Allen County.

8 Wend. 109; Cureton v. Dargan, 16 S. C. 619; Davis v. United States, 107 Fed. Rep. 753; Lawrence v. Commonwealth, 86 Va. 573 [10 S. E. Rep. 840]; State v. Campbell, 25 Utah 342 [71 Pac. Rep. 529]; State v. Haworth, 24 Utah 398 [68 Pac. Rep. 155]; Washington v. State, 62 S. W. Rep. 747 (Tex. Cr. App.); Johnson v. State, 59 S. W. Rep. 898 (Tex. App.); McMullen v. State, 59 S. W. Rep. 891 (Tex. App.); Lewis v. State, 59 S. W. Rep. 886 (Tex. App.); State v. Whittle, 59 S. C. 297 [37 S. C. Rep. 923]; State v. Turner, 18 S. C. 103; State v. Hicks, 130 N. C. 705 [41 S. E. Rep. 803]; State v. Kinsauls, 126 N. C. 1095 [36 S. E. Rep. 31]; People v. Noelke, 1 N. Y. Cr. Rep. 252; Carnal v. People, 1 Park Cr. Cas. (N. Y.) 272; Territory v. Guillen, 66 Pac. 527; State v. MeMullin, 170 Mo. 608 [71 S. W. Rep. 221]; State v. McGinnis, 158 Mo. 105 [59 S. W. Rep. 83]; State v. Pitre, 106 La. 606 [31 So. Rep. 133]; State v. Williams, 115 Iowa 97 [88 N. W. Rep. 194]; Bias v. United States, 3 Ind. Ter. 27 [53 S. W. Rep. 471]; Brown v. United States, 2 Ind. Ter. 582 [52 S. W. Rep. 56]; Jones v. State, 32 So. Rep. 793 (Fla.); Gass v. State, 32 So. Rep. 109 (Fla.); Bonville v. State, 70 Ark. 613 [69 S. W. Rep. 544]; Smith v. State, 130 Ala. 95 [30 So. Rep. 432]; McDowell v. Commissioners, 4 Ky. Law 353; Cook v. State, 22 Tex. App. 511 [3 S. W. Rep. 749]; Ladd v. Sears, 9 Ore. 247; Elwood v. Deifendorf, 5 Barb. 398; Mallory v. Perkins, 9 Bosw. 572; Button v. McCawley, 38 Barb. 413; Walker v. Blassingame, 17 Ala. 810; Newton v. Harris, 6 N. Y. (2 Seld.) 345; Bohanan v. Hans, 26 Tex. 445, 446.

Where evidence is competent for any purpose, a general exception to its admission, which is overruled, is insufficient as a basis for prosecuting error. 12 Cyc. of Law & Proced. 563; Bradner, Evidence (2 ed.) 717, Secs. 14, 15; State v. Magone, 32 Ore. 206 [51 Pac. Rep. 452]; Smiley v. Pearce, 98 N. C. 185 [3 S. E. Rep. 631]; Dow v. Merrill, 65 N. H. 107 [18 Atl. Rep. 317]; State v. Hope, 100 Mo. 347 [13 S. W. Rep. 490; 8 L. R. A. 608]; State v. Meyers, 99 Mo. 107 [12 S. W. Rep. 516]; Turner v. Newburgh (City), 109 N. Y. 301 [16 N. E. Rep. 344; 4 Am. St. Rep. 453]; Dreux v. Domec, 18 Cal. 83; Sneed v. Osborne, 25 Cal. 619; Bohanan v. Hans, 26 Tex. 445; Voorman v. Voight, 46 Cal. 392; Rush v. French, 1 Ariz. Ter. 99 [25 Pac. Rep. 816]; Castleberry v. State, 135 Ala. 24 [33 So. Rep. 431]; People v. Rodley, 131 Cal. 240 [63 Pac. Rep. 351]; People v. Gordon, 99 Cal. 227 [33 Pac. Rep. 901]; People v. Glenn, 10 Cal. 32; State v. Gannon, 75 Conn. 206 [52 Atl. Rep. 727]; DeForest v. United States, 11 App. Cas. 458; Jamison v. People, 145 Ill. 357 [34 N. E. Rep. 486]; Tracey v. People, 97 Ill. 101; Musser v. State, 157 Ind. 423 [61 N. E. Rep. 11; State v. Gunn, 106 Iowa 120 [76 N. W. Rep. 510]; State v. Brady, 100 Iowa 191 [69 N. W. Rep. 290;

Young v. State.

