larceny. The Court: I have overruled the objection. Mr. Jones: Go ahead, Mr. Halstead. State what you said to Mr. Dye about your clothes. A. I asked him to bring my clothes in, that I had occasion to get up out of the bed, and that every time I would do so I took a chill. I asked him the first night if he wouldn't bring my clothes into the room. I don't remember whether he said he would or not, but he did not do so; and almost every time he would come in I would ask him to bring in my clothes. I think it was either a Wednesday or a Thursday that he just brought my pants in-no other clothes. I asked him then for the rest of my clothes, and he said that I couldn't dress anyway, and he didn't want me to go out in the condition that I was in; that I must not leave my room. It was on a Friday rather it was on a Thursday-that I began to get suspicious that something was wrong, because he had refused to bring my clothes in to me, and I told him on a Friday, I says: 'Doctor, I want you to bring my clothes in. I am going to dress. There is no use of my staying here. I will die in here. I am going to get out of here.' And he said something like this: 'Now, don't get excited; don't get excited.' He says: I am going to look after you; you are all right.' I had previously asked him if my money was all right. He says: 'Yes; your money and your clothes-everything is all right. Don't feel alarmed about anything.' 'Well,' I says, 'I want you to bring my clothes in to me.' He says, 'I will,' and he went out-he went out and came back in a few minutes, and he says: 'Purdy has gone out, and has the key of the room in which your clothes are located. I will have to wait until he returns. As soon as he gets back I will bring your clothes in to you.' He went out and probably a half an hour or longer had elapsed when I got up. I was feeling very bad and desperate. I put on my pants, and I went out into the hall and went toward his office door. I took hold of the knob of the door; I believe I rapped first; then I took hold of the knob of the door, and it opened. It was perhaps after 7 o'clock, because the lights I know in the streets were burning, and the light was shining in my room, and the second door from his office was open. That is where I had undressed, and I went in there, and I found my clothes hanging up, and my shoes and stockings were down on the floor. Q. The same room where you went to undress? A. In the same room, and the clothes were apparently just where he had hung them when I undressed. I put on my clothes-dressed-and was sitting in his office chair when he came in shortly afterwards. Q. Wait a minute. You put on your clothes and your vest. State as to whether or no you examined them to see whether your money was there. A. I did. Q. Was your money there? A. No. Q. Was any of it there? A. Nothing at all. Q. The last time you saw the currency that you spoke about, where was it? A. In my inside vest pocket. Q. Inside vest pocket; and the gold was where? A. The gold was in my outside vest pocket. Q. And where was your coin-silver? A. In my pants pocket. Q. Now, you looked through all those pockets, did you? A. Yes, sir. Q. And none of it was there? A. None of it was there. Q. You dressed and you went in your room? A. No; I don't remember whether I went into my room. I sat in his chair in the office. While sitting there, he came in and seemed very much surprised to see me there. Q. What was said? A. 'Well,' he says, 'here you are.' I says: 'Yes; and I have found my clothes; they were not locked up; they were right where they were left when I was taken out of the room.' I says: 'Doctor, where is my money? And he never answered. I asked him two or three times; he stood there. I says: 'Where is my money?'

that.' He says: 'Don't get excited.' He had often used that expression: 'Don't get excited.' He says: 'Now that you have got your clothes on, perhaps it is better for you to come out and get some fresh air.' 'Well, I says, 'I want my money.' 'Well,' he says, 'you will have your money.' He says: 'Don't feel alarmed; you will have your money. Come outside and get some fresh air, and perhaps you will be able to eat something.' I went out with him, and we crossed over to the Thomas Café and sat down, and he says: 'Now, order anything that you want.' ** * Q. Well, where did you sleep that night? A. Back in his place; not in the room that we slept in the night before or at the time that I went there. Q. When you came out of the Thomas Café-you said you had nothing in there but a glass of beer? A. That was all. Q. Now, when you came out of there, did he give you any money? A. Yes, sir. Q. How much? A. I think it was $3. Q. He gave you $3? A. Yes. Q. How came he to give you that? A. I asked him for the money, and he says: 'I haven't much money with me now.' He says: 'I will get your money.' 'Well,' I says, 'I haven't any money at all; I have got nothing.' And he pulled out some money in his hand and handed me $3, and he says: "That will do you now.' And he says: I will have all your money back to you.' Q. Well, you slept in his room that night, did you? A. Yes; not in the same room that I had been sleeping Q. What conversation, if any, did you have with him the next day in regard to your money? A. It was during the next day that he admitted that he had taken my money: Q. Well, don't say 'he admitted.' Tell just what the language was and how he came to say it, and the conversation that was had between you. A. Well, those were the words that he used. He says: 'I must admit that I have taken your money.' Those were the words he used. Q. What did he say he had done with it? A. He didn't say what he had done with it. Q. What explanation did he give, if any, for not giving it to you? A. Well, I don't remember that he gave any reason for it at all. He said that he would get it and return it to me."

