witnesses but O'Dea, who was needed by the government, had been granted. The court overruled the objection and defendant excepted.

He testified that he first saw the cluster ring of count 1 in Horning's possession; got the locket of count 6 from Heidenheimer; four rings from Heidenheimer also; sunburst from Burnstine's; ring of count 10 from Heidenheimer's. Witness had made an effort to locate Daisy Brill, without success. To this defendant excepted. Ralph Harris is the husband of Kitty Harris, who is also known as Kitty Brown. The district attorney explained his failure to call Kitty Brown as a witness because she was under indictment in respect of the transactions, and could not be compelled to testify. Defendant excepted to this statement. At the close of the evidence for the government the defendant moved the court to direct a verdict upon all of the counts; which was denied, with exception noted. He then moved a verdict on the ground that the indictment alleges ownership of the property in Schwartz, and it appeared from the evidence of Pennoyer that he was a partner of Schwartz. He then moved for a verdict on counts 5a and 5b on the ground that the article described is a brooch, and the proof showed it to be a "sunburst." These motions were denied and exceptions. taken.

Defendant then called two witnesses-Porter and McCormick-who testified that they had seen defendant with jewelry in large and small quantities. That Norris told McCormick he had a ring which belonged to Talbert, and as he owed him money he intended to keep the ring. Burch testified that he purchased a pawn ticket from Norris, which he afterwards sold back to Talbert.

The court announced that he would submit the case to the jury on the larceny counts only, except count 6.

The defendant asked: First, an instruction to find for the defendant; second, that if they believe Schwartz gave the defendant the goods, relying upon the fact that he could make sales for him, and not upon the alleged false representations, they must acquit; third, that to convict, the jury must believe,

beyond reasonable doubt, that defendant with intent to defraud did feloniously, knowingly, and designedly represent to Schwartz that he had prospective purchasers; that Schwartz, relying on such representations and for no other reason, was induced to deliver the jewelry described in the indictment; fourth, that the fact that defendant stated he had a purchaser for certain articles is not a false statement unless they believe that Schwartz, by the use of diligence, could not have ascertained whether he had a purchaser or not; fifth, that the statements, if made, that if Schwartz would deliver defendant the articles in the indictment he would sell them, are future promises, and not false pretenses within the meaning of the law. These instructions were refused, and exceptions noted. The court gave two instructions for the defendant. One-No. 6is to the effect that it is not every taking and carrying away of the property of another that will constitute larceny; but a felonious intent must be shown to have accompanied the taking; and all the facts and circumstances are to be taken into consideration in determining the intent. The other-No. 7-related to the province of the jury in determining the credibility and weight of the evidence, and their power to take into consideration the character and motives of the witnesses, etc. Instructions 8 and 9 asked by defendant were refused, and the action of the court excepted to. No. 8 is to the effect that the jury must be satisfied beyond a reasonable doubt, in order to convict, that at the time defendant received the property he intended to steal it; and if he took it for a lawful purpose, and afterwards appropriated it, he is not guilty of larceny. Another instruction-No. 9-is substantially the same as No. 4 before recited. No. 10 is to the effect that, to convict, the jury must believe beyond a reasonable doubt that defendant did not have the right to take the goods out of the store without mentioning any particular persons to whom he was going to show the goods. Both were refused, and exceptions noted.

The charge of the court, in submitting the larceny counts, save count 6, explained that there were two grounds upon which a verdict of guilty might be returned, if the jury should.

be satisfied, beyond a reasonable doubt, of their existence. The first of these is that the defendant procured possession of certain articles by trick, artifice, or fraud, intending at the time to obtain possession to appropriate them to his own use. "Ordinarily in a case of larceny the taking is by force or by stealth, and without the consent of the owner; but although the goods were taken with the consent of the owner, it may be larceny if that consent was procured by some fraud, trick, or artifice, the obtainer intending at the time feloniously to appropriate them to his own use and deprive the owner of them." This had application to those counts wherein the evidence tended to show that possession of the goods had been obtained for exhibition to a prospective purchaser; and that this representation was false; and that the articles had not been returned to the

owner.