36 L. R. A. 693; 62 Am. St. Rep. 560]; State v. Perry, 51 La. Ann. 1074 [25 So. Rep. 944]; People v. Foglesong, 116 Mich. 556 [74 N. W. Rep. 730]; Lipscomb v. State, 75 Miss. 559 [23 So. Rep. 210, 230]; Hamilton v. State, 35 Miss. 214; State v. Dent, 170 Mo. 398 [70 S. W. Rep. 881]; State v. Brown, 168 Mo. 449 [68 S. W. Rep. 568]; State v. Hathhorn, 166 Mo. 229 [65 S. W. Rep. 756]; State v. Westlake, 159 Mo. 669 [61 S. W. Rep. 243]; State v. Harlan, 130 Mo. 381 [32 S. W. Rep. 997]; State v. Murphy, 9 Nev. 394; State v. Flanders, 38 N. H. 324; People v. Place, 157 N. Y. 584 [52 N. E. Rep. 576]; Gaffney v. People, 50 N. Y. 416; Height v. People, 50 N. Y. 392; People v. Webster, 59 Hun 398 [13 N. Y. Supp. 414]; State v. Mitchell, 119 N. C. 784 [25 S. E. Rep. 783, 1020]; State v. Wallace, 44 S. C. 357 [22 S. E. Rep. 411]; State v. Sexton, 10 S. D. 127 [72 N. W. Rep. 84]; State v. La Croix, 8 S. D. 369 [66 N. W. Rep. 944]; Barfield v. State, 41 Tex. Cr. App. 19 [51 S. W. Rep. 908]; McGrath v. State, 35 Tex. Cr. App. 413 [34 S. W. Rep. 127, 941]; Cornell v. State, 104 Wis. 527 [80 N. W. Rep. 745]; Downey v. State, 115 Ala. 108 [22 So. Rep. 479]; Gabriel v. State, 40 Ala. 357; Kirby v. State, 32 So. Rep. 836 (Fla.); State v. Bartlett, 170 Mo. 658 [71 S. W. Rep. 148]; State v. Meyers, 99 Mo. 107 [12 S. W. Rep. 516]; State v. Magone, 32 Ore. 206 [51 Pac. Rep. 452]; Barkman v. State, 41 Tex. Cr. App. 105 [52 S. W. Rep. 73]; Davis v. State, 131 Ala. 10 [31 So. Rep. 569]; Longmire v. State, 130 Ala. 66 [30 So. Rep. 413]; Henderson v. State, 105 Ala. 82 [16 So. Rep. 931]; Harrall v. State, 26 Ala. 52; Anthony v. State, 32 So. Rep. 818 (Fla.); Gully v. State, 116 Ga. 527 [42 S. E. Rep. 790]; Cox v. State, 64 Ga. 374 [37 Am. Rep. 76n]; Archibald v. State, 122 Ind. 122 [23 N. E. Rep. 758]; State v. Benge, 61 Iowa 658 [17 N. W. Rep. 100]; State v. Johnson, 76 Mo. 121; Hochrieter v. People, 2 Abb. Dec. 363; Payton v. State, 35 Tex. Cr. App. 508 [34 S. W. Rep. 615]; Trogdon v. Commonwealth, 72 Va. (31 Gratt.) 862; Kent v. State, 42 Ohio St. 426; Hunt v. McMahan, 5 Ohio 132; Hummel v. State, 17 Ohio St. 628; Elstner v. Fife, 32 Ohio St. 358; Morris v. Faurot, 21 Ohio St. 155 [8 Am. Rep. 45]; Brooklyn St. Ry. v. Keley, 3 Circ. Dec. 393 (6 R. 155).

The failure of the court to confine, by its charge to the jury, the evidence of other offenses and acts of defendant to offenses and acts committed after the enactment of the amendatory act of April 29, 1902, or to limit the effect of such evidence, was waived by defendant's neglect to request such instructions. Jones v. State, 20 Ohio 34; Doll v. State, 45 Ohio St. 445 [15 N. E. Rep. 293]; Queen Ins. Co. v. Leonard, 6 Circ. Dec. 49 (9 R. 46); New York & St. L. Ry. v. Swartout, 6 Circ. Dec. 768 (14 R. 582); Hoppe v. Parmalee, 11 Circ. Dec. 24 (20 R. 303);

Allen County.

