
    EMBEZZLEMENT — JURY—CRIMINAL LAW.
    [Allen (3rd) Circuit Court,
    October, 1904.]
    Day, Norris and Winch., JJ.
    (Judge Winch of the Eighth Circuit, sitting in place of Judge Mooney.)
    Amos Young v. State of Ohio.
    1. JurtmeN Need not be Sworn Upon Their Voir Dire Until Challenqed for Cause in Criminal Case.
    In the trial of a criminal case, jurymen need not be sworn upon their voir dire until challenged for cause.
    2. Evidence in Embezzlement Restricted to Transactions in Bill of Particulars.
    In an embezzlement case, the prosecuting attorney haying furnished the accused at his request a bill of particulars of the several transactions which the state proposes to prove to maintain its case, the evidence should be restricted to such transactions.
    3. Forty-eight Hours Consideration of Criminal Case by Jury not Duress, nor Exercise Upon Streets in Sheriff’s Custody, Irregularity.
    The mere fact that a jury in a criminal case was held forty-eight hours in consideration of the case, part of which was Thanksgiving Day, is not sufficient to show that the jury was either under duress or unduly hastened in its consideration of the case, nor is the mere fact that the jury was permitted exercise upon the streets, in custody of the sheriff, such irregularity as to require a reversal of the judgment.
    4. Election Cannot be Required Where Several Acts of Embezzlement are not Complete Until Refusal to Account.
    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. Hence a motion to require the state to elect upon which one of the several sums so received it will rely for a conviction should be overruled where the indictment charges in one count the embezzlement of the aggregate sum on a particular day.
    E. Evidence Should be Limited to Time Statute, Under Which Indictment Found is in Force.
    Under an indictment for the embezzlement of $6,921, alleged to have been committed September 4, 1902, it is error to admit evidence of the alleged embezzlement of part of said amount prior to April 29, 1902, on which day the legislature repealed the old statute, defining the crime of embezzlement, and enacted a new statute on the subject. Campbell v. State, 35 Ohio St. 70 followed.
    ERROR.
    Ridenour & Halfhill and Richie & Richie, for plaintiff in error:
    The claim of embezzlement charged against the defendant consisted in a series of takings covering a period of five years; the eonfession of defendant as to having taken $2,000 of the association’s money was so general' as to be incompetent, giving neither names,, dates, amounts or any other specific details. Underhill, Cr. Év. Sec. 290, and cases cited.
    By the act of April 28, 1902, the statute defining embezzlement was repealed and a new act passed, which became effective May 1, 1902; the indictment was for a gross amount ($6,921) and did not aver that a certain amount had been embezzled during the existence-of the repealed statute and a specified part under the new statute;, hence, evidence tending to show an offense committed before' April 28, 1902, was inadmissible. Campbell v. State, 35 Ohio St. 70, 77.
    The prosecuting attorney furnished a bill of particulars specifying the amounts and the times when taken, upon which he relied. On the trial he introduced evidence over objection of defendant tending to show other distinct offenses. This was prejudicial error. Wharton, Cr. Pr. & Proced. Sec. 705, and cases cited.
    William Klinger, prosecuting attorney, for defendant in error:
