State v. Elsbury

The evidence was amply sufficient to justify the verdict in this case if, under our statutes, one partner can legally be convicted of larceny of partnership funds. When Elsbury, by a fraudulent trick, appropriated the $1,000, he knew not only that there would be no money left in the partnership account to be divided between Corsino and himself after payment of creditors, but also that there would be far less than sufficient money left in that account with which to pay even them.

It is the opinion of the writer that, under our statutes appellant was lawfully convicted. This conclusion is based upon the following: (1) That part of section 10339, N.C.L., 1929, which provides that it shall be no defense to a prosecution for larceny that the money appropriated was partly the property of another and partly the property of the accused; (2) that part of section 25 of chap. 74 of the 1931 Stats. of Nev., p. 112, which reads: "A partner is coowner with his partners of specific partnership property holding as a tenant in partnership." N.C.L., Supp. 1931-1941, vol. 1, section 5028.24, p. 660; (3) the case of State v. MacGregor, 202 Minn. 579, 279 N.W. 372.

DUCKER, J., being ill and unable to participate in this opinion, the Governor designated Hon. WM. McKNIGHT, Judge of the Second Judicial District Court, to sit in his place.