rights guaranteed to the defendant as a personal privilege, which he may waive at the trial, and which he does waive by not objecting to the method of procedure during the trial. Most of the cases on this point, as well as a review of them, will be found in the majority opinion or in the dissenting opinion in Shinn v. State, 150 Ark. 215, 234 S. W. 636. In that case the dissent was based upon the ground that the error complained of was not a matter of personal privilege to the defendant, but was one which affected the adminis relieved from further service herein, and this cause is continued for judgment and sentence." It will be observed that this record recites that a jury was selected and impaneled in open court. The names of the jurors are given, and the record recites that they were chosen, tried, and accepted, and sworn to try the cause. It recites that 8 of them were selected from the regular panel and 4 from the bystanders. No objection was made whatever to the manner of selecting the jury. Neither does the record recite that the de-tration of justice, and therefore could not be fendant exhausted his challenges. In Johnson v. State, 97 Ark. 131, 133 S. W. 596, it was held that a defendant convicted of a capital offense cannot complain because the trial court caused the jury to be selected from a list containing 12 jurors of the regular panel and 12 others summoned from the bystanders, if he failed to exhaust his peremptory challenges in the selection of the jury. In the recent case of Smith v. State (Ark.) 254 S. W. 463, the court held that, where a defendant on trial for a felony failed to object that certain members of the jury were selected and impaneled and sworn to try the cause without having first been sworn to answer questions touching their qualifications as jurors, he thereby waived such irregularity, and could not raise the question for the first time in his motion for a new trial, In Bowman v. State, 93 Ark. 168, 120 S. W. 80, which was a capital case, the record shows that 11 jurors were obtained before the regular panel was exhausted. At that time the state had 7 and the defendant had 17 peremptory challenges. The defendant objected to the court having 1 talesman at a time summoned, and asked that as many as 3 be summoned in order to permit him to draw. He based his request upon the section of the Digest that provides that, where the regular panel is exhausted, the court shall order the sheriff to summon bystanders to at least twice the necessary amount to complete the jury, whose names shall be placed in the box and drawn. The court held that there was no prejudicial error, calling for a reversal of the judgment, because the defendant had failed to exhaust his peremptory challenges. [5] Here, as above stated, the record does not show that any objection was made to the manner of selecting the jury. This court has held repeatedly in capital cases that there are certain constitutional and statutory waived by the defendant. Both the majority and the dissenting opinion recognized that rights which do not affect the state and are in the nature of a personal privilege may be waived by the defendant, and are waived by him where he does not object during the trial. See, also, Beard v. State, 79 Ark. 293, 95 S. W. 995, 97 S. W. 667, 9 Ann. Cas. 409. [6] It is also true that section 3414 of Crawford & Moses' Digest provides that in all cases appealed to this court, where the accused has been convicted of a capital offense, all errors of the trial court prejudicial to the rights of the defendant shall be heard by this court, whether exceptions were saved or not at the trial. In construing this act, however, this court has held that, while formal exceptions need not be saved at the trial, objections must be made to the proceedings in the trial court, in order to obtain a review of the alleged errors in this court. Harding v. State, 94 Ark. 65, 126 S. W. 90; Caughron v. State, 99 Ark. 462, 139 S. W. 315; Morris v. State, 142 Ark. 297, 219 S. W. 10; Sneed v. State, 159 Ark. 65, 255 S. W. 895. Other alleged errors are urged upon us for a reversal of the judgment, which we cannot consider, because, as stated in our original opinion, there was no bill of exceptions filed in the case. There is nothing in the record to show whether the alleged errors complained of actually occurred at the trial or not. We have only the power to review for errors occurring at the trial, which are preserved in the record and thereby presented for review. The alleged errors must be brought in the record, in order for us to consider them. The reasons for this are so apparent, and have been so repeatedly pointed out by the court in other decisions that we do not deem it necessary to repeat them. It follows that the motion for a rehearing must be denied: HALL v. STATE. (No. 24.) (257 S.W.) (Supreme Court of Arkansas. Dec. 3, 1923. Rehearing Denied Jan. 21, 1924.) sion after issuance constituting a constructive delivery to F. and his conversion of the money collected on the warrant constituting a wrongful taking under circumstances amounting to larceny. 570(1)-Conviction held authorized when evidence did not conclusively show defendant insane. 