¶1dissenting: I disagree with the reasoning set forth and with the result reached by the majority opinion, and will summarize herein the basis upon which I would affirm the order of the district court denying the writ of habeas corpus.
¶2The majority opinion seems to overlook or disregard the fact that no public offense under the statute (K. S. A. 34-290) is possible unless a warehouseman is operating a licensed warehouse at a set location.
¶3In addition the result of the majority opinion will be to restrict unduly the venue provisions of K. S. A. 62-404 relating to crimes committed in two or more counties.
¶4In The State v. Johnson, 109 Kan. 239, 199 Pac. 104, it was held the act of a corporate officer in drawing a check on funds of the corporation located in a bank in a distant county constituted the crime of embezzlement by the officer. The court indicated the funds in the bank were legally in his possession and control as the managing officer of the corporation. Prosecution was held proper in the county where the bank was located although withdrawal was by mail and defendant was never present in the county.
¶5This same reasoning is applicable to the facts of the present crime charged. The defendant, William H. Addington, was president of Addington Grain Company, Inc., a corporation. The corporation was operating a licensed grain warehouse at Hutchinson, Reno county, Kansas. The corporation was the warehouseman and could operate only by its officers, agents and employees. The physical plant at Hutchinson was run by employees but the defendant, as president, was operating the warehouse at all times and should be considered in possession and control thereof at all times. Such control and possession would extend to any wheat or grain received in the warehouse.
¶6*5701 Whartons Criminal Law and Procedure, Definition of Crime §10, p. 11, defines a crime as follows:
“A crime is the commission or omission by a person having capacity, of any act which is either prohibited or compelled by law, and the commission or omission of which is punishable by a proceeding brought in the name of the government whose law has been violated. . . .”
¶7The statute (K. S. A. 34-290) requires two indivisible acts to constitute the complete crime with which defendant is charged. Both acts must be proven before the defendant can be guilty of the offense. The first is an act of commission, i. e., the issuance of a grain warehouse receipt. The second is an act of omission, i. e., failure to have received the grain for which the receipt is issued. Neither act is an unlawful act in and of itself. The receipt may be issued in any county. Under the agreed facts of this case the issuance was in Sedgwick county. The second of these acts necessary to consummate the offense must take place at the particular warehouse being operated by the warehouseman. Under the facts of this case the warehouse was in Reno county.
¶8Therefore the act of omission in the present case took place, if at all, in Reno county. The warehouse receipt was issued for specific grain. If properly issued and endorsed the effect would be to transfer title to grain in the Addington Grain Company, Inc. elevator located in Reno county. If the specific grain had not been received the effect would be a failure to transfer title to specified grain at the elevator. It should be noted the warehouseman is required to designate on every warehouse receipt the location of the warehouse, the amount of grain, the date this grain was received by the warehouseman, the grade, test weight, protein content and the method of transportation (railroad in the present case) by which he received the same.
¶9The defendant, being president of the corporate warehouse located at Hutchinson in Reno county, was in possession and control of the warehouse and of any grain received at that location. This constructive possession by defendant is sufficient to support venue under K. S. A. 62-404 because non-receipt of the particular shipment of grain for which the receipt was issued is one of the two indivisible parts constituting the offense under the statute.
¶10The majority opinion treats the offense as consisting of two divisible acts and indicates the issuance of the warehouse receipt was unlawful but the failure to have received the grain for which the *571receipt was issued was lawful. With this I cannot agree. The issuance of the warehouse receipt is not unlawful unless it is coupled with a failure of the warehouseman to receive the specific grain for which the receipt was issued. The two parts of the crime are indivisible. Each constitutes an unlawful element of the offense without which the crime would not be consummated.
¶11An indivisible part of the offense having been committed in Reno county the provisions of K. S. A. 62-404, relating to proper venue, do not violate Section 10 of the Bill of Rights of the Kansas Constitution which requires the prosecution to be in the county where the crime was committed.
¶12I would affirm the order of the lower court denying the writ.