Charles Lewis was sentenced to the penitentiary upon an -indictment charging simple larceny of 3,500 pounds of wool. The evidence tended to show, not simple larceny by him, but the taking and carrying away of the wool by another, and receiving and concealing it by Lewis with knowledge that it had been stolen. At request of Lewis the court made an order requiring the State to furnish the accused a bill of particulars more specifically setting forth the real accusation “in order that the defendant might be apprised of that which he is expected to defend.” • The State refused to do this, claiming that such particulars could not be more definite than the indictment, and, as the bill of exceptions states, “the defendant was forced to go into trial without said bill of particulars after it had ordered the said bill of particulars to be filed with the accused.” We hold this to be error of substantial character. In Clark v. Railroad, 39 W. Va. 733, we held that our Code. ch. 130, section 46, required such bill in civil actions for tort or on contract, if the declaration is of so general a nature as hot to apprise the party of the cause of action — where justice and fair trial, free of surprise, call for it. We said that refusal of it was not arbitrary discretion, but a basis of error. In the case we said that the principle had often been applied in criminal eases. Hot in every case can it be demanded. We said that only in cases where the law allows general statements in a declaration can specification be demanded. The right cannot in every case be used. It can only be exercised where the law allows a general statement in the pleading, but justice demands further information of the demand or accusation. It is a matter of sound, but not arbitrary discretion. This Court applies these principles in the late case of State v. Railroad, 68 W. Va. 193, 69 S. E. 703, to criminal cases, upon an indictment against a railroad company for obstructing a road by a train, the Court holding it reversible error to refuse such bill of particulars to specify which of many trains caused the obstruction. If told that Code, eh. 130, section 46, in words applies only to an “action or motion”, I would answer that if that section, a remedial one, does not apply, it is a power inherent in a court to regulate trial, and' that the constitution demands that “the accused be *474fully and plainly informed of the character and cause of the accusation/’ and thus authorizes such discretion in the court, Anyhow, there is much law applying this procedure to criminal cases. 22 Cyc. 371; Kirby v. U. S., 174 U. S. 47. Such being the right of an accused, I can at this moment think of no case calling more plainly for its application. Why? Because by our well settled law on a trial of an indictment alleging simple larceny conviction may be had, not only for simple larceny, but for receiving or concealing stolen goods, obtaining under false pretense or embezzlement. State v. Halida, 28 W. Va. 499; State v. Edwards, 51 Id. 220; Pilsnozle’s Case, 91 Va. 811. This is because statute law declares these offenses larceny. I always doubted the soundness of this rule, but it is fixed. The relief against it is the right to a specification. The indictment says that the defendant himself stole the things. On trial comes evidence that another man stole, and defendant received. Is not this legal surprise? The court made an order for a bill of particulars, thus deciding that one was called for. Why recant or ignore this order? What reason? Hone, except the mere statement of the bill of exceptions that “the attorneys for the State wholly neglected and refused to make up and give to defendant the said bill of particulars, claiming that they could not be more definite in said bill than in the indictment.” Here the court assigns neglect. We do not say that it was practicable to be more definite as to the wool; but do say that the state could have easily specified whether it was intended to prove that the defendant had himself stolen the wool from its.place of deposit, or that he had feloniously received and secreted it. We think the bill should have been required, and that it was error to ignore it. But though the refusal of the bill of particulars was error at the time of the refusal, yet we must determine whether we 'will reverse for that cause. Did Lewis suffer from it ? Where it appears that a party is not aggrieved, error is harmless. Such a bill of particulars can not be demanded where unnecessary or where the party already knows the facts. 3 Ency. PI. & Prac. 527, 529. The record of the trial from the evidence from Lewis himself shows that he shipped boxes containing the wool to Baltimore and then went there, and saw the wool and sold it. He thus had information as to receiving, that being the offense presented by the evidence of the state; *475We do not say that this would tell him that evidence on the trial would be confined to the act of receiving the wool, and no evidence of its theft by him would be given. But again he gave evidence’by himself and others to repel the charge of receiving, and it is not made to appear that he would have given more evidence had he been furnished with, a bill of particulars. We think that in order to effect reversal for this cause it ought somehow to appear that Lewis could have furnished other additional evidence to repel that charge. He should have asked the court for continuance or have filed an affidavit that he could have furnished further evidence had he been warned of the particular charge to be proven against him. Before another trial such bill of particulars should be furnished Lewis.