1. Indictment and information 129(1)-7. Criminal law Under Crawford & Moses' Dig. § 3016, larceny and embezzlement may be charged in one indictment, enabling the state to embrace in one indictment a charge for larceny and embezzlement where the charge resulted from the same transaction, and doubt exists whether proof fits one charge or the other. 2. Embezzlement 9, 11(1)-To constitute possession at time of conversion must be lawful. To constitute embezzlement there must be lawful possession of property in defendant at time of conversion, and the taking essential to larceny is not required, a breach of trust taking its place. 3. Indictment and information 132(5)-Refusal to require election between charges of larceny and embezzlement held not error. Where charges of larceny and embezzlement were included in one indictment, as authorized by statute, and they were provable by substantially the same evidence or evidence connected with a single line of conduct, defendant's rights were not jeopardized by a single trial, and refusal to require prosecution to elect was not error. 4. Larceny 55-Evidence held to warrant verdict of guilty. Evidence as it appears in record held to warrant jury in returning verdict of guilty of larceny. 5. Larceny 40 (8)—No variance between allegation of taking away of gold, silver, and paper money and proof that defendant cashed warrant in F.'s favor. There was no variance between allegations of an indictment charging defendant with grand larceny by feloniously taking and carrying away $1,631.97 in gold, silver, and paper money of that value, the property of F., and proof that defendant presented to State Treasurer's office a warrant in F.'s favor and received the amount of money which the face of warrant called for; a fair and legal inference from testimony in the case being that the warrants were paid in United States currency. 6. Larceny 40 (9)-Charge of carrying away F.'s property sustained by proof that warrant was constructively delivered to F. and converted by defendant. Where defendant as chairman of Board of Control rightfully caused an auditor's warrant to be issued in F.'s favor, and after issuance procured the money on it and appropriated it to his own use, when he was without authority to cash or in any manner use the warrant, there was no variance between such proof and the indictment charging defendant with grand larceny by feloniously carrying away $1,631.97, the property of F., defendant's taking posses Where, in a prosecution for larceny, it could not be said that the undisputed evidence conclusively showed that defendant was insane, evidence held legally sufficient to warrant verdict of guilty. 8. Criminal law 370, 371 (2)-Evidence of other transactions admissible to show guilty intention. In a prosecution for larceny for wrongful conversion of an auditor's warrant, evidence that defendant chairman of the Board of Control had procured similar warrants of others and cashed them, was admissible to show his intent or guilty knowledge, subject to proper instructions. 9. Criminal law 7221⁄2-Other offenses properly in evidence, proper subject of comment by prosecution. In a prosecution for larceny, evidence of other acts of theft by defendant was a proper subject of comment by prosecution where such evidence had been properly admitted to shed light on defendant's guilty intent with respect to the particular transaction laid in the indictment. 10. Criminal law 720(6)-On issue of insanity, that defendant practiced law after commission of crime proper subject of argument. In a prosecution for larceny, tried a year and a half after commission of offense, where the defense was insanity, and testimony showed that defendant had practiced law since the year before the trial, it was not error for the prosecution to argue that to the jury. 11. Criminal law 725-Argument concerning punishment given to others for similar offenses held not error. In a prosecution for larceny, where the defense was insanity and record showed that the jury was composed of nine of the regular panel and three talesmen, it was not error to argue to the jury that defendant "steals all this money and goes to the asylum. You saw that poor negro plead guilty here this morning for stealing $100 worth of automobile tires, all of which was recovered, and the court gave him four years in the pen," when the jury fixed defendant's punishment at four years' imprisonment, since those on the regular panel were bound to know what had happened in their presence in the court proceeding before commencement of defendant's trial, and the prosecuting attorney was not stating a substantive fact not proved in the case, but was merely expressing his opinion about the duty of jurors in law enforcement. 12. Criminal law 713-Wide range given to arguments of counsel. A wide range must be given to the arguments of counsel to the jury and much discretion left to the court. