Vehmeyer was not entitled to a specific lien, as claimed. The assets were not sufficient to satisfy the liens of such other persons. There is nothing in the opinion that indicates the view of the court in reference to the rights of Vehmeyer as against Hall & Co. under the receipt, had the claims of such other persons not intervened or had the assets been sufficient to satisfy the claims of all. Vehmeyer was merely denied all rights as a secured creditor. In the Snydacker case the instrument executed, while denominated a grain receipt, was, in effect, a chattel mortgage, and the court merely held that as there was no acknowledgment and recording and no change of possession the instrument was not valid as against third parties. It is manifest that neither of these cases warrants the conclusion that a receipt, such as that before us, does not affect the title to or the ownership of the property as between the person signing it and the holder thereof. So far as the title to the grain itself, or so far as the creation of any lien thereon, is concerned, as to third parties the receipt was, of course, absolutely without effect.

The vendor may sell a quantity of grain, part of a mass, the quantity so sold not being identified or separated from the mass and not being delivered, and the title thereto will pass as between the vendor and the vendee. (Cushing v. Breed, 14 Allen, 376; Kimberly v. Patchin, 19 N. Y. 330; Yenni v. McNamee, 45 id. 614; Young v. Niles, 20 Wis. 646; O'Dell v. Lyda, 40 Ohio St. 245; Merchants' Bank v. Hibbard, 48 Mich. 118; National Exchange Bank v. Wilder, 34 Minn. 149; see, also, reasoning of opinion in Cloke v. Shafroth, 137 Ill. 393.) It is, of course, true, that where the property sold has not been identified or separated from the common mass replevin could not be maintained, but it is also true that if the whole was destroyed by fire without the fault of the owner of the building in which the grain was stored and while that sold was still unidentified and undelivered, the loss would fall upon the vendee to the extent of the grain sold to him. (Hoyt v. Fire Ins. Co. 26 Hun,

416.) It seems equally clear that if the owner of a building had therein 10,000 bushels of corn in a common mass and should sell 1000 bushels to each of ten different persons without identifying or separating any of that sold, and make and assign to each vendee a receipt like unto that assigned by McReynolds to the bank, and that by proper endorsement and transfer all the receipts should come to the hands of the same party, this party could then maintain replevin for the corn if it still remained undisturbed in vendor's building.

Had the transaction between McReynolds and the bank been intended as a sale, we think the title to the corn would have passed as between the vendor and the vendee, and that the receipt having been endorsed and delivered as collateral security, it was, in legal effect, an unrecorded and unacknowledged chattel mortgage, possession of the property remaining with the mortgagor, and that it was such an instrument as comes within sections 124 and 125, supra.

It is urged that there is a fatal variance between the allegations and proof, because, it is said, there were 3000 bushels of corn in the elevator which was of the description specified by the receipt, while the indictment charged that a large amount of the corn, "to-wit, all of the said 4670 bushels and forty pounds," had been removed. The point is, that the proof would not support a conviction, in view of the phraseology of the indictment, unless it showed the removal of all the corn. By a fundamental rule of evidence the averment of the indictment made proof of the removal of all or any portion of the corn admissible. There was no variance.

Evidence was introduced which showed that on the 19th of January, 1906, there were 6000 bushels of corn in cars standing on railroad tracks in a yard which was a part of the elevator property and which was operated in conjunction with the elevator. It is insisted that the first instruction given at the request of the prosecution was erroneous, because it advised the jury, in substance, that the fact that McReynolds owned this corn in the yard was without sig

McRey

nificance. We think the instruction was correct. nolds was required by the law to keep the corn in the "place of storage," which was the building, and not the yard.

We have carefully considered other assignments urged by counsel which question the action of the court in passing on instructions to which the foregoing portion of this opinion does not apply and in permitting evidence to go to the jury over the objection of McReynolds. The indictment, by proper averment, charges a violation of section 125, supra. Evidence was admitted to which no objection of any character was interposed and which was in nowise questioned or disputed, which, as we have above construed the statute, conclusively establishes the fact that McReynolds is guilty of the crime for which he was tried. The alleged errors pointed out by such other assignments, even if well assigned, would not, under these circumstances, warrant reversal. Under our construction of the statute they are harmless in any event, and for this reason it is unnecessary to lengthen this opinion by discussing them.