For future use on the subject of bills of particulars in negligence eases and generally I cite 1 Wharton Cr. Law, section 1048, and full and valuable note in 3 A. & E. Anno. Cases, 161.
A letter was given in evidence. The jury after retirement called for it and it was sent to its room. This is no error. The Code in ch. 131, section 1, says the court may allow "papers” to be carried from the bar. We discuss this matter in State v. Stover, 64 W. Va. 670.
Why give a paper in evidence at bar, and then withhold it from the jury ? 10 Ency. PI. & Prac. 593.
It is suggested, with some hesitation, by counsel, that though a conviction for receiving stolen goods may be under an indictment for larceny yet the verdict must state that the defendant was guilty of receiving. It is admitted by counsel that a search has revealed but one case to sustain this position. We cannot so hold. As our law allows conviction on an indictment for simple larceny the verdict may be guilty as charged in the indictment, without specifying the particular kind of larceny.
Two railroad shipping orders were given in eviclence to show that Lewis had shipped the wool. It is claimed they were not properly proven. This point is not sustained, as Lewis’ own evidence proves that he signed them.
The following instruction was refused defendants: “10. The court instructs the jury that in order to- warrant a conviction for a crime on evidence in whole or in part circumstantial, it is absolutely essential that all the circumstances from which a conclusion is to be drawn, and without which it could not be *476drawn, shall be established by full proof, and every circumstance essential to the conclusion must be proven in the same manner, and to the same extent, if the whole issue, that is the guilt or innocence of the defendant, had rested upon the proof of each individual and essential circumstance, and should to a moral certainty exclude every reasonable hypothesis consistent with the innocence of the accused.” We think that this instruction should have been given. It was pertinent to the case as one involving circumstantial evidence of guilt. It states a principle or rule guiding in the consideration of such evidence. It tells how its main facts must be proven, and how they must relate to each other, and harmonize to produce conviction. It may be said to be theoretical or to deal with the abstract philosophy of circumstantial evidence, and not readily understandable to an average jury; still, these abstract rules are found in the books on evidence when they tell us what principles apply to circumstantial evidence. They are of common and general use in courts. They are lights guiding the feet in the use of such evidence, as we stated in State v. Musgrave, 43 W. Va. on pages 693-4-5-6. We do not see that it is inconsistent with the majority opinion in that case. We think the instruction is sound, under legal principles as to circumstantial evidence. Of what use is the exposition of rules as to treatment of such evidence found in so many books of evidence and court opinions through centuries, if they may not, or must not, be stated to juries ? Are they only for judges and lawyers, and to be withheld from juries, the sole triers of the facts under the evidence? State v. Flanagan, 26 W. Va. 116; 12 Cyc. 487-8. It has been suggested that though this instruction is sound, as all members of the court think, yet another instruction cures its refusal, No. 6, given. It says that to convict the State must prove beyond reasonable doubt that the wool had been stolen by a person other than the defendant; that the defendant received it knowing it to have been stolen; that he received it or aided in concealing it with dishonest intent; that it was the same wool alleged to have been stolen from E. T. Lowndes. On first thought one might think that this instruction covered the ground and answered the purpose of No. 10; but on consideration we can hardly think so. This No. 6 only tells the jury what ultimate facts must be found in order to convict; it deals *477with quantity, weight or effect of evidence; whereas, No. 10 lays down the principles applying in the use of circumstantial evidence; it, tells how it is to be handled or treated in its consideration. We say that No. 10 is sound, and the party has a right to his instruction in his own words, if sound, and that its refusal cannot be excused by another instruction, unless the latter clearly covers the same end.
“When the inculpatory evidence is circunlstantial it is error to refuse a requested instruction which correctly expounds the cogency requisite in that character of proof.” Dreyer v. Stale, 11 Texas Court of Appeals 631.
We reverse the judgment, without expression on the evidence, set aside the verdict, and award a new trial, and remand the case to the criminal court of Harrison county.
Reversed and Remanded.