98 Kan. 790 | Kan. | 1916
The opinion of the court was delivered by
The defendant appeals from a judgment of conviction on the charge of embezzling seven hundred and thirty-five bushels of wheat, of the value of $1075. The twenty-six
The defendant began the operation of a mill and elevator, and in the summer of 1914 numerous farmers stored their wheat with him. Among these was A. W. Mentze, who put seven hundred and thirty-five bushels into the elevator and took a receipt:
“Ree’d of Mr. A. W. Mentze, 628 bu. test 77# [57#] and 107.05 at test 59# for storage at the rate of one-half cent per bn. per month, and if sold to the mill there is no charge.”
The defendant claims to have purchased this wheat, but the prosecuting witness testified:
“It was left between me and Mr. Wales whether we could agree on the price and sell to him, or whether he was to load it out for me on cars. If it was not loaded I was not to haul it out in wagons, but he was to load it in cars. It was no sale at all.”
In the following January Mentze talked to Wales about buying the wheat, and was told by him that Wales had a deal on hand and to wait a few days, to which Mentze assented. When the wheat was stored it was worth about ninety cents, and at the time of this conversation it was worth from $1.25 to $1.30. Afterwards Mentze tendered the storage, which tender was refused.
From all the evidence the jury were justified in believing that the wheat was stored and not sold to the defendant, that he became involved, that a company was incorporated to which he sold the mill, taking certain shares of stock, that the wheat in storage was ground up, and afterwards a proceeding in bankruptcy was had respecting the company. The case was carefully tried and the instructions, while unnecessarily prolix, carefully stated the law and were fair to the defendant except that as the fact and not the amount of the alleged embezzlement was in dispute it would have been better to omit the repeated mention of petty larceny. >
We find no material error touching any of the rulings of the trial court except as to the rejection of certain items of evidence. One of the reasons why Wales claims to have become involved was that he had to wait some time for the proceeds of a shipment of wheat to New York, but after he had gone east to make the collection and succeeded with considerable expense
The crime with which the defendant was charged being ope involving moral turpitude and wrongful intent, and there being a square conflict between the prosecuting witness and the defendant as to the nature of the storage transaction, all of these matters should have been received in evidence in order that the jury might have fully understood the entire situation.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith.