
    The People of the State of New York, Respondent, v. Stephen F. Sherman, Appellant.
    Upon the trial of an indictment charging defendant with grand larceny in the first degree, in stealing 8,250 bushels of wheat, the evidence on the part of the prosecution tended to show these facts: Defendant was a manager and director in each of three elevating companies engaged in receiving and storing grain for others; these companies had associated themselves together in a common business, of which the defendant was the general manager; as such he caused wheat to be transferred from one elevator to another without the usual and competent authority and without any entry of the removal being made in the books of the elevator from whence the wheat was taken, and he caused the accounts to be confused and falsified so as to conceal his action; he then sold a quantity of the wheat from the elevator to which the transfer was made. The shortage resulting from the removal was, through his indirect suggestion and with his assent, concealed by a fraudulent weighing of the grain remaining in the elevator from whence the wheat was taken. A verdict of guilty was rendered. Held, no error; that the elevator companies were bailees and it was their duty to keep and not sell the grain and to deliver it in specie and not its avails; that wliile the grain was in the custody and control of the elevator companies, defendant, as their agent, had the actual and effective possession, custody and control of it, within the meaning of the provisions of the Penal Code (§ 528, subd. 2) defining larceny, and so, by the appropriation thereof he committed the crime charged.
    Also held,, it was no defense that the proceeds of the sales made by defendant went into his bank account as manager of the associated elevators and were applied by him upon its liabilities.
    The evidence showing the false weighing of the wheat was received on tile trial under objection and exception. The judge submitted to the jury the question as to whether from the fact of the employes assisting in covering up the shortage the inference was permissible that' they * were instructed to commit the fraud by defendant. Held, no error.
    K., the superintendent of one of the elevators under defendant’s charge, was called as a witness by the prosecution, and in his testimony manifested a disposition to favor defendant and keep back or soften injurious facts. No attempt was made to impeach him, but the prosecution was allowed to refresh his recollection by recalling to his mind the testimony he had given before the grand jury and was permitted to ask him leading questions. Held, no error; that the matter was in the discretion of the court.
    (Argued April 28, 1892;
    decided May 24, 1892.)
    
      Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order-made June 2, 1891, which affirmed a judgment of the Court of Oyer and Terminer entered upon a verdict convicting the defendant of the crime of grand larceny in the first degree.
    Defendant was tried under an indictment which charged that at the times mentioned three incorporated grain elevating companies were combined and associated together in the common business of receiving, elevating, storing and discharging of grain under the name and designation of the Associated Elevators, and that the defendant was a manager and director in each of these corporations, and was also the manager and agent of this association of elevators; and, as such, he had, on the 22d day of September, in the year 1888, in his possession, custody and control, a quantity of wheat, the property of the Buffalo Elevating Company, and that he feloniously appropriated to his own use 8,250 bushels and thirty pounds of wheat of the value of $1.35 per bushel.
    It appeared that the business carried on by this association of elevators in the year 1888 was very large, requiring many employes. All of them were under the control of the defendant as such manager.
    Books of account were kept by each corporation, and also at the central office of the association of elevators. The 8,250 bushels of wheat, which the defendant was charged with .stealing, was delivered at an elevator known as the .Dakota. Defendant caused it to be transferred to the International elevator. Ho entry of the transfer was made on the books of the Dakota. Defendant sold wheat from the International fb. about the amount so transferred. The shortage in the Dakota was sought to be covered up by false weighing of the wheat remaining as the evidence tended to show by defendant’s suggestion and with his assent. The evidence as to such weighing was received under objection and exception.
    In reference to the action of the employes of the elevator companies in weighing the grain, the court charged as follows:
    
      “ How, from that state of facts, the people claim that the inference is permissible and forced that these men were instructed by some person to engage in that fraud in weighing that wheat, and that from the statements indulged in by the defendant that he did not ask Klieves to ask the men to do it, that the inference is permissible that he did it. Of ■course, gentlemen of the jury, it is argued that these men employed in this elevator would have no reason, so far as they were individually concerned, to engage in a fraud of that character, and that no person would engage in it, except a person that had a motive to commit a fraud of that character. Of course, gentlemen of the jury, whether this circumstance is entitled to the weight ascribed to it by the people in this ■case and urged upon your consideration, is a question for you to determine.
    “ On the part of the defendant he claims that he supposed there would he a surplus, an overrun sufficient in quantity to meet the amount of grain that he sold to Kennedy. How, gentlemen of the jury, it' is a question for you to say whether that is reasonable under the circumstances in the ease as developed by the evidence. If he had reason to believe that, and it looks probable that he did, then it is a proper circumstance to consider upon the question whether or not he caused that grain to be removed with intent to convert it to his own use.”
    Further facts are stated in the opinion.
    
