844 48 NORTH DAKOTA REPORTS
Pugh, J. Defendant was convicted of the crime of grand larceny, and, from the judgment entered on the verdict, he appeals to this court.
August 10, 1918, and October 12, 1918, to satisfy creditors and avoid bankruptcy proceedings, the defendant executed certain agree- ments, whereby for the benefit of his creditors, he assigned and deliv- cred to W. H. Shure, as trustee, all his property, both real and personal (excepting household goods and homestead). The real property consist- ed of upwards of 13,000 acres of land.
Surrounded by lands owned by defendant was a quarter section of land formerly owned by B. G. Johnson, against which was a second mort- gage. The mortgagee therein sold the same to the defendant, the assigh- ment running to the bank of which Ugland was then cashier. The mortgage was foreclosed, the land sold, and sheriff’s certificate issued in the name of the bank February 2, 1918, and prior to the assignment for the benefit of creditors made .to Shure. Thereafter and prior: to the assignment to Shure, defendant entered into.an agreement with Johnson whereby defendant agreed to farm said quarter section of land during the farming season of 1918 and to apply one-third of: the crap raised and harvested and threshed from the land, that being Johnsan’s share of the crop, after deducting one-third of the threshing bill, to the puyment of the sheriff’s certificate aforesaid; the remaining two-thirds to be defendant’s share of the crop. A crop of flax was raised on the land, and it is a portion of this crop, to wit, 112 bushels thereof, which is the subject of the alleged larceny. After the execution of the trust agreements, the trustee, Shure, hired defendant in August, 1918, and agreed to pay him $100 per month wages, to assist in caring for the crops.
During the threshing of the crops on the so-called Johnson land, in the temporary absence of the trustee, Shure, and, without the knowledge of Johnson or the trustee, Shure, defendant directed one of the work- men, who was hauling grain from the threshing machine, to haul a por- tion of the flax from the machine and place it in a granary situated some distance from the Johnson land, but which granary was situated on land which defendant had theretofore transferred to Shure, as trustee, as aforesaid. One hundred twelve bushels of said flax was placed in said granary, where it was permitted to remain two weeks. The re- mainder of the flax on the Johnson land was hauled to an elevator at Knox and there placed in a special bin, and report thereof given by de-