Mitchell v. State, 11 Circ. Dec. 446 (2 R. 24); Dollman v. Haefner, 4 Circ. Dec. 290 (12 R. 721); Schryver v. Hawkes, 22 Ohio St. 308; Boggess v. Boggess, 127 Mo. 305 [29 S. W. Rep. 1018]; Dow v. Merrill, 65 N. H. 107 [18 Atl. Rep. 317]; People v. Ah Yute, 53 Cal. 613; Missouri Pac. Ry. v. Johnson, 72 Tex. 95 [10 S. W. Rep. 325]; Lipprant v. Lipprant, 52 Ind. 273, 276; Duke v. State, 35 Texas Cr. App. 283 [33 S. W. Rep. 349]; 11 Enc. Pl. & Prac. 310; Rollins v. State, 62 Ind. 46; State v. Plefferle, 36 Kan. 90 [12 Pac. Rep. 406]; State v. Shenkle, 36 Kan. 43 [12 Pac. Rep. 309]; State v. Rook, 42 Kan. 419 [22 Pac. Rep. 626]; Gettinger v. State, 13 Neb. 308 [14 N. W. Rep. 403]; Burgett v. Burgett, 43 Ind. 78; 2 Thompson. Trials Sec. 2341; Winn v. State, 82 Wis. 571 [52 N. W. Rep. 775].

The proposition, that the mere failure of the court to instruct the jury, as contradistinguished from misdirection, upon a particular point of law arising in either a civil or criminal case, is not reversible error unless the court was specially requested to instruct upon the point, is supported by the following Ohio decisions. Taft v. Wildman, 15 Ohio 123; Jones v. State, 20 Ohio 34; Doll v. State, 45 Ohio St. 445, 452 [15 N. E. Rep. 293]; Schryber v. Hawkes, 22 Ohio St. 308; Smith v. Railway, 23 Ohio St. 10; Hills v. Ludwig, 46 Ohio St. 373 [24 N. E. Rep. 596].

Failure to object to incompetent evidence when offered constitutes a waiver of the defendant's right and cures the error, if any. Objections or exceptions cannot be raised for the first time on motion for a new trial, or in a reviewing court. 12 Cyc. of Law & Proced. 567, 817, 818, 820; 1 Thompson, Trials Sec. 700; State v. Peak, 85 Mo. 190; State v. Burnett, 81 Mo. 119; State v. Williams, 77 Mo. 310; State v. Blan, 69 Mo. 317; Harvey v. State, 40 Ind. 516; Satterly v. People, 58 N. Y. 354; Williams v. State, 61 Wis. 281; Mullinix v. State, 10 Ind. 5; Wheeler v. State, 8 Ind. 113; State v. Foot You, 24 Ore. 61 [32 Pac. Rep. 1031; 33 Pac. Rep. 380]; People v. Guidici, 100 N. Y. 503 [3 N. E. Rep. 493]; Clark v. State, 12 Ohio 483 [40 Am. Dec. 481]; State v. Preston, 77 Mo. 294; State v. McDonald, 85 Mo. 539; Turner v. People, 33 Mich. 364; Graham v. People, 115 Ill. 566 [4 N. E. Rep. 790]; State v. Meyers, 99 Mo. 107, 108 [12 S. W. Rep. 516]; Steffy v. People, 130 Ill. 519 [22 N. E. Rep. 861]; 2 Cyc. of Law & Proced. 660, 677.

Evidence of similar offenses was not incompetent because of the generality of its character. See authorities cited in the first paragraph of brief; also State v. Perigo, 70 Iowa 657 [28 N. W. Rep. 452]; Underhill, Cr. Ev. Sec. 10.

Young v. State.