      Louis Marshall and Sevjard A. Simons for appellant.
    The evidence does not warrant a conviction of the crime of grand larceny committed by the means or in the manner alleged in the indictment; the charge there being of the crime formerly known as embezzlement, and described in subdivision 2 of section 528 of the Penal Code. (Penal Code, § 528; People v. Dumar, 106 N. Y. 502; People v. Blevin, 112 id. 87; Fulton v. State, 13 Ark. 168; Con v. Simpson, 9 Metc. 188; 4 Black. Comm. 230 ; Barb. Crim. Law, 149 ; 3 Arch. Crim. Pl. 449 ; 2 Bishop’s Cr. Law, 282, 675 ; Roscoe’s Crim. Ev. 414; People v. Geer, 41 How. Pr. 293; Destey Am. Crim. Law, § 145 ; Nichols v. People, 17 N. Y. 114; Phelps v. People, 6 Hun, 401.) Treating the indictment as one for common-law larceny, the evidence fails to establish that crime, since it is demonstrated that the defendant did not appropriate any property whatsoever to his own use or to that of any other person, and that nobody has in fact been injured or defrauded of his property. (People v. Woodward, 31 Hun, 57; People v. Pollock, 51 id. 613 ; McCord v. People, 64 N. Y. 583; Abrams v. People, 6 Hun, 492; 2 Bish. Crim. Law, § 840; Penal Code, § 549.) It was error to permit the people to prove by John Crowley and Thomas Murphy that in July, 1889, while the defendant was in Europe, they fraudulently weighed the grain in the Dakota elevator in such a manner as to indicate a larger quantity of wheat there than there was in fact. (V. C. C. Co. v. Murtaugh, 50 N. Y. 314; People v. Hall, 57 How. Pr. 373 ; Wixon v. People, 5 Park. Crim. Rep. 119; State v. Society, 47 N. J. L. 237; Jackson v. S. L. R. Co., 87 Mo. 422; People v. Lambert, 76 N. Y. 220.) The exception to the evidence permitting the prosecution to impeach the credibility of Frank A. Klieves, their principal witness, by his own. testimony, should be sustained. (Coulter v. A. M. U. E. Co., 56 N. Y. 585; Becker v. Koch, 104 id. 394; McCallan v. B., etc., R. R. Co., 48 Hun, 340.) Where the judge leaves it to the jury to infer a fact not warranted by the evidence, it is. error, and a new trial will be granted. (Leeds v. M. G. L. Co., 90 N. Y. 26; Hutchins v. Hutchins, 98 id. 56.)
    
      Tracy C. Becker and William L. Marcy for respondent.
    The gist of the defendant’s motion for a dismissal of the indictment presents the question of felonious intent. The evidence in this case was sufficient to warrant the jury in finding felonious intent. (People v. McCarney, 83 N. Y. 408; People v. Bliven, 112 id. 79; Penal Code, §§ 622-633.) Ho errors occurred in the' admission or rejection of evidence. (Penal Code, §§ 602, 614.) The method of examination of the people’s witness Klieves was within the discretionary power of the trial court, and that power was properly exercised. (People v. Kelley, 113 N. Y. 647; People v. Ricker, 22 N. Y. S. R. 652; Bullard v. Pearsall, 53 N. Y. 230; Greenl. on Ev. [13th ed.] § 444 ; 1 Whart. on Ev. § 549 ; People v. Buddensieck, 103 N. Y. 487.) Xo error was committed as to contradicting defendant’s witness Loveridge. (Gall v. Gall, 114 N. Y. 109; People v. Wilson, 109 id. 345; People v. McCarty, 14 N. Y. S. R. 415; People v. Lindsay, 67 Barb. 548, 559; People v. Parish, 4 Den. 156; Geneva I. & S. R. Co. v. Sage, 35 Hun, 95; McCarney v. People, 83 N. Y. 408; People v. Wayman, 128 id. 585; People v. Hovey, 92 id. 554; People v. Guidici, 100 id. 503; People y. Donovan, 101 id. 632; Greenfield v. People, 85 id. 75; Ruloff v. People, 45 id. 213.) The allegations of the indictment .fully inform the defendant of the nature of the charge made against him. (Code Crim. Pro. §§ 284, 285; People v. King, 110 N. Y. 418; Nichols v. People, 17 id. 114; People v. Willet, 102 id. 62; People v. Conroy, 97 id. 62.) Xo error was made by the trial court in disposing of defendant’s requests to charge. (Stallcup v. N. P. Bank, 6 N. Y. S. R. 512; Harold v. N. Y. E. R. R. Co., 24 Hun, 184; People v. Dimick, 107 N. Y. 13.)
   Finch, J.