The judgment of the criminal court will be affirmed.

Judgment affirmed.

CARTWRIGHT and VICKERS, JJ., dissenting:

It is the rule in the construction of statutes that the legislature are presumed to have used words in their ordinary and popular meaning, and applying that rule to sections 124 and 125 of the Criminal Code, it, in our opinion, forbids the interpretation given to them in the foregoing opinion. The words "any receipt or other written evidence of the delivery or deposit of any grain, flour, pork, wool, salt, or other goods, wares or merchandise, upon any wharf or place of storage, or in any warehouse, mill, store or other building," contained in section 124, when given their ordinary meaning, can only be applied to an acknowledgment by one person to another of the delivery or deposit of such property with the person giving the instrument, by the per

son to whom it is given. We do not see how the words can be applied to an instrument by which a person acknowledges that he has his own goods or property in his own warehouse, mill, store or other building. It is only one who has "given any such receipt or written evidence of deposit or storage" who can be guilty of the offense specified in section 125.

Another rule is that criminal statutes shall be strictly construed, and in this case we think that rule is violated by giving the most liberal construction possible to the words of the statute, so as to bring the instrument executed by the plaintiff in error within the terms of the statute. Under the rule of strict construction, always adopted in construing statutes creating crimes, we do not see how the instrument. in question can be held to be a receipt or written evidence of deposit or storage of grain with the plaintiff in error.

Upon consideration by the court of the petition for a rehearing in this cause, Mr. Justice SCOTT delivered the following additional opinion of the court:

Plaintiff in error, by his petition for rehearing, contends, among other things, that the cases of Sykes v. People, 127 Ill. 117, Mayer v. Springer, 192 id. 270, and State v. Stockman, 30 Ore. 36, are of controlling importance in this case, and erroneously assumes that as those cases were not discussed in the opinion herein they did not receive the consideration of the court.

In the Sykes case the court considered whether section 25 of the Warehouse act was repealed by sections 124 and 125 of the Criminal Code, and determined there was no such repeal. It was there decided that the sections of the Criminal Code referred to include "places of deposit or of storage not public warehouses as designated in the Warehouse act," and make unlawful certain things not made unlawful by the Warehouse act. There is nothing in that opinion which even remotely indicates the view of the court as to whether

those sections extend to and include a building where the business of "storing the goods of others for hire" is not conducted, which is the question in reference to which plaintiff in error deems the case important. The opinion heretofore filed in this case recognizes the law to be as it is stated in the case last referred to, and, indeed, the law so stated was not in anywise questioned by defendant in error.

In Mayer v. Springer, supra, the court determined that a mill in which the business of a public warehouseman was not ordinarily conducted did not become a public warehouse where the owner occasionally received and stored therein grain upon which he held an option of purchase, and it was said that isolated instances of so receiving grain would not convert "a mill, store, barn or granary" into a public warehouse. It is urged that this case shows that the word "mill," as used in the statute, comes within the same class of buildings or places of deposit as a warehouse or a wharf, and that for this reason it is apparent that the rule ejusdem generis must be held to apply to the words "warehouse, mill, store or other building," as used in section 124, supra. We think no such conclusion can fairly be drawn. In fact, "mill" is by that opinion classed with "store,” “barn” and "granary." Certainly a barn signifies a place greatly different from a wharf or warehouse, and does not, within any ordinarily accepted meaning of the word, indicate a place where the business of "storing the goods of others for hire" is conducted. The two Illinois cases above mentioned have no application whatever to the controverted legal questions arising upon this record.

We stated in the original opinion herein our reason for declining to give weight to cases relied upon by plaintiff in error (including State v. Stockman, supra,) which had been determined in other jurisdictions, and nothing is to be added to what was there said in reference to such adjudications. The petition for rehearing will be denied. Rehearing denied.