Page:North Dakota Reports (vol. 48).pdf/866

 One who has acquired possession bona fide cannot thereafter commit larceny of the thing so possessed. 25 Cyc. 22.

On the same principle, where an owner of property assigned it to another but retained possession and afterwards converted it to his own use, this was not larceny. 25 Cyc. 493.

It has ever been held that the same rules with reference to the property embezzled, and the ownership thereof, and the fraudulent intent to convert the property apply in cases of embezzlement that apply in cases of larceny. On this point Wharton says: “Unless the pleader is relieved from this exactness by special statute, the goods and ownership must be set out and proved with the same exact completeness as in larceny.” See Wharton Crim. Law 1044; See also State v. Lyon, 45 N. J. Law 272; Livingstone v. State, 16 Tex. App. 652; State v. Collins, 4 N. D. 433; 15 Cyc. 491; State v. Lindley, (S. D.) 83 N. W. 257.

Under an indictment for larceny one cannot at common law be found guilty of a different offense such as embezzlement. 25 Cyc. 104.

Sveinbjorn Johnson, Attorney General, (Spalding & Shure of Counsel), for respondent.

“In the case of State v. Vincent for grand larceny, the accuséd in” the indictment was charged with stealing the property of one D. H. Murphy,—the proof established the ownership of property in South Dakota Cattle Company, Murphy being only foreman for corporation. and that he had no interest or lien upon the property and was only hired by the month, Held, the indictment sufficient. State v. Vincent, 16 S. D. 62, 91 N. W. 347.

In the case of Ward v. People, 3 Hill 395, the accused was indicted for stealing the property of one Flagg,—proof established the fact that Flagg himself had stolen the property from the true owner. It was held by the New York Court “that the possession of the property it the thief was sufficient to make it the subject of larceny.”

In Sharp v. State, 85 N. W. 39, the information alleged the goods stolen were the property of the railway company. The evidence es- tablished a special ownership only, the goods being stolen from the rail- way company while in transit. Held sufficient to sustain a conviction for larceny.

“Wherein a prosecution for stealing hogs, there was no evidence that defendant had any right to property alleged to have been stolen, failure