The second ground was thus stated:

"The other theory is that even if the defendant obtained possession of these goods, any of the goods named in the counts which I have submitted to you, if he obtained possession of any of those goods lawfully at the time, and honestly intended then to make a sale of them or to find a purchaser for them, but had possession of them only for the purpose of exhibiting them to some prospective purchaser and of then returning the article. to Mr. Schwartz, with the name of the prospective purchaser, for him to say whether he would sell the articles or not; that after he had thus honestly obtained possession of the goods for that limited purpose he made up his mind feloniously and fraudulently to steal those same goods and appropriate them to his own use, wickedly and corruptly and to deprive the owner of them, and did so, that that would constitute larceny and would be a taking from the time he did so appropriate them to his own use with that unlawful and felonious intent. that as to this second theory, it is important for you to make up your mind in what capacity the defendant did receive these articles. If he had them as the ordinary salesman has goods to sell, with authority to sell and pass the title on receiving payment, or on receiving part payment, or such assurances as

Statement of the Case.

[42 App. his employer has authorized him to receive; if he was that kind of an agent, then this theory of the law I am speaking about would not apply, and he would not be guilty of larceny even if he did afterwards appropriate them to his own use. That would be embezzlement, and not larceny. So that the question as to whether he was that kind of an agent or whether he was nothing but a servant intrusted with an article of property for the single purpose of showing it to a person to see whether or not that person would be willing to purchase it, and then, if the person was willing to purchase it, to bring it back to his employer, and submit the name of the purchaser, and have the employer, say whether he would consummate the sale or not, or if the purchaser did not want the property to return the ring in the same way, or whatever the article of property was. Now, was that the limit of his authority when he received these goods? Was that the limit of his authority; namely, just to exhibit them to some person to see whether that person would be satisfied to purchase them? If that was the only right he had as to them, then if he, having them in his possession for that limited purpose only, made up his mind that he would appropriate them to his own use, feloniously and fraudulently, and to take away the owner's property in them, then it would be larceny if he did it with that purpose and intent, because the possession of them under the law was still in Mr. Schwartz, if those were the facts in the case."

The exception to this charge was general. The jury found the defendant guilty on all of the larceny counts except count 6. On this and the other counts the verdict was not guilty, pursuant to the direction of the court.

Mr. James A. O'Shea for the appellant.

Mr. Clarence R. Wilson and Mr. S. McComas Hawken for the appellee.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

Forty-six errors have been assigned, all of which have been considered, but only certain ones will be discussed.

1. The demurrer to the indictment was correctly overruled. The description of the articles was sufficiently specific. Had the defendant been in real doubt as to the identity of the several articles with the theft of which he was charged, he could have moved the court for a bill of particulars. Lauer v. District of Columbia, 11 App. D. C. 453, 454. This he failed to do.

For a stronger reason the motion in arrest of judgment based upon the same grounds was rightly denied.

2. There was no error in admitting the evidence of the witness Norris that he had not told the defendant that he wanted to buy the $175 ring; or in permitting him to show that he signed the notes therefor, at the request of defendant, after he had delivered the ring to Kitty Brown. It was relevant to the charge that he had procured the possession of the ring by trick or artifice. As to the evidence relating to the pledging of certain articles by Kitty Brown and others, the evidence tended to show that this was with the approval of defendant.

Moreover, the pledging of the articles was not material to the conviction of defendant. If he failed to return articles delivered to him for a particular purpose, and thereby converted them to his own use, the offense of larceny, if that was his offense, was completed.

3. There was no error in permitting the witness O'Dea to testify. The record shows that an order was granted on defendant's motion, excluding the witnesses from the court room; but O'Dea was expressly excepted. Moreover, his testimony was formal and was relative to matters that had not been testified to by others.

4. At the conclusion of the government's evidence, the defendant moved the court to direct a verdict of acquittal on the ground that the indictment alleges property in Schwartz alone, while the proof showed that it was the property of Schwartz and