See generally Brown v. State, 18 Ohio St. 496; Gravatt v. State, 25 Ohio St. 162; State v. Mook, 40 Ohio St. 588; State v. Bailey, 50 Ohio St. 636 [36 N. E. Rep. 233]; Jones v. State, 20 Ohio 34; Doll v. State, 45 Ohio St. 445 [15 N. E. Rep. 293]; Hills v. Ludwig, 46 Ohio St. 373 [24 N. E. Rep. 596]; Warder v. Jacobs, 58 Ohio St. 77 [50 N. E. Rep. 97]; Columbus Ry. v. Ritter, 67 Ohio St. 53 [65 N. E. Rep. 613]; Rufer v. State, 25 Ohio St. 464; Williams v. State, 19 Tex. App. 276; State v. Meyers, 99 Mo. 107 [12 S. W. Rep. 516]; People v. Barker, 60 Mich. 277 [27 N. W. Rep. 539; 1 Am. St. Rep. 501]; 1 Greenleaf, Evidence Sec. 229; Brown v. State, 18 Ohio St. 496; Gravatt v. State, 25 Ohio St. 162; State v. Mook, 40 Ohio St. 588; State v. Bailey, 50 Ohio St. 636 [36 N. E. Rep. 233].

Amos Young was indicted for embezzling the sum of $6,921 from The Allen County Building & Loan Association Company on September 4, 1902. He was tried and found guilty of embezzling $1,800. A motion for new trial was overruled and a bill of exceptions prepared and filed with petition in error in this court. Some twenty-one errors alleged to have occurred at the trial in the court below are thus presented to us for review. The books of the loan association used on the trial and referred to in the bill of exceptions, were not produced with said bill and we are therefore unable to pass upon the claims that the verdict of the jury was against the weight of the evidence and not supported by sufficient evidence. All the other errors complained of we have considered and will pass upon without detailed statement of the facts of the case, or extended reasons for conclusions reached.

It is said that the court erred in refusing to place the jurors on their voir dire. Such does not appear to be the case. Every juryman challenged for cause was put upon his oath for further examination; this is all that is required by Lan. R. L. 11033 (R. S. 7279).

With regard to the bill of particulars or list of errors furnished by the prosecuting attorney to counsel for the accused, we are inclined to think that the state should have been held strictly to the offering of evidence with regard to the several transactions therein noted, and no others.

Counsel for plaintiff in error, however, have failed to point out to us in the record where this course was departed from, and we have been unable to hunt out instances of such departure which may, perhaps, be found in the record, which is very voluminous.

48 O. C. C. Vol. 26

Allen County.

We do not find that the trial court erred in compelling the accused to go to trial immediately after his plea of not guilty.

We find no error in the refusal of the court to give to the jury defendant's third request to charge before argument, nor in the refusal to give defendant's requests to charge after argument, written and oral. The jury was out forty-eight hours in the consideration of this case, but we find no facts or law upon which, by reason of their being held that length of time, part of which was upon Thanksgiving Day, it can be claimed that the jury was either under duress or unduly hastened in its consideration of the case, nor was there irregularity in permitting the jury exercise upon the streets, so far as is shown by the record.

For a proper consideration of the remaining errors complained of, it is necessary to state a few facts with regard to the trial.

Amos Young had been secretary of the building association for several years prior to his indictment. The state, to prove the charge in the indictment that he embezzled some $6,000 on September 4, 1902, offered evidence of many alleged defalcations, on separate days, aggregating that amount. The statute in force when these acts were said to have commenced, was repealed April 29, 1902, and a new statute on that day enacted. Over the objection of defendant evidence was received as to irregularities before April 29, 1902, although the indictment alleged that the offense was committed after said day.

After the evidence as to these several irregularities, alleged to have been committed on different days, and from time to time, was all in, defendant moved that the state be compelled to elect upon which one of the alleged separate offenses it would depend for conviction of the defendant. This motion was overruled, and, we think, properly. The nature of the crime of embezzlement is such that although money may be received by an agent or servant from time to time, as it comes into his hands lawfully, there may be no completed crime of embezzlement until, having thus received several sums at different times, he finally refuses or is unable to account for the aggregate amount. This view of the case, taken by the trial judge as shown by his charge and ruling on the motion to elect, is supported not only by reason, but by authority. Brown v. State, 18 Ohio St. 496; Gravatt v. State, 25 Ohio St. 162; State v. Mook, 40 Ohio St. 588; State v. Bailey, 50 Ohio St. 636 [36 N. E. Rep. 233].

Now as to the effect of the repeal of the old statute and enactment of the new one defining the crime of embezzlement, on April 29, 1902. We are constrained, upon authority of the case of Campbell v. State, 35 Ohio St. 70, to hold that as the indictment charged the crime as com