The court, in its main charge, instructed the jury that if they believed “ that this defendant, when he collected that money, at any timé from the time he. collected it up to the time of his indictment, did not. intend to deliver the proper share to the complaining witness, then he is guilty of larceny as alleged, and your verdict will be guilty.” At the conclusion' of the charge defendant’s counsel requested the .court to charge the jury that no matter what the defendant’s intént “ may have been, that he had a right to the possession of the money until the minds of the parties met as to. the amount to which each was entitled.” Also: “ That unless there was a deception practiced upon the complaining witness a conviction cannot be had, and the defendant would not be guilty of larceny •until a demand was made for the sum due from him to his client.” And: “ That unless the jury find, as a matter of fact,, that there was deception practiced, they cannot convict. .The defendant would not be guilty, no matter what his intentions were, unless a demand were made upon him.” These requests were denied and exception taken in each instance, and in declining the last one quoted the court further emphasized what he had said in the main charge as to intent, saying:, “ If the jury believe that between August, 1907, and January 18th, there was an intent on the part of the defendant to misappropriate that $250 to his own use and not turn it over to his client — if they find that that intent existed, they may convict. And! it' was not necessary, to constitute that crime, that he should be guilty of any deceit to his client that he had or had not collected it.” Exception was duly taken' to this instruction.
I am of the opinion that the court erred in giving the instructions which it did, and also in refusing to charge as requested. When the Whole charge is considered, with the- refusals to charge, it will *129be seen that the court, in effect, instructed the jury that in order to convict it was not necessary for them to find that a demand was made by the complaining witness for her share of thé money, or that the defendant practiced any deception in withholding the money from her; but they could convict if they found, between August, 1907, and January eighteenth, there was an intent on the part of the defendant to misappropriate the share of the complaining witness and not turn it over to her; in other words, the court charged the jury that if the defendant had an evil intent in relation to the money in question, he might be convicted, although he did no overt act in connection with its misappropriation.
As to whether the defendant’s neglect or refusal to pay to the complaining witness her share of the money was due to a dispute between them as to the amount which she was entitled to receive — as he says it was — was a close question of fact, and defendant’s claim is corroborated to some extent at least by the attitude of the complaining witness at the trial when she declined to accept $250, though assured it would have no effect whatever upon the trial.
There being such a close question of fact, I think the court erred in instructing the jury as it did as to intent and refusing to charge as requested by defendant’s counsel, and for that reason the judgment of conviction should be reversed and a new trial ordered.
Judgment affirmed.