Page:North Dakota Reports (vol. 3).pdf/82

 of money while in the employ of the National Elevator Company. As such agent, he was authorized to purchase and sell grain for such company, to collect the moneys due on sales, and to remit the same to such company, or to use the same in making purchases of grain for such company. It was proved that in the month of July, 1890, a car load of oats was shipped to him, and that thereafter he sold oats to various farmers, and received from them pay, partly in cash and partly in grain. The books kept by him disclosed no sale of oats after July 1st, 1890, although it was his duty to keep a daily account of sales, purchases, etc. Here was evidence that he had been selling oats belonging to his employer for cash, and had not accounted for the cash. This was sufficient to warrant his conviction for embezzling money of his employer. It is true that the accused testified that he used the cash paid to him in the purchase of grain for the company; but the jury were not bound to believe his testimony, for it, appeared that he was short in his accounts some 1,400 bushels of wheat, on the theory of his making such purchases, and there was no attempt on his part to explain why he failed to observe as to the oats sold the usual mode of bookkeeping, i. e., charge himself with the cash received for the oats sold. It was his duty, under his employment, to keep his accounts in this manner, and there is no pretense that he failed to do so as to other items. The objection as to the admission of evidence showing that the accused was short a large number of bushels of wheat and that he had no oats on hand, was without merit, and was properly overruled. It was necessary to prove these facts in order to make out the offense of embezzlement. For that purpose the evidence was competent. It was not offered to prove that he had embezzled wheat or oats, but to prove that he had not accounted for the proceeds of grain sold. It is proper to treat the money received as the money of the employer, and to charge the agent with the embezzlement of the money, and not of the property. The order allowing the filing of the new information was made without notice to the accused or his counsel, and in their absence. In this we see no error. The