
    Ralph STARK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 2, 1956.
    Joe S. Feather, Williamsburg, for appellant.
    Jo M. Ferguson, Atty. Gen., David B. Sebree, Asst. Atty. Gen., for appellee.
   STANLEY, Commissioner.

Ralph Stark appeals from a conviction of grand larceny with a penalty of two years imprisonment.

The Attorney General commendably concedes appellant’s conviction was erroneous and that he was entitled to a directed verdict of acquittal.

The defendant was charged with stealing $200 from Bertha M. Helton. Miss Helton, who resided in Oak Ridge, Tennessee, bought a restaurant business in Williams-burg, and she and Stark entered into an agreement that he would operate and have full control of the restaurant. He was to receive $20 a week salary, and the profits and losses were to be divided equally between them. Miss Helton came to Wil-liamsburg about the first of June, 1956, to talk over business affairs. Stark disappeared. A check of the accounts showed $200 of the partnership funds had also disappeared. Stark was promptly arrested in Knoxville on a telephone call and $182 was found on his person.

The contract created a partnership. A partner, as co-owner of partnership property, cannot be guilty of larceny of such property. Maloney v. Commonwealth, 264 Ky. 783, 95 S.W.2d 578.

Moreover, as the Attorney General points out, the defendant was in complete control and possession of the property and funds charged to have been the subject of grand larceny. If he was guilty of any criminal offense in taking the money, it was not larceny but was embezzlement. Westerfield v. Prudential Insurance Co. of America, 264 Ky. 448, 94 S.W.2d 986; Morgan v. Commonwealth, 242 Ky. 713, 47 S.W.2d 543.

The judgment is reversed.

Since the appellant has been confined in jail or in the penitentiary for five months on this charge, having been unable to make bail, a mandate will issue -immediately.  