
    The People of the State of New York, Appellant, v. Gordon G. Egnor, Respondent.
    Third Department,
    March 8, 1939.
    J. Ernest Wharton, District Attorney, for the appellant. >
    • Sharon J. Mauhs, for the respondent.
   Per Curiam.

Appeal by the People from an order dismissing an ■ indictment which accused defendant of (first count) grand larceny, first degree, and (second count) grand larceny, second degree. The motion was granted upon the minutes of the grand jury at a Rensselaer Special Term of the Supreme Court. The People have the right to appeal therefrom. (Code Crim. Proc. § 518, subd. 3.)

The minutes taken before the grand jury disclose: That the defendant was the manager in charge of the Elmore Milling Company’s branch store in Cobleskill, Schoharie county, N. Y. On or about December 16, 1937, it was disclosed by an inventory that defendant had disposed of merchandise sent him by his employer of the value of $725.33, for which he had made no report of sale or other disposition, as required by the terms of his employment, and that there were no credits or money representing the shortage. The second count of the indictment charges a money shortage of $310.06. The evidence before the grand jury sustains the charge that defendant was guilty of peculations to the amount of $373.06. This was made up of bank deposits of $310.06 which he had reported but had never in fact made, and $63 in money reported as being in the cash till, but which was not there. The defendant absconded on the day following the discovery of these shortages — was found in Texas suffering from or simulating amnesia.

The order should be reversed, the motion to dismiss the indictment denied, and a bench warrant issued for the apprehension of the defendant.

Hill, P. J., McNamee, Crapseb, Bliss and Heffebnan, JJ., concur.

Order reversed on the law and facts, and motion to dismiss indictment denied.  