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Pulaski Coun- ed in the same indictment and the defendty; John W. Wade, Judge. ant tried on both charges at the same time W. H. Hall was convicted of grand lar- where they grew out of the same transacceny, and he appeals. Affirmed. Kirby & Hays, of Little Rock, for appellant. J. S. Utley, Atty. Gen., and John L. Carter, Wm. T. Hammock, and Darden Moose, Asst. Attys, Gen., for the State. ᎻᎪᎡᎢ, J. W. H. Hall prosecutes this appeal to reverse a judgment and sentence of conviction against him for the crime of grand larceny. The indictment contains two counts, and it is insisted that the circuit court erred in not requiring the prosecuting attorney to elect on which count he would try the defendant. Under the first count, W. H. Hall is charged with the crime of grand larceny committed by feloniously taking and carrying away $1,631.97, the property of J. B. Ford Company, a corporation. In the second count, W. H. Hall is accused of the crime of embezzlement by wrongfully converting to his own use $1,631.97 belonging to the J. B. Ford Company, a corporation, which was in his possession as bailee for said corporation. The court refused to require the prosecuting attorney to elect, and the defendant was tried for grand larceny and embezzlement at the same time. The trial resulted in an acquittal on the embezzlement charge, and in a conviction on the larceny charge. [1, 2] There was no error in refusing to require the prosecuting attorney to elect. Under section 3016 of Crawford & Moses' Digest, larceny and embezzlement may be charged in one indictment. The evident purpose of the statute was to enable the state to embrace in one indictment a charge for larceny and embezzlement, where the charge resulted from the same transaction and it might be doubtful whether the proof would fit the one charge or the other. Larceny and embezzlement belong to the same family of crimes. If the actual or constructive possession of the property was in the owner, then the wrongful conversion would be larceny and not embezzlement. There must be lawful possession in the defendant at the time of the conversion to constitute embezzlement. The distinguishing feature of embezzlement is that the taking essential to larceny is not required, a breach of trust taking its place. [3] The charge of larceny and that of embezzlement in the present case grew out of the same transaction and related to the same warrants. Hence under the statute they were properly charged in the same indictment and the two charges might be tried together, just as under a different subdivision of the same section forgery and the uttering of a forged instrument may be join tion and related to the same instrument. Zachary v. State, 97 Ark. 176, 133 S. W. 811. Where the statute authorizes two offenses of a kindred nature to be joined in one indictment, and they would be proved by substantially the same evidence, or evidence connected with a single line of conduct, it necessarily follows that the defendant's rights are not jeopardized by a single trial. Therefore we hold that this assignment of error is not well taken. [4] It is next insisted that the evidence is not legally sufficient to sustain the verdict. According to the evidence for the state, W. H. Hall was chairman of the board of control for state charitable institutions in the state of Arkansas, during the period of the transactions involved in this case. Vouchers were issued to the J. B. Ford Company, a corporation, in the sum of $1,631.97 for merchandise and supplies sold to the state by said corporation. After these vouchers had been issued by the board of control, of which W. H. Hall was chairman, they were filed with the auditor of state as required by the statute, and warrants were drawn by him on the state treasurer for said amounts. These warrants were carried to the office of the state treasurer and were there paid by him to the person having the warrants in his possession. The treasurer required the person having possession of the warrants to indorse the same before he would pay them. According to the testimony of the warrant clerk in the treasurer's office, warrant No. 17, issued on January 3, 1922, for $975.80, payable to the J. B. Ford Company, is shown by the record to have been paid to W. H. Hall on January 7, 1922. The warrant clerk also exhibited the original warrant, and it bears the indorsement of W. H. Hall. It is also shown that other warrants payable to the same corporation were paid by the treasurer to the stenographer of the defendant, Hall. It is also shown that warrants issued to other persons for merchandise furnished by them to the state were presented by the defendant for payment at the state treasurer's office, and that the money was paid to him. It was shown by the employees of the J. B. Ford Company that W. H. Hall had no authority to collect the money due that corporation on said warrants. It was also shown by numerous other persons that W. H. Hall presented warrants which had been issued to them at the office of the state treasurer, and that these warrants were paid to him. The said defendant had been given no authority to collect said warrants. According to the testimony of a stenographer who worked in the office of the board of control since November, 1921. she (257 S.W.) The evidence for the state showed that a warrant for $975.80 was issued on the state treasury on January 3, 1922. This warrant was issued on a claim allowed by the board of control in favor of the J. B. Ford Company for merchandise which it had sold the state under a contract with the Board of Control. was there for about five months during the silver, and paper money of that value, the time that the defendant was chairman of property of J. B. Ford Company, a