
    Supreme Court-General Term-Fifth Department.
    Oct. 23, 1891.
    PEOPLE v. STEPHEN F. SHERMAN.
    (40 St. Rep. 831.)
    1. Larceny—Section 528 of Penal Code.
    The general manager of a grain elevator has the grain in his possession as the agent or officer of the elevator and comes within the provision of § 538 of the Penal Code.
    2. Same—Evidence.
    Upon the trial of an indictment for stealing grain from an elevator, evidence to show shortage of grain is competent.
    3. Same.
    Evidence of a device, practiced by defendant’s employes in reweighing grain in the elevator, though in his absence, is competent.
    4. Witness—Refreshing memory.
    The memory of a witness for prosecution, who gives different testimony on the trial from that before the grand jury, may be refused by the district attorney’s calling his attention to the latter evidence.
    Appeal by the defendant from the judgment of conviction of ■the crime of grand larceny in the first degree, rendered against him in the court of oyer and terminer held in the county of Erie on the 23d day of January, 1891, and from an order made by the court on the same day denying defendant’s motion for a new trial.
    Truman C. White, for appellant.
    William L. Marcy, for respondents.
   LEWIS, J.

It was charged in the indictment that, at all the times mentioned, the Buffalo Elevating Company was and still is a body corporate engaged in the receiving, storing, discharging and elevating of grain in the city of Buffalo, and that ■there'also existed in Buffalo a corporation known as the International Elevating Company engaged in the same business; also one known as the Lake Shore Elevating Company, and that these three incorporated companies were combined and associated together in the common business of receiving, elevating, storing and discharging of'grain under the name, style 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, clerk, servant, officer and agent of their association of elevators; and, being such director, manager, etc., of the Buffalo Elevating Company, and, also; of the Associated Elevators, he had on the 22d day of September, in the year 1888, in Ms 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, the property of the Buffalo Elevating Company, with intent to deprive and defraud the Buffals Elevating Company of said wheat and did feloniously steal the same. • The corporation known as the Buffalo Elevating Company owned and operated two elevators, the Dakota and the Sturgis. The three corporations named in the indictment had entered into a mutual arrangement by wMdh they employed a common manager to conduct their business affairs. The business carried on by this association of elevators in the year 1888 was very great, requiring many employees. 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 embezzling was in the elevator known as the Dakota.

The evidence upon which the People relied to convict the defendant was largely circumstantial and very voluminous; it ■covers more than 400 pages of a printed case. There being no eye witness to the larceny, there being so many employes, the quantity of grain in the elevator being so large, and portions of the same, for the purposes of convenience, being frequently transferred from one elevator to another, proof of the com misalón of the crime became very difficult; there were many facts and circumstances shown which the People claim tended to prove the guilt of the defendant. Hone of the facts taken alone would seem to be very significant to prove the commission of the crime, but taken together, they tended to show his guilt. •The defendant had, theretofore, occupied a respectable position in the business community; he held a position of great trust and responsibility. The defense was conducted with great vigor and ability. The jury, after a long and careful trial, pronounced him guilty of the crime charged against him. A rehearsal of all the facts and circumstances proved tending to establish his guilt would require so much labor and space as to be impracticable. A careful perusal of the testimony has convinced us that the verdict was sustained by the evidence, and unless errors were committed upon the trial requiring reversal, the judgment of conviction should stand.

The defendant was the general manager of the elevator in which the grain was stored. He had complete control of the grain; he had power to cause it to be transferred from one elevator to another, and must be held, we think, to have had the wheat in his possession, custody and control as the agent or officer of the elevator, and to come within the provisions of section 528 of the Penal Co de.

The trial court permitted evidence of the removal of 8,002 bushels of wheat from the same elevator the day prior to the removal of the wheat the defendant was charged with stealing. It was claimed by the People, and the proof tended to show, that there was a shortage of about 16,000 bushels in the quantity of wheat in the Dakota elevator. The defendant being the general manager of the elevator, this deficiency in the quantity of wheat belonging to the elevator was an important fact, and this evidence was competent as tending to show such shortage. We do not see that the defendant could have been prejudiced by this evidence.

One Frank A. Ulives was a witness before the grand jury and gave important evidence for the People against the defendant. He was called as a witness upon the trial. The prosecuting attorney claimed to be disappointed in his evidence given upon the trial; he claimed that he was attempting to shield the defendant by testifying differently from his testimony given before the grand jury. The People’s counsel was allowed by the court to call the witness’ attention to questions propounded to him when he was testifying before the grand jury and his answers to the questions. He testified that after giving his evidence before the grand jury he was interviewed by the defendant and frequently saw the defendant at defendant’s residence, and that the subject of his evidence before the grand jury was discussed and defendant made suggestions to him in ref erence to it, telling him that some things he had testified to before the grand jury were not true. The objection of defendant’s counsel was premature; the answers of the witness were harmless; they did not prejudice the defense. The examination, we think, under the circumstances, was proper, not for the purpose, as. was suggested by the trial court, of impeaching the witness, but for the purpose of refreshing his mind and eliciting from him the truth. People v. Ricker, 22 St. Rep. 652; People v. Kelly, 113 N. Y. 647-651; 22 St. Rep. 969.

The evidence of Crowley and Murphy as to the device resorted to, make the quantity of the grain in the Dakota appear to hold out, was competent as tending to show that there was in fact a shortage of grain in the elevator. They testified, in weighing the grain, to ascertain how much there was in the elevator, they so' arranged the machinery as to reweigh nine or ten thousand bushels of the wheat; that amount added to the conceded deficiency of 2,500 bushels made about the shortage of the grain in the elevator as finally ascertained. It was not proved that-the defendant personally directed this double weighing of the grain. It, in fact, was done when he was absent from the city. It was done, however, by men who had no interest, so far as appears, in making the grain hold out; and they were men under the control and management of defendant.

We find no error committed upon the trial which could, have prejudiced the defendant’s case. The case seems to have been presented to the jury fairly, and they were justified f-rom the evidence in finding that the defendant directed the wheat to be removed from the Dakota elevator with a view of appropriating it to his own rase, and was, by so doing, guilty of the crime of larceny, as charged in the indictment. i

The judgment appealed from should b,e affirmed.

DWIGHT, P. J., and MACOMBER, J., concur.  