Is Respondent's pleading that the trial judge erred when he failed to instruct the jury on embezzlement?

Admittedly, respondent's proof is at variance with the accusatory pleading. ³ However, the variance does not require reversal. According to the record, appellant was apprised of the charge against him and obviously was not misled in preparing his defense; appellant did not dispute any of respondent's evidence except to testify that he paid Westcamp's delinquent hospital bill. 'The test of materiality of a variance is whether the indictment or information so fully and correctly informs the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense.' (People v. LaMarr, 20 Cal.2d 705, 711, 128 P.2d 345, 348.)

Appellant's final contention that the trial judge erred when he failed to instruct the jury on embezzlement is patently inconsistent with appellant's contention that there was no evidence appellant stole any property from Colusa County, and it is contrary to the rule that jury instructions must be responsive to the evidence (People v. McCoy, 25 Cal.2d 177, 188, 153 P.2d 315; People v. Moody, 216 Cal.App.2d 250, 254, 30 Cal.Rptr. 785). Moreover, appellant initially requested and then withdrew his request for an embezzlement instruction. Under these circumstances appellant cannot be heard to complain on appeal.