in. 串 * *

It appeared that Halstead remained there until the following Monday, when both defendant and Purdy were arrested, and Halstead left the place; that defendant admitted that he had taken his money and used it; that a week or two later, and while he was under arrest, defendant paid back $100 to Halstead. On cross-examination Halstead testified that after giving defendant a $20 bill the latter said he would get it changed, and left Halstead for that avowed purpose, and while defendant was away Purdy took him into a room adjoining the "bake oven" and told him to disrobe, and that while doing so, or as he was about to do so, defendant returned, and both defendant and Purdy assisted him in disrobing.

"Q. While you were disrobing you said you had valuables in your clothes? A. Either when I was disrobing or after I had disrobed, and he had taken that, I told him, and he said that would be all right; 'everything will be secure and safe.' Q. Was it not while you were taking off your clothes and handed your vest to Dr. Dye? A. I don't remember at just what time during my undressing that I said that, or if it was after I had undressed. It was before I went into the bath. 串本 * I was impressed that the place was reputable and genuine, and Dr. Dye impressed me very much, and I hadn't the least doubt in the world but that everything was all right and safe, and no question oc

curred to me at all. Q. The question of a breach of trust had never occurred to you? A. No. Q. You went there, and you might say trusted your life and what you had to Dr. Dye? A. Yes, sir. Q. And you trusted what you had to him? A. Yes. Q. You did not see him put your clothes in a locker of any kind, did you, or trunk or anything? A. No. Q. They were just hung on a nail? A. Hung on a nail or hook; yes. I think in the corner between the doors of the two rooms. Q. Your vest with the valuables was hung with the other clothes? A. I believe they were at the time all hung together."

He testified that he expected to be in the room there until the next day, and that no room was designated for him to occupy after leaving the bath.

"Q. After you had taken your bath, you did not expect to return to this room? A. Well, I hadn't thought anything about it at all where I would be placed."

He testified that defendant did not give him the change, but kept the $20 bill.

"Q. Did you not say you had trusted everything to his hands? A. I may have. I naturally would do so, because I think I remember his asking me if I had any doubts about anything being not right. I told him I had no reason for any doubt at all. Q. You trusted everything to him? A. I had confidence in the place and in him, or I would not submit to the treatment did trust your clothing and your money and your or trust him with what I had. Q. And you person to Dr. Dye? A. Yes."

He testified that, "with the exception of his pants," he did not see his clothes from Monday until Friday.

"Q. You turned your clothing and your money over to the care and custody of the defendant? A. Why, certainly. Q. And trusted implicitly in him? A. That my money would be there when I would come out, of course. Q. You gave him possession of your money and your clothing? A. I gave him possession of my clothing with money in it, and told him that my money was in my clothing, and he said it would be all right; it would be there when I came out. Q. And you expected him to look after your money and your clothing, did you not, Mr. Halstead? Why, certainly. Q. And keep it safely for you? A. Why, I expected just the same as any clothes. I couldn't think of anything else."

A.

On re-examination in chief he testified: "Q. Now, you took your vest off, and you simply handed your vest to one of these gentlemen hang it up myself. Q. You handed it to one of to hang up, or hung it up yourself? A. I didn't them? A. Yes, sir. Q. You left it there as you would if you had taken off your clothes and was going to take a bath? A. Yes, sir. Q. There was nothing said at that time about them taking care of your money as distinct from your clothes? A. No; no. Q. You simply left your clothes there as you would anywhere when you disrobed? A. Yes, sir. Q. You are sure you did not take out the money and hand it to him, and put it specially in his charge, or anything of that kind? A. No; I did not. Q. You went and took your bath? A. Yes, sir. Q. You frequently asked him for your clothes? A. Yes. Q. And he put you off? A. Yes."

The district attorney dismissed the information as to Purdy and called him as a witness. He testified that he assisted Dye in disrobing Halstead and in giving him the bath. He testified:

That he hung up part of Halstead's clothes, and Dye "hung the rest of them," and that he (Purdy) put the patient in the bake oven. "Q.