The evidence given for the prosecution furnished an adequate foundation for the conclusion of fact involved in the verdict of the jury. The business combination of the numerous elevators, the consequent complication of their dealings with their customers and with each other, and the peculiar system of accounts which became necessary, rendered it extremely difficult to follow and trace any particular and idem tical ownership of grain from its original receipt to its final disposition; and yet, a prolonged study of the proofs has left upon our minds the conviction that the defendant did convert to his own use and misappropriate the grain referred to in the indictment. That he caused it to be transferred from one elevator to another without the usual and competent order and authority; that he confused and falsified the accounts so as to cover and conceal his action; that the shortage ” resulting from the removal was concealed by a false and fraudulent weighing of the remaining grain, occasioned by his indirect suggestion, to which he assented and of which he availed himself ; and that he sold the grain which it was his duty to keep and for the delivery of which to the true owner the elevators were bound, are facts more or less clearly proved, and supported by sufficient evidence to put them beyond our review.

ISTor is it an adequate answer to say that the proceeds of the sales made by Sherman went into his bank account as manager of the associated elevators and were applied by him upon its liabilities. The elevators were bailees. Their contract and their duty was to keep and not to sell the grain, to deliver it in specie and not in its value in money, and the sale and conversion by Sherman was not condoned or relieved of .its character as a crime by transferring the proceeds to those who had no right to receive them. But the evidence does not at all exclude an inference of the jury that the proceeds went to Sherman’s benefit. In his bank account were involved all of his private and personal transactions as well as those of the elevators and possible to trace only by the stubs of his checks. Against that account he drew at his pleasure for all purposes, and that the loss of this grain, however pushed along or disguised by substitution, landed as a loss upon the elevators is quite certain from the evidence.

It is claimed, however, that the defendant could not properly be convicted of the form of larceny which the indictment charges. The offense is described as within the second subdivision of section 528 of the Penal Code, and the claim now made is that the grain was in the custody and control of the elevator corporations and not in that of the defendant. The section itself obviates the difficulty. It assumes that beneath the technical legal control of the corporation as such lies an actual and effective custody and control of corporate officers and servants. They are specifically described, and the fact in this case corresponds with the description. The corporation as such, the technical legal entity, cannot suffer imprisonment for a crime, but those who represent it and act for it as its officers and agents can. The defendant as general manager had the custody and control of the grain in the elevators. It was by means and by force of that very custody and control that he was enabled to shift the grain, to sell and convert it and confuse and falsify the accounts. It is of little utility to carry our inquiry back of the terms of the Penal Code when the offense charged and proved is clearly within it.

Error is further alleged to exist in the admission of tlie evidence showing the false weighing of the grain, and in the suggested inference therefrom contained in the charge of the trial judge. That proof was competent to show the actual fact of the alleged shortage,” notwithstanding the apparent and reported result of the weighing, and as a foundation for the further fact, very strongly proved, that the defendant assented to and availed himself of the fraud with full knowledge of its existence. Beyond that, the circumstantial evidence tends forcibly to the inference that the deception practiced had its origin in the purpose and necessities of the defendant. He knew the fact of the shortage ” for it originated in hia own act. His superintendent Klieves also knew it. There were frequent conversations about it. Sherman said he didn’t want it to be known; Klieves had a conversation with the men before the weighing with reference to such weighing; without telling them what to do it was easy to indicate the disastrous consequences certain to follow if the elevator failed to hold out; the men averted those consequences by making it nearly hold out; when it was done Klieves said, “ I didn’t tell the men to do it,” and Sherman added, “ I didn’t tell you to tell the men to do it,” and yet conceals the fraud from his principals, stands upon and defends himself with it and so makes it his own. The men who accomplished it had no conceivable motive of their own ; quite surely tlie deception did not originate with them, and it takes very little reflection to become confident of its source. The evidence was admissible and was properly submitted to the jury.

I do not think that the court transcended its just discretion in the examination of Klieves. Called by the prosecution he manifested a disposition to favor the defendant and keep back or soften injurious facts. Necessarily some degree of latitude in his examination was allowable. I do not think that any effort was made on behalf of the People to impeach him. On the contrary the effort was to make him tell all that he knew. For that, purpose it was proper to refresh his recollection or remove his hesitation by recalling to his mind what he had already once testified to before the grand jury. The right to ask the witness leading questions was asserted by the prosecution, admitted by the defense to be within the discretion of the court, and that mode of examination permitted. The court made no ruling which allowed an impeachment of the witness, explicitly declaring that no such question had yet arisen. We think no error was committed.

The remaining questions raised do not seem to us to require discussion.

The judgment should be affirmed.

All concur.

Judgment affirmed.  