corporathe board of control and before he resigned tion. his office. She receipted for the warrant for $975.80 which had been issued to the J. B. Ford Company and gave the warrant to the defendant. She sometimes cashed warrants, which had been issued to persons who had sold merchandise to the State Charitable Institutions at the state treasurer's office, but did this because the defendant told her to do so. In each instance, she gave the money which she received at the state treasurer's office by cashing the warrants to the defendant, and never gave any money to any other member of the board. No other member of the board except the defendant ever handled any of the warrants issued to merchants who had sold supplies to the state charitable institutions under contracts made with the board of control. The witness receipted for the warrant for $975.80 issued to the J. B. Ford Company, and gave the warrant to the defendant. She knew that she did not cash the warrant because her name is not indorsed on it. It appears from the testimony of the warrant clerk in the state treasurer's office that this warrant was presented at that office, and the warrant clerk testified that it was paid by the state treasurer to W. H. Hall. The original warrant was exhibited and bore his indorsement. The office always required the one who received money on a warrant to indorse the warrant. Here we find that the witness testified that the state treasury paid the amount of the warrant to the defendant, and that the defendant received the amount of money which the face of the warrant called for. The warrant was issued on the treasurer for the amount found to be due to the J. B. Ford Company on the claim in its favor al dise sold by that company for the use of the state charitable institutions. The warrant was issued pursuant to section 9332 of Crawford & Moses' Digest. Evidence was introduced by the defendant tending to show that he was insane during the period of time involved in these transac-lowed by the board of control for merchantions. He resigned his office in March, 1922, and was confined in the State Hospital for Nervous Diseases for some time thereafter. Various members of the medical staff in the hospital and other physicians testified that A stenographer testified that she had the defendant was insane from the exces- cashed warrants at the office of the state sive use of alcoholic liquors, or perhaps from treasurer at the request of the defendant, other causes. Some of these experts state and delivered the money which she received that while they observed that the defendant was addicted to the excessive use of intoxi- to the defendant. These warrants were iscating liquors for some time before he re- sued to merchants who had furnished supsigned, they could not state that he was in-plies to the state under contracts with the sane on this account or for any other rea- board of control, and vouchers for the amounts of their claims had been previously Other witnesses testified that the defend-issued by said board. ant was addicted to the excessive use of alcoholic liquors for some time before he resigned, and that such excessive use showed itself in various ways in the conduct of his office, but that they could not state that he was insane at the time. The peculiarities of his conduct might only have resulted from his excessive use of intoxicating liquors and not from insanity caused thereby. son. The above is a brief recital of the substance of the evidence adduced in favor of the state and for the defendant. After a careful consideration of the evidence as it appears in the record, we are constrained to hold that the jury was warranted in returning a verdict of guilty on the larceny count of the indictment. [5] Under the above testimony, there was no variance between the allegations of the indictment and the proof. On the first count, the grand jury accused the defendant of the crime of grand larceny by feloniously taking and carrying away $1,631.97 in gold, It is fairly and legally inferable from the above testimony that the warrants were paid in United States currency, which is the medium of exchange in this state. The money deposited in the state treasury was for the payment of state taxes of various kinds, and they were paid in United States currency, which is the only lawful medium of exchange in this state. When the witnesses testified that the warrants were cashed at the state treasurer's office or that the money was paid to the defendant on these warrants, it is fairly inferable that they meant that the warrants were paid in United States currency. We think this is the effect of our previous decisions on this branch of the case. Cook v. State, 130 Ark. 90, 196 S. W. 922, and Kent v. State, 143 Ark. 439, 220 S. W. 814. [6] But it is insisted that the testimony is not legally sufficient to warrant the verdict, because there is no direct proof that the warrants had been delivered to the J. B. Ford Company, and, on this account, there is a variance between the ownership of the property as laid in the indictment, and as shown by the proof. We cannot agree with counsel in this contention. We think the circumstances related above show that the money charged to have been stolen was constructively, at least, in the possession of the J. B. Ford