Page:North Dakota Reports (vol. 48).pdf/873

 the servant of the trustee. When grain was delivered to the elevator, storage tickets were issued in the name of Shure; when sales were made, the checks or drafts given by the elevator agent in payment of such sales were made out payable to Shure; the 112 bushels of flax taken and sold by defendant when threshed was placed in Shure’s granary; said flax was in his possession while in the granary; it did not leave his possession until the defendant took it in the manner hereinbefore recited. Shure did not, by any act of his, divest himself of such possesionpossession [sic].

Following the well-established principles of law herein set forth, it must be held that the defendant in taking and carrying away said flax, to an elevator other than that designated by the master, in storing it in the name of Dokken, and selling and disposing of it stealthily, committed a trespass, and he was properly charged with the larceny. of the grain.

The judgment of the district court is affirmed.

, C. J., and, and , JJ., concur.

, J. (specially concurring). In March, 1920, in the district court of, before Hon. C. W. Buttz, presiding judge, defendant and appellant was convicted of the crime of grand larceny and sentenced to imprisonment in the state’s prison for the term of one year. The information charges that on November 2, 1918, in, the defendant did commit the crime of grand larceny; that he did then and there feloniously take, steal, and carry away by fraud and stealth 112 bushels of flax of the value of $406.58, the property of W. H. Shure, with intent to deprive the owner thereof. Appellant claims that the evidence does not justify the verdict.

(1) That there is no evidence that the complaining witness, W. H. Shure, had any title to the flax.

(2) That the flax was the property of one Johnson.

(3) That defendant has in his possession the proceeds of the flax and is able and willing to pay the same to Johnson or to Shure, as their right may be determined in a civil action.

(4) That the offense alleged was in the nature of embezzlement, and not larceny.

The information avers the facts constituting the offense which is