    [Synopsis of brief submitted in Supreme Court.] The amendatory act of April 29, 1902, did not change the rules of evidence, relating to ■the admission of evidence of other like offenses and similar acts under an indictment for embezzlement. Evidence of such offenses and acts are competent against the accused. The case of Campbell v. State, 35 Ohio St. 70, is not opposed to this contention, as a careful reading of that case will show that the court did not hold that acts of embezzlement committed prior to the enactment of the new law, and while the old law was in force, were inadmissible. 10 Am. & Eng. Enc. Law (2 ed.) 1033, 1036; Commonwealth v. Sawtelle, 141 Mass. 140 [5 N. E. Rep. 312]; 12 Cyc. of Law & Proced. 411, 412; State v. McDaniel, 39 Ore. 161 [65 Pac. Rep. 520]; State v. Brady, 100 Iowa 191 [69 N. W. Rep. 290 - 62 Am. St. Rep. 560; 36 L. R. A. 693]; Commonwealth v. Robinson, 146 Mass. 571, 575 [16 N. E. Rep. 452]; Reeves v. State, 95 Ala. 31 [11 So. Rep. 158]; Reg v. Richardson, 8 Cox C. C. 448; Reg v. Balls, L. R. 1 C. C. 328 [40 L. j. M. C. 148]; Stanley v. State, 88 Ala. 154 [7 So. Rep. 273]; Chambers v. State, 26 Ala. 59; State v. Mathews, 98 Mo. 125 [10 S. W. Rep. 144; 11 S. W. Rep. 1135]; Guthrie v. State, 16 Neb. 667 [21 N. W. Rep. 455]; State v. Kent, 5 N. D. 516 (67 N. W. 1052; 35 L. R. A. 518]; 11 Am. & Eng. Enc. Law (2 ed.) 513, 514; New York Mut. L. Ins. Co. v. Armstrong, 117 U. S. 591 [6 Sup. Ct. Rep. 877; 29 L. Ed. 997]; Butler v. Watkins, 80 U. S. (13 Wall.) 456 [20 L. Ed. 629]; People v. Gray, 66 Cal. 271 [5 Pac. Rep. 240]; 6 Am. & Eng. Enc. Law (1 ed.) 501; Reg v. Proud, 9 Cox C. C. 22; Brown v. State, 26 Ohio St. 176; Underhill, Cr. Ev. See. 283.
    The accused waived all objections to the admission of evidence, except as to the specific grounds alleged by him in his objection, and new grounds of objection cannot be raised for the first time on motion for a new trial, or in the reviewing court. Also, the failure of accused to ask for, certain instructions, whether proper or not, will be treated as a waiver of such instructions; and evidence or errors at the trial, not excepted to at the time, are held to be waived. 12 Cyc. of Law & Proced. 820; 1 Thompson, Trials Secs. 693, 694; Rush v. French, 1 Ariz. Ter. 99 [25 Pac. Rep. 816]; 1 Thompson, Trials 562; State v. McGinnis, 158 Mo. 105 [59 S. W. Rep. 83]; State v. Phillips, 24 Mo. 475; Holds-worth v, Tucher, 147 Mass. 572 [18 N. E. Rep. 430]; Ladd v. Sears, 9 Ore. 244; 1 Am. & Eng. Enc. Law (1 ed.) 624; Harrington v. Minor, 80 Mo., 270; Weilandy v. Lemuel, 47 M6. 322; Easley v. Elliott, 43 Mo. 289; Fortier v. Bank, 112 U. S. 439 [5 Sup. Ct. Rep. 234; 28 L. Ed. 764]; State v. Hope, 100 Mo. 347 [13 S. W. Rep. 490; 8 L. R. A. 608]; Talbot v. Taunton (City), 140 Mass. 552 [5 N. E. Rep. 6167]; Chapman v. Moore, 107 Ind. 223 [8 N. E. Rep. 80] ; Thompson v. Building & A. Assn. 103 Ind. 279 [2 N. E. Rep. 735]; Miller v. Bradish, 69 Iowa 278, 279 [28 N. W. Rap. 594]; Shafer v. Ferguson, 103 Ind. 90 [2 N. E. Rep. 302]; Miles v. Albany, 59 Yt. 79 [7 Atl. Rep. 601]; Feidler v. Motz, 42 Kan. 519 [22 Pac. Rep. 561]; Steffy v. People, 130 Ill. 98 [22 N. E. -Rep. 861]; O’Neill v. Railway, 115 N. Y. 579 [22 N. E. Rep. 217; 5 L. R. A. 591]; 16 Am. & Eng. Enc. Law (1 ed.) 634; House v. Alexander, 105 Ind. 109 [4 N. E. Rep. 891; 55 Am. Rep. 189]; Landwerlen v. "Wheeler, 106 Ind. 523 [5 N. E. Rep. 888]; Northwestern Mut. L. Ins. Co. v. Hazelett, 105 Ind. 212 [4 N. E. ,Rep. 582; 55 Am. Rep. 192]; Louisville, N. A. & C. Ry. v. Grantham, 104 Ind. 353 [4 N. E. Rep. 49]; Smythe v. Scott, 106 Ind. 245 [6 N. E. Rep. 145]; Helena v. Albertose, 8 Mont. 499 [20 Pac. Rep. 817]; Stringer v. Frost, 116 Ind. 477 [19 N. E. Rep. 331; 2 L. R. A. 614; 9 Am. St. Rep. 875n]; Clark Civil Tp. v. Brookshire, 114 Ind. 437 [16 N. E. Rep. 132]; Chicago & E. Ry. v. Holland, 122 Ill. 461 [13 N. E. Rep. 145]; Vickery v. McCormick, 117 Ind. 594 [20 N. E. Rep. 495]; Louisville, N. A. & C. Ry. v. Falvey, 104 Ind. 409 [3 N. E. Rep. 389; 4 N. E. Rep. 908]; McCullough v. Davis, 108 Ind. 292 [9 N. E. Rep. 276]; Byard v. Harkrider, 108 Ind. 376 [9 N. E. Rep. 294]; Metger v. Bank, 119 Ind. 359 [21 N. E. Rep. 973]; Bundy v. Cunningham, 107 Ind. 360 [8 N., E. Rep. 174]; Boston v. Murray, 94 Mo. 175 [7 S. W. Rep-. 