Company. It undoubtedly shows that a voucher for the amount of the money was issued to that company by the board of control as required by statute. Then this voucher was filed with the auditor of the state, and he duly issued his warrant for the amount on the state treasury as he was required to do by the statute. "If one hires a horse and sells it before the journey is performed, or sells it afterward before it is returned, does not commit larceny thereof if the felonious intent comes to him only after he takes it into his possession. But London to go to Barnet, the jury were instructwhere one had a horse from a livery stable in ed that when he had accomplished the journey, and also brought the horse back to London, which under the contract of hiring he was to do, then if instead of delivering it to the owner he 'converted it after such return to his own use, he is thereby guilty of felony; for the end and purpose of hiring the horse would then be ceives the horse to convert it to his own use, over.' And if the hirer intends when he rehe thereby commits larceny; to complete which conversion." there need be no subsequent act of sale or It is true that this warrant was never actually delivered to any authorized agent of the J. B. Ford Company, which is a corporaIn Wharton's Criminal Law (11th Ed.) vol. tion. The defendant, however, took the war-2, § 1195, p. 1412, the author says that where rant and presented it at the treasurer's office, one having only the care, charge, or custody where the face of it was paid to him in of property for the owner converts it animo money. He was not authorized to cash the furandi, it is larceny. warrant or in any manner to use it. His act in cashing the warrant then constituted a wrongful conversion of it, and his appropriating the money which he received on it to his own use, together with other circumstances, showed that he intended to take the money under such circumstances as to commit larceny. It was the duty of the defendant as chairman of the board to issue a voucher for the warrant in question. He had no authority to have the warrant delivered to himself for Following the rule in Commonwealth v. Williamson, 96 Ky. 1, 27 S. W. 812, 49 Am. St. Rep. 285, it was held that, if the owner of goods parts with their possession for a particular purpose, and he who receives such possession avowedly for that purpose, has a fraudulent intention to make use of the possession as a means of converting the goods to his own use, and does so convert them, it is larceny. The court said that in such a case the question of intent was for the jury. So, too, in Morrison v. State, 17 Tex. App. 34, 50 Am. Rep. 120, the Texas Court of Appeals held that, where one hires a horse and subsequently converts it, an indictment for larceny will not lie unless it was shown that the felonious intent existed at the time of hiring. So it may now be considered settled that the question of intention is for the consideration of the jury, and where it may be said that the defendant came into the possession of personal property, by the express or implied consent of the owner, to warrant his conviction for larceny, this fraudulent intent to take the property or the animus furandi at the time of its original taking must be established beyond a reasonable doubt. the corporation. He cannot take advantage of his own wrong and escape the penalties of the statute by saying that the warrant was never delivered to its rightful owner. The fact remains that he took possession of it after it had been rightfully issued and procured the money on it at the office of the state treasurer. His wrongful act in this respect constituted a constructive delivery to the rightful owner of the warrant; and his conversion of the money colletted on the warrant constituted a wrongful taking of it under such circumstances as amounts to larceny. He was never rightfully in possession of the warrant or the money derived by cashing it, and he was not, therefore, guilty of embezzlement. He rightfully caused the voucher to be issued in favor of the J. B. Ford Company, and he cannot now claiming was left to the jury and, from the evithat there was no actual delivery of the voucher, or the warrant issued on it, to that company because he wrongfully cashed the same at the state treasurer's office and converted the money to his own use. His wrongful act in presenting the warrant at the treasurer's office constituted, at least, a constructive delivery to the J. B. Ford Company, and his cashing the same and wrongfully converting the money thereby to his own use constituted the crime of larceny. Mr. Bishop, in his work on Criminal Law, vol. 2, § 864, says: In the present case the question of the intention of the defendant in the original tak dence introduced, the jury might have found that while he had lawful authority to issue the voucher in favor of the J. B. Ford Company and to have a warrant issued for the amount of its claim and deliver it to the company, it was the intention of the defendant from the very beginning to cash this warrant in the state treasurer's office, and to convert the money secured thereby to his own use. This would amount to larceny within the rule just announced. In the application of the same principle in Arkansas National Bank v. Johnson, 122 |