273]; Bindord v. Young, 115 Ind. 174 [16 Ñ. E. Rep. 142]; Salisbury v.- Howe, 87 N. Y. 128; Reab v. McAleister, 8 Wend. 109; Cnreton v. Dargan, 16 S. C. 619; Davis v. United States, 107 Fed. Rep. 753; Lawrence v. Commonwealth, 86 Ya. 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, 13d N. C. 705 [41 S. E. Rep. 803]; State v. Kinsauls, 126 N. C. 1095 [36 SE. 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. Me-Mullin, 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 [8 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 & Proeed. 563; Bradner, Evidence (2 ed.) 717, Sees. 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; Yoorman v. Yoight, 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. 90Í]; 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. 1]; State v. Gunn, 106 Iowa 120 [76 N. W. Rep. 510]; State v. Brady, 100 Iowa 191 [69 N. W. Rep. 290; 36 L. R. A. 693; 62 Am. St. Rep. 560] ; State v. Perry, 51 La. Ann. 1074 [25 So. Rep. 9.44]; 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 y. 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. Mnrpby, 9 Nev. 394; State v. Flanders, 38 N. H. 324; People y. Place, 157 N. Y. 584 [52 N. E. Rep. 576]; Gaffney y. People, 50 N. Y. 416; Height y. People, 50-N. Y.' 392; People v. Webster, 59 Hnn 398 [13 N. Y. Snpp. 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 y. Sexton, 10 S. D. 127 [72 N. W. Rep. 84]; State v. La Croix, 8 S. D. 369 [66 N. W. Rep. 944]; Barfield y. State, 41 Tex. Cr. App. 19 [51 S. W. Rep. 908]; McGrath y. 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 y. State, 40 Ala. 357; Kirby v. State, 32 So. Rep. 836 (Fla.) ; State y. Bartlett, 170 Mo. 658 [71 S. W. Rep. 148]; State y. Meyers, 99 Mo. 107 [12 S. W. Rep. 516]; State-y. 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 y. 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; Hoehrieter v. People, 2 Abb. Dec. 363; Payton v. State, 35 Tex. Cr. App. 508 [34 S. W. Rep. 615]; Trogdon.v. Commonwealth, 72 Ya. (31 Gratt.) 862; Kent v. State, 42 Ohio St. 426; Hunt v. McMahan, 5 Ohio 132; Hummel v. State, IT 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. Swartóut, 6 Circ. Dec. 768 (14 R. 582) ; Hoppe v. Parmalee, 11 Circ. Dec. 24 (20 R. 303).;. Mitchell v. State, 11 Circ. Dec. 446 (2 E. 24) ; Dollman v. Haefner, 4 Circ. Dec. 290 (12 E. 721) ; Schryver v. Hawkes, 22 Ohio St. 308; Boggess v. Boggess, 127 Mo. 305 [29 S. W. Eep. 1018]; Dow v. Merrill, 65 N. H. 107 [18 Atl. Eep. 317]; People v. Ah Tute, 53 Cal. 613; Missouri Pac. Ey. v. Johnson, 72 Tex. 95 [10 S. W. Eep. 325]; Lipprant v. Lipprant, 52 Ind. 273, 276; Duke v. State, 35 Texas Cr. App. 283 [33 S. W. Eep. 349]; 11 Enc. PI. & Prac. 310; Eollins v. State, 62 Ind. 46; State v. Plefferle, 36 Kan. 90 [12 Pac. Eep. 406] ; State v. Shenkle, 36 Kan. 43 [12 Pac. Eep. 309] ; State v. Eook, 42 Kan. 419 [22 Pac. Eep. 626]; Gettinger v. State, 13 Neb. 308 [14 N. W. Eep. 403] ; Burgett v. Burgett, 43 Ind. 78; 2 Thompson. Trials Sec. 2341; Winn v. State, 82 Wis. 571 [52 N.- W. Eep. 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. Eep. 293]; Sehryber v. Hawkes, 22 Ohio St. 308; Smith v. Eail-way, 23 Ohio St. 10; Hills v. Ludwig, 46 Ohio St. 373 [24 N. E. Eep. 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. T. 354; Williams v. State, 61 Wis. 281; Mubini? "v. State, 10 Ind. 5; Wheeler v. State, 8 Ind. 113; State v. Foot You, 24 Ore. 61 [32 Pac. Eep. 1031; 33 Pac. Eejl. 380]; People v. Guidici, 100 N. Y. 503 [3 N. E. Eep. 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. Eep. 790]; State v. Meyers, 99 Mo. 107, 108 [12 S. W. Eep. 516]; Steffy v. People, 130 Ill. 519 [22 N. E. Eep. 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. Eep. 452]; Under-hill, Cr. Ev. Sec. 10.
    
      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],
   WINCH, J.

(Orally.)

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 ease, 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.

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

1 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 ease, 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 committed since said, repeal of the old statute, all evidence as to alleged offenses committed before said day, should have been excluded and that the jury should have been charged that under the indictment it could only consider transactions of the accused since said day. It is immaterial that this proposition was not argued to the trial court, as is claimed. The evidence offered as to alleged shortages before April 29, 1902, was objected to and admitted over defendant’s objection. Whether he gave the proper reason why it should be excluded is immaterial. He asked that it be excluded. It was his right under the authority cited to have it excluded. It was admitted over his objection and his rights were thereby ignored. Such being his rights it was also the duty of the trial judge to protect them in the charge to the jury and this was not done. Proper exceptions to the charge were taken and this we find to be the .only error in the charge, prejudicial to the defendant.

Many exceptions. to the admission of this incompetent testimony, too numerous to mention, are found in the bill of exceptions.

It remains, however, to point out that this vice is lurking in the so-called confessions of the accused. Not only were these alleged confessions altogether too general and lacking in particularity as to time and amount to be admissible, but as neither the court nor jury could determine whether they referred to transactions before or since April 20, 1§02, they should have been excluded.

It follows that the motion for a new trial should have been granted, and for error in overruling it and for errors in the admission of evidence and the charge, as specified, the judgment of the common pleas court is reversed and the case remanded to the common pleas court for new trial.

Day and Norris